Written by Rehana Ali on 24 September 2013« Return to Reading Room
The Copyright Design and Patents Act 1988 gives the owner of copyright the exclusive right to deal with a copyright work, if a person other than the owner of copyright attempts to deal in or reproduce a copyright work in any material form, without the consent of the owner, it is likely that the owner of copyright will have an action for infringement.
Copyright infringement is split into primary and secondary infringement, the difference between the two being the infringer’s state of mind. A primary infringer is liable for infringement regardless of his state of mind, a secondary infringer is only liable if he was aware that he was dealing in a work that infringed copyright.
As above the most obvious act of infringement is copying a work, a person cannot infringe copyright in a work if they never had access to it, therefore independently created works cannot be objected to. In simple terms if a defendant can prove he had no access to a work or no opportunity to copy, he will not be liable, conversely, if a defendant produces a work very similar to a claimants and had an opportunity to copy, it is likely to be inferred that copying has taken place.
The following example is good illustration of a situation with an inference of copying:
A has been employed by B at B’s company for the past 5 years, B has a unique website that sells watches and has been trading in the same for the past 5 years, A leaves the job with B, B later discovers that A has set up a competing website selling watches that is very similar to B’s website.
Secondary infringement is more concerned with the dealing with or facilitating the manufacture of works that infringe copyright, again, as above, works copied and produced without consent from the copyright owner, take the following example:
A popular kids cartoon DVD has been copied and the infringer has started producing DVDs in the same, the manufacturer in this scenario is the primary infringer, the manufacturer then sells on the copied DVDs to wholesalers and retailers who buy the DVDs as they are aware that they are cheaper imitation of the popular kids cartoon (the wholesalers and the retailers are the secondary infringers as they are aware they are dealing in work that infringes copyright).
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