Copyright (Infringement)

Question 1

What are the acts restricted by copyright (i.e., infringing acts)?

Answer 1

• Copying the work.
• Issuing copies of the work to the public (where rights have not been exhausted).
• Renting or lending the work to the public.
• Performing, showing or playing the work in public.
• Communicating the work to the public.
• Making an adaptation of the work or doing any of the above in relation to an adaptation.

One infringes copyright by doing the above oneself or even by authorising someone else to do any of the above. For example, an unauthorised publisher making an order with a printer is themselves liable, not just the printer.

It does not matter if the infringment is direct or indirect, so long as there is a causal chain between the original work and the infringing act. For example, if someone takes a photo of an artwork and then copies the artwork from the photo, it is immaterial whether or not the photo itself was an infringement when it comes to determining whether the copied artwork is an infringement or not.

You infringe even if you do any of the above acts in relation to a substantial part of the work, rather than the whole work. What is “substantial” depends on the context. If a musician has a particular identifying repeating pattern of notes in their song, someone copying that sequence in another song may very well infringe the copyright in the former song, as those notes may be seen as a “substantial part” of the former song.

Finally, the UK recognises exhaustion of rights across the EEA, as with patents.

Question 2

What does “copying” mean in the context of the different forms of copyright?

Answer 2

Literary, dramatic, musical or artistic works: Reproducing the work in any material form or storing the work in any medium by electronic means. For artistic works in particular, copying includes making a 3D copy of a 2D artwork or vice versa.

Films or broadcasts: Making a photo of the whole or a substantial part of any image forming part of the film or broadcast (i.e., just taking a photo of the screen).

Typographical arrangements of published editions: Making a facsimile copy of the arrangement.

NB the above list is not exhaustive.

Question 3

Define an “adaptation” of a computer program or database.

Answer 3

An arrangement of altered version of the computer program/database or a translation of it.

Note that, for computer programs, this could also mean a translation into a different programming language.

Question 4

Define an “adaptation” of a (non-computing) literary or dramatic work.

Answer 4

• A translation of the work.
• If the work is dramatic, then a non-dramatic version thereof, or vice versa. (For example, a book adaptation of a play, or a play adaptation of a book.)
• A comic-like version of a work in which the story is conveyed mainly by means of pictures.

Question 5

Define an “adaptation” of a musical work.

Answer 5

An arrangement or transcription of the work.

Question 6

What is an infringing copy of a work?

Answer 6

An article is an infringing copy if its making constituted an infringement of the copyright in the work in question [which means it must have been made in the UK].

An article [made outside of the UK] is an infringing copy if it has been or is proposed to be imported into the UK, and its making in the UK would have constituted an infringement in the work in question.

Question 7

Explain the burden of proof in determining whether something is an infringing copy during infringement proceedings.

Answer 7

If it is shown during infringement proceedings that an article is a copy of a work and that copyright subsists in the work or has subsisted at any time, it shall be presumed that the article was made at a time when copyright subsisted in the work (and is therefore an infringing copy), unless proven otherwise (burden of proof is therefore with the alleged infringer).

Question 8

List the three types of secondary infringement.

Answer 8

1. Importing an infringing copy.
2. Possessing or dealing with an infringing copy.
3. Providing means for meaking infringing copies.

IP is a Dangerous, Powerful Machine

Question 9

Explain how importing an infringing copy is a secondary infringement.

Answer 9

The copyright in a work is infringed by a person who, without the licence of the copyright owner, imports into the UK, otherwise than for his private and domestic use, an article which is, and which he knows or has reason to believe is, an infringing copy of the work.

Question 10

Explain how possessing or dealing with an infringing copy is a secondary infringement.

Answer 10

The copyright in a work is infringed by a person who, without the licence of the copyright owner,

• possesses in the course of business;
• sells or lets for hire, or offers or exposes for sale or hire;
• exhibits in public in the course of business;
• distributes in the course of business; or
• distributes not in the course of business but to such an extent as to prejudicially affect the owner of the copyright;

an article which is, and which he knows or has reason to believe is, an infringing copy of the work.

Posession - SLED

Question 11

Explain how providing means for making infringing copies is a secondary infringement.

Answer 11

The copyright in a work is infringed by a person who, without the licence of the copyright owner,

• 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 for making infringing copies.

NB photocopiers and other generic copying means do not count, as they are not specifically designed or adapted for making any particular copy.

The copyright is also infringed by a person who, without the licence of the copyright owner, transmits the work by means of a telecommunications system (aside from 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.

On this last point, an infringing copy made outside the UK is only such if it it going to be imported into the UK. Thus, if you send a song MP3 file by email to someone in France to make bootleg CDs, you are only infringing copyright in this way if you have reason to believe that the CDs will be imported into the UK.

Question 12

Explain the law around temporary copies.

Answer 12

A transient and incidental copy of the work which has no independent economic significance and whose sole purpose is to enable transmission of the work in a network does not infringe.

Making a temporary copy of a work is permissible if:

• the copy is transient or incidental,
• making the copy is an integral and essential part of a technological process,
• the sole purpose of the temporary copy is to enable the transmission of the work in a network or otherwise to enable a lawful use of the work, and
• the temporary copy has no independent economic significance.

For example, a temporary copy of a film stored on a satellite as the film is transmitted and played somewhere does not infringe any copyright.

Question 13

Define “fair dealing of a work” as it relates to copyright exemptions.

Answer 13

There are various statutory exemptions to copyright, and many of them depend on the allowed use of the work being “fair dealing” of the work.

