File-sharing and downloading: goldmine or minefield?

Abstract

Major copyright owners have been slow to rise to the challenge presented by illegal file-sharing and downloading. In recent years, they have scored a number of significant Court victories against file-sharers, but the recent decision in Promusicae v Telefónica, in which the ECJ held that the right to the protection of industrial property does not necessarily outweigh the right to privacy, indicates that rights holders may benefit from a more creative and co-operative approach to file-sharing. The author provides an analysis of the Promusicae decision, along with a summary of the statutory position in the UK. This is also accompanied by a review of the recent international litigation landscape on file-sharing and a review of current attitudes towards addressing illegal filesharing, including recent proposals from the British Government and the European Parliament and new models of co-operation between rights holders and file-sharing service providers. The Promusicae decision will disappoint copyright owners. The ECJ decision left it to Member States to determine whether there should be an obligation to disclose personal data in order to protect copyright, so long as the interpretation of the law attempts to reconcile the parties' competing rights and principles and demonstrates proportionality. Copyright owners will, therefore, have to tailor enforcement strategies to individual Member States. This will hamper their ability to take action against individual infringers efficiently. In addition to litigating against infringers, however, they may benefit from the new models of co-operation between copyright owners and file-sharing services which are emerging.