Introduction
The unauthorised distribution and consumption of films online, commonly known as piracy, presents a persistent and significant economic threat to the creative industries. The digital environment allows for the rapid, widespread and often anonymous copying and sharing of copyrighted works, posing complex challenges for enforcement. UK law, primarily through the Copyright, Designs and Patents Act 1988 (CDPA 1988), provides a framework for protecting intellectual property, including films. This essay will examine how this legal framework applies to the piracy of a fictional film, 'Odyssey', which has been made available without permission on an online platform referred to as 'X'.
This analysis will begin by establishing how copyright subsists in a film like 'Odyssey'. It will then explore the different forms of copyright infringement that may occur, distinguishing between the primary infringement committed by individual users who upload or download the film, and the potential secondary liability of the operators of platform 'X'. This essay will argue that while UK copyright law provides robust protection for films and clear grounds for action against end-users, establishing liability for online intermediaries like 'X' is more complex and fact-dependent. Consequently, pragmatic enforcement has increasingly focused on obtaining blocking injunctions against internet service providers to disrupt access to infringing platforms, rather than pursuing every individual infringer or elusive platform operator.
Copyright Protection for the Film 'Odyssey'
For any action for infringement to succeed, the claimant must first establish that copyright subsists in the work in question. Under the CDPA 1988, a film is a protected category of work (s.1(1)(b)). A 'film' is defined as 'a recording on any medium from which a moving image may by any means be produced' (s.5B(1) CDPA 1988). The film 'Odyssey' would comfortably fall within this definition. The film is also an original dramatic work. Originality in copyright law does not require novelty or inventive thought, but rather that the work originated from the author and was not copied (Bently et al, 2022). This threshold is generally low and easily met by a feature film.
The 'authors' of a film are the producer and the principal director, who are treated as joint authors (s.9(2)(ab) CDPA 1988). However, the first 'owner' of the copyright is typically the person by whom the arrangements necessary for the making of the film are undertaken, which is the producer (s.11(1) CDPA 1988). In the context of 'Odyssey', this would likely be the production company. Copyright protection in a film is automatic and does not require registration. It lasts for a considerable period: 70 years from the end of the calendar year in which the last of the principal director, the author of the screenplay, the author of the dialogue, or the composer of any music specially created for the film dies (s.13B(2) CDPA 1988). It is therefore clear that a new film such as 'Odyssey' would be protected by copyright, with the production company being the owner and having the exclusive right to control its use.
Primary Infringement by Users
Primary infringement consists of performing one of the acts restricted by copyright without the permission of the copyright owner (s.16(1) CDPA 1988). It is a form of strict liability, meaning the infringer’s knowledge or intention is irrelevant. In the online piracy of 'Odyssey', several restricted acts are relevant.
The most basic infringing act is copying. Section 17(1) of the CDPA 1988 states that copying a work means reproducing it in any material form, which includes 'storing the work in any medium by electronic means'. A user who downloads a file of the film 'Odyssey' from platform 'X' onto their computer’s hard drive is making a copy and thus infringing copyright. Similarly, a user who uploads the film file to platform 'X' is also making a copy.
A more significant act in the online context is the communication of the work to the public, as restricted by section 20 of the CDPA 1988. This right includes 'the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them'. This 'making available' right directly targets 'on-demand' services and peer-to-peer file-sharing. A user who uploads 'Odyssey' to platform 'X', allowing others to stream or download it, is making the work available to the public and therefore committing an act of primary infringement. This right was introduced to implement Article 3 of the Information Society Directive 2001/29/EC and is central to combating online piracy (Aplin, 2020). Therefore, any individual user who shares 'Odyssey' on 'X' would be a primary infringer.
The Liability of Platform 'X'
While individual users are infringers, from a practical standpoint, it is often inefficient or impossible for a rights holder to pursue a multitude of anonymous individuals. A more effective strategy is to target the entity that facilitates the infringement, in this case, the platform 'X'. The liability of 'X' is more complex and will generally fall under secondary infringement or the doctrine of authorisation.
Secondary infringement requires 'knowledge or reason to believe' that the activities in question relate to an infringing copy of a work. For an online platform, a key provision is section 24(1)(c) of the CDPA 1988, which imposes liability on a person who, in the course of a business, transmits a work via a telecommunications system 'knowing or having reason to believe that infringing copies of the work will be made by means of the reception of the transmission'. If 'X' operates a streaming service that it knows is being used to broadcast 'Odyssey' without a licence, it could be liable under this section.
