As some of you might remember, last Monday’s entry opted to provide readers with a brief overview of the criteria that needed to be satisfied under English law so that copyright can subsist.
Today’s article will, in turn, focus on the requirements to establish a valid copyright infringement claim under the current English law.
Prior to commencing, I would like to point out that the information contained below must not, in any way, act as a guide to pursuing a self- litigated copyright infringement claim; those are best left to Intellectual Property lawyers.
The purpose of this article is to merely improve the readers’ general understanding of copyright by familiarising them with the basics of an infringement claim.
To begin with, it must be noted that infringement of copyright can be primary or secondary; primary being direct infringement of the copyright work and secondary being indirect (i.e. assisting in producing or distributing or the copyright work).
An infringement claim is best approached in five steps, namely:
Step One: Subsistence and Ownership of Copyright
This has already been discussed in some detail in last Monday’s article, please refer to :
Step Two: Identify the ‘Infringing Act’
The most important and common infringing acts are:
- Copying (ss. 16 (1) (a), 17 Copyright, Designs and Patents Act 1988 (‘CPDA’)
Includes reproducing in ANY material form. Also, for artistic works, note that, as per s. 17 (3) CPDA turning a 2D picture in a 3D sculpture is also considered copying
- Issuing copies of the work to the public (ss. 16 (1) (b), 18 CPDA)
Includes issuing copies of an already published work (i.e. producing, distributing the work, etc.)
- Performing, showing or playing the work in public (ss. 16 (1) (c), 19 CPDA)
A rather curious example of that is the ‘Happy Birthday’ song which cannot be performed at public or social events and gatherings without paying for a licence to do so as it still under copyright in England (expires 31st December 2016 in England, 2030 in the USA).
- Making an adaptation of the work or doing any of the other infringing
acts in relation to an adaptation (ss. 16(1)(e), 21 CPDA)
Essentially, this mirrors the above and adds a further prohibition on using adaption of the work without the owner’s consent.
Step Three: Comparison
- Causal Link
It must be proved that the defendant’s act was done in relation to the claimant’s work and NOT independently or coincidentally. It must, therefore, be proved that the defendant’s work was objectively similar to the claimants and that the defendant had access to the claimant’s work at the time of the alleged infringement.
- Substantial Part
In order for the there to be a valid infringement, a substantial part of the claimant’s work needs to be concerned. This is assessed on a quantitative and qualitative basis using tests developed through case- law.
Step Four: Defences
- ‘Fair Dealing’
Very narrow set of statutory defences contained in the CPDA; a closed and exhaustive list, in fact. Also, whether a defendant was dealing in a ‘fair’ manner will much depend on the facts on each individual case.
- Recording For the Purposes of Time- Shifting- (s. 70 CPDA)
Home- recording re TV, radio, etc, so long it is solely for private use.
- Temporary Electronic Copying (s. 28A CPDA)
Viewing works on various websites, browsing, etc.
Step Five: Remedies
- Injunction (s. 96 CPDA)
- Damages OR account of profits (ss. 96- 97 CPDA)
Note that no damages can be claimed against an ‘innocent infringer’ (i.e. one who had no reason to believe that copyright subsisted, tested objectively, s. 97 (1) CPDA)
- Order for delivery up (s. 99 CPDA)
- Interim Injunction and/or search order
Establishing a valid copyright infringement claim can sometimes be quite a herculean task mainly because copyright is an unregistered intellectual property and, as such, the claimant needs to prove its subsistence.
To conclude, then, with the constant development of various online mediums, the case might be that protecting copyright might become even more arduous than it has been lately.
On the other hand, however, it would, theoretically, be a lot harder for a defendant to say that he could not have possibly been aware of a certain copyright work when it had been readily available on the internet.
In the end, it seems that copyright law can well be described as a double- edged sword which needs to be wielded with reasonable care and skill.
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