Primary infringement of copyright – issuing copies to the public
In our continuing look at types of primary copyright infringement, we’re today going to look at the offence of issuing copies of copyrighted work to the public under s.18(1) of the Copyright Design and Patent Act 1998 (“CDPA 98”).
The prohibition against issuing copies of copyrighted work to the public applies to every description of copyrighted work. We’ve explored the types of copyrighted work before so in this post we’ll deconstruct this prohibition by considering the different elements of the infringement:
- (To ) the public
The issue of copies (see below) must take place in an area where the Copyright Design and Patent Act 1998 applies. This refers to the time and place that the reproductions were put on offer, not the point at which a copy of the copyrighted work was issued to the public. However, in particular circumstances infringement of the owner’s right will occur at the time of arrival (i.e. the “CD-WOW” case).
To infringe against the copyright owner’s right, the infringer must put unauthorised “primary” copies of the work into circulation. As can be seen by the emphasis in the previous sentence there is a distinction between “primary” and “secondary” distribution. To use the example of the distribution of copies of an author’s books, primary distribution occurs when the author licenses a publisher to distribute copies of his work. Secondary distribution occurs when, for example, a second-hand book seller sells a copy of an already-distributed work. The book-seller would not need to obtain a license to sell the book and would therefore not infringe copyright by distributing copies of the book. However, an unauthorised primary distributor would infringe the copyright owner’s rights by distributing without consent.
Indeed, if the copyrighted work is distributed in the European Economic Area (“EEA”) then infringement occurs if the copies were not previously put into circulation in the EEA by or with the consent of the copyright owner. If the copyright work is distributed outside of the EEA then infringement occurs if copies of the work were not previously put into circulation in the EEA or elsewhere.
According to the definition of this infringement, the copyrighted work must be issued to the public for the infringement to occur. To determine whether the copyrighted work is being issued to the pubic the following questions must be asked:
- Is the issuing of the copyrighted work for profit?
- Is the audience unrestricted?
If the answer to both of the above questions is “yes” then the audience will be defined as “public” and infringement may therefore have occurred. An example may be useful here. The issuing of a dance CD at a private house party (with restricted access based upon ties of friendship) would usually not be for profit (the friends wouldn’t pay to get in) and would be restricted (as only those who qualify as friends could attend). There wouldn’t usually be an infringement in these circumstances. However, the issuing of the same CD in a club environment probably would constitute primary infringement. The CD is being used for the attainment of profit (people paying to get into the club) and the audience is unrestricted (in theory).
As can be seen from the above, this type of primary infringement isn’t simple (although it isn’t particularly complex). Whether the infringement of issuing copies to the public has occurred depends upon the particular facts of the case.