Infringement, Defences and Remedies

Copyright gives the owner a kind of monopoly over the created material in the sense that the owner has rights against unauthorised reproduction, public performance, broadcasting, rental and lending, and issue to the public of his work. He can assign (transfer) copyright or grant a licence (or permission) to a third party to perform those acts, but anyone else who performs restricted acts will be infringing copyright (will be guilty of ‘piracy’). The copyright owner can stop others copying the whole or a substantial part of his work (what constitutes a substantial part is decided by the courts on the facts of each case). Any unauthorised adaptation of the work, such as a translation into another language or a change in the key or register of a musical work, amounts to a restricted act. It makes no difference whether the restricted act is performed directly or indirectly (for example, copying a CD is an indirect infringement of the original sound recording). The law also prohibits secondary infringement, i.e. dealing in infringing copies, such as importing or distributing them in the course of business or in any other way, for example by laying out infringing software on the Internet as freeware.

The infringer’s liability is strict but he can put up a defence, for example, he may argue that the work was not copyright, or challenge ownership, or contend that the claimant’s exercise of his

copyright is against the public interest or is anticompetitive, etc. The defendant can also claim one of the statutory ‘fair dealing’ exemptions. ‘Fair dealing’ is not defined in the Act but according to case law the copying of other people’s work is allowed provided that a) it does not deprive the owner of a possibility of sale of his work; b) the size and proportion of the piece copied is reasonably small; c) the user will not obtain any (substantial) financial benefit. The 1988 Act and the Copyright and Related Rights Regulations 2003 allow, for example:

1 making a copy of a literary, dramatic, musical or artistic work for private study or

research. However, the Regulations expressly forbid such copying for commercial purposes. For large businesses and educational organisations one way out is to take out a business licence from the Copyright Licensing Agency (CLA);

2 copying extracts from any work for the purpose of criticism, review and news reporting;

however, unauthorised use of photographs for the purposes of reporting current events is not allowed;

3 incidental (casual, inessential) inclusion of a copyright work in an artistic work, film,

broadcast or sound recording;

4 a host of exemptions that apply to educational establishments: a) copying or performing

works for the purposes of instruction or examination of students; b) including copyright passages into anthologies provided that the bulk of the collection is not copyright material; c) performing musical, literary or dramatic works without the author's permission before teachers and pupils (but not parents); d) showing or recording films, sound recordings or broadcasts for purposes of instruction, etc.

The law also permits individuals to record a television or radio programme but only in ‘domestic premises’ and for the sole purpose of viewing it or listening to it later. Films, broadcasts and certain sound recordings may be played in public without infringement if no payment is charged. Lawful users of computer programs have rights to copy them, adapt, decompile and make back-up copies. Most importantly, computer users are now allowed to make temporary copies of various copyright works (other than a computer program or a database) while transmitting information over the Internet. Making such transient or incidental copies is an integral and essential part of a technological process, as it enables transmission of the work in a network or lawful use of the work. These and many other permitted acts are legitimate only if the work is already in the public domain (has already been made available to the public in any EEA country) and there is a sufficient acknowledgment of the work.

The digitisation of artistic and literary works and the proliferation of content on the Internet have posed a serious challenge to enforcement of copyright law. They have split all interested parties into two camps: those who believe in further tightening of legislation and advancing technological solutions, such as encryption, ‘watermarking’ and other anti-copying devices and, on the other hand, those who believe in free exchange of information and unrestrictep use of copyright works for non-commercial purposes (the copyleft movement). There are also worldwide attempts to provide ‘middle-ground’ solutions, such as the Creative Commons scheme whereby copyright owners may elect to give others a free public licence to use their works if they feel that it will result in a wider distribution or exposure of their work.

In the meantime, the main emphasis of current laws is not to prevent people from copying but to ensure they pay for doing so. The principal civil remedies for breach of copyright are an action for damages or an injunction. An alternative to damages is an account of profits entitling a successful claimant to a sum equal to what the defendant has unjustly gained. Other remedies include delivery up or destruction of the copies, disclosure of the names of suppliers and sometimes customers, legal costs and interest. Most of the infringing acts are also criminal offences provided it can be shown that making and dealing in unauthorised copies was done knowingly. Prosecutions are commonly brought by the Trading Standards Office, and convictions can result in imprisonment and/or a fine.

Дата добавления: 2015-11-14