Copyright infringement

Copyright is a property right that subsists in specified types of work as determined by the Copyright, Designs and Patents Act 1988 (CDPA 1988). Essentially, copyright provides the owner the right to prevent others from using the work protected, unless consent is provided.

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Infringement of copyright may take two forms, namely primary and secondary infringement. S16 (1) of the CDPA 1988 provides all the acts that are permitted for a copyright owner to perform under his exclusive right.

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Copyright in a work is infringed where an individual conducts any of the actions stated in S16 (1) or authorizes another to do so, where he has not obtained license from the copyright owner to perform those acts. The infringing act must be in relation to the work as a whole or substantial part, and either directly or indirectly.

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Acts of primary infringement do not require knowledge or intention of infringement. This type of Infringement occurs where an individual undertakes any of the following acts in relation to the copyrighted work:

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•Copying of the work

•Issuing copies of the work

•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

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Therefore to establish primary infringement, it must determined, whether the person has carried out one of the exclusive acts stated in S16 (1) or provided authorization for such an action to take place.

There must be a causal connection, i.e. the infringer’s work must have derived from the copyright work and the infringing act must be carried out in relation to the work or a substantial part thereof.Â

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Secondary infringement occurs where a person facilitates primary infringing activities or deals in infringing copies of work. This form of infringement may be distinguished from primary infringement, as it requires that there must be knowledge by the infringer that the work in question is an infringing copy of a work or that the infringer must have had ‘reason to believe’ that the work is an infringing copy of a work.

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Secondary infringement occurs where an individual undertakes any of the following acts, in relation to the copyrighted work:

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•Imports the infringing copy

•Possess or deals with the infringing copy

•Provides the means to produce infringing copies

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What is important to remember when making a claim against an individual for copyright infringement is that copyright is a territorially limited right, which means that the infringing act must occur within the UK. The copyright owner’s rights only extend to protect their exclusive right from any infringement conducted within the UK.

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