Copyright conundrums – a snapshot on infringement

Written by Shamina Knights | October 13, 2022

Copyright

Copyright in the UK is an intellectual property right automatically protecting original literary, dramatic, and artistic works. It provides rights owners with exclusive rights to use the works.

When does copyright infringement occur?

UK law recognises two types of infringement.

  • Primary infringement occurs when a person copies, issues, rents/ lends, performs, or communicates copyright protected works (or a substantial part) without the permission of the copyright owner.
  • Secondary infringement occurs when a third party supports or enables the infringement of a copyrighted work by the original infringer e.g a store selling copies of an infringing work.

How to prove that there has been an infringement?

To prove infringement, a copyright owner must be able to show that:

  1. An infringing act took place in the UK.
  2. The alleged infringing work is derived from the copyrighted work.
  3. The alleged infringing work is a whole or substantial reproduction of the copyrighted work.

You’ll see in (3) mention of “substantial”. Where works have been copied in part, the question will be whether a “substantial” part has been copied. It’s worth noting that “substantial” is determined by a qualitative test, not a quantitative one. This means that there may be an infringement even if a small (but important) section of the original work was copied. This is considered on a case-by-case basis.

QUESTION TIME!

Q: I’m a creator and want to use someone else’s work without being subject to a copyright infringement claim – HELP what should I do?

If you see a piece of work that you like and you wish to use it for your own business purposes then you should ensure that you have the appropriate permission from the copyright owner.

The works can be licenced to you (an agreement for you to use the works on certain licence terms e.g a copyright owner may give you permission to use the works for non-commercial purposes only). Or works can be assigned to you (this is a transfer of ownership of the copyright from the copyright owner to yourself) allowing you much for flexibility with how you can use the works.

We can assist with drafting content licence agreements and copyright assignments to suit your needs.

Q: I’m a creator and someone has copied my work – HELP what should I do?

Loop us in with details on, (i) the piece of work you’ve created and, (ii) the piece of work that you believe has infringed your rights as the copyright owner.

If we think you have strong cases for points 1-3 above then a cease and desist letter can act as a useful document to stop the infringement as well as act as a pre-cursor to court proceedings.

We can assist you with drafting a letter that is impactful and which aims to achieve your desired outcomes.

Written by Shamina Knights – Solicitor

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