Copyright – infringement by copying
As we saw in a previous post, the copying of original works is one of the most common types of copyright infringement that occurs. Copying an original work is unlawful under s.17 of the Copyright Designs and Patents Act 1988. We will now take a look at how an original work can be copied and what remedies the owner of an original work has if their copyright has been infringed.
A person infringes the copyright of another if they reproduce a literary, dramatic, musical or artistic work in any material form. A literary, dramatic, musical or artistic work can range from the plot of a novel to the choreography of a specific scene. Reproduction simply involves the copying of a work – the production of a new work from a previous original work (with at least one new copy being made each time the work is copied).
So, how much of the work actually needs to be copied for an infringement to occur? The first thing to note is that whether copyright in a work has been infringed depends on the quality of the copying, not the quantity. This is a question of fact. In each case the specific originality that allowed the copyrighted work to gain copyright in the first place must be examined and the question asked: “has the essence of the copyrighted work been taken?”. The similarities – and differences – of both the ‘original’ and ‘offending’ work must be scrutinized. Whether the essence of a work has been copied can be an extremely difficult issue to resolve. The second issue is that the copying doesn’t need to be exact, so copying the plot is enough to infringe copyright. Again, this goes to the heart of the matter: has the essence, the distinctive quality, of the first work been reproduced?
As above, with literary works it is enough, for example, that the plot has been copied without the contents of the work being copied in full. However, there is a fine and grey line to be drawn here – whether the copying of a plot (for example) infringes copyright depends on whether the new work has a core element of originality itself. If the “offending” work is found to be original (and therefore qualifies for copyright itself) then it would seem difficult to argue that an essentially original work copied another. Infringement of artistic works can occur if, for example, a copy of a 2d work is made in 3d and vice versa. Copyright subsisting in a film or broadcast can be infringed if a photograph of the whole or any substantial part of any image forming part of the film or broadcast is reproduced. Again, the quality of the reproduction matters, not simply the quantity, and it’s important to note that infringement can occur without knowledge – the “offender” need not have the intention to or knowledge of infringing copyright.
What remedies do owners of copyright have if their work is infringed? The civil remedies that the owner of copyright may be able to gain includes:
- the gaining of interim relief (such as an interim injunction, declaration, freezing injunction, search and seize order, or disclosure order); and/or
- the gaining of final relief, such as
- the ordering up for delivery (to the owner or another person) of all copies of the infringing work; and/or
- the seizure of infringing works under the CPDA; and/or
- Forfeiture under the CPDA (where the works are seized and destroyed or delivered to the copyright owner); and/or
- A declaration of infringement; and/or
- The right to elect for damages or account for profits
Future articles will examine the nature of the civil (and criminal) remedies that can be pursued against infringers of copyright.