Back to Basics: Understanding copyright infringement
The primary objective of copyright is to safeguard creators of original content – once that content takes on a fixed or recorded form – from unauthorised copying or reproduction of the content, or from the use of the content by others in certain ways, without the approval of the copyright owner.
Unauthorised uses of protected material include, crucially, copying the work, renting or lending it to the public, performing or showing it to the public, or communicating it to the public.
If someone does any of those things with regard to copyrighted material, it’s called copyright infringement and under English law, the copyright owner will have legally recognised remedies as against the infringing party.
Questions of copyright infringement are commonly addressed with the support of specialist media and entertainment lawyers, particularly where creative works are being exploited, adapted or distributed.
Infringement comprises, broadly, civil wrongs of primary and secondary infringement.
Primary copyright infringement will occur when a person other than the copyright owner carries out any of a number of prohibited acts – which include copying – with regard to a substantial part of a protected work without the consent or the authorisation of the copyright owner; keep that “substantial part” test in mind. Primary infringement constitutes a “strict liability” tort, meaning - essentially - that intent and knowledge are irrelevant: a lack of intent to infringe will not constitute a defence!
Then there are various acts described as “secondary infringement”, i.e. (i) importing an infringing copy; (ii) possessing or dealing with an infringing copy; (iii) providing the means for making an infringing copy; (iv) permitting the use of premises for an infringing performance; and (v) providing the apparatus for an infringing performance and the like. Unlike (strict liability) primary infringement, secondary infringement will require knowledge, or reason to believe, that the copies or uses are infringing.
There are a number of exceptions to the various prohibitions on using copyright works, which permit copying in certain circumstances, for example under the English law “fair dealing” exception (not to be conflated or confused with the US law concept of “fair use”), which essentially includes non-commercial activities such as education, and review or criticism, provided that it is used genuinely and fairly for those purposes and has appropriate acknowledgement.
Over in the US, in the case of apparent unauthorised copying of a protected work, a work based on protected material will need to be sufficiently “transformative” of that original work in order to avoid a charge of copyright infringement. Here in the UK, a key question will be whether the defendant reproduced a substantial parts of the protect work. Similarity alone is insufficient; truly independent creations will not infringe.
The English courts tell us this should be assessed on a qualitative rather than a quantitative basis, considering, by way of example, things such as dialogue, character, plot, and so forth. The courts have developed various tests in this context.
Taking the second of those issues first, the “substantial part” test is a highly significant, but difficult to define, concept. It can be subjective, which is to say there is no single, set definition of what constitutes a substantial part. At one extreme, obviously, a verbatim lifting of whole scenes, or acts, or indeed a whole screenplay, from a protected work will constitute a substantial part. But at the other extreme, copyright has been found to exist in very short extracts, provided they reflect the author’s own intellectual creation. And there is a lot of ground in between, which makes it difficult to assess in any given case what constitutes a substantial part.
Likewise “substantial similarity” can be difficult to assess, and will depend on an analysis of the two works in question. The relevant material in respect of which the similarity will be assessed is protected material; ideas, themes, concepts, facts, and other non-protectable material will be filtered out prior to assessing substantiality.
Finally…
So, Creators, protect your content and don’t infringe others; this is an uncertain area and one in which, regrettably, many disputes arise.
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