Copyright Infringement: Remedies & Defences

Copyright Infringement

What is Copyright Infringement?

For copyright infringement to take place the owner of a copyrighted work will need to establish that either of the following acts are done in relation to a substantial part of the work without his or her consent of authorisation being provided:

  • Copy the work
  • Issue copies it to the public
  • Rent or lend it
  • Perform or show it in public
  • Communicate it to the public

What constitutes a substantial part?

The test for whether the alleged infringement was in relation to a substantial part of the work is a subjective one and will be dealt with on a case by case basis. It is a common misconception that this simply means how much of the work has been reproduced. If a large quantity of the body of the work has been used then this will of course be regarded as a substantial part but often the quality, importance or significance of the extract are just as important. In some cases only four lines of work have been found to be substantial when taking these factors into account.

Secondary infringement

Secondary infringement is not an infringement concerned with the physical copying of the work but is there to prevent certain activities centred around the infringing article.  The Copyright Designs and Patents Act 1988 details the following eight separate acts which will be considered secondary infringement:

  • Importing infringing copies
  • Possessing of dealing with such copies
  • Providing means for making such copies
  • Transmitting a copyright work over a telecommunications system
  • Permitting premises to be used for an infringing performance
  • Providing apparatus for such infringement
  • Permitting such apparatus to be brought onto the premises
  • Supplying a sound recording or film of an infringing performance.

In order for secondary infringement to exist any of the above acts will need to have been committed with some knowledge, whether this be actual or imputed, of the original or primary infringement.

Remedies

What Remedies are available in a case of infringement?

The owner of the copyright has the following remedies available to them in a case of infringement:

  • An injunction prohibiting any further infringement
  • Damages for the loss they have incurred due to the infringement
  • An account of the profit made by the infringer
  • The right to seize the infringing articles
  • Delivery up by the infringer of the infringing articles

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For more information on:

  • Exemptions
  • What are the exemptions to copyright infringement?
  • Fair Dealing
  • What is meant by Fair Dealing?
  • Other Exemptions
  • Educational
  • Libraries, archives and public administration
  • Works permanently in a public place
  • Public Interest