Infringement Flashcards
Steps
- Has a person carried out one of the exclusive acts or authorized the doing of one of them? (CR territorially limited, but possible for authorization to occur outside UK)
- If so, did the alleged infringing activity fall within the scope of an express or implied licence?
- If not, was there a causal connection or copying of the copyright work; and was the act done in relation to the whole or substantial part of the work?
Authorisation
Where a person authorizes, without permission of the copyright owner, another to carry out one of the exclusive acts, this will amount to primary infringement.
CBS Songs v Amstrad-
> No manufacturer and no machine confers on the purchaser authority to copy unlawfully.
> The advertisement did not authorise the unlawful copying of records; on the contrary, the footnote warned that some copying required permission and made it clear that Amstrad had no authority to grant that permission. (If Amstrad had deprived themselves of the advantages of offering improved recording facilities, other manufacturers would have reaped the benefit.)
Dramatico Ent v BSkyB- Citing Kitchin J in Fox v Newzbin:
The grant or purported grant to do the relevant act may be express or implied from all the relevant circumstances:
• the nature of the relationship between the alleged authoriser and the primary infringer,
• whether the equipment or other material supplied constitutes the means used to infringe,
• whether it is inevitable it will be used to infringe,
• the degree of control which the supplier retains and
• whether he has taken any steps to prevent infringement.
Causal Connection: Proof of access
Designer Guild- If there is proof of access and a sufficient similarity, there will be a shift to D who may refute by evidence that, notwithstanding the similarity, there was no copying but independent creation.
(There are simply too many, and too many obvious, similarities, any one of which could of itself be coincidental, but the combination of which could not.)
Causal Connection: Unconsciously or subconsciously
This may amount to causal connection.
Francis, Day & Hunter v Bron CA: proof of similarity between the allegedly infringing work and the original, coupled with proof of access to the original, creates a prima facie but not an irrebuttable presumption of copying.
If subconscious copying is to be found, there must be proof (or strong inference) of de facto familiarity with the work alleged to be copied. In the present case, this element is conspicuously lacking. ‘the possibility that the defendant had heard it, or even played it in his early youth, is quite insufficient‘.
Substantial Part of the Work: UK
Designer Guild, Hoffmann: substantiality depends upon quality rather than quantity. And there are numerous authorities which show that the ‘part’ which is regarded as substantial can be a feature or combination of features of the work, abstracted from it rather than forming a discrete part.
NLA v M&S, Hoffmann: The test is quantitative in the sense that, as there can be infringement only by making a facsimile copy. But the question of what counts as enough seems to me to be qualitative
The qualitative aspect of ‘substantial part’ had to be answered ‘by reference to the reason why the work is given copyright protection’. In the case of literary works, this was literary originality and in the case of artistic works, this was artistic originality (irrespective, in both cases, of literary and artistic merit).
Baigent v Random House: [The elements] are by-products of their years of research, discussion and speculation. Viewed objectively, however, in the context of the necessary and sufficient conditions for infringement, they are not ‘a substantial part’. They are not substantial in the copyright sense, any more than a fact or theory that took a lifetime to establish, or a discovery that cost a fortune to make.
Substantial Part of the Work: EU
Infopaq- leads to a possible rethinking of infringement principles: the CJEU held that reproduction should be broadly construed and that reproduction of a work ‘in part’ could extend to copying sentences or parts of sentences of a literary work, provided such extracts reflected the AOIC.
NLA v Meltwater, Proudman J: ‘originality rather than substantiality is the test to be applied to the part extracted’ (endorsed by CA on appeal)
SAS Institute v World Programming, Arnold J: ‘when considering whether a substantial part has been reproduced, it is necessary to focus upon what has been reproduced and to consider whether it expresses the author’s own intellectual creation. [Yet], the CJEU also held in Infopaq that it is necessary to consider the cumulative effect of what has been reproduced.’
Secondary Infringement
S22 CDPA: importing infringing copy which is, and which he knows or has reason to believe is, an infringing copy of the work.
S23 CDPA: possessing or dealing with infringing copy which is, and which he knows or has reason to believe is, an infringing copy of the work.
S24 CDPA: providing means for making infringing copies knowing or having reason to believe that it is to be used to make infringing copies.
S25 CDPA: permitting use of premises for infringing performance unless when he gave permission he believed on reasonable grounds that the performance would not infringe copyright.
S26 CDPA: provision of apparatus for infringing performance, &c.
Pensher Security Doors v Sunderland CC 2000- a mere suspicion is not a ‘reason to believe’