More commonly, rights holders seek to establish that the platform 'authorised' the infringing acts of its users. Authorisation is an act of primary infringement under section 16(2) of the CDPA 1988. The classic test for authorisation was set out in CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013, where the House of Lords held that merely providing the equipment that could be used for infringement (in that case, a twin-deck tape recorder) was not authorisation. Lord Templeman stated that authorisation means to "grant or purport to grant to a third person the right to do the act complained of".
This test has proved challenging to apply to online intermediaries. However, the courts have adapted their approach. In Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch), the High Court found that the operators of a website that indexed infringing content available on Usenet went far beyond being passive facilitators. Newzbin provided a curated, easy-to-use service that encouraged and guided users to infringing content. Kitchin J held that this level of control and active involvement amounted to authorisation of the infringements committed by its users. Therefore, the liability of 'X' would depend on its specific functions. If 'X' is a passive cloud storage provider, liability would be difficult to establish under the Amstrad principle. However, if 'X' actively indexes, categorises, and promotes infringing films like 'Odyssey', or fails to act upon being notified of them, a court would be more likely to find it has authorised infringement, following the reasoning in Newzbin.
Intermediary Injunctions and Safe Harbours
Given the difficulties in holding platform operators liable, especially if they are based overseas, and the impracticality of suing every user, UK law provides a further tool: the intermediary injunction. Section 97A of the CDPA 1988 gives the High Court the power to grant an injunction against a service provider (an intermediary) where that provider has actual knowledge of another person using its service to infringe copyright.
This provision has been used effectively by rights holders to obtain court orders requiring Internet Service Providers (ISPs) like BT, Sky, and Virgin Media to block their customers' access to websites that are known to facilitate mass copyright infringement. The leading case, Twentieth Century Fox Film Corp v British Telecommunications Plc [2011] EWHC 1981 (Ch), confirmed that ISPs are 'service providers' for the purpose of s.97A and that blocking orders are a proportionate measure to prevent infringement. This means that even if the owners of 'Odyssey' cannot sue 'X' directly, they can obtain a court order forcing the major UK ISPs to block access to the 'X' platform, thereby cutting off its supply of users. This is a powerful, pragmatic remedy that targets the infrastructure of piracy rather than the infringers themselves.
Finally, it is important to note the existence of 'safe harbour' provisions, originally from the EU E-Commerce Directive and implemented in the UK by the Electronic Commerce (EC Directive) Regulations 2002. These can shield an online intermediary like 'X' from financial liability if it acts as a mere conduit, a cacher, or a host of information. The hosting defence (Regulation 19) is most relevant. It protects a provider who stores information for a user, provided the provider does not have actual knowledge of the illegal activity and, upon obtaining such knowledge, 'acts expeditiously to remove or to disable access to the information'. This underpins the 'notice and take-down' systems operated by many platforms. However, this is a defence against damages, and it does not prevent a rights holder from seeking an injunction. Furthermore, a platform like 'X' that is dedicated to piracy, as in Newzbin, would likely be found to have the requisite knowledge, thereby losing the protection of the safe harbour.
Conclusion
UK copyright law provides a multi-layered system of protection for a film like 'Odyssey' against online piracy occurring on a platform like 'X'. The law is clear that copyright subsists in the film, and the acts of uploading and downloading the film by individual users constitute primary copyright infringement.
The liability of the platform 'X' itself is more nuanced. While it could be held liable for authorising its users’ infringements, this depends heavily on its degree of control and active participation, as demonstrated by the contrast between the historic Amstrad decision and the more modern approach in Newzbin. The law has recognised the practical difficulties of enforcement in a borderless digital world and has provided powerful alternative remedies. The most significant of these is the section 97A blocking injunction, which allows rights holders to compel ISPs to block access to infringing websites. This represents a pragmatic shift in enforcement strategy, focusing on disrupting access rather than pursuing every infringing party. Thus, while the legal principles of infringement remain central, the practical realities of online enforcement have led to the development of remedies that target the technical intermediaries that form the backbone of the internet.
References
Aplin, T. (2020) Copyright Law in the Digital Society: The Challenges of Multimedia. Oxford University Press.
Bently, L., Sherman, B., Gangjee, D. and Johnson, P. (2022) Intellectual Property Law. 6th edn. Oxford University Press.
CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 (HL).
Copyright, Designs and Patents Act 1988.
Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013).
Information Society Directive 2001/29/EC.
Twentieth Century Fox Film Corp v British Telecommunications Plc [2011] EWHC 1981 (Ch).
Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch).
