Elements of Copyright Infringement: Explained

Copyright law is fundamental to the protection of creative works, such as music, films, and literature. Its purpose is to promote and protect innovation and artistry by recognising the uniqueness of such works. 

The legal position in England and Wales can be complex. In recent years, it has been the subject of various discussions about its application to generative artificial intelligence (AI). Copyright infringement cases require the courts to carefully balance the rights of authors against public interest and ethical concerns, making it one of the most nuanced legal areas in the UK. 

Understanding the elements of infringement is vital for creators wanting to protect their work and avoid legal disputes. This article explores the law in this area and the different types of claims. For further information, contact Helix Law. 

What Are the Elements of Infringement?

For someone to prove that a third party infringed on their copyright, they must first establish that the law protects their work. Creators don’t have to register for protection; it arises automatically provided that the work is:

1. Fixed in a material or tangible form (ideas that haven’t been recorded aren’t protected); and
2. Original (your own intellectual creation, not copied). 

Protection typically lasts for the author’s lifetime plus 70 years, but the period varies depending on the type of work and whether the creator is unknown or deceased. 

Therefore, a copyright violation consists of the following elements:

1. The existence of copyright in the work;
2. Ownership of the work by the creator (the claimant); 
3. Unauthorised use of the work by a third party (the defendant). 

If found liable, penalties range from injunctions to substantial damages.

Copyright Infringement: A Definition

Infringement occurs when an individual uses a creation without the owner’s consent, contravening intellectual property law. It includes copying, distributing, renting, publishing, performing, and more.

The primary legislation in England and Wales is the Copyright, Designs and Patents Act 1988 (the CDPA).

What Are the Elements of a Copyright Infringement Claim

There are two types of infringement:

1. Primary Infringement (when an individual commits a restricted act without the author’s consent) and
2. Secondary Infringement: facilitating someone else’s infringement

Primary violations are strict liability offences, meaning the defendant’s intention is irrelevant. 

Primary Infringement

Restricted acts of primary infringement include the following:- 

Copying

Copying is a common form and simply means duplicating or reproducing someone else’s creation in its original format or in an alternative format. 

For example, using a piece of music for a video without obtaining a license. 

Issuing copies to the public (Publication) 

This requires a third party to physically or digitally distribute copies of the work. The offence arises regardless of whether the copies are offered for sale or free of charge. 

An example is a vendor selling prints of a copyrighted photograph without permission. 

Renting or lending to the public 

Infringement also occurs when a defendant temporarily offers a protected creation to the public through rentals or lending, although there are some exceptions to this. 

For example, a business renting pirated movies. 

Performing, showing or playing the work in public

The CDPA prohibits individuals from performing or showing works in public. A good example is putting on a play or screening a film in a public space without a license. It makes no difference whether the infringer charges admission. 

Communicating the work to the public 

This restricted act involves making a protected creation available to a public audience, for example, by sharing it via a broadcast or online streaming. 

Adapting the work or doing any of the above for an adaptation

Adaptation involves translating a piece of work into a new format. For example, converting a book into a film or a film into a TV series. Any acts relating to such adaptations without the author’s consent constitute an infringement. 

Secondary Infringement

Secondary offences arise when a person facilitates or enables another individual to commit primary infringement by doing the following (as listed under Sections 22 to 26 of the CDPA):

Importing 

This act arises when an individual imports copyrighted work into the UK that he knows or reasonably believes is protected, and does so for a commercial purpose (i.e. to sell on to third parties). Importing for private use, therefore, doesn’t constitute a violation. An example of this would be purchasing counterfeit goods online or overseas and importing them with a view to selling them. 

Possessing or dealing 

Possessing or dealing with an infringing copy occurs when an individual:

1. Possesses the work in the course of a business; 
2. Sells or lets it for hire; 
3. Exhibits in public or distributes in the course of a business; and
4. Distributes other than in the course of a business to such an extent that it prejudices the original owner. 

Providing means for making infringing copies

A person who makes, imports, or possesses an item designed to facilitate making infringing copies in the course of a business or sells and lets for hire, is an act of secondary infringement. The infringer must know or reasonably believe the item is being used to make such copies. 

Permitting the use of premises for infringing performance 

It occurs when an individual allows others to use a public space to perform protected literary, dramatic or musical works without the author’s consent. The individual must reasonably believe the space is being used for this purpose. 

Providing apparatus for infringing performance 

Secondary infringement also arises when a person supplies or allows apparatus on the premises for an unauthorised public performance. 

‘Apparatus’ includes equipment used for playing sound recordings, showing films, or receiving visual images or sounds by electronic means. Again, the individual must have reason to believe the equipment is being used for an infringing purpose.

What Doesn’t Constitute Copyright Infringement?

The CDPA lists various exceptions where copyright infringement doesn’t apply. Some common ones include:

• Fair dealing: This allows individuals to reproduce or refer to protected works for criticism, review, or news reporting purposes as long as the original author is credited. 
• Temporary copies: Making a temporary copy of something won’t constitute a violation as long as:

1. It’s an essential part of a technological process; and
2. Its sole purpose is to enable the work’s transmission between parties or some other lawful use. 

The copying must also not have any independent economic significance, such as a business using the work to generate profit. 

• Research and private study: Using protected creations for research purposes is permitted if the author has sufficient acknowledgement. However, an individual won’t be liable if giving such credit would be practically impossible. 

The same exception applies to private study but doesn’t require the same acknowledgement.

• Caricature, parody, or pastiche: Replicating work for these three purposes does not infringe copyright. The law also states that any contract term restricting caricature, parody, or pastiche will be unenforceable. 
• Educational: Sections 32 to 36 of the CDPA list various educational scenarios where infringement doesn’t arise. They include using illustrations for instructional and non-commercial purposes, excerpts from published literature, and performances at educational establishments where the audience consists of teachers and pupils. 

Frequently Asked Questions

What Are the Requirements for Copyright Violation?

A copyright violation in England and Wales requires: 1) a work protected by copyright, 2) an owner of the protected works, and 3) a restricted act under the Copyright, Designs and Patents Act 1988. 

What Are the Elements of Contributory Copyright Infringement?

Contributory, or secondary, infringement occurs when a party facilitates or encourages an infringing act. The defendant in this case must have knowledge or a reasonable belief that the relevant works are being used or copied without permission. 

What Is the Test for Copyright Infringement Under UK Copyright?

In addition to the main elements, the court will examine the connection between the claimant’s creation and the alleged copy and whether the defendant copied a substantial part of the original. Substantial doesn’t necessarily mean a large sample and can refer to its overall essence or originality. 

Final Thoughts

Copyright law plays a vital role in safeguarding creativity, encouraging innovation, and protecting the rights of individuals and organisations. For an infringement claim to succeed, specific elements must be present: the existence of protected work, ownership, and the unauthorised use of that work.

The Copyright, Designs and Patents Act 1988 outlines various exceptions, such as fair dealing and uses for education or parody. These limits help balance creator protection with public interest.

Understanding these elements is essential if you want to protect your intellectual property and stay compliant with copyright law. Contact Helix Law today for tailored legal advice or help with responding to a potential claim. Our experienced solicitors are here to help.