Twentieth Century Film Corporation and others v Newzbin Limited case is an important case which considers the on-line application of the Copyright, Designs and Patent Act 1988 (CDPA), in view of the newly adopted Digital Economy Act 2010 (2010 Act).

Newzbin is a members-only Usenet indexing website that operated a P2P network, by indexing and collating Usenet files, relating to particular works or films. It index listed these files by the name of the film or work and provided reports by Newzbin’s team of editors, giving information about the work.

Newzbin’s premium members could search its indexes and could also, at the press of a button, create files containing all the information needed to re-create an original work, ready to view onscreen or burn onto a DVD, aggregating all the individual Usenet messages, containing tiny components of the overall work. The claimants, including Twenty Century Film Corporation, complained of breach of their copyright.

The court held in favour of the claimants and in doing so, it considered whether the various acts performed by Newzbin could amount to infringement of copyright:

The court held that, “authorisation” means the grant of the right to do the act complained of (and does not extend to mere enablement, assistance or encouragement). Various facts must be taken into account, such as: the nature of the relationship between the authoriser and the infringer; whether it is inevitable that, the service will be used to infringe copyright; and whether the defendant has taken any steps to prevent the infringement. The judge held that, Newzbin was authorising its members to infringe the claimants’ copyright.

The court held that, mere assistance in infringement was not enough and in order for a person to be jointly liable with another, he/she must have induced, incited or encouraged the primary infringer to participate in the infringing act. Newzbin was found to have provided advice to its members on how best to locate and catalogue infringing material, therefore was found to have procured the infringement.

The claimants argued that, Newzbin made their films available to the public by electronic transmission and that, members of the public could access such films, from a place and at a time convenient to them. Newzbin claimed that, its website was akin to a search engine, such as Google. The court disagreed with Newzbin and found that, its members would have considered that, Newzbin was making the films available to them.

The court ordered an injunction against Newzbin, as well as an enquiry as to damages. This included additional damages for flagrancy, under section 97 of the CDPA, as the court considered that, Newzbin had known very well that, the vast majority of the materials relating to films were commercial and so, likely to be protected by copyright and that, the users of Newzbin who downloaded those materials were infringing that copyright.