copyright infringement

Copyright, being one of the types of intellectual property rights, vests certain rights in the owner of copyright. These rights are restrictive in nature. These rights are referred to as the acts restricted by copyright and are the exclusive rights granted by copyright as defined in the Copyright, Designs and Patents Act 1988 (“the Act”). Technically, these exclusive rights is not grant the copyright owner any particular rights in the work – rather the exclusive rights entitle the copyright owner to prevent others from exercising any of the exclusive rights without his permission.

These exclusive rights protect works defined by the Act. The types of works protected by the acts restricted by copyright are literary works, artistic works, dramatic work, musical works, sound recordings, films, typographical arrangements, and broadcasts.

Exclusive Rights of Copyright Owner

Section 16(1) of the Act states that owner of copyright has the exclusive right to exercise the following rights in respect to the work:

1. copy the work;
2. issue copies of the work to the public;
3. rent or lend copies of the work to the public;
4. perform the work, show, or play the work in public (such as a dramatic work, film or sound recording respectively);
5. communicate the work to the public; and
6. make an adaptation of the work.

These are the “acts restricted by copyright”.

Accordingly, an owner of copyright in a literary work (such as a book or the text appearing on a page on a website), owns the exclusive right to copy the work, and issue copies of the work to the public, as these are amongst the acts which are restricted by copyright.

Copyright Infringement

Section 16(2) of the Act states as follows:

“Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright”.

As such the copyright owner, being the owner of the exclusive rights of copyright (ie “the acts restricted by copyright”), may prevent any person from exercising any of the rights without the its permission.

In order to be successful in an action for copyright infringement, the claimant must show that:

1. Copyright subsists in the work in the UK.
2. It is the owner of the copyright in the work.
3. The defendant copied the work of the claimant.

The claimant is not necessarily required to show that the copy made by the defendant is made directly from the work of the claimant. It may be that the copy was made indirectly. For instance, the defendant may have made a drawing of floor plan and dimensions of a house, and thereby infringed architectural drawings owned by the claimant. In this case the copying is indirect, because the infringer has not had access to the original architectural drawings.

In addition to this, in the face of a denial of copying by the defendant, it is open to a claimant to prove that a defendant subconsciously copied the work of the claimant. For example, it has been held that a defendant composing a song infringed copyright, although the defendant did not recall hearing the song.

4. The defendant copied the whole or a substantial part of the work, so as to amount to an infringement of the copyright of the claimant.

Whether or not a person has copied a substantial part of a copyright work is primarily a qualitative test, having regard for the skill, labour and judgment used to create the copyright work, and not a quantitative test. That is to say, that copying a small part of a work may amount to a substantial part of the work for the purposes of infringement. It is the skill, labour and judgment invested in a work that is protected by copyright.

This test for infringement is applied differently to the different types of copyright work. The test however remains that same – whether a substantial part of the work has been copied.

Copyright works which are made independently and without reference to existing copyright works do not infringe the exclusive rights of copyright, because the copyright work of the defendant must be copied from the claimant. This is the case, even if the two works are identical.

Stopping Infringement

In the event that the defendant is found to have infringed copyright, the claimant is entitled to an award of damages or an account of profits, an injunction, and ancillary relief such as orders for delivery up and/or destruction of infringing works subject to the usual qualifications. Such qualifications for injunctive relief include whether damages would be an adequate remedy, delay in bring proceedings; in respect to damages, a claimant will only be entitled to recover a monetary sum reflect the damage suffered, having regard for remoteness of the damage suffered. In the event that a defendant is in possession of a device designed for making infringing copies of the work in question, the claimant may be entitled to orders for delivery up and/or destruction of infringing works where the infringer knew or had reason to believe that the device was being used for the purpose of making infringing copies.

The claimant may also be entitled to additional damages if it proves to the satisfaction of the court that the defendant has flagrantly infringed copyright and/or obtained a benefit from the infringement.

In essence the sum of damages is usually a notional license fee determined by the court with reference to previous decisions.