WORLD Law Direct Forums

WORLD Law Direct Forums (
-   Law Wiki (
-   -   Copyright infringement (

wld_wiki Mar 31st, 2008 08:32 AM

Copyright infringement
Copyright infringement (or copyright violation) is the unauthorized use of material that is covered by copyright law, in a manner that violates one of the original copyright owner's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.


The practice of labeling the act of infringement as "piracy" actually predates copyright itself. Even prior to the 1709 enactment of the Statute of Anne, generally recognized as the first copyright law, the Stationers' Company of London in 1557 received a Royal Charter giving the company a monopoly on publication and tasking it with enforcing the charter. Those who violated the charter were labeled pirates as early as 1603.

For electronic and audio-visual media, unauthorized reproduction and distribution is occasionally referred to as piracy or theft (an early reference was made by Alfred Tennyson in the preface to his poem "The Lover's Tale" in 1879 where he mentions that sections of this work "have of late been mercilessly pirated").

The legal basis for this usage dates from the same era, and has been consistently applied until the present time. Critics of the use of the term "piracy" to describe such practices contend that it unfairly equates copyright infringement with more sinister activity, though courts often hold that under law the two terms are interchangeable.


Though many jurisdictions impose penalties for certain blatant acts of copyright infringement and may try to stop certain infringing imports at the border, copyright infringement is still mainly prosecuted through private lawsuits by the copyright holder or their exclusive licensees. When successful, these lawsuits will typically impose monetary damages against the infringer as well as injunctions against future infringing uses.

Many infringement claims involve simple cases of copyright infringement where the copying is obvious. Others, however, are more difficult to resolve because the scope of copyright is not limited to exact copying. It is inevitable that creative works will take inspiration from the culture at large, and it is often challenging to determine when this "inspiration" has crossed the line into infringement, especially in the case of musical works. There also may be a question of whether the allegedly infringed work is even covered by copyright. Works that aren't covered may include, for example, compilations of facts that lack the requisite creativity to be covered by copyright, or those works that are in the public domain because the copyright term expired.

Copyright notices—often just a simple statement on the work itself of the year protection was acquired and by whom—are not always a good indication of whether a work is covered by copyright because most countries do not require such formalities, and so lack of notice does not mean it is not copyrighted. Courts may also subsequently decide in the context of an infringement suit that the work did not meet the minimum criteria for being covered by copyright, even if the work had been previously registered by a government or private copyright agency. However, copyright notices give at least some indication of whom to contact if permission is needed, and when a copyright will expire, though the copyright terms of pre-existing works are sometimes legislatively extended (as with the Sonny Bono Copyright Term Extension Act) or even restored after expiration (as with the Directive on harmonising the term of copyright protection in the European Union).

To avoid infringement claims, the right to make use of a copyrighted work can be acquired through an explicit contract or license with the author or publisher, through purchasing a lawful copy (which may provide a number of rights to the purchaser, as under the first-sale doctrine), and for certain types of media, statutory licenses (such as for reproducing and recording musical works under U.S. copyright law). Even without going through such channels to get prior authorization for use of the copyrighted material, doctrines such as fair use or fair dealing may provide potentially broad defenses to infringement claims. The failure of a copyright holder to bring a timely lawsuit against known infringers may later block such a claim by establishing an implied license, as may other acts or omissions that could informally signal consent to use the work.

Copyright misuse, the exploitive or restrictive use of a copyright by its legal holder, is sometimes informally called reverse piracy.


The most important international treaty concerning copyright infringement is the Berne Convention of 1886 as amended. The United States finally became the 80th signatory of the treaty with the Berne Convention Implementation Act of 1988, over 100 years after the passage of the original treaty in Paris. The US signed the treaty with one important exception: it did not accept the recognition of moral rights in article 6 of the Berne Convention. Moral rights enable a copyright holder to "object to any distortion, mutilation, or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation." The US expressly stated in the Implementation Act that no other right (i.e. the 1st Amendment) shall be impacted by acceptance of the Convention. Literary criticism and parody are important parts of the US infringement defense of fair use. Consequently, the US provides less protection from infringement of moral rights than other Berne signatories.

