Accused of copyright infringement? What to do next
Copyright infringement is a common IP dispute that emerges when a creative work that attracts copyright protection is used without the express consent of the copyright holder.
A lack of general awareness about copyright, how infringement works, and the increased ease in which it can occur means that a lot of people get caught in the trap and find themselves receiving a copyright claim.
But do not worry! We are here to provide some clarity and help you understand how copyright works, what happens when infringement occurs and what to do next.
Have you been accused of copyright infringement? If you need help with this right away, click the button below to get in touch with our team to begin solving your problem today.
Disclaimer: This Virtuoso Legal article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own solicitor on any specific legal questions you may have concerning your situation.
WHAT IS COPYRIGHT?
Copyright is an unregistered right which protects authentic creative works.
Copyright comes into existence at the point where a creative work is made.
Copyright protects the characteristics of the work and confers upon its creator a set of moral and economic rights over this creation.
Copyright can protect things such as:
- Literary, dramatic, and artistic work (e.g., books, songs, artwork, photography);
- Non-literary written work (e.g., software, web content and databases);
- Sound and music recordings;
- Film and television recordings;
- Broadcasts; and
- The layout of published editions of written, dramatic and musical works.
Because of the lack of public awareness of copyright; creators are not often aware of the rights they have when they create something.
This also means that the public are not necessarily aware when they infringe on someone else’s’ copyright, what that means and what happens next.
WHAT IS COPYRIGHT INFRINGEMENT?
Copyright infringement is when creative works attracting copyright are used without permission from the copyright holder.
As above, copyright arises automatically at the point that creative work is “affixed”.
You cannot enforce copyright in an idea. However, copyright does protect its realised form as it is recorded.
So for example, you might have an idea for a new website. The idea of this website is not protected unless you write it down in the form of a website plan and this is copied, or in the form of the actual website itself.
At this point a work is “affixed” like this, the copyright owner is entitled to economic and moral rights over the work when it is used – which must be recognised before it is used.
EXAMPLES OF COPYRIGHT INFRINGEMENT
In today’s digital world, we are surrounded by copyright works, and the lack of awareness of this means that copyright infringement is something that occurs quite regularly.
Some typical examples include use of:
- Unlicensed music or video in a YouTube video
- Digital artwork or photography on t-shirts or apparel used online
- Photography on a website without a license from the photographer
- Website copy directly cribbed from other websites
- Sampling of music loops in a new song, where the sample is a key element
- Code from a non-open source author in the creation of a new piece of software
Amongst many others.
Those who are not aware of copyright and work as digital creators, typically find out quite quickly about the intellectual property right. This occurs either as they find their own copyright being infringed, or after they themselves receive a copyright claim for unauthorised use of other people’s work.
WHAT RIGHTS DOES THE COPYRIGHT HOLDER HAVE?
So, what rights does the copyright holder have?
The copyright holder has two different sets of rights over their copyright work.
Creators who use other people’s copyright work need to bear these rights in mind if they are looking to make use of other people’s work in some way in their own.
The first set of rights are economic rights. Copyright owners have the right to authorize or prevent certain usage of their work.
Economic rights include:
- Reproduction of the work in various forms, such as printed publications and sounds recordings;
- Distribution of copies of the work;
- Public performance of the work;
- Broadcasting or other communication of the work to the public;
- Translation of the work into other languages; and
- Adaptation of the work, such as turning a novel into a screenplay.
In addition to this, copyright owners also have a set of moral rights, which relate to their relationship with the work.
Under worldwide copyright law, authors are granted for following moral rights:
- The right to claim authorship over the work (sometimes called the right of paternity of the right of attribution) and;
- The right to object to any distortion or medication of a work, or other derogatory action in relation to the work, which would be prejudicial to the author’s honour or reputation (sometimes called the right of integrity).
If you have infringed copyright, it is typically the case that you have not appropriately observed these rights.
WHAT CAN COPYRIGHT HOLDERS GET FROM A COPYRIGHT INFRINGEMENT CLAIM?
As with most other forms of intellectual property, copyright is enforced under civil law - and is not a criminal offence. As such, aside from counterfeiting, claims will not likely end in criminal sanctions and remedies such as prison time.
Instead, remedies are typically viewed as restorative rather than punitive.
Because of this, the law seeks to restore the victim of copyright infringement to their status before infringement had taken place.
In copyright disputes, the claimant seeks this through one of two ways: 1) an account of profits, or 2) a reasonable royalty. It is typical that the claimant would seek the one that is of the highest value.
If they are successful in their claim, this would be awarded by the Courts, should the case reach a judgment.
Note: that you would only be compelled to pay any requested payment should a judgment be brought by the Court.
WHAT TO DO IF SOMEONE CLAIMS I HAVE INFRINGED THEIR COPYRIGHT?
OK, so you may have crossed the line, so what do you actually do if you have received a copyright infringement claim?
- DON’T PANIC
The first thing to do is not to panic.
As covered in our blog relating to receipt of a legal claim in general, a legal letter is only as meaningful as the arguments that it presents; and what’s more, the letter typically wants you to do something which you may or may not be actually liable to do.
- LIMIT FURTHER DAMAGE
Typically, it is a good idea to stop the alleged infringing activity – as if the claim is valid, this will limit any further liability that you may have for the infringement.
- DO NOT ENGAGE
Do not respond to them personally before you are sure of your legal position. You may receive a claim that is unfounded and that, as such, you do not have to respond to. Remember anything you say so may be used against you.
Note that any payment made, may be seen as an admission of liability – so be careful.
Be aware of any deadlines within the letter, and the organisation or solicitor that the letter has been received from – these are key indicators of how serious the claim is.
The important thing is to make sure that your next step is the right one.
- REVIEW THE CLAIM
At this stage, what is most important is identifying the extent to which you are liable for the copyright infringement claim and then conclude the issue in the best way possible.
Contacting a copyright or intellectual property specialist to review the claim is by and far the best way to assess whether you are in fact liable, and what the next best steps are.
They will identify:
- Whether the copyright infringement claim is accurate
- Whether the remedy being asked for is reflective of the author’s economic and moral rights
- What your actual liability is
- What to do next, in terms of a reply, or counteroffer
Instructing an intellectual property specialist to respond to a claim will cost money itself, as such, there is a need to weight up whether the cost of replying is more than the cost of the claim.
Our team at Virtuoso Legal discuss this option with clients prior to incurring any fees, as we are dedicated to ensuring that our clients receive the most ideal financial outcome from defending a claim.
If you would like to speak to our team in relation to a copyright infringement issue, please click the button below to get in touch with the team by submitting an enquiry.
- MOVE FORWARD IN CERTAINTY
Once bitten, twice shy!
Whilst dealing with a copyright infringement claim can be uncomfortable, it is also a learning opportunity. Take time to learn more about how copyright infringement works by reading information like this blog, or speaking to your legal advisor.
This will help you set up correct policy and procedure so that in the future you reduce the risk of encountering a copyright infringement claim in the future.
It is also an opportunity for you to learn about how you can enforce the copyright you have in your own original works and effectively pursue copycats who piggyback on your work.