What is copyright infringement?

Copyright law is the backbone to free creativity in the digital age, serving as a guide to ideas and innovation and it maintains equitable standards in the way we interact with literature, music, and technology. It serves as a key balance between creator rights and public access to their works.

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What is Copyright Law?

The Law of Copyright is a framework that grants creators of original works exclusive rights in those works. These include computer programs and databases as well as artistic works including literature, arts, film, music and sound recordings. In the UK, copyright law is governed by the Copyright, Designs and Patents Act 1988 or CDPA 1988. Like all other areas of intellectual property, copyright law aims to balance interests of creators - providing them with assurance that their original work will remain their own - with the interests of the public, allowing the free flow of ideas and information.

How is copyright generated?

Unlike trade marks and designs, copyright automatically applies to works as soon as they are created. To qualify, copyrighted works must be regarded as original, and possess an evident degree of labour, skill or judgement. There is no official copyright register in the UK, therefore the action required to protect one’s copyrighted works must involve a willingness to actively enforce one’s rights as copyright owner. In the USA, copyright work can and often is registered at the United States Copyright Office / Registry. Indeed creative people who write music or software often use the United States Copyright Office for all their material, whether commercially used or not. So the recording of a film in material form creates a copyright work, as does the creation by way of sound recording of music files and musical works. Other countries such as China also have registries, although globally copyright is protected by an international convention called the Berne Convention which has been around for decades.

In respect of literary works, artistic works, the visual arts and all kinds of creative works, it is imperative that such works are put into some kind of permanent document or file (often a digital file) which shows:

1. The date of creation.

2. The author.

3. Where the creative works were made.

What is Copyright Infringement?

Copyright infringement arises when a third party uses the copyright works without the permission of the rights holder. The rights holder could be the author or creator as copyright owner but it could also be the publisher, the broadcaster, the music company or even in the case of a deceased creator the estate of the creator! Infringement of copyright includes the reproduction, distribution, public performance, communication to the public and adaptation of the copyright works. The use of the copyright works could be in whole or in part. The CDPA 1988 categorises copyright infringement as both identical or slavish copying as well as substantial part type copying. This last test is difficult as substantial copyright infringement is a subjective test and as such, it is difficult to define.

Copyright Infringement Example:

Copyright protection could be something quite straight forward to assess. By way of example, it could be the unauthorised use of a photograph belonging to someone else. Here the copyright owner could ask the infringing party to take the photo down and provide undertakings no to use the photograph. More complex examples arise when software is copied. It could be that copyright infringement has arisen because only part of the software has been copied or because a substantial part has been copied but not slavish copying of the section of software program. In these circumstances a copyright holder can enforce their rights against an infringer - subject of course to having the right evidence which should include:

1. Full details of who created the copyright material.

2. When it was created.

3. How it was documented

4. Details of how the infringing party has wrongly used the copyright work.

Non-infringing Example: 

An example of where copyright infringement doesn't arise is where a concept is copied but not the detail of the copyright material itself. So for example, if a restaurant designer comes up with some clever ideas and themes for a Mexican restaurant, the protected elements may include aspects of the decor, the menus, and the website. However, if another party comes along and merely copies look alike themes, but no other detail, it is unlikely to be copyright infringement.

Infringing Example: 

There are plenty of examples of copying. For example photos are regularly used without permission of the photographer. This is slavish copying. Or even in the case of counterfeit clothing where the wrong doer has copied not just the style of the item but also the logos, badges and art work. Here there could also be issues with trademarks too.

It is often more difficult to see if copyright has been infringed where there are lookalike goods and here some famous supermarket items spring to mind such as the recent case of Thatchers v Aldi. Here Aldi were accused of copying Thatchers cloudy cider. The claim was dismissed although it is clear there are remarkable similarities in the packaging.

Secondary infringement

Secondary Copyright infringement does not involve direct or physical infringement of copyright, but rather actions that facilitate of contribute to copyright infringement by others. There are two main examples of how this can occur in the UK. Secondary infringement may be authorised. This could be the providing of premises, apparatus, such as print machines or any other means for infringing works to be produced. Secondary infringement may also arise from the procurement or trade of copyrighted goods. This could include selling, transmitting, or importing copies of a copyrighted work. So selling copied software games or CDs would be secondary infringement.

A requirement for secondary infringement is that the defendant had knowledge that the works in question were infringing copyright, and had intention to carry out the infringing acts. This is contrary to primary copyright infringement, which does not share the requirements of knowledge and intention.

Secondary infringement is often a criminal offence and carries criminal penalties for selling counterfeit goods. These could include copied handbags, clothing and similar items.

For a Copyright Holder: What to do if Copyright Infringement Occurs

If you are the owner of copyrighted works, and you become aware of infringement of these copyrighted material, then you must take action to enforce your rights. Much like all areas of Intellectual Property law, a right is only as useful as the owner is willing to actively enforce it. There are simple steps we recommend to do this;

1. Gather evidence of the infringement, including documentation, screenshots, or copies of the infringing material. This evidence will be crucial in demonstrating the infringement and supporting your case. This often comes to light when copyright matter is put into the public domain or the internet.

2. Make contact with the infringing party as soon as possible. Often, an infringing party may not be aware of your copyrighted works, nor that they are infringing them. In these cases, the issue can often be resolved quickly and amicably.

3. Seek legal advice in the event that the initial contact is unsuccessful. Copyright laws are complex and this is a the area where real expertise is required. This is not necessarily just to move forward with more aggressive proceedings, but primarily to gain an understanding of whether or not your copyright is in fact infringed.

4. Send a formal cease and desist letter with the help of solicitors, outlining the details of the infringement, with evidence, and demanding the immediate cessation of the infringing acts. Your claim may include moral rights - i.e. the right to be identified as the author, monetary compensation for use without permission, having something removed from being publicly displayed by way of an injunction or even with a view to obtaining a court order to stop someone from exploiting your works or your derivative work.

5. Initiate litigation in the event that all other forms of communication fail to resolve the issue. There are many routes to take. These could include mediation, legal action via IPEC, the High Court or even a copyright tribunal. The tribunal decisions refer to matters between a copyright owner and a collecting society (these are commercial collection management companies who collect royalties from radio and broadcast for example.)

What to do if Someone Accuses you of infringement

If you receive an accusation that your own work is infringing the copyright of another, a similar process can be taken. You must first assess the validity of the claim. Is your work original? Was the work a product of substantial skill, judgement and labour? The answers to these questions are seldom obvious, and obtaining legal advice on the matter can provide greater certainty and peace of mind. Further questions could include is the copyright material only a small portion of the whole? Do I have permission to use the work? When was the first publication? Is the work and original work? Is the material out of copyright? There is a lot of misunderstanding about how long does copyright lasts as the duration varies according to the rights involved. People also sometimes confuse copyright and trademark infringement.

Willful infringement of copyright is an accusation that should be substantiated. It requires that the infringer had clear knowledge that the activity or works in question constituted copyright infringement, or demonstrated a reckless disregard of the possibility of copyright infringement. This is covered by the CDPA and a copyright holder can ask for enhanced damages where such an action arises. We have recently helped a company defend and action for trademark and copyright infringement against Universal Studios. We also successfully recovered damages for our clients against Netflix and various newspapers including the Times, The Sun and The Telegraph. In these instances, the desist letter was only the start of the matter and our clients had excellent copyright claims. Over the years we've taken legal proceedings where artistic work and has used without permission, has been put in the public domain in business and the copyright owner has missed out royalties they would have otherwise obtained upon distribute copies by other parties. This hasn't always meant going to court but it does require putting infringers on notice of their wrong doing.

Virtuoso Legal has extensive experience handling these matters. Before the pandemic, we acted for Cyclone Events and Stiwt Arts Trust to assist them in defending a copyright claim from entertainment goliath 20th Century Fox. The Defendant, a family run events company was accused of copyright infringement after performing their own version of "The Greatest Showman" in 2018. Cyclone promptly admitted wrongdoing, due to a very understandable naivety, and the focus of the litigation shifted to whether the claim would be heard in the High Court or IPEC, where a capped cost scheme would be attractive to any Defendant in this position. Virtuoso made a successful application for the claim to be transferred to IPEC, resulting in a fantastic outcome for a client who had done wrong unwilfully.

For a Copyright Owner: How do I prevent Copyright Infringement?

Creating an audit of your copyright material is a proactive step towards protecting your intellectual property. Start by documenting all your creations, including the date of creation and any relevant details. Generally speaking the person making a claim must have created an original work. Keep records of any licenses or permissions granted for the use of your work. It is essential that you keep track of other parties who may have a right to use your work. Regularly updating and maintaining this audit ensures that you have a clear overview of your copyrighted material and can take swift action if infringement occurs.