In most jurisdictions, copyright infringement may be established by reproduction of the copyrighted work. This reproduction can often be shown by the presence of an unauthorized electronic copy of the work on a server.

The infringement suit in American law

U.S. law requires a copyright holder to establish ownership of a valid copyright and the copying of constituent elements of the work that are original. Assuming the plaintiff proves ownership of a valid copyright, the holder must then establish both actual copying and improper appropriation of the work. The burden lies with the plaintiff to establish these three elements in what is known as the prima facie case for infringement.

First element: establishing ownership of a valid copyright

A plaintiff establishes ownership by authorship (by the plaintiff itself or by one who assigned rights to the plaintiff) of (1) an original work of authorship that is (2) fixed in a tangible medium (e.g. a book or musical recording). Registration is not required for copyright itself, but in most cases is a jurisdictional requirement to bring the suit. Registration is also useful because it gives rise to the presumption of a valid copyright, and eliminates the innocent infringement defense, and (if timely made) it allows the plaintiff to elect statutory damages, and be eligible for a possible award of attorney fees.

Works that are not sufficiently original, or which constitute facts, a method or process cannot enjoy copy protection. US Courts do not recognize the "sweat of the brow" doctrine, which originally allowed protection for those who labored to collect and organize facts. To combat this, business which assemble databases of information have relied on contract law where copyright law offers no protection. For a work to be original, it must possess a "modicum of creativity", which is a "low threshold" although some creativity must exist.

Copyright protects the fixed expression of ideas, but not the ideas themselves. (Ideas are protected by patents). Nevertheless, an expression must exist in a fixed tangible medium. A movie script writer who discusses a plot idea which has not yet been written would not be protected if another heard his idea and wrote a screenplay himself. Whether RAM constitutes a "fixed medium" is a contentious issue in copyright litigation because of the transitory nature of RAM.

Second element: establishing actual copying

A plaintiff establishes actual copying with direct or indirect evidence. Direct evidence is satisfied either by a defendant's admission to copying or the testimony of witnesses who observed the defendant in the act. More commonly, a plaintiff relies on circumstantial or indirect evidence. A court will infer copying by a showing of a "striking similarity" between the copyrighted work and the alleged copy, along with a showing of both access and use of that access. A plaintiff may establish access by proof of distribution over a large geographical area, or by eyewitness testimony that the defendant owned a copy of the protected work. Access alone is not sufficient to establish infringement. The plaintiff must show a similarity between the two works, and the degree of similarity will affect the probability that illicit copying in fact occurred in the court's eyes. Even then, the plaintiff must show that the copying amounted to improper appropriation. Indeed, the US Supreme Court has held that not all copying constitutes infringement and a showing of misappropriation is necessary.

Third element: establishing misappropriation

A copyrighted work may contain elements which are not copyrightable, such as facts, ideas, themes, or content in the public domain. A plaintiff alleging misappropriation must first demonstrate that what the defendant appropriated from the copyrighted work was protectible. Second, a plaintiff must show that the intended audience will recognize substantial similarities between the two works. The intended audience may be the general public, or a specialized field. The degree of similarity necessary for a court to find misappropriation is not easily defined. Indeed, "the test for infringement of a copyright is of necessity vague." Two methods are used to determine if unlawful appropriation has occurred: the subtractive method and the totality method.

The subtractive method, also known as the "abstraction/subtraction approach" seeks to analyze what parts of a copyrighted work are protectible and which are not. The unprotected elements are subtracted and the fact finder then determines whether substantial similarities exist in the protectible expression which remains. For instance, if the copyright holder for West Side Story alleged infringement, the elements of that musical borrowed from Romeo and Juliet would be subtracted before comparing it to the allegedly infringing work because Romeo and Juliet exists in