Innocent Copyright Infringement?
Written by Thomas Mould on 10 August 2016« Return to Reading Room
Copyright protects works from being copied but do not create a monopoly. Therefore, independently creating the same material as someone else is not an infringement of their copyright.
Of course, you will need to prove independence which can be difficult. It is recommended that any evidence of this is kept and that material is permanently recorded with author, date of creation and mark it with ‘Copyright Protected’.
If you copy protected material, you have committed an infringement. This is called Primary Infringement.
Ignorance, i.e. not knowing that a work is protected, is not a defence for either copyright.
Since copyright subsists in a work automatically and there is no public register of protected works, it can be difficult to know whether something is protected or not. If in doubt, it is sensible to assume that it is protected and not copy it without permission. Even when the copyright owner for a work cannot be traced copying will be infringement if the work enjoys protection (albeit the copyright owner may never come forward to assert that right).
Copyright law offers a defence of incidental inclusion, e.g. where a copyright-protected painting is visible in the background of a photograph that is focused elsewhere. Whether material is incidentally included is a question of fact and depends on the manner in which it is used and the intentions of the user at the time.
Courts will not tolerate willful blindness on the part of infringers and so a suggestion that anything other than an old work does not have rights protecting it is unlikely to attract any defence (even if there is no copyright notice on the work).
If the infringement has been carried out by someone else on your behalf, for example, if you are selling items are an infringement of copyright and bought the items in good faith, then you may be considered a 'secondary infringer', as long as you did not specifically authorise the seller to make the infringing goods for you (in which case you would be a 'primary infringer').
You may only be a secondary infringer if you carry out certain activities with works that you knew or had reason to believe were infringing another's rights. Knowledge is not relevant to acts of primary infringement.
Knowledge can be implied if the works were, for example, very cheap or bought on the grey market, though it will be a question of fact in each case. However, it is generally considered reasonable for a person to believe that a supplier or contractor will obtain all the necessary licences. Therefore, possessing goods in circumstances where you did not know or have reason to believe that the goods infringe the rights of others presents a defence to allegations of secondary infringement.
If you find out that material is infringing another's rights, perhaps because you come across new information, or because you receive a threatening letter from the owner, this gives you the necessary knowledge and you must cease using the material right away in order to avoid further proceedings. Further, secondary infringement is only relevant to a limited number of activities and so any direct copying or communication of protected works, for example, the use of a photograph on a website, is primary infringement. If there is primary infringement, knowledge is irrelevant.
The Moral of the story is if in doubt assume that the work is copyrighted and you will need to seek permission from the copyright owner.
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