Copyright Infringement: Remedies & Defences

To establish copyright infringement under the Copyright Designs and Patents Act 1988 (CDPA 1988), the owner of a copyrighted work needs to show that a third party has:

• copied the work;
• issued copies of it to the public;
• rented or lent it;
• performed or showed it in public;
• broadcast the work or otherwise communicated it to the public;
• made an adaptation of the work.

Copyright is infringed when any of the above acts are done without consent, whether directly or indirectly and whether the whole or a substantial part of a work is used (subject to some exceptions – see below).

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, this will, of course, be regarded as a substantial part; however, often the quality, importance or significance of the extract is 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 is not an infringement concerned with the physical copying of the work but aims to prevent certain activities centred round the copyrighted article. Acts listed as secondary infringement under CDPA 1988 include:

• importing infringing copies;
• possessing or dealing with such copies;
• providing means for making infringing 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.

For secondary infringement to exist, any of the above acts need to have been committed with some knowledge, whether actual or imputed, of the original or primary 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;
• order for the delivery up by the infringer of the infringing articles.

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 ostensibly be considered infringement. Under CDPA 1988 fair dealing exceptions include:

• for research or private study, the purpose must be non-commercial or private study;
• for criticism, quotation or review;
• for reporting of news or current event any work can be used, except photographs.

In all the above cases, sufficient acknowledgement to the creator must be made.

There are certain other exemptions which will be upheld against a claim of infringement, including:

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.

A performance or recording for the purposes of caricature, parody or pastiche (eg, a comedian using a few lines from a film or song for a parody sketch) is not an infringement.

A disabled person, or someone acting on their behalf, can make a copy of a lawfully obtained copyright work if they make it in a format that helps them access the material. Educational establishments and charity organisations are also permitted to make accessible format-copies of protected works on behalf of disabled people.

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

A recording of a broadcast can be made in domestic premises for private and domestic use to allow it to be viewed or listened to at a more convenient time.

Copyright is not infringed by anything done for the purposes of parliamentary, judicial or Royal Commission proceedings, or the reporting of such proceedings. Material open to public inspection or on official register and material comprised in public records may also be copied with permission.

It is not an infringement of copyright for a lawful user of a copy of a computer program to observe, study, adapt or test the functioning of the program, or make any back up copy of it which it is necessary for him to have for the purposes of his lawful use

Cultural and heritage organisations (such as public libraries, educational establishments and museums) can digitise and place ‘orphan works’ on their website for non commercial use. Orphan works are creative works or performances – eg, a diary, photograph, film or piece of music – for which one or more of the right holders is unknown or cannot be found.