Rights of Copyright Holder
The owner of copyright has the exclusive right to copy, issue copies, rent, perform, lend, show, play or communicate the work to the public. He has the right to adapt the work.
Copyright is infringed by a person who without the licence (consent) of the owner of the copyright does or authorises any of the restricted acts in relation to copyright.
The owner of copyright has the right to authorise any of the restricted acts. Merely providing facilities for copying does not comprise authorising the restricted acts for this purpose.
Primary Infringement
“Infringement” refers to breach of copyright. There is so called primary infringement and secondary infringement. The primary infringer is liable regardless of the state of knowledge. The secondary infringer is only liable if he knew or had reason to know that he was dealing with an infringing copy.
Copying of a copyright protected work or a substantial part comprises infringement. A parody of a work would infringe the copyright if it amounts to a substantial copy of it. Copying does not have to be an exact copy. Copyright could be infringed if a drawing looks similar to another; a novel with a very similar plot is written or a computer programme is copied by copying its structure and organisation. Copyright in a literary or dramatic work can be infringed by translating into another language.
It will not usually be infringement simply to use the works. However, reading or playing a book or recording in public will constitute infringement. Including a work in a broadcast or cablecast will be infringement. Therefore the permission of the owner of the copyright is necessary.
The usual method of infringement is copying. However, if it can be shown that something is independently produced without access to the original then it will not be copying. If the defendant did have an opportunity to copy and the work is so similar that copying is the most likely explanation, there would be an inference of copying. The defendant would have to prove he did not copy. Copying can also be indirect. It can be derived from seeing a copy of the work or something derived from it.
Copying
The copying must relate to the whole or a substantial part of the work. Substantial is determined by the quality rather than the quantity. The test is part quantitative and part qualitative.
Copying the concept or idea is not usually sufficient. However, if the part taken is the more important, memorable or that in which the greater skill is invested, the taking of a relatively small part can be substantial for this purpose. The question is whether the part taken when considered relative to the whole, is a substantial part.
Copying in relation to a literary dramatic musical or artistic works is reproducing the work in any material form. This includes storing the work in any medium by electronic means. It may be copying to reproduce a two-dimensional work in three dimensions in the case of artistic works.
The copying may be of a further copy and need not be direct. Copying may include copying by a computer in the course of processing (although special exemptions exist in this regard).
The earlier work must be the cause of the alleged copying. The availability of access and coincidences of content raise an inference of copying. This is then required to be rebutted.
The key aspect is the appropriation of the creator’s intellectual effort.
Other Infringement
Issuing copies of work to the public include putting them into circulation in the EEA when they have not already been in circulation or into circulation outside the EEA when copies have not previously been put into circulation in the EEA or elsewhere.
Issuing to the public does not include later distribution, hiring, sale or loan of copies previously lawfully put into circulation in the EEA. The principle does not apply to material on the Internet as they are not goods for this purpose. This does not affect certain remedies against infringing copies of works.
The adaptation of a literary or dramatic work includes translation or conversion of a dramatic work into an non-dramatic work vice versa or the adaptation of a work in which the story or action is conveyed wholly or mainly by means of pictures into a form suitable for reproduction in a book or periodical. In relation to a musical work, it is the arrangement or transcription of the work. In the case of a computer program or database adaptation is the arrangement of version of it or a translation of it.Adaptation does not apply to an artistic work.
Secondary Infringement
Secondary infringement relates to dealing with infringing copies. A trader who imports copies into the UK or distributes infringing copies, secondly infringes the copyright.
A wholesaler or retailer who knows that he is dealing in infringing copies will be a secondary infringers. For example, if it is pointed out to wholesalers and distributors that particular copies are in breach of copyright, then they will not be liable if they cease selling and distributing the goods. They will be liable if they carry on as they can no longer argue that they were innocent.
There is secondary infringement by importing, possessing, dealing in, selling, letting for hire, offering or exposing for sale or hire exhibiting or distributing an infringing copy in the course of a business so as to prejudice the owner of the copyright.
It is also secondary infringement to permit premises to be used or supply apparatus for infringement. The person who so permits knows or has reason to believe that there will be secondary infringement. The secondary infringement must have reason to believe that copyright subsisted
Infringement constitute a criminal offence. Secondary infringement constitutes a lesser criminal offence.
Defences
It is a defence to a breach of copyright that it is done with the licence of the copyright owner. In some cases, implied consent or authorisation may arise.
Injunctions generally require prompt action. Delay on the part of the right owner may be such as to deny an injunction. It may also make it less likely that an account is given of profits.
There are a number of statutory exceptions and defences including
- making temporary copies in the course of information technology operations
- certain making available of copies for visually impaired persons
- uses by educational establishments libraries and archives subject to conditions
- use of databases and programs for public administration
- certain format shifting steps
In very limited cases, a public interest defence may apply. This may arise in circumstances where what would be otherwise an infringement, is absolutely necessary for the assertion of fundamental freedoms and rights. The defence is very narrow and not readily available.
There are defences of “fair dealing” for the purpose of research, private study, criticism or for reporting current events. Fair dealing covers non-commercial research and private study, criticism review and the reporting current events. If the part of the work taken is not substantial, there is no infringement. Beyond this the defence may be available.
The defence of research and private study requires that the use be non-commercial. There must be a sufficient acknowledgement of the author and title, unless the author is unknown. The purpose must be to assist the user’s research. The use must constitute fair dealing. This is unlikely to the case where the user and rights holder are in commercial competition.
The criticism and review defence requires there to be a sufficient acknowledgement. The work must have been made available to the public. The use must be justified and fair.
Reporting of current events must be topical and, in most cases, recent. An acknowledgement is not required in the case of report by way of film broadcast sound where this is impracticable.
E-Commerce Defences
The E-commerce Directive provides exemptions for Internet service providers in relation to infringements and other matters for which they might otherwise be liable provided that they are not at fault. The defences under the e-commerce regulation are applicable where the Internet service provider is a mere conduit or where it is hosting information. Its role must be passive, and the service must be automatic intermediate or transient storage of information. The information must not be not stored more than reasonably necessary.
There are also exemptions for caching and hosting subject to conditions. Caching is local storage of information use frequently to allow speedier access. Hosting is the storage of information by way of website hosting.
The internet service provider is not liable for so long as it is not aware of the facts or circumstances from which it would have been apparent that the activity information is unlawful.
There is a specific temporary copying defence in the context of the operation of information technology. It covers copies which are temporary transient or incidental and are integral and essential part of a technological process, the sole purpose of which is to enable transmission of a work in a network for lawful use.
