InfringementSubject to some exceptions, an infringement occurs where a 3rd party, without consent, exercises any of the exclusive rights of the copyright owner. This is known as primary infringement. A third party can also commit what is known as secondary infringement if it:
- Imports and infringing copy of the work into the UK;
- Provides the means for taking infringing copies;
- Permits the use of premises for an infringing performance; or,
- Provides apparatus for an infringing performance.
RemediesIf third party infringes the copyright in a work, it may be possible to obtain the following remedies:
- An injunction to prevent future infringement;
- Compensation for the infringing activity: damages for loss of earnings ? such damages are usually based upon a reasonable royalty for the use of the work made by the infringer, i.e. what would a reasonable licence fee have been for the use that has been made; or, an account of the profits made by the infringer arising from the infringing use; and/or,
- Delivery up or destruction of the infringing articles.
Exploiting copyrightCopyright is a valuable commercial asset. The copyright owner can assign its rights to a third party, or grant a licence to a third party to do any of the above acts. Assignments must be recorded in writing and signed by or on behalf of the person assigning the right in order to be effective. A licence may be granted formally, informally or may arise by implication. A formal licence agreement provides the parties with certainty.
Moral rightsThe author of the copyright work also has moral rights to protect his reputation regardless of whether he remains the owner of the work. The author can seek to be recognised for a work or seek to prevent derogatory treatment of their work. The author?s moral rights cannot be assigned but may be waived.
Copyright internationallyCopyright is a territorial property right. However, the Berne Convention requires the signatory States to recognise the copyright of authors from other signatory States like they were a national of their State. The Berne Convention currently has 167 signatory States including the UK. Copyright therefore has a certain level of international protection. Paula Tighe is a qualified data protection professional and leads the trusted advisor information governance service for solicitors Wright Hassall.
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