Defendant’s Guide to Copyright Infringement

What is copyright?

Copyright protects original literary, dramatic, musical and artistic works, including films, music and computer programs. It protects against the copying of another’s work and the physical expression or representation of an idea but it does not protect against independent development of the same idea. 

Copyright ownership allows the owner to prevent the unauthorised use of the work, such as making copies or uploading the work to the internet. It is very important to appreciate that copyright law is intended to prevent copying but does not provide a monopoly; it does not matter if a similar or identical work already exists if it has not been copied.    

Copyright automatically arises on the creation of the work and lasts for 70 years after the death of the author in relation to dramatic, artistic, literary and musical works. The creator of the work is usually the first owner of the copyright in it. 

Types of copyright infringement

There are two types of copyright infringement – primary copyright infringement and secondary copyright infringement.

Primary copyright infringement occurs when someone carries out certain acts regarding the work without the permission of the author.  These acts include: 

• Copying the work;
• Issuing copies to the public;
• Renting or lending the work to the public;
• Performing, showing or playing the work in public;
• Communicating the work to the public;
• Making an adaptation of the work; and
• Importing infringing copies.

Infringement arises where one of the restricted acts mentioned above is committed in respect of the whole or a substantial part of the work, either directly or indirectly. 

It is a question of fact in each case whether there has been an infringement. If someone copies the whole of a copyright work, clearly there will be infringement. In most cases however the position is not so clear-cut and the key test is whether a substantial part of the copyright work has been copied. 

Infringement does not depend on the copier having seen the original work or knowing that he/she was copying. There can still be infringement if the copier has information in relation to the original copyright work regardless of whether the copier knew they were copying or intended to copy the work. 

Secondary copyright infringement claims deal with those further down the supply chain. The following are infringing acts if carried out without the licence of the copyright owner in relation to infringing copies of copyright works:

• Importing into the UK (other than for private and domestic use);
• Possessing or dealing;
• Providing means for making copies (including transfer by a telecommunications system);
• Permitting use of premises for an infringing performance; and
• Supplying apparatus for an infringing performance.

Unlike in cases of primary copyright infringement, there is no cause of action for secondary copyright infringement unless the defendant knows or has reason to believe that the material or particular activity is infringing.

Defences available in a copyright infringement claim

There are certain circumstances in which you can make use of another person’s copyright works and these are set out in the Copyright Designs and Patents Act 1988 as follows:

• Using extracts of copyright work for the purpose of non-commercial research or private study. You must be genuinely studying and your use will only be permitted when it is “fair dealing”. Copying the whole work is unlikely to be considered fair dealing.
• Text and data mining which is the use of automated analytical techniques to analyse text and data for patterns, trends and other information. This usually requires copying the copyright work so it can be analysed and therefore researches are permitted to make copies of any copyright material for the purpose of computational analysis if the copyright work has already been read by the researcher. 
• Copyright work can also be dealt with for the purposes of criticism, review or quotation. Fair dealing with a work for the purpose of reporting current events is also allowed for any type of copyright work other than a photograph but a sufficient acknowledgment will be required in order for this defence to be available.  Photographs cannot be reproduced for the purpose of reporting current events; this law is designed to prevent newspapers and magazines from reproducing photographs when reporting current events which have appeared in a competitor’s publication. 
• There are several exceptions which allow copyright works to be used for educational purposes e.g. performing, playing or showing copyright works in a school or university and recording a TV programme or radio broadcast for non-commercial educational purposes in an educational establishment.
• There are two exceptions available to disabled people who have a physical or mental impairment which prevents them from accessing copyright protected materials. The two exceptions are designed to assist disabled people in obtaining a copy of a copyright work in a format that helps them access the material e.g. making a Braille, audio or large-print copies of books, newspapers or magazines, adding audio description to films and making subtitled films or broadcasts. 
• A recording of a broadcast made in domestic premises for private and domestic use to enable it to be viewed or listed to at a more convenient time. However, please note, making a recording or broadcast for purposes other than to allow you and your family to watch it is likely to be illegal.
• Copyright material can also be used sparingly without the copyright owner’s permission for the purposes of parody, caricature and pastiche. For example a comedian using a few lines from a film or song for a parody sketch, a cartoonist using a well known artwork or illustration for a caricature and an artist using small fragments from a range of films to compose a larger pastiche work. Please note however this defence is only available to the extent it can be established there is “fair dealing” as defined above. 
• Orphan works are creative works or performances – like a diary, photograph, film or piece of music – for which one or more of the right holders is either unknown or cannot be found. In such circumstances, organisations like libraries, museums and archives are permitted to digitise and place orphan works on their website for non-commercial use. Please note however this defence does not extend to include the use of standalone artistic works such as a photograph.

