Lecture notes
Lecture 7. Infringement of copyright
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- Queen Mary, University Of London (QMUL)
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Lecture 7. Infringement of copyrightIn section VI above, we have seen that a claimant in copyright proceedings must establish that the defendant
has committed one of the restricted acts set out under s.16 (for a claim of ‘primary” copyright infringement).
However, in addition, certain further, more general conditions must also be established if a claim for
infringement is to be successful (regardless of the particular right alleged to have been infringed). These
conditions are considered in this section.
Infringement
- Relatively untouched by international rules – although see TRIPS Agreement, Art 9(2) (copyright not
extending to ideas, procedures, methods of operation or mathematical conceptions as such)
- No explicit legislative harmonization at EU level – but CJEU has established principles
The need to establish a causal link
Need for a causal link – distinguishing trademark law / patent law
- A claimant in proceedings for copyright infringement must be able to establish a causal connection
between the defendant’s activities and the protected work. That is, the defendant’s work must be
derived from the protected work. This principle was explained by Mummery LJ in the following words
in Sawkins v Hyperion Records Ltd [2005] EWCA Civ 565: "The important point is that copyright can be
used to prevent copying of a substantial part of the relevant form of expression, but it does not
prevent use of the information, thoughts or emotions expressed in the copyright work. It does not
prevent another person from coincidentally creating a similar work by his own independent efforts. It
is not an intellectual property monopoly in the same sense as a patent or a registered design. There is
no infringement of copyright in the absence of a direct or indirect causal link between the copyright
work and the alleged copy."
- “indirect” copying - Copyright does not protect against independent creation. However, note that the
causal link can be “indirect”
“References.to the doing of an act restricted by the copyright in a work are to the doing of it- ...
(b) either directly or indirectly;
and it is immaterial whether any intervening acts themselves infringe copyright.”
(CDPA 1988 s.16(3))
British Leyland v Armstrong (1986) AC 577 – British Leyland was a car manufacturer
(short lived car, broke) had to be fixed by Armstrong. Armstrong manufacturer exhaust
car parts which fit British Leyland cars. These usually were replaced every three years.
These can be purchased from both companies. British Leyland sued Armstrong for these
exhaust pipes. Claim was based upon the plans of the exhaust pwipes. They claimed
when Armstrong copied their exhaust pipe from a pipe under the car, they said it was an
indirect copy of their own exhaust pipe drawings. Held: this was correct. They indirectly
copied the plans. This would be very unlikely in this time and age. As originality requires
detail – exhaust pipe doesn’t have
- King Features Syndicate Inc v Kleeman (O & M) [1941] AC 417
- Plix Products v Winstone [1986] FSR 63, [1986] FSR 608
- Islestarr Holdings Ltd v Aldi Stores Ltd [2019] EWHC 1473
- Proof of copying - Close similarity between the defendant’s work and that of the claimant can raise an
inference of infringement. Courts infers that there has been copying. it’s up to the defendant to
defendant themselves
Main case - Mitchell v BBC [2011] EWPCC 42 - Mitchell argued his characters in a book were
copied by the BBC in a program. He pointed out the BBC had accessed his work before. BBC
said this wasn’t the case, they’d never seen it. Court said similarities between the two works
were sufficiently clos to raise the inference of copying. this mean the burden of proof passed
to the defendant (BBC). BBC defended themselves and gave evidence for their originality.
This was sufficient and the BBC found no infringement.
See LB (Plastics) v Swish Products Ltd [1979] RPC 551. For examples of cases in which this argument
was advanced, see Mitchell v BBC [2011] EWPCC 42; Davies v Wolverhampton Wanderers Football
Club (1986) Limited [2019] EWHC 1252 (Ch)
, Strict Liability - No requirement of an intention to infringe
- In general, in the case of “primary” liability for infringement of copyright (that is, liability for
committing on the acts set out in ss 16-21), the claimant does not have to establish that the
defendant knew, or ought to have known that they were committing an infringement. Such wrongs
are torts of strict liability. As a consequence, in some instances, courts have found that infringement
may occur subconsciously. See Francis Day & Hunter v Bron [1963] Ch 587. Note that a requirement
of knowledge is required in the case of “secondary infringements” of copyright and criminal copyright
offences.
- It should also be noted that the principle that primary infringements of copyright are strict liability
wrongs has fallen into question as a result of some recent Judgments of the CJEU, which hold that the
state of knowledge of a user of a work will, in the specific circumstances of those cases, be relevant in
determining whether an infringement has taken place. See, in particular, Dimensione Direct Sales Srl v
Knoll International SpA [2015] ECDR 12; (C-160/14) GS Media BV v Sanoma Media Netherlands BV; (C-
527/15) Stichting Brein v Wullems (“Filmspieler”); (C-610/15) Stichting Brein v Ziggo BV (“Pirate Bay”)
In ‘relation to the work as a whole or any substantial part of it....’(CDP s.16 (3)(a))
- Where one of the restricted acts (see VI above) has been committed in relation to the whole of a
protected copyright work, an infringement will be committed. However, the concept of infringement
is not restricted to such cases. The reproduction, communication to the public etc of only a part of a
copyright work can also give rise to a finding of infringement. Under the CDPA, s 16(3)(a), it is
provided that:
“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 the relation to the work as a whole or any substantial part of it...”
- There is no equivalent, separate condition of “substantiality” applied to the rights granted under the
EU copyright acquis. In the case of “reproduction”, for example, liability is stated to arise either where
a work is “reproduced” (ie, copied in its entirety) or where it is reproduced “in part” However, an
equivalent conceptual framework to the traditional UK approach to the determination of
“substantiality” has been developed by the Court of Justice.
Considering “substantial part” post-Infopaq
- In Infopaq International A/S v Danske Dagblades Forening (C-5/08) [2009] ECDR 16, the CJEU
considered the conditions under which a work will be reproduced “in part”. It held that: “...[T]he
reproduction of an extract of a protected work which, like those at issue in the main proceedings,
comprises 11 consecutive words thereof, is such as to constitute reproduction in part within the
meaning of Art.2 of Directive 2001/29, if that extract contains an element of the work which, as such,
expresses the author's own intellectual creation...” [51]
- The key enquiry here then is; “Has the defendant’s reproduced “elements” of the claimant’s “work”
which “embody” the protected creativity of that “work”? As a theoretical approach, this is very similar
to the assessment which was conducted by UK courts before Infopaq. Traditionally, in accordance
with the terms of s 16(3)(a), UK courts asked whether a “substantial part” of a protected work has
been reproduced/performed to the public/distributed etc... In the case of copyright works protected
under s 1(1)(a), the assessment of substantiality was closely linked to the concept of originality. That
is, the court considered whether a substantial part of the protected aspect of the work (ie, its
originality / labour and skill) had been reproduced etc. by the defendant. . Where very little labour
and skill had been expended on a work (for example, a very simple work, a substantial part of that
work would only be regarded as having been taken when the defendant reproduced the copyright
work very closely (see, for example, Kenrick & Co v Lawrence & Co (1890) 25 QBD 99).
“Literal” infringement
- In cases in which some of a copyright work is reproduced/communicated to the public etc in its exact
form, the court’s task is to examine whether the amount taken constitutes a “substantial part” of the
whole. Employing the theoretical framework established in Infopaq, it has to ask whether the section
“taken” reproduces elements of the creativity embodied in the protected work. This would have been
the task of the national court in Infopaq itself following the CJEU’s Judgment. It would have had to
decide whether the 11 word extracts of the works at issue embodied the creativity of the authors of
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