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Within the Copyright Patent and Design Act 1988 (“CPDA 1988”) owners of copyright possess the right not to have their copyright rights contravened. The two forms of infringement within the CPDA 1988:

  1. Primary infringement
  2. Secondary infringement

This post will examine in brief both kind of infringement and future posts will examine both in more detail.

Under s.16 CPDA 88 the owner of the copyright has the exclusive rights to undertake action constrained by copyright (“the restricted rights”). These include the rights to:

  • Copy the work
  • Issue copies of the work
  • Rent or lend the work to the public
  • Perform, show or play the work in public
  • Communicate the work to the public
  • Make an adaptation of the work

As above, these rights are commonly referred to as the “restricted rights”.

Primary infringement

Acts of primary infringement will not require knowledge or intention to infringe on the part of the ‘infringer’ – the violation of the restricted rights are strict liability “offences”.

An act of primary infringement is undertaken if an individual engages in any of the following acts which contravene the restricted rights of the owner of the copyrighted work:

  • Duplicating the work
  • Issue duplicates of the work
  • Rent or loan the work to the public
  • Perform, display or play the work in public
  • Communicate the work to the public
  • Make an adaptation of the work

Infringement occurs when either the whole or a substantial part of the author of the work’s restricted rights are used by another person without authorisation. This use can be direct or indirect on the part of the infringer. A direct infringement would be, for example, duplicating the architectural drawings of the owner. An indirect infringement could take place in the event the infringer went to the house that had been built utilizing the architectural drawings of the owner of the copyright and subsequently made a copy of the floor plan and dimensions of the house.

It can also be a breach of copyright to authorize any other individual to do any of the above acts which impinge upon the restricted rights of the owner of the copyrighted work.

Secondary infringement

Secondary infringement must involve some knowledge by the infringer of the copyrighted work. It is usually it is retailers or publishers who are ‘secondary infringers’. Examples of secondary infringement include:

  • Importing infringing copy
  • Possession of or dealings with infringing copy
  • Providing the opportunity for making infringing copies

Knowledge may be established on both an objective and a subjective basis. Objectively, a Defendant is held to have knowledge of infringement if a reasonable man would arrive at the relevant belief of infringement on the particular facts.

Practical tips relating to infringement of copyright

Infringement of copyright can be hard to prove – Defendants seldom leave traces of how they have violated copyright. However, the law concerning copyright does help the owners of copyright in particular ways – for example, there exists a presumption that the Defendant has copied the work of the Claimant if the two works are similar and the Defendant had access to that work. The burden is then placed on the Defendant to provide evidence that his work is original and not copied.

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