Questions and Answers about Copyright Cases

Q1 What is copyright?

Copyright is a property right which allows the owner, or an exclusive licensee, to object to the unauthorised copying, and certain other unauthorised uses, of a copyright work.

Q2 What are the main characteristics of copyright?

1. Copyright does not need to be applied for or registered, unlike certain other types of intellectual property, for example trademarks and patents. Once an original work in which copyright subsists has been created, it will generally be automatically protected throughout the world without the need for any formalities.
   
   
2. Copyright enables the copyright owner, or exclusive licensee, to object to certain unauthorised uses of the work. It does not protect, at least in theory, the content of the work, it only protects its form. Copyright protects, as a general rule, the manner of expression of information and ideas, but not the information and ideas themselves.
   
   
3. Most works must be "original" in order to be protected, but do not necessarily have to be new or novel. A work is said to be "original", if the author has expended some degree of skill or effort in the creation of the work. The standard of originality required is a low one to be decided on the facts of the case and without reference to aesthetic merit.
   
   
4. Several different copyrights can exist in the same work so that copyright can, in effect, be a bundle of rights. For example, separate copyrights may exist in the text and illustration of a picture book.
   
   
5. Copyright does not subsist in a work unless and until the work has been "fixed" in some material form.
   
   
6. For copyright to subsist, the author must satisfy certain conditions of nationality or, if the work has been published, must satisfy conditions as to the country of first publication. These conditions will usually be satisfied where the author is a national of, or the work has been first published in, the UK and most other western countries.
   
   
7. Ownership of copyright is not necessarily the same as ownership of, for example, the original work. Thus, an original painting by a well-known self employed contemporary artist A may belong to B, but copyright in the painting, as an artistic work, will vest, in the first instance, in the artist A who will remain owner of copyright notwithstanding any subsequent sales of the work.

Q3 Who owns copyright?

Usually, the first owner of copyright is the "author" which generally speaking means the person who creates the work.

If the author creates the work in the course of his/her employment, then the first owner of copyright is generally the employer, subject to any agreement to the contrary.

Q4 What is a licence or assignment?

Legal ownership of copyright can be assigned or transferred, sold or given away like any other property right.

The most common agreements are assignments and licences. A licence is simply a permission granted by the owner permitting someone else to do an act which the owner would otherwise be entitled to object to. A licence may be exclusive (in which case only the licensee has the right to exploit the copyright) or non-exclusive. An exclusive licensee can sue for infringement as if he were the copyright owner himself.

Licences may be express or alternatively, they may be implied from the circumstances. For example, someone who submits a letter for publication to a newspaper grants an implied licence to the newspaper to publish the text of the letter (but the scope of the implied licence will be narrowly interpreted by the Courts).

Q5 What types of works can be protected by copyright?

Literary works
Any work, other than a musical or dramatic work, which is written, spoken or sung including

• newspapers
• magazines
• books
• song lyrics
• compilations for example lists of football fixtures, bus timetables etc.

Dramatic works
These include plays, film scripts and works of dance and mime.

Musical works
Include works consisting of music exclusive of any words or action intended to be sung, spoken or performed with it. For example, a musical manuscript would be categorised as a 'musical work' whereas an opera would not.

Sound recordings
A sound recording of the whole or any part of a literary, dramatic or musical work is protected by copyright unless it is a copy taken from a previous sound recording

Film
This includes recordings in any medium from which a moving image can be produced and would include an accompanying soundtrack. Video clips on websites would also be covered.

Artistic works
This includes paintings, photography, sculpture, architectural works such as buildings or model buildings, technical drawings, and engravings, as well as artwork included within a website. An artistic work does not have to be of good quality or possess any aesthetic merit to be protected by copyright.

Q6 Who can sue for copyright infringement?

The owner of copyright in a work can sue for infringement, alternatively an "exclusive licensee".

Q7 What must be proved to establish infringement of copyright?

