In Intellectual Property Rights sector, we often use the word
“piracy” to determine the total of illegal acts infringing the
intellectual property rights.
There are different and various forms of piracy. Piracy can take place
by the unauthorized making of every act which is covered by the economic
legal monopoly of the author or other rightholder over the work or any
object of related rights, such as the reproduction, the communication to
the public, the broadcasting, the cable transmission or distribution of
material copies of a protected work or of an object of related rights
without the authorization of author or other rightholder and usually for
commercial purposes. Piracy through Internet Sites or via the use of
peer-to-peer networks have become a real threat to the survival of the
effective protection of copyright in the digital environment.
Websites and ftp (file transfer protocol)
Internet has become an important source of information which
facilitate the infringement of copyright. Piracy through Internet often
takes place by the function of special Web sites dedicated to piracy.
Web sites regarding mostly with software piracy. Websites which propose
the downloading of copyrighted works from special pirating Internet
sites without the rightholders consent(The WAREZ sites) Websites which
propose special tools in order to deactivate or destroy special
technological measures of protection (The CRACKZ sites) Websites which
disclose the serial number or the password to have access to the work.
This is another way to deactivate the technological protection of
copyrighted material (The SERIALZ sites)
What can be found on a pirate website ?
Websites dedicated to piracy offer access to various kinds of
copyright protected works which have digital form. The offer of
audiovisual works is one of the most popular contents provided by
Pirating Websites. Online motion picture piracy is the unauthorized use
of copyrighted motion pictures on the Internet. It is illegal to sell,
trade, lease, distribute, upload for transmission, transmit or publicly
perform online audiovisual works without the consent of rightholder.
It is important to prevent the unauthorised uploading of new movies
(named “screeners”) on the Web by controlling more efficiently the use
of cameras inside cinemas.
Internet is the perfect ground to find an illegal access to music,
software (utilities and video games), databases, lyrics, pictures,
designs, photos, literary works.
Has the materiel to be on the hard disk of the server ?
Very often Websites don’t often a direct access to the protected work
but they lead to the work by providing an hyperlink. In this case the
question is if the Website which proposes the illegal access infringes
The question of the responsibility of the providers of hyperlinks hasn’t
been treated by the European Union’s Electronic Commerce Directive
2000/31. However, as the Directive introduces a limited liability regime
only for some acts which have primarly technical nature and present an
automatic character in the course of transmission of information through
Internet, the voluntary creation of hyperlinks to copyrighted works is
not covered by the beneficiary limited liability regime.
Therefore, the answer to the question of liability of Web sites which
contain hyperlinks to copyrighted material is that is irrelevant and
doesn’t matter if the web site doesn’t contain itself the protected
Piracy occurs even if the Website introduces an hyperlink to the work
and by this means offers illegal access to the copyrighted work. An
infringement of copyright occurs not only if somebody uploads a work of
mind without the authorization of the author but also when he makes a
link on an already uploaded work which has been unlawfully reproduced
and communicated to the public.
In some countries, even the simple fact of discussing about ways of
executing piracy more efficiently can be prohibited. In fact, except for
Web sites many Internet forums and newsgroups are used in order to
promote and facilitate piracy. In these forums are proposed various ways
to proceed to illegal copying and people change advices in order to
circumvent technological measures of protection of copyright.
What about the protection of the website itself as work of mind ?
A web site itself can be considered as a protected work of mind if it
presents a sufficient degree of originality.
So web sites are protected against piracy and copying a web site without
the authorization of his author infringes copyright.
Also, techniques as the “deep-linking” (creation of a link to a
secondary page of the site, avoiding the principal home page), the
“frame-linking” (link of a part of the site, in some frame which gives
the impression that these elements are owned by the site which
introduces the link) or the “object-linking” of copyrighted protected
material (link of a specific element of a web site –text, picture, sound
– and integration in the infringing web site) constitute acts of piracy.
Piracy on the FTP (file transfer protocol)
Piracy on Internet is not limited to http Web sites. FTP sites are
used for the transmission and conservation of voluminous files. This
type of sites permits the transfer of files on the net by an
upload/download system of connexion.
Two situations can be distinguished :
- There is a FTP site dedicated to piracy, often with an anonymous
access. FTP sites can be localized rapidly, but they will be often
situated in a foreign country and mostly to foreign countries where the
protection of copyright is weak. In this case, an international
collaboration has to be used, in order to chase down the “pirating FTP
- The other case is when a legal FTP site, with restricted access, has
been hacked and the pirates use it for the transfer of files, including
copyrighted protected works, like movies or video games.
A new trend on the web is to create “interactive” websites or
interactive FTP sites. It is the famous Web2.0. In this kind of sites,
everybody can, sometimes even anonymously, upload his own files and
offer free access to them for everybody.
site proposes free access to videos from all over the world. In this
case the site’s owner is just hosting the contents and doesn’t decide
about the kind of contents to put inside. Therefore, the owner of the
site can’t be found guilty for infringement of copyright at once. The
owner of the site has not a general obligation to monitor the contents,
but he’s obliged to respond quickly to every demand of stopping an
According to the European Electronic Commerce Directive of 2000,
Internet service providers, including host providers are not obliged to
monitor the information which transmit or store, nor they have a general
obligation to actively seek facts or circumstances indicating illegal
activity, such as illegal copying and disseminating of protected works.
Host providers can be found guilty for the unauthorised storage of
copyrighted works if they have actual knowledge of this illegal activity
or if they are aware of facts or circumstances from which the piracy is
apparent or if upon obtaining such knowledge they don’t act
expeditiously to remove or disable access to the copyrighted work.
We should also have in mind that according to European Directive
2001/29/EC on the harmonisation of copyright in the information society,
the rightholders can always apply for an injunction against the host
providers (intermediaries) whose services are used by a third party to
infringe copyright even if the intermediary is not liable according to
the liability regime of the Electronic Commerce Directive.