Copyright is not a monopoly right, meaning it does not allow you to prevent someone from using it like a patented invention. It only allows you to stop someone else from copying your original work. Infringement of copyright law occurs when there is unauthorised use of another person’s work which is protected by the Copyright, Designs and Patents Act 1988.
What is copyright protection?
To qualify for copyright protection under the Act a work must be a:
- Literary work
- Dramatic work
- Artistic work
Films, sound recordings, broadcasts and typographical arrangements for publish editions are also protected. In order for there to be infringement of copyright law a copyright must exist and must have not expired.
A copyright will generally last the author’s lifetime and 70 years after the author’s death, however this does vary depending on the type of work. An infringing act such as copying, issuing copies, making an adaptation or performing the original work to the public must also occur.
A casual connection between the original work and the copied work must be established to prove that it is not similar work independently created. For example, the potential copier could have created their version at a time when he or she had no access to the original work.
In addition, a substantial part of the original work must be copied in order for there to be an infringement.
What is copyright infringement?
Copyright infringement is the unauthorised use of material that is covered by copyright law, violating one or more of the copyright owner's exclusive rights. The most common types of copyright infringement are:
- Making an adaptation
- Giving a public performance
An example of copyright infringement is the unlawful downloading of copyright material and sharing of recorded music over the internet.
In order for infringement to be established, the copier must have had the opportunity to copy the work. If access is not established, there is no copying, even if there is a striking similarity between the two works.
There are two types of infringement:
- Primary infringement, which is done by the actual author
- Secondary infringement where the author is only liable if they knew or had reason to believe they are dealing with an infringing copy
If your claim for infringement under copyright law is successful the remedies ordered by the court can include:
- An injunction
- Handing over all profits
- Delivery and/or destruction of the copied goods
Are there defences to copyright infringement?
There are defences to copyright infringement, for example if it can be shown that there was no copying, but rather the work is an independent creation. It is possible for an author to create a work independently which bears similarities to another piece of work.
Another defence is that the new item does not deserve protection, and therefore the right in question does not deserve protection.
There are also other uses of copyright which do not require the permission of the owner. These can include:
- For the purpose of research or private study
- For the purpose of criticism and review
- For the purpose of reporting and current events
However, it is often difficult to establish whether these defences are available and legal advice should be sought before considering any use of someone else's copyright. Legal advice should also be sought if an action for copyright infringement has been brought against you as the punishments can be severe, ranging from damages for loss of sales, to seizure of the offending items, and even a criminal record.
For more information, see our guidance page on copyright law.
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