12 December 2014

Globalisation and the advancement of technology have made English law on copyright infringement increasingly complex and difficult to navigate. In the case of Omnibill v EGPSXXX Ltd. and R. A. Carter (November 2014), the High Court sought to clarify when a website – hosting copyright material and hosted by servers located overseas – will be deemed to target and therefore communicate copyright works to UK consumers in breach of the Copyright, Designs and Patents Act 1988.

In Omnibill, the first Defendant had used photographs belonging to the Claimant on a South African sub-domain of its main website. While the reproduction of the photographs was undisputed, the Defendants argued that this did not infringe the Claimant's copyright. They claimed that while the UK public could access the relevant sub-domain, this was not targeted at consumers domiciled in the UK which is required to demonstrate infringement by communication to the public, a restricted act under s.20 of the Copyright, Designs and Patents Act 1988.   

Finding in favour of the Claimant, Justice Birss held that UK consumers were being targeted and therefore, the Defendants’ reproduction of the Claimant’s photographs amounted to copyright infringement. The High Court, drawing upon existing case law, stated that the question of whether a website is targeted to a particular country is fact specific and depends on the circumstances.

In this instance, emphasis was placed upon the structure and nature of the first Defendant’s website, which was deemed to be a coherent global site, as opposed to a series of national websites. UK consumers accounted for a substantial proportion (between ten and twenty five percent) of the total visitors to the South African sub-domain; although not determinative in itself, this carried weight in the Claimant’s favour, particularly as the first Defendant generated advertising revenue based on traffic to the site. Further evidence of an international consumer base lay in the contact number displayed on the sub-domain, which was prefixed with an international dialing code despite its services being confined to South Africa.

By confirming that a website can be targeted to the UK alongside other countries, Omnibill widens the sphere of communication that may be deemed to infringe copyright, therefore bolstering the protection afforded by English copyright law.  However, it should be emphasised that in this particular case, the terms and conditions of the first Defendant’s website granted exclusive jurisdiction to the English Courts, undoubtedly aiding the Claimant's case that the UK was targeted and so it will be interesting to see if this case has wider application.

Key contact

Jeremy Dickerson

Jeremy Dickerson Partner

  • Head of International 
  • Head of Intellectual Property, Media and Sport
  • Defamation and Reputation Management

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