December 20, 2019 Copyright Infringement

Copyright infringement: what is it and best practices on how to avoid it.

Copyright Protection

Copyright protects original works of authorship, including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, and computer software. Copyright ownership provides the owner of the copyrighted work with the exclusive right to produce or reproduce the work or a substantial part of it in any form. In more simple terms, copyright prohibits others from copying original works without permission. Nonetheless, a copyright owner can grant others permission to use their work under the terms of a licensing agreement.

Intellectual property lawyers are responsible for advising on copyright issues law as well as helping to cope with copyright infringement litigation.

What Does Copyright Infringement Look Like?

It is an infringement of copyright for any person to do, without the consent of the copyright owner, anything that the copyright owner has the exclusive right to do. The most common type of copyright infringement is copying all or a substantial portion of a copyrighted work without permission.

The assessment of whether a replicated portion of a work is “substantial” depends on the particular work in question and can involve several factors, including the size of the reproduced excerpt compared to the size of the entire work and whether a critical portion of the work was reproduced rather than a more trivial part. For example, a single page of a magazine may constitute a substantial portion of the magazine if the page includes an entire self-contained article. In contrast, several pages of a lengthy scientific text may only account for an insubstantial portion of the text if those pages contain a small part of a long, drawn-out chemical equation.

In order to avoid copyright infringement, it is important to understand the interests of copyright owners. Copyright owners generally seek a commercial return and creative control over their works, and they are often motivated to pursue infringement claims against parties who interfere with these interests.

Defenses and Exceptions to Copyright Infringement

If you are faced with allegations of copyright infringement, there are several defenses you can invoke. First, you can allege that the party alleging copyright infringement does not, in fact, own copyright in the work at issue. This can be done by alleging that the work is not eligible for copyright protection because it is unoriginal, by showing that the copyright has expired, evidencing that the work is now part of the public domain, or that the party attempting to assert copyright is not the owner of the copyright to the work.

As mentioned above, not all reproductions of work will constitute an infringement and the facts surrounding how the allegedly infringing material came to be are paramount in rebutting infringement allegations. If the alleged act of infringement does not reproduce a substantial portion of a copyrighted work, then the limited reproduction may be permissible. In determining whether a substantial portion has been reproduced, one must consider the size of the reproduction relative to the entire work and whether a critical portion or negligible portion of the work has been reproduced. Furthermore, you can defend on the basis that you independently produced a similar work without copying the copyrighted work. However, evidencing independent creation can be onerous, if the copyrighted work in question is widely available.

Additionally, copyright legislation in many countries provides fair use and fair dealing exceptions to copyright infringement. In other words, certain uses or dealings involving copyrighted works will not constitute infringement and non-owners are free to make use of the otherwise protected material so long as they stay within the legal exceptions applicable under the copyright laws of that country. At a high level, the applicability of fair dealing and fair use exceptions are guided by an analysis of the purpose, character, and amount of the reproduction and what alternatives exist to using the copyrighted work, the nature of that work, and the effect of the dealing or use on the work and its marketability.

Best Practices to Avoid a Copyright Infringement Claim

If you are thinking about incorporating part of an original creative work into your own creative work, there are several things to look out for. First, be vigilant if there is a copyright sign (©) associated with the work you are interested in using. If so, the copyright owner may permit others to use their work and affixes the copyright sign to give notice to others to not reproduce it. Secondly, are there options to license the copyrighted work of interest? Many copyright owners want to generate revenue from their copyright and may provide the opportunity to license their work for a licensing fee. If licensing opportunities are available, they are the proper route for obtaining the legal right to use a copyrighted work. Lastly, if you are faced with infringement allegations, consider what defenses may be applicable, whether you can benefit from a fair dealing or fair use exception, and whether it would be prudent to retain professional legal counsel to respond to the opposing party. While a common misconception may be to ignore copyright infringement allegations until they go away, ignoring such claims can actually escalate the dispute and may even harm your legal position in the dispute. Thus, it is wise to speak to an intellectual property lawyer when you receive a notice of infringement about how to best resolve the dispute.

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