Making a copyright infringement claim

A brief guide to the basic principles involved in making a copyright infringement claim in England and Wales.

We offer a free consultation service and a range of funding options, including no win, no fee. Call 0333 888 0404 or email [email protected]

What is copyright?

Copyright is a legal right that protects your original work from being copied or used without your permission. If you create something original and record it (by writing it down, saving it, filming it, etc.), you will automatically acquire copyright. No formal registration is required. It is however important to appreciate that copyright protects the way you express an idea, not the idea itself.

Copyright applies to a range of tangible works including:

  • literary and dramatic works,
  • musical works,
  • artistic works,
  • sound recordings, films, and broadcasts,
  • academic and business works; and
  • architectural works.

In the UK, copyright is regulated by the Copyright, Designs and Patents Act 1988. The Act specifies what type of works are protected, who owns copyright, and what amounts to infringement.

Copyright usually lasts for your lifetime plus 70 years.

Copyright infringement

Copyright infringement can be ‘primary’, such as copying a work, or ‘secondary’, such as dealing with infringing copies.

Primary infringement is a strict liability offence. This means the infringer’s intent is irrelevant to their legal liability. Secondary infringement on the other hand requires the infringer to have had knowledge of the infringement.

The test for infringement focuses on whether a substantial part of the work has been reproduced, with a qualitative assessment of the copied portion being more significant than the quantity. Evidence of copying, such as access to the original work, can shift the burden of proof to the defendant to demonstrate independent creation.

Originality of the work

Originality plays a crucial role in copyright disputes as it is a fundamental requirement for copyright protection to subsist. Originality does not demand that a work be novel or inventive but requires that the work be the result of the author’s own intellectual creation. The threshold for originality is relatively low, requiring only that the author has made some creative input to stamp the work with their personal touch.

Originality is also critical in determining the scope of protection afforded to a work. The degree of originality influences how substantial a part of the work must be copied for infringement to occur. For example, highly creative works may attract broader protection, meaning infringement could occur even with fewer similarities. Conversely, works with minimal originality may require near-identical copying to establish infringement.

Notifying a copyright claim

The dispute resolution process typically begins with a formal letter of claim, outlining the alleged infringement. The letter generally includes details of the claim, copies of the works in question, and proposed undertakings for the defendant to cease infringement or obtain a licence. A reasonable response period, typically 14 to 28 days, is provided.

Interim remedies may be available, such as an injunction or a Norwich Pharmacal order, where it is necessary to preserve evidence or prevent further infringement.

Dispute resolution

Efforts should be made to resolve the copyright dispute and a range of alternatives to court action are available, including mediation, which can be very effective and much cheaper than court proceedings.

Commencing court proceedings for infringement of copyright

If the copyright dispute cannot be resolved informally, then court action may be initiated. Proceedings are commenced either in the Intellectual Property Enterprise Court (IPEC) or the High Court, depending on the complexity and value of the claim. The IPEC offers a streamlined process with capped costs, making it an attractive forum for smaller disputes.

During litigation, the claimant must:

  • establish that copyright subsists in the work;
  • identify the author and owner; and
  • prove substantial copying without consent.

Remedies for successful copyright claims

Remedies include injunctions, damages, or an account of profits. Additional damages may be awarded for flagrant infringement, but innocent infringers may avoid liability for damages.

How we can help with your copyright infringement claim

We offer a free consultation service and a range of funding options, including no win, no fee where appropriate.

To find out where you stand, call 0333 888 0404 or email [email protected]

Picture of Lee Dawkins

Lee Dawkins

Lee Dawkins is a supervising partner in Slee Blackwell's litigation team and the firm's marketing partner. He is experienced in contentious probate, personal injury law, and professional negligence.
Picture of Lee Dawkins

Lee Dawkins

Lee Dawkins is a supervising partner in Slee Blackwell's litigation team and the firm's marketing partner. He is experienced in contentious probate, personal injury law, and professional negligence.
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