![Sample our Law journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5942/TOC-Subject-Sample-2021-Law.jpg"})
Abstract
The ongoing problem of digital file sharing technology evolving at a speed far greater than the law can keep up with is demonstrable with litigation upheld against the producers of peer-to-peer networks such as Grokster1 towards the ends of their natural useful lives. As file sharers and, with them, copyright infringers, move onto more efficient networks such as BitTorrent, the story is repeated but with the new problem of the client software being open source. This has led to avenues alternative to litigating against makers of peer-to-peer network clients being explored.
Perspectives on what constitutes “to affect prejudicially the owner of the copyright” as laid out in the CDPA 1988 are considered in light of the Hong Kong case of HKSAR v. Chan Nai-Ming. It is argued that the highly strict and surprisingly low level at which the test for prejudicial effect is set is counter-intuitive to the goals of curbing the problems piracy poses. It is concluded that the ongoing battle between file sharers and their opponents has led to the loss of sight of the true goal of regulation: the protection of copyright holders from suffering de facto harm that is at least above a relatively negligible standard.
Notes
1 MGM Studios Inc v. Grokster Ltd, No. 04-480, 545 US [2005].
2 Case 00-16404, A&M Records Inc v. Napster Inc (ND Cal, 26 July 2000) (9th Cir, 12 February 2001).
3 MGM Studios Inc v. Grokster Ltd, op cit, note 2.
4 It certainly is not defined by the campaign.
5 ‘Revealing the true face of piracy’, http://www.piracyisacrime.com/press/pdfs/ipac_piracy_guide.pdf
6 Ibid.
9 As so frequently amended.
10 Provided that it does indeed satisfy the definition of ‘distribution’.
12 S. 107(1)(c) CDPA.
13 S. 107(3) CDPA.
14 Ss. 23(d), 83(1), 107(e) and 107(2A)(b) CDPA.
15 T Cook and L Brazell The Copyright Directive: UK Implementation, Jordans, Bristol, UK, 2004, para 3.113.
16 D Bainbridge Intellectual Property, 6th edn, Pearson Longman, Harlow, UK, 2007, p 180.
17 Cook and Brazell, op cit, note 16.
18 Berne Convention for the Protection of Literary and Artistic Works 1886 (1971 revision with 1979 amendments).
19 Art. 9(2).
20 Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society.
21 Art. 5(5).
22 Although both unreported, transcripts of the first instance hearing [2005] and High Court appeal [2006], which are believed to be accurate, can be found here: http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=46722 and http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=55378 respectively.
23 Cap. 528.
24 A format which has never been particularly common or successful in the UK, but bares similarities to the DVD format except the films are stored on CD and are of a quality approximately comparable to a VHS cassette tape when viewed.
25 CBS Songs Ltd v. Amstrad Consumer Electronics plc [1988] AC 1013.
26 Sony Corporation of America v. Universal City Studios Inc [1984] 464 US 417.
27 B131.
28 See S Stokes Digital Copyright: Law and Practice, 2nd edn, Hart Publishing, Oregon, 2005, p 36; and M Gillen ‘File-sharing and individual civil liability in the United Kingdom: a question of substantial abuse’, Entertainment Law Review Vol 17, No 1, pp 12–13.
29 [1977] FSR 401.
30 B130–131.
31 Although the court of first instance acknowledged that ‘affect prejudicially’ is not defined, the view was submitted that ‘it is clearly wide in scope’. Supra, para 35, op cit, note 23.
32 Supra, para 34, op cit, note 23.
33 Supra, paras 37–38, op cit, note 23.
34 Supra, para 29, op cit, note 23.
35 [2007] unreported, although numerous accounts can be found summarising the salient points of the case. See, for example, http://news.zdnet.co.uk/itmanagement/0,1000000308,39285944,00.htm?r=20
36 ‘Copyright Protection in the Digital Environment’, available at http://www.citb.gov.hk/cib/ehtml/pdf/consultation/Consultation_document.pdf
37 Cap. 528.
38 Ibid, p 1.
39 Ibid, para 1.11(c).
40 Ibid, para 1.6.
41 February 2007.
42 Supra, paras 73–74, inter alia, op cit, note 23.
43 Supra, para 80, op cit, note 23.