What is copyright infringement, and how do I avoid it?

Written by Samuel O’Toole | February 28, 2022


What is copyright?

Copyright is a fantastic intellectual property right. The idea behind it is to protect the “creative stamp” of authors when creating a work. It can protect a wide range of original works, including sound recordings, films, photographs and literary works.

Copyright comes into existence once an author has put pen to paper (or the like) to record that creative stamp in a durable format. For example, a sound file, a movie, a picture, or a book. Even better, copyright is entirely free and automatically assigned to the creator, owing to there being no registration process in the UK or EU.

What is copyright infringement?

Copyright infringement is the act of violating the exclusive list of rights afforded to a copyright owner without their permission.

Section 16 of the Copyright, Designs and Patents Act 1988 (CDPA) gives a list of exclusive rights a copyright owner is entitled to do in relation to their copyright work. These include copying the work and issuing copies to the public, through to performing the work in public or making an adaptation of the work.

If a person commits any of these acts without the copyright owner’s permission, it is known as an act of “primary infringement”. Primary infringement generally requires:

  1. Proof of copying from the copyrighted work, i.e. you must have seen it to have been able to copy it
  2. Similarity/identity between the two works

Furthermore, Sections 22 – 26 of the CDPA go on to list the various acts of “secondary infringement”. These include importing an infringing copy, dealing with infringing copies, and making means for making infringing copies. These acts are generally aimed at those further down the supply chain and the main difference between secondary and primary infringement is that the infringers state of mind is irrelevant for primary infringement (i.e. it’s not a defence to say you didn’t know it was an infringement), whereas it is relevant for secondary infringement (as it can sometimes be a defence to show there was no knowledge of the infringement).

How to avoid copyright infringement

In order to not infringe copyright it is useful to take the following into account:

  • First, state of mind or no knowledge of infringement is not a defence in all cases and so whilst ignorance can be bliss, it isn’t in the world of copyright.
  • Second, learn what is covered by copyright. Copyright protects the whole range of literary and artistic works and so, in the event you see something you like or want to use, it most likely will be protected by law.
  • Third, do not copy other people’s works as that is likely to amount to an act of primary infringement. If you really want to copy a work, speak to the copyright owner first and agree to take a copyright licence. This will avoid a copyright infringement claim from being raised.

If you are unsure about copyright infringement, why not contact one of our expert lawyers for a free consultation.

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