In David Hoffman v Drug Abuse Resistance Education (UK) Ltd  EWPCC 2, the Patents County Court of England and Wales assessed the use of the “innocent copying” defence under Section 97 of the Copyright Designs and Patents Act 1988. The defendant mistakenly believed that certain photographic works were Crown copyright and therefore it had permission to use them.
David Hoffman, a photographer, brought a copyright infringement action against Drug Abuse Resistance Education (DARE), a charity that helped young people understand the dangers of substance abuse. According to Mr Hoffman, DARE’s websites used 19 photographs of various drugs, which were copies of his original copyright photographs, without permission.
DARE did not dispute that Mr Hoffman’s photographs were used on its websites. DARE also did not dispute Mr Hoffman’s claim to ownership of the copyright subsisting in the photographs. However, DARE explained that at the time of the alleged infringement it had employed a firm to produce a website for the charity. The firm had taken the photographs, which DARE believed to be covered by Crown copyright, from a Government-sponsored website, “Talk to Frank”.
The Court noted that Mr Hoffman was indeed the owner of the copyright in the photographs, which were clearly artistic works under Section 4 CDPA. It also noted that the copyright in fact belonged to Mr Hoffman, not the Crown, and that Mr Hoffman had not granted permission to DARE to use the photographs.
The Court held that DARE thinking that it had permission to use the images was not a defence to infringement under Section 16 CDPA. In other words, if DARE had carried out any of the acts restricted under Section 16 CDPA, the fact that it thought it had permission would not be relevant.
Accordingly, the key question was whether DARE had committed any of the acts restricted by copyright in Section 16. The fact that DARE had employed a third party did not mean that it avoided liability under Sections 16(1)(d) and 20 CDPA, which cover communication of the works to the public. Section 20(2)(b) CDPA includes making the work available to the public by electronic transmission in such a way that members of the public may access it from a place and at a time chosen individually by them.
Since the websites in issue were DARE’s own websites, the Court found that it was DARE that had committed the acts restricted by Section 20 CDPA. The fact that the websites were designed by someone else did not matter; DARE was found to be responsible for the sites. Accordingly, the Court found that DARE had indeed infringed Mr Hoffman’s copyright by copying the photographs and communicating them to the public contrary to Sections 16 and 20 CDPA.
On the issue of quantum, DARE raised the “innocent copying” defence to damages under Section 97 CDPA. The defence applies where a defendant does not know and has no reason to believe that copyright subsists in the work in question. The Court held that “to believe that one had permission under Crown copyright is the opposite of a belief or reason to believe that there is no copyright in existence”, and accordingly, the defence was rejected and damages were assessed at £10,000 plus interest.
The Section 97 CDPA defence is applicable only to quantum and does not affect liability. However, as this case makes clear, the defence appears only to be applicable to works where there is no longer any copyright, or to works whose author or copyright owner cannot be found after due diligence has been undertaken. Only in those limited circumstances, if the defence stands up, would no damages be payable despite the defendant being found liable for infringement.