01737 339 618
At Crate Jacobs we help many clients (often those in the creative sectors) protect and enforce copyright they own in their original works.
We also regularly help clients defend copyright infringement claims. This will often start when our clients receive a “Letter of Claim” or a “Cease and Desist Letter” from a copyright owner.
What is copyright?
Copyright a very valuable right.
It an unregistered right that protects original works, such as literary, musical, artistic, and dramatic works, as well as films, broadcasts, and software. In the UK copyright is governed by the Copyright, Designs & Patents Act 1988 (the “CDPA”).
Copyright is valuable because it provides the owner of the copyright in a work the exclusive right to do the following actions in relation to the work:-
- Copying;
- issuing copies to the public;
- renting or lending;
- performing or showing the work in public;
- communicating it to the public; and
- adapting it.
In practical terms, this means that if you have written a book, only you can sell copies to the public or allow others to create a film based on your book.
Ownership and duration
The copyright owner will typically be the individual author who created the works.
However, if the works are created during the course of employment the law assumes the employer will own the copyright in the same (unless there are written contractual provisions in place to the contrary).
Likewise, where a freelancer creates works for a client, the freelancer will own the copyright in the works unless there are contractual provisions in place which expressly assign the copyright to their client. It is therefore important to ensure you have the correct contracts in place early on to ensure your position is protected.
In the UK, the duration of protection can vary between 25 years and 70 years depending on the nature of the original works. For example, copyright for literary, dramatic, musical and artistic works lasts for up to 70 years after the author dies. It is therefore a right which can generate revenue for a long time and should be enforced wherever appropriate.
When does copyright infringement occur?
Infringement occurs when a person, without the permission of the copyright owner, performs any of the following restricted associated with the copyright work:
- Copying;
- issuing copies to the public;
- renting or lending;
- performing or showing the work in public;
- communicating it to the public; and
- or adapting it.
Copyright in a work can be infringed in respect of the whole or a “substantial part” of the work.
The test for establishing what a “substantial part” is not a quantitative test (i.e. about how much of the original work has been copied). Instead, the courts adopt a “qualitative test” to decide whether a key part of the original work has been copied by the alleged infringer.
Defences
There are various defences available to copyright infringement claims under the CDPA, these include:
- asserting the period of protection has expired;
- evidencing that you actually have a license to use the original works;
- fair dealing (albeit sufficient acknowledgement of the copyright owner’s rights must still be present);
- using the original works for teaching and educational purposes;
- criticism, review and news reporting; and
- parody, caricature or pastiche.
The potential defences applicable in each case are very fact dependant and will vary widely. It is therefore prudent to obtain legal advice early on wherever possible.
Letters of Claim/Cease and Desist Letters
When copyright infringement occurs, the owner or their lawyers will typically send the alleged infringer a formal court compliant letter in the first instance. These can be referred to as a “Letters of Claim”, “Cease-and-Desist Letters” or “Letters Before Action”.
These letters should particularise ownership of the original work, alleged infringement and set out the remedies sought (typically along with signed undertakings) within 14-21 days of the letter.
If the alleged infringer fails to reply to the letter the copyright owner may decided to commence court proceedings against the infringer without further notice. It is therefore important that you seek independent legal advice as soon as possible if you receive a letter of this nature.
Under the Civil Procedure Rules, the parties will nevertheless need to consider if Alternative Dispute Resolution (“ADR”) is suitable before any court proceedings are issued. If a party fails to offer or engage with ADR without good reason the Court can take this into consideration on the issue of costs at the end of any trial.
How Crate Jacobs can help
Whether you are an author, photographer, furniture designer, architect or graphic designer, we are here to help you ensure your contracts protect the commercial value of your hard work. We are also here to help vigorously pursues those who infringe copyright in your works.
We have many years of experience in helping our clients bring and defend copyright infringement claims.
If you have a copyright matter you need assistance with, please do not hesitate contacting us (info@cratejacobs.com, 01737 339 618). Copyright infringement matters can often be time sensitive so it is prudent to obtain legal advice early on wherever possible.
We pride ourselves on getting to know our clients and their long-term commercial objectives so we can provide tailored, pragmatic and cost-effective legal advice.
Daniel Crate
Intellectual Property Solicitor
Founding Partner of Crate Jacobs