Guide to the Law Relating to Copyright: Infringement and Enforcement

15 November, 2017

The law relating to copyright is complex and constantly developing.  Our previous guidance note, “Copyright: Ownership and Protection”,  considered what types of work copyright protects, how the right arises and how ownership of it is likely to be determined. 

This follow up note – Guide to the Law Relating to Copyright: Infringement and Enforcement – considers what may be seen as an infringement, how copyright can be protected and explains some common myths. 

To recap: Copyright is an intellectual property (IP) right which prevents the unauthorised copying of original work.

The Copyright Designs and Patents Act 1988 (the CDPA) provides that the copying of the whole or a substantial part (assessed on a qualitative, not quantitative basis) of a work will amount to copyright infringement.

Copyright can be enforced in various ways, discussed further in this note.  

The owner of copyright in a work has the right to prevent others from:

  • copying the work;
  • issuing copies of that work to the public;
  • renting or lending the work to the public;
  • performing, showing or playing the work in public; or
  • making an adaptation of a copyright work.

If any of the above are carried out, without the permission of the copyright owner (and they do not constitute a ‘permitted act’ as discussed later in this note), they will most likely constitute acts of ‘primary infringement’.

So-called ‘secondary acts’ of copyright infringement relate in the main to the importing, possessing, distributing and selling infringing copies in the course of a business.

In relation to a literary, dramatic, musical or artistic work (as described in our previous ‘Copyright: Ownership and Protection’ guidance note) coping means reproducing the work in any material form, including storing it in any medium by electronic means (downloading it, for example). Copying also includes the action of saving the work to a hard drive, regardless of how it’s used after that. 

Copyright protection extends to news articles and journalistic works. It’s understandable that a business may wish to use favourable news articles in its own marketing and PR, distributing them internally and re-using them externally. However, without the permission of the publisher of that content, any such distribution or use is likely to constitute copyright infringement.

To avoid the need to contact a publisher to seek permission each and every time before an article is copied, collecting societies offer general licences for use of content. The most well-known societies include the Copyright Licensing Agency (the CLA) and the NLA (in respect of newspaper content).

If a business is using copyright protected content, and there is any doubt about whether a licence is required, it is recommended that legal advice is sought.

Search engines are increasingly relied upon as being a reliable and free source of images: simply right-click, copy and paste.

However Google Images for example, is only an aggregating service of third party images, not a free to use image bank.

Copyright subsists in each and every image presented in a search engine’s results and so if use is required of that image, permission of its owner must be sought.

Copyright owners, particularly commercial image banks regularly use software to search for unauthorised use of their images (even those hidden at the back of a website). An infringing party can find themselves on the receiving end of a damages claim for £800 or more per image if they use images without permission.

It is recommended therefore that a recognised image bank is used as a source of image content.

The most significant remedies available to a copyright owner whose work has been infringed are:

  • An interim, permanent or freezing injunction (a court order preventing a party from using content);
  • Search and seizure orders;
  • An order for delivery-up (surrender) of infringing content; and
  • An award of damages or an ‘account of profits’ (the infringer surrenders the profits gained from the infringement to the copyright owner).

In certain circumstances a court can award additional damages for flagrant infringement of copyright.

In addition to civil remedies, there are also criminal sanctions of up to 10 years’ imprisonment for particular types of copyright infringement.

It is outside the scope of this note to discuss each and every action of infringement that would lead to criminal liability, however it will generally include the knowing distribution of infringing material.

Not every act of copying without permission will be an infringement of copyright, however.

The CDPA provides for ‘permitted acts’ of copying without permission, for certain types of copyright work for the purposes of:

  • Research and private study;
  • Criticism or review;
  • Reporting current events;
  • Quotation; or
  • Parody, caricature, pastiche.

The above generally require the purpose of copying to be non-commercial, however the case law history is extensive for each of the above and it can be very fact specific.

Claims relating to copyright infringement should normally be heard in the Intellectual Property Enterprise Court (IPEC).

IPEC is a specialist court hearing only IP cases.

IPEC, like other civil claims, provides for a Small Claims ‘track’ for claims under £10,000 value. This is designed to make it easier for copyright owners to bring claims themselves without the need for legal representation. Accordingly it is (contrary to the position in higher-value claims) generally not possible to reclaim legal fees from the unsuccessful party.

Notwithstanding, it is still recommended that parties seek legal advice at as early a stage as possible: the values may be relatively low, but the issues in dispute may be complex. A clear strategy needs to be formulated at the outset.  

For higher value claims, IPEC imposes costs and damages recovery limits on parties, so there is a clear incentive to reach an amicable settlement pre-trial.  

There are some common myths about copyright:

  1. It is commonly believed that any copyright protected content can be copied and reproduced without permission, provided that the copyright owner’s name is credited. This is not true.

 

The current position is that:

  • The author of the work has the right to be credited as its author regardless (moral rights); and
  • the express permission of the copyright owner is still required before any copying can take place.

 

  1. It is not necessary to use the © symbol to enjoy copyright protection. This is true. However the © symbol can be used as a deterrent to those who may otherwise seek to steal content.

The law relating to copyright is complex and constantly developing.  The purpose of this note is to assist in providing an overall understanding of the legal context within which such rights operate.

If a dispute arises in respect of copyright, or if it is necessary to enforce such rights, then it is recommended legal advice is sought at an early stage.

This article is not intended as specific legal advice.  Each case is judged on its own merits, against its own particular set of facts and will typically involve an objective assessment by the court of the precise words used.

Accordingly, in the event of such a dispute it is recommended that formal legal advice from a lawyer with expertise in this field is sought at the earliest opportunity. 

For more information please contact Will Charlesworth on +44 (0)1892 506 004 or at will.charlesworth@crippspg.co.uk.