Copyright is a complex area of law. Receiving a complaint of copyright infringement can make things even more complicated. In the third instalment in our copyright article series, we set out the steps you need to take if you have been accused of infringement to identify the rights in question, consider whether the claim has any merit and prepare for potential litigation.
What happens if you break copyright law?
Receiving a letter accusing you or your business of infringement is never going to be a positive experience. However, it is important not to panic and do not rush your response to an allegation of infringement. Your first reaction may not be helpful to your overall case or strategy. Take the time to read the correspondence carefully, get specialist advice, and follow our pointers below when you consider the claim.
You should check the letter for any deadlines (a reasonable time frame for a claimant to allow for a response should be a minimum of 14 days in the UK) and carefully consider any requests that have been made of you or your business. Depending on the merits of the claim, it may be a good idea to cease the allegedly infringing work, as this will limit your liability and any potential claim for damages.
In all cases of potential court proceedings, companies and individuals have a duty to preserve documents in respect of the alleged infringement – so don't delete anything that could be even vaguely relevant to the complaint, even if you have standard destruction policies. This can be particularly important in cases of copyright infringement, where the origin story of a piece of work may be vital to the case. Ensure that any key documents are identified and preserved.
Reviewing the copyright infringement claim
Copyright grants its owner a number of exclusive rights to the work in question. Copyright arises automatically in the UK and there is no system of registration. Accordingly, it can be a complex task to identify how copyright applies in any particular case.
1) What is the copyright work?
If you have been accused of breaking copyright, it is vital that you first consider what work (or works) is alleged to attract the copyright in question.
If you have received a claim of copyright infringement, particularly from a reputable law firm, it is likely that the claimant's solicitors will have taken the time to identify the specific copyrighted material in question. If they haven't, you should push for more details so you can accurately assess the merits of the case against you.
In the UK, copyright only applies to the following categories of work:
- Literary, dramatic, musical or artistic works.
- Sound recordings, films or broadcasts.
- The typographical arrangements of published editions.
While the list is limited to only those categories, UK courts have interpreted them broadly. For example, dancing may constitute a dramatic work and a product; a model for a building or a map may constitute an artistic work. However, if the work does fall outside this exhaustive scope (such as the scent of a perfume or a firework display) it will not be capable of attracting copyright and the claim will fail.
In addition, some things can actually be made up of a lot of different copyright works. For example, if you are accused of infringing a television show, there may be copyright in the set design, characters, script, music, and so on.
Copyright does not exist in the idea but in the expression of that idea and it has to have been recorded. For example, a musical work will exist in the score or recording of the music but not in the music itself. The work does not need to be fixed permanently, but for long enough that it is sufficiently identifiable.
2) Is that work original?
For a literary, dramatic, musical or artistic work to attract protection, it must be an original work. This means that the author must have created the work with their own skill, judgement and individual effort which itself is not 'slavishly' copied from earlier works.
The requirement for originality in the UK is typically a low threshold and does not require the work to be completely new, inventive or have aesthetic merit – therefore copyright can extend from works without value up to works of unique genius!
The easiest way to show a work has no originality is to demonstrate that it is a slavish copy of another work.
3) Is the work still in copyright?
Copyright can last a long time, but not forever. The duration depends on a number of factors but as a general rule of thumb, literary, dramatic, musical and artistic works run from the date of creation until 70 years after the date of the author's death. Other works last less time.
If you have any doubt about whether a work is still protected by copyright, you need to seek out specialist advice.
4) Have you carried out an infringing act?
You must carefully review an allegation of copyright infringement to identify what behaviours or actions are alleged to infringe the copyright.
A number of acts can constitute a primary infringement of a copyright work, beyond merely "copying" the work in question. Issuing, renting, lending, performing, playing or communicating the work to the public or in public can also comprise acts of primary infringement, as is adapting the work itself.
To demonstrate a primary infringement, the defendant's material must be derived from the copyright work and they must be objectively similar. The derivation need not be conscious or intentional – even subconscious copying is sufficient.
There is also secondary infringement, which could involve importing an infringing copy of a work into the UK, possessing, selling, letting for hire, distributing the work, providing means for making copies or permitting an infringing performance at a place of public entertainment. For secondary infringement, the defendant will only be liable if they know or has reason to believe that the material or particular form of activity is infringing.
5) Is it an infringement of a substantial part?
As mentioned above, the similarity must be objective, which the courts have determined to mean there is sufficient copying of at least a substantial part of the copyrighted work. This test requires that the parts copied are elements which express the intellectual creation of the author. These do not relate only to the quantity of the work that is appropriated, but the originality of the copied parts. Therefore, the more original the element which is copied, the more likely there is to be a finding of infringement.
The easiest way to determine whether your work has copied a substantial part is to compare them and identify the similarities. This comparison is not limited to only visual, but also conceptual, having regard to all the relevant ideas, expressions and feelings about the work. Is the overlap incidental or do the works closely resemble one another? Are the similarities of the original or unoriginal elements? As you have probably gathered, this assessment is not a strict science and is largely a matter of perception and impression, so specialist copyright legal advice should be sought to help you assess the merits of the allegations.