Under the Copyright Patent and Design Act 1998 the owners of copyright have the right not to have their copyright infringed. There are two potential types of infringement under the CPDA 98:

  1. Primary infringement
  2. Secondary infringement

This post will briefly examine both types of infringement and future posts will examine both in more detail.

Under s.16 CPDA 98 the owner if the copyright has the exclusive rights to do acts restricted by copyright. These include the right to:

  1. Copy the work
  2. Issue copies of the work
  3. Rent or lend the work to the public
  4. Perform, show or play the work in public
  5. Communicate the work to the public
  6. Make an adaptation of the work

These are known as the “restricted rights”.

Primary infringement

Acts of primary infringement do not require knowledge or intention of infringement on the ‘infringer’s’ part – they are strict liability “offences”.

An act of primary infringement is committed if a person does any of the following acts which impinge on the restricted rights of the owner:

  1. Copying the work
  2. Issue copies of the work
  3. Rent or lend the work to the public
  4. Perform, show or play the work in public
  5. Communicate the work to the public
  6. Make an adaptation of the work

Infringement occurs when either the whole or a substantial part of the author’s restricted rights are utilised by another person. This use can be direct or indirect on the part of the infringer. A direct infringement would be, for example, copying the architectural drawings of an owner. An indirect infringement would occur if the infringer went to the house that was built using the architectural drawings of the owner and made a copy of the floor plan and dimensions of the house.

It is also a breach of copyright to authorise or commission any other person to do any of the above acts.

Secondary infringement

Secondary infringement does have to involve some knowledge or intention on the part of the infringer. It is usually retailers or publishers who are ‘secondary infringers’. Examples include:

  • Importing infringing copy
  • Possessing or dealing with infringing copy
  • Providing the means for making infringing copies

Knowledge can be established on both an objective and a subjective basis. Objectively, the Defendant is held to have had knowledge of infringement if a reasonable man would arrive at the relevant belief of the infringement on the facts.

Practical tips relating to infringement

Infringement of copyright can be hard to prove – potential Defendant’s rarely leave traces of how they have violated copyright. However, the law relating to copyright does aid the owners of copyright in certain ways – for example, there is a presumption that the Defendant has copied the work of the Claimant if the two works are similar and the Defendant had access to that work. The burden is then placed on the Defendant to provide evidence that his work is original and not copied.

Redmans Solicitors are intellectual property lawyers and their solicitors are based in Richmond, London. They are copyright lawyers and trademark lawyers.

About

Redmans Solicitors are a law firm based in Richmond, London. They are specialist employment lawyers and represent both employers and employees in the Employment Tribunal

Share →

Leave a Reply

Your email address will not be published. Required fields are marked *

Looking for something?

Use the form below to search the site:


Still not finding what you're looking for? Drop us a note so we can take care of it!

Visit our friends!

A few highly recommended friends...