There is no absolute definition of “fair dealing”, and it depends on the circumstances. However, a key indicator that something is not fair dealing is that the use of the work is commercially competing with the proprietor’s exploitation of the work that the use of the work is effectively a substitute for purchasing an authorised copy.

Question 14

Describe the “research and private study” copyright exemption.

Answer 14

Fair dealing with a work for the purposes of research for a non-commerical purpose or for the purposes of private study does not infringe any copyright in the work. For research for a non-commercial purpose, a sufficient acknowledgement is required for the exemption to apply where this is practically possible.

Question 15

Describe the “personal copies for private use” copyright exemption.

Answer 15

An individual can make a copy of a work without infringing copyright if the copy

(a) is a copy of his own copy of the work (that he acquired lawfully on a permanent basis) or is a copy of another personal copy of the work made by him in accordance with this exemption;

(b) is made for his private use; and

(c) is made for ends which are neither directly nor indirectly commercial.

This exemption applies to all types of copyright except computer programs.

Question 16

Describe the “criticism, review, quotation and news reporting” copyright exemption.

Answer 16

Fair dealing in a work for the purposes of criticism, review and quotation does not infringe copyright in that work so long as the work has been made available to the public and there is sufficient acknowledgement where practically possible.

For quotations in particular, the extent of the quotation should not exceed what is necessary for the purpose for which it is used.

Fair dealing in a work (other than photographs) for the purposes of news reporting does not infringe copyright in the work so long as it is accompanied by sufficient acknowledgement. If the news reporting is a sound recording, film or broadcast, sufficient acknowledgement is only necessary if practically possible.

Examples:

Once a film has premiered in the cinema, it’s okay for IGN to take clips from the movie and put them in their review video.

Once a book has been published, someone can quote from it without infringing copyright, but if they quote a whole chapter when all they need is one sentence then they might be infringing.

If the Guardian gets a picture of William and Kate, the Telegraph cannot print it themselves without the Guardian’s permission.

NB in the above, a work cannot be deemed to have been made available to the public by an unauthorised act (i.e., if someone steals a copy of a film before premier and uploads it to YouTube, the film is not deemed to have been made available to the public for the purpose of the above exemptions).

Question 17

Describe the “caricature, parody or pastiche” copyright exemption.

Answer 17

Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work. (As simple as that.)

Question 18

Describe the “copying and use of extracts by educational establishments” copyright exemption.

Answer 18

An educational establishment can product copies of up to 5% of a work in any 12-month period without infringing copyright in the work, subject to the following conditions:

• the work is not a broadcast or an artistic work;
• the copy is made for the purposes of instruction for a non-commercial purpose;
• the copy is accompanied by sufficient acknowledgement (if practically possible); and
• a licence allowing copying of the work by educational establishments is not available (or is available but the educational establishment had no reason to be aware of this).

Note that communication of any such copies to pupils or staff for the purposes of instruction for a non-commercial purpose also does not infringe any copyright.

NB this exemption is different and more restrictive than the exemption for private study.

Question 19

Describe the copyright exemptions for computer programs.

Answer 19

Summary version:

A lawful user of a copy of a computer program can make a back-up copy if it is necessary for his lawful use. If it is necessary for his lawful use, he can also make a copy for another reason (i.e., to correct bugs).

Decompiling a computer program also does not infringe copyright if it is necessary to obtain the information needed to create an independent program which can be operated with the program.

Back-up copies

A lawful user of a copy of a computer program (i..e, someone who purchased a non-infringing copy) can make a back-up copy without infringing if it is necessary for his lawful use .

NB whether it is necessary depends on the context. If he purchased a CD of the software, the CD itself is a back-up, but if he downloaded the software off the internet, having a back-up copy may be necessary.

Decompilation copies

Decompiling a program (which inevitably creates a copy in the source code language) does not infringe copyright so long as the decompilation is necessary to obtain the information needed to create an independent program which can be operated with the program.

If the information was already available to the lawful user of the program without decompilation, then this exemption obviously does not apply. Furthermore, the exemption does not apply if the decompilation is not confined to what is necessary for the above purpose, or if he shares information with anyone where that information is not needed for the above purpose, or if the independent program is substantially similar to the program itself (i.e., he just used decompilation in order to see the source code so he could copy the program).

Other necessary copies

Where it is necessary for the lawful use of a copy of a program to make a copy thereof (i.e., in order to correct errors/bugs in the program), this does not infringe copyright.

Question 20

What are the remedies for infringement?

Answer 20

Same as for patents.

Question 21

Explain the S51 CDPA copyright exemption.

Answer 21

S51(1): It is not an infringement of any copyright in a design document or model recording or embodying a design for anything other than an artistic work or a typeface to make an article to the design or to copy an article made to the design.

Explanation:

Typically, 3D copies of a 2D artistic work would infringe the copyright in the latter.

However, S51 specifies that this applies only where the drawing itself is of something which is artistic.

For example, if the drawing is of a statue, making the statue in 3D would infringe the copyright in the drawing. However, if the drawing is of a builder’s helmet, making the builder’s helmet would not infringe copyright in the drawing. Instead, it may infringe any unregistered design right in the helmet.

NB in the above example, if there was no unregistered design right in the helmet (maybe the design was commonplace, for example, or it just doesn’t qualify for UDR protection because it was made by a non-qualifying person or something like that) then making the helmet would not infringe any copyright or UDR and would therefore be allowed.