Although the law defines what amounts to an infringing act, e.g. copying or distributing copies to the public, whether or not a particular work infringes another is a question of fact which must be proved on the "balance of probabilities". It is not necessary, in order to infringe copyright, to copy the whole of a work, only a substantial part, which is a question of fact for the Court to determine by reference to the quality as well as the quantity of the part taken. For example, using the first 4 notes of Beethoven's Fifth Symphony would (if copyright were still subsisting) be regarded as "substantial".

The Copyright Designs and Patents Act 1988 ("CDPA 1998") sets out infringing activities in detail. Broadly speaking, infringing acts include:

Copying a work in whole, or a substantial part. Whether or not a substantial part has been taken will be a question of fact to be decided having regard to all the circumstances. The test is one of quality as well as quantity.

1. Issuing copies of the work to the public.
   
   
2. Renting or lending copies of the work to the public.
   
   
3. Performing, playing or showing the work in public.
   
   
4. "Adapting" the work, i.e. translating, transposing or dramatising it.

Authorising someone else to do an infringing act is itself an infringement.

Q8 Who can be sued?

Any individual or entity which has committed or authorised others to commit any of the restricted acts as laid down in the CDPA 1988, this class of defendant being known as a "primary infringer".

It is also possible for persons lower down the distribution chain, such as retailers or distributors of infringing articles who have not themselves manufactured the infringing articles, to be liable as "secondary infringers" if they continue to, for example, possess in the course of a business, sell or let for hire infringing articles after they have been put on notice of the infringement and given a reasonable opportunity to cease doing so.

Q9 Can the claim be defended?

Various defences may be considered, including:

1. The use was properly licensed.
   
   
2. Less than a substantial part has been reproduced.
   
   
3. Either copyright does not subsist in the work (for example, it does not satisfy the test of originality) or the Claimant is not the owner of copyright.

In addition to this, under the CDPA 1988, there are various permitted acts including:

1. Fair dealing for the purpose of reporting current events.
   
   
2. Fair dealing for the purpose of criticism and review.
   
   
3. Fair dealing for the purpose of research and private study.
   
   
4. Other defences expressly provided by the CDPA 1988 including, for example, incidental inclusion and education.

Q10 How long is a work protected by copyright?

The rules are complicated according to the date when the work was made. Generally speaking, the period of copyright protection is 70 years after the death of the author although different rules apply to certain categories of works such as sound recordings, typographical arrangements, films and broadcasts.

Q11 Within what time period must copyright proceedings be commenced?

Normally within 6 years of the copyright infringement.

Q12 What remedies are available to a successful claimant?

A successful claimant in an infringement action is entitled to seek

1. An injunction to prevent any further infringing acts being committed. Injunctions are at the discretion of the Court and can be ordered either on an interim basis, before trial, or after a final hearing. Applications for an interim injunction must be made very quickly after the alleged infringement has come to the claimant's attention.
   
   
2. Delivery up of infringing items in the defendant's possession.
   
   
3. Damages, which would normally be assessed on the basis of what would be negotiated as a reasonable licence fee assuming a willing licensor and a willing licensee. Alternatively, the claimant may elect for an account of the profits made by the defendant as a result of the infringement. In extreme cases where the defendant's conduct has been flagrant, the Court may award "additional damages" having regard to the flagrancy of the infringement.

Q13 What if the infringing work is published on the Internet?

Generally speaking, special defences are available to Internet service providers for the activities of "mere conduit", "caching" and "hosting" of information, all of which are acts, which may involve the transient or permanent reproduction of material in computer memory. In appropriate cases, Internet service providers whose services are being used by a third party to infringe a copyright or related right may be injuncted by the Courts.

Q14 How expensive are copyright infringement proceedings?

Depending on the issues, copyright infringement proceedings can be expensive. However, we may be able to assist using our Conditional Fee Agreement (no win, no fee) scheme and also by obtaining After The Event Insurance.

The contents of these Questions and Answers do not constitute legal or professional advice and should not be relied on as such. Specific advice should be sought about your specific circumstances. If you have a specific legal question, you should address it to one of our lawyers.