Under section 20 of the Copyright, Designs and Patents Act 1988 it is primary infringement of copyright to communicate a copyrighted work to the public without the owner’s consent. Section 20(2) clarifies that “communication to the public” means a communication to the public by way of electronic transmission, and includes making the relevant work available to the public by electronic transmission in such a way that members of the public may access it from a place at a time individually chosen by them.
In Omnibill (Pty) Ltd v EGPSXXX Ltd (in liquidation) , a decision of Birss J, the claimant provided escort services in South Africa and operated a website which presented a large number of photographs. The defendants were a UK company which had gone into liquidation and its sole director and shareholder, a UK citizen. The defendants, whose business offered similar services to those of the claimant, admitted copying the photographs and communicating them to the public via their website, but denied having done so in the UK.
The key question was whether the acts of communication were targeted at the public in the UK. If they were targeted at the UK then infringement of UK copyright was established; if not, there was no infringement of UK copyright.
Answering this question, Birss J assessed the evidence put forward by counsel for the claimant and defendants, noting that the relevant considerations extended beyond simply looking at the website or relevant parts of it. Whilst counsel for the defendants pointed out that “South Africa” appeared in the domain name, prices were given in South African Rand and the “contact us” page included a phone number with a South Africa international dialling code, Birss J preferred the evidence of counsel for the claimant, being based on (i) the structure of the overall site, (ii) the site’s terms and conditions, and – most importantly – (iii) visitor traffic from the UK.
Evidence showing that a substantial proportion of visitors to the website were UK-based might not be determinative, but could support a finding that the UK public was targeted. The judge also explained that it was possible for different parts of a website to be targeted at different countries and for the website, or parts of it, to be targeted at more than one country.
In this particular case, Birss J held that the fact that the terms and conditions of the Escortgps site stated it was “operated from the United Kingdom”, alongside the finding that the site was a singular global offering (albeit with sub-domains), weighed heavily in favour of the claimant’s case. In terms of UK visitor traffic data, the evidence showed that between 10 and 25 per cent of visits to the website from the UK and, in the judge’s view, even the lower figure would be a substantial amount. The website was therefore directed at the UK and the infringement claim was made out.
The most notable aspect of this decision is the importance given to the visitor traffic data, particularly as the accuracy of the figures has not been independently assessed. In our experience, there are a number of factors that can skew visitor traffic numbers; for example, where a visitor accesses the website through difference devices (a mobile, a laptop, a home PC, a work PC), this will leave different traces and potentially appear in results to be different visitors. This does not seem to have been fully explored in this decision but we anticipate, given the weight attached to the figures here, that it will become an important evidential issue going forward.
  EWHC 3762 (IPEC)