How Can Businesses Avoid Copyright Infringement?
The Copyright, Designs and Patents Act 1988 (“the Act“) confirms that “copyright” is a legal right that gives the owner exclusive rights over their original works.
But what constitutes a person’s original work under the Act?
The Act – An introduction
Section 1 of the Act confirms that copyright subsists in original literary, dramatic, musical or artistic works, sound recordings, film and/or broadcast. The Act does not provide an exhaustive list, but some additional examples include website content, software code, (architectural) drawings, brochures, videos or photographs.
Many may initially struggle with the concept of establishing copyright, but it may be simpler than first thought.
While a musician cannot copyright the note of E, when put together in a unique order alongside other notes to make a piece of music of his creation, copyright subsists for the musician in that piece of music and immediately upon its creation (it arises automatically).
Similarly, if a company published a children’s book about a Dragon who struggled to control his fire-breathing impulses, that company cannot assert copyright over the existence of a Dragon in a similar children’s book released by a competing company, but could establish copyright in its expression of the idea (the illustrations, structure, characterisation, and the specific creative choices made).
Section 16(1) of the Act confirms that the owner of the copyright in a work has the exclusive right to copy, publish, rent, lend or license, perform or play (in public) and/or make adaptations.
Section 16(2) of the Act confirms that an infringement occurs when a person does, or authorises another to do, any of the acts mentioned in section 16(1) without a licence agreed by the copyright owner. This section further confirms that the Act should apply to the whole of the work, or “any substantial part of it” (i.e. you cannot change a detail here and there and obviscate copyright infringement).
How to Avoid a Copyright Infringement Dispute
The simplest way to avoid copyright infringement disputes is by asking yourself the following questions before using material or content:
“Did we create this, purchase a licence, or obtain permission to use?”
Unless the answer is “yes” to all, you should pause and take advice.
How to Protect Your Copyright
Copyright arises automatically, at the moment of creation. However, the challenge is most often proving ownership should a dispute arise.
But how do you prove ownership?
An individual or business can strengthen its copyright position by good record maintenance (keeping original drafts, retaining emails, metadata, suitable written agreements with third parties, etc.). Ask yourself the question:
“What document(s) could I put in front of a judge to prove the idea originated with me?”
Remedies
Most commonly, the court may grant an injunction preventing the continued use of infringing material.
For many businesses, this is often the most damaging remedy. It may require website content to be removed, advertising campaigns to be withdrawn, brochures to be reprinted, software to be amended, or marketing materials to be destroyed at short notice.
The court may also award damages to compensate the copyright owner for losses suffered.
Alternatively, a claimant may seek an account of profits, requiring the infringer to surrender profits generated through the infringement.
In appropriate cases, the court may also order the delivery up or destruction of infringing materials.
Conclusion
The lesson is straightforward.
Before publishing content, using an image, launching a website or distributing marketing material, ask yourself:
“Did we create this, purchase a licence for it, or obtain permission to use it?“
If the answer is anything other than a confident “yes“, it may be worth taking advice before pressing publish.
Likewise, if you believe a competitor is using your photographs, website content, marketing materials, software or other original works without permission, early legal advice can often prevent a dispute from escalating.
If you think that your business is a victim of copyright infringement, please contact James Day at james.day@wellerslawgroup.com or on 01732 457575, or another member of the Dispute Resolution team for a no-obligation initial discussion.