What happens if you breach copyright law?

There are various remedies available to copyright holders where copyright infringement is proven, including:

• Interlocutory relief – including Norwich Pharmacal orders, search orders, freezing orders and interim injunctions;
• Orders for delivery up;
• Seizure of infringing copies and other articles;
• Forfeiture;
• Final injunctions;
• Damages or an account of profits; and
• Recovery of costs.

Norwich Pharmacal orders refer to the power the UK courts have to make an order for the disclosure of the identity of a wrongdoer against anyone who, albeit innocently, becomes involved in the wrongful act of copyright infringement. These orders can be of considerable practical importance where a copyright owner has evidence that third parties have infringed copyright but is unable to find out their name(s) and address(es). 

A search order provides for the preservation of the subject matter of an action, or of documents and articles relating to the action.  It requires a defendant to allow the claimant’s solicitors to search the defendant’s premises and remove all items covered by the search order.  In order to obtain a search order, a claimant must show, among other things, an extremely strong case for copyright infringement, that the defendant’s actions have resulted in very serious potential or actual damage to the claimant’s interests and that there is clear evidence that incriminating documents or items are in the defendant’s possession and there is a real possibility that the defendant may destroy or dispose of such documents or items. 

Claimants in copyright infringement claims may also seek a freezing order in order to preserve property or evidence before any judgment can be obtain or satisfied.  In order to obtain a freezing order, claimants must have a good arguable case that copyright infringement has taken place and also provide solid evidence that there is a real risk that any judgment ordered by the court will not be satisfied. 

An interim injunction is an injunction granted before trial.  A copyright owner may want to seek an interim injunction to prevent further copyright infringement before the trial takes place.  In order to obtain an interim injunction, a claimant must satisfy the court that there is a serious question of copyright infringement to be tried and that the claimant has a real prospect of success of proving copyright infringement.  If the court is satisfied of this, it must then consider the “balance of convenience” test which requires the court to consider whether the inconvenience to the defendant, if the injunction was granted, would outweigh the convenience to the claimant.  Where the factors appear to be evenly balanced, the courts will try to preserve the status quo. 

Copyright owners can also apply to the court seeking an order for delivery up of infringing copies of the copyright work or articles specifically designed or adapted for making copies of a particular copyright work which the defendant has in his possession, custody or control.  A copyright owner also has the right to seize infringing copies in respect of copyright work that the copyright owner would be entitled to apply for an order for delivery up.  In addition to this, an order can also be obtained from the court that infringing copies or articles seized or delivered up are to be destroyed or forfeited to the copyright owner. 

A final injunction is a court order prohibiting a defendant from infringing the claimant’s copyright further.  This will be granted to a claimant who succeeds in establishing copyright infringement at trial. 

Successful Claimants

A claimant who succeeds in establishing copyright infringement can also recover damages.  Claimants can elect either for an account of profits or an inquiry into damages.  Damages are intended to put the claimant in the position it would have been in had the copyright infringement not occurred, while an account of profits is intended to make the defendant give up the profits made as a result of the copyright infringement.  Before deciding whether to elect for an account of profits or an inquiry as to damages, the claimant is entitled to seek certain outline commercial information about the defendant. 

Finally, successful claimants in copyright infringement proceedings are normally entitled to recover their costs from the unsuccessful defendant.  As a general rule, normally 70% of costs are recoverable unless capped costs apply.  Conversely, an unsuccessful claimant in copyright infringement proceedings will be liable to the defendant’s costs in successfully defending the claim.

Our specialist intellectual property disputes team routinely advises on a broad range of disputes relating to copyright along with other intellectual property disputes relating to trademarks, patents, confidential information and data protection.  The team is also highly skilled at advising on design rights and reputation management issues and are regularly instructed by clients from the arts, media, textile and clothing sectors in the UK and internationally.  If you need advice on copyright or other intellectual property infringements, please do not hesitate to contact a member of the team today.