You may also wish to consider overseas copyright laws and copyright offices in China, the USA etc for the purposes of registration. In the USA there is only one copyright office and federal law applies to all infringement activity in whatever state you chose to pursue an infringer in. Also, be aware that you may have a course of action in the USA for infringement of trademarks. This will certainly apply if your copyright work ends up on the internet and is being used in business. We see a lot of this, especially in relation to an original work and or copyrighted images. Copyright ownership needs to be asserted and those who've used copyright material must be put on notice of copyright issues straight away.

A further useful aspect of considering copyright registration in the USA is the right to statutory damages for infringement and damages can be recovered for up to five years, which is a far more generous regime than the UK for an infringed copyrighted work. In summary, copyrighted work is well protected in the USA. The US copyright office is certainly your ally for all copyrighted work especially where the copyrighted work has been infringed by putting on the internet for business purposes.

What are the Consequences of Copyright Infringement?

A breach in copyright can carry significant consequences, ranging from legal penalties to reputational damage. When someone infringes copyrighted material, whether it's through unauthorised reproduction, distribution, or public display, the result of legal action against them could be injunctions, damages for loss of profits, and injunction. Furthermore, allowing a breach of copyright can tarnish one's reputation within creative communities and industries, leading to diminished trust and opportunities.

It is always best to avoid copyright infringement by seeking clearance of copyright by experts. This will hopefully avoid protected works from being used in business and thereby all the damages that will flow from the breach.

It is also useful to know whether or not any defences my apply. The following acts can be used as defences:

1. Using the material for criticism and review - the so called fair game defence.

2. Using material which is not an original work.

3. Using a small amount of something so the amount is so small that it is insignificant - this sometimes happens in musical works and music sampling.

4. Where the copied work is not substantially copied.
   
   

Next Steps: What you Can do Now

Creating an audit of your copyright material is a proactive step towards protecting your intellectual property, and gaining an understanding of your overall copyright protection circumstance. Start by documenting all your creations, including the date of creation and any relevant details. Keep records of any licenses or permissions granted for the use of your work. Regularly updating and maintaining this audit ensures that you have a clear overview of your copyrighted material and can take swift action if infringement occurs.

How can we help you?

At Virtuoso Legal, we specialise in navigating the intricacies of copyright law. Our team of experienced lawyers can help you understand your rights as a creator, guide you through the process of copyright registration, and take decisive action against infringement. Don't let your hard work go unprotected – contact us today to safeguard your creations and preserve your intellectual property rights.

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Frequently Asked Questions (FAQ's)

Here are some frequently asked questions about copyright infringement.

What is Copyright Infringement in the UK?

Copyright infringement arises in the UK where original copyright works such as an image, text, film, photo, software databases or music are made available and used without the owners permission.

How do you Avoid Copyright Infringement?

As a general matter, it is always best to use your own material where possible. Where you need to use an item not created by you, it is best to avoid a problem by seeking clearance and permission from the owner. Remember the following acts are not infringing acts:

1. Use of material for study.

2. Use of material for review purposes.

3. Use of a very small and insignificant amount.

4. Use of items where copyright has expired.

5. Use of items which are not original

6. Use of material which has been substantially altered and changed - this is a subjective test.

How Serious is Copyright Infringement?

Using material such as software, databases and other valuable copyright items which don't belong to you can frequently be a very serious and expensive mistake. Copyright law covers a vast area and includes music, literature, art, sculpture, film drama, software, coding and programs, databases and many many other commercially valuable business assets. If such assets are used without permission from the business that created and owns them, then beware of the draconian remedies and cost of being involved in a dispute.

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About Virtuoso Legal?

Virtuoso Legal is a team of intellectual property specialists based in Leeds and London - operating worldwide. Virtuoso Legal's team of IP experts have successfully tried cases in the IPEC, High Court, Court of Appeals and United Kingdom Supreme Court. In addition, the team assist companies in creating, commercialising and protecting the big ideas that make their business unique. The firm and its professionals are ranked yearly in legal directories such as the Legal 500 and Chambers and Partners, cementing their status as a Top 2% law firm in the world.

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​The content on this website, including FAQs and legal posts, is for general informational purposes only and does not constitute legal advice. Laws vary by jurisdiction, and specific advice should always be sought for individual circumstances. Virtuoso Legal is not responsible for any losses arising from reliance on this content. For tailored advice, please contact us at 0113 237 9900 or enquiries@virtuosolegal.com.