A Step by Step Approach to Copyright

1. Intellectual Property Rights Available

The Copyright, Designs and Patents Act 1998 gives creators of original works copyright protection.

S1 states ‘Copyright is a property right which subsists in accordance with this Part in the following descriptions of work:

(a) original literary, dramatic, musical or artistic works

(b) Sound recordings, films, broadcasts or cable programmes and

(c) the typographical arrangement of published editions.’

2. Conditions Necessary for Existence

Copyright in the work, as a Literary/Dramatic/Musical/Artistic (‘LDMA’) work, will exist if the work is:

(i) Original (i.e. not copied). Originality of expression and form is required not idea or content

(ii) satisfies the requirement of minimum effort – the minimum effort threshold is low for a literary work and will be met if the work instructs, informs or gives pleasure and

(iii) is recorded in some way, for example, in an electronic format.

3. Ownership of the Right

The author of the work is the owner of the copyright.

Work created by an employee during the course of his employment is owned by the employer, unless there was an agreement to the contrary.

4. Duration of the Rights

Duration for LDMA is the life of the author plus 70 years from the end of the year of his death.

5. Infringement of Rights

A copyright owner has 6 exclusive rights in relation to a copyright work.

“1. to copy the work

2. to issue copies of the work to the public

3. to rent or lend the work to the public

4. to perform, show or play the work to the public

5. to communicate the work to the public and

6. to make an adaptation of the work.”

The entire above are referred to as the ‘acts restricted by the copyright.’ If it is part infringement the copyright is infringed if a ‘substantial part is taken.’

Primary Infringement

The infringer is liable regardless of the state of mind. The defendant will have to prove that he did not copy.

Secondary Infringement

Liable only if he knew, or had reason to believe, that he was dealing with an infringing copy. A trader that imports copies, sells, distributes or stores copies will be liable of copyright infringement.

If the original creator of the work knows that its’ copyright Is being infringed it may write to the infringers. They will then be in a position where they are aware of the infringement.

6. Remedies

An interim injunction would be available for infringers of copyright which should be followed by an application for a final injunction.

In addition to the injunction the owner of the copyright can claim for either for damages to compensate for any loss it has suffered (loss of sales etc), or an account of profits from the infringer.

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