Copyright infringement and remediesInfringing acts
What constitutes copyright infringement?
The categories of copyright infringement for some or all categories of copyrighted work are:
- copying of the work (section 16, CDPA);
- issuing copies of the work to the public (section 17, CDPA);
- renting or lending the work to the public (section 18, CDPA);
- the performance, playing or showing of the work in public (section 19, CDPA);
- the communicating to the public of the work, which includes the broadcasting of the work and the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them - known as the ‘on-demand’ right (section 20, CDPA); and
- making of an adaptation of the work to the public (section 21, CDPA).
Does secondary liability exist for indirect copyright infringement? What actions incur such liability?
Secondary liability does exist and is incurred when a person, without the copyright owner’s permission:
- imports into the UK, other than for his or her private and domestic use, an article which is, and which he or she knows or has reason to believe is, an infringing copy of the work (section 22, CDPA);
- possesses in the course of business an article which is, and which he or she knows or has reason to believe is, an infringing copy of the work (section 23(a), CDPA);
- sells or lets for hire, or offers or exposes for sale or hire an article which is, and which he or she knows or has reason to believe is, an infringing copy of the work (section 23(b), CDPA);
- in the course of a business exhibits or distributes an article which is, and which he or she knows or has reason to believe is, an infringing copy of the work (section 23(c), CDPA);
- distributes other than in the course of a business to such an extent as to affect prejudicially the owner of the copyright an article which is, and which he or she knows or has reason to believe is, an infringing copy of the work (section 23(d), CDPA);
- makes, imports into the UK, possesses in the course of business or sells or lets for hire, or offers or exposes for sale or hire an article specifically designed or adapted for making copies of that work, knowing or having reason to believe that it is to be used to make infringing copies (section 24(1), CDPA);
- transmits the work by means of a telecommunications system (other than by communication to the public), knowing or having reason to believe that infringing copies of the work will be made by means of the reception of the transmission in the UK or elsewhere (section 24(2), CDPA);
- gives permission for a place of public entertainment to be used for a performance which infringes copyright unless when he or she gave permission he or she believed on reasonable grounds that the performance would not infringe copyright (section 25 CDPA); or
- supplies apparatus that is used to infringe copyright by a public performance of the work or by the playing or showing of the work in public (section 26, CDPA).
What remedies are available against a copyright infringer?
Remedies would include damages, injunctions, account of profits, delivery up and forfeiture. Interlocutory relief is also available and can include interim injunctions, search orders and freezing orders.
The courts can order additional damages beyond the loss caused to the copyright owner, in particular if the infringement is flagrant or the defendant has accrued a significant benefit by reason of the infringement. Additional damages may also be awarded under article 13(1) of the Directive on the Enforcement of Intellectual Property Rights (2004/48/EC) (the Enforcement Directive) to award the rights holder damages appropriate to the actual prejudice suffered by him or her as a result of the infringement. The UK court has held that damages may be awarded under either the additional damages provisions in the CDPA or under the Enforcement Directive and each might be appropriate in different circumstances (Absolute Lofts v Artisan Home Improvements; Phonographic Performance Limited v Raymond Hagan t/a Lower Ground Bar and The Brent Tavern and others).Limitation period
Is there a time limit for seeking remedies?
In England and Wales, the limitation period is six years.Monetary damages
Are monetary damages available for copyright infringement?
Yes, damages or an account of profits or a royalty rate if the infringer had taken a licence to use the work from the copyright owner.Attorneys’ fees and costs
Can attorneys’ fees and costs be claimed in an action for copyright infringement?
Yes, the defendant is usually liable to a sizeable percentage of the claimant’s costs, if the claimant is successful.Criminal enforcement
Are there criminal copyright provisions? What are they?
There is criminal liability for certain acts in relation to an infringing copy of a copyright work such as: making it for sale or hire; importing it into the UK other than for private use; distributing it in the course of business; making an article specifically designed for making copies; and causing the copyright work to be performed, played or shown in public.
For criminal liability under the Digital Economy Act 2017, it will be necessary to show that the defendant intended to make a gain for themselves or another, or knew or had reason to believe that their actions would cause loss to the copyright owner or expose the copyright owner to a risk of loss. In addition, it must be shown that the defendant had the relevant knowledge, or reasonable belief, that the copy is an infringing copy. A person found guilty of such an offence can face an unlimited fine and up to 10 years in prison.Online infringement
Are there any specific liabilities, remedies or defences for online copyright infringement?
There are specific defences for certain temporary copies that are an essential part of a technological process and the sole purpose of which is to enable a transmission of the work in a network between third parties by an intermediary or a lawful use of the work. The Court of Justice of the European Union has confirmed that this includes on-screen and cached copies that are produced while browsing the internet.
The Digital Economy Act 2010 also provides for a number of measures to reduce copyright infringement caused by file-sharing on the internet. For example, copyright owners are able to identify infringers’ IP addresses and compile reports. They then send a copyright infringement report to the relevant ISP, which reviews the evidence and, if it meets a required standard, can send letters to the infringer. A further list is then created by the ISP of those who do not comply with the letters, which if disclosed to the copyright owner, can allow infringement proceedings to be brought.Prevention measures
How may copyright infringement be prevented?
Copyright infringement can be prevented by using a copyright notice since this can alert a potential infringer to the rights holder’s rights and might dissuade them from infringing the rights in the work. It might also be possible to use technical measures to prevent infringement or to ‘seed’ or introduce deliberate errors in a work in order to make it easier to enforce any copyright infringement.
It is possible to alert Her Majesty’s Revenue and Customs as to copyright infringing material to be detained at border control.
Infringement may be reduced by inserting a copyright notice on the work indicating the date and the owner of a particular work, which will alert third parties to the existence of copyright. Enforcing copyright may deter third parties for attempting to carry out infringing acts.