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

Exemptions

What are the exemptions to copyright infringement?

Fair Dealing
What is meant by Fair Dealing?

Fair dealing is when the use of the copyrighted work is fair and not for the purpose of commercial gain even if the use of the work would be considered infringement.  Under the Copyright, Designs and Patents Act 1988 there are three fair dealing exceptions. They are as follows:

  • For the purpose of research of private study
  • For the purpose of criticism or review
  • For the purpose of reporting new or current events.

The defence of fair dealing in the UK can only be used if it is specifically for one of the above uses explicitly mentioned in the Act. There are also certain qualifications which must be observed for the use to fit in amongst the three fair dealing exceptions. They are as follows:

  • For research or private study, the purpose must be non-commercial or private study
  • For criticism of review, this can only be used if it is in relation to a work which has already been made available to the public, i.e. a book can only be reviewed or criticised if it has been published
  • For reporting of  news or current event any work can be used, except photographs. The only qualification in relation to this is that sufficient acknowledgement to the creator is made.

Other Exemptions

There are certain other exemptions which will be upheld against a claim of infringement. Amongst them are the following:

Educational

The work has been copied for the purposes of instruction and examination. This is a defence even when the whole body of the work is played, performed, recorded or photocopied. A qualification on this however, is that it must not be for commercial purposes and the author must be given sufficient acknowledgement.

Libraries, archives and public administration

Non-profit making (local authority and educational) libraries are allowed to make copies to supply to people requiring to use them for research of private study.

Works permanently in a public place

For example photocopying sculptures of statues in public places will not constitute infringement.

Public Interest

Infringement can be exempted on the grounds that it is in the public interest. Examples of this are where the material may be injurious to public life, public health and safety or the administration of justice.