In relation to copyright therefore once you have established that your work is being infringed i.e. by reference to a) whether or not the work is protectable and b) if so (amongst other things) whether or not a whole or substantial part of the work is being copied then you will have a claim for copyright infringement.
The law of copyright in England and Wales can be found in the Copyright, Designs and Patents Act 1988.
Copyright and copyright works
1. (1) 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,
Literary, dramatic and musical works
3.(1) In this Part:
‘literary work’ means any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes:
(a) a table or compilation other than a database,
(d) a database.
The acts restricted by copyright in a work
16.(1) The owner of the copyright in a work has, in accordance with the following provisions of this Chapter, the exclusive right to do the following acts in the United Kingdom –
(a) to copy the work (see section 17)
(2) Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.
(3) References in this Part to the doing of an act restricted by the copyright in a work are to the doing of it –
(a) in relation to the work as a whole or any substantial part of it
(b) either directly or indirectly
and it is immaterial whether any intervening acts themselves infringe copyright.
Infringement of copyright by copying
17.(1) The copying of the work is an act restricted by the copyright in every description of copyright work and references in this Part to copying and copies shall be construed as follows.
(2) Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form. This includes storing the work in any medium by electronic means.
Do not be confused with a claim for copyright infringement in court or a claim for copyright which is settled before a claim is issued. Jaw Jaw is always better than War War and in the vast majority of cases where copyright infringement is threatened, any threat does go away because the parties settle. In the vast majority of cases a settlement is reached because the infringer has no defence to the copying and agrees to settle on the terms as outlined by the aggrieved. But sadly you have to spend money on ensuring the infringer is aware of this and making him see the error of his ways my forcing him to settle. You force him to settle by ensuring the infringer is abundantly aware that you will issue a claim if he does not see sense and a deal is done.
So it is essential that all pre -action considerations are concluded prior to the issue of a claim. These are the pre action considerations
1. Always assert your ownership by reference to your work. Refer to it in a form of schedule. So if it is a photograph attach the photograph in an Annex marked as Annex A.
2. Reference Annex A to the infringing work i.e. by reference to Annex B
3. Assert what you want i.e. the removal of the offending material and the payment of your legal damages and costs
4. Include an undertaking in the letter which sets out what you want and make this undertaking legally binding. In the event that you do have to court a refusal to sign the undertaking can be used as evidence that one party was unwilling to sign a reasonable undertaking.
5. Above all do seek to avoid a claim. Of course this may not be possible but its a fair comment to say that the Lawyers are the only winners.