Enforcing Copyright – The Basics
July 11, 2015
Copyright is a right that exists as soon as you create the copyright material. You do not have to apply for it. There are some exceptions to copyright, but unless one of these applies, anyone else using your material without your permission is infringing your copyright. The damages receivable for breach of copyright depend on the commercial loss to the copyright owner resulting from the infringement.
Normally, an informal settlement is to be preferred. If you do have to go to court, however, being seen to have tried to achieve a mediated settlement will do you no harm at all.
If you cannot resolve the matter informally, you may need to issue court proceedings. You will need legal advice for this and, in particular, putting together the evidence necessary to prove ownership of the copyright and the commercial impact of the infringement can be an onerous task.
There is a range of legal remedies for breach of copyright:
- You can ask for an injunction which requires the infringer to stop making further infringing use of your material;
- The court can award you damages for infringement of your copyright, based on your commercial loss; and/or
- The infringer can be ordered to deliver up infringing items to you.
Where the infringement is deliberate, intentional or wilful, the court may provide additional remedies, such as increased damages.
Any material you come across will usually be someone’s copyright, so do not be tempted to ‘borrow’ material for your own purposes. It is important to find the copyright owner and obtain their permission to use it.
Material published on the Internet is NOT 'free to use'. Being given 'permission' to publish copyright material by anyone who can not validly give you permission is not a defence, although you may have a right of action against the person who gave you permission. In a recent case, a firm which copied more than 100 articles belonging to another company (and which had appeared on various websites which were authorised to have it) was sued by the owner of the copyright. It agreed to an out of court settlement of £5,000 plus legal cost which were several times the damages.
In 2014 the Government announced changes to copyright law, which will permit copying of copyright material for data analytics, certain private purposes, archiving and preservation, educational use and other reasons. Specific rules apply to each instance. There is guidance on the IPO website.
A recent decision of the European Court confirmed that proceedings for breach of copyright involving the Internet can be brought in any EU country from which the offending website material can be accessed . However, the claims for damages must be brought in the country in which a loss is claimed to have occurred as a result of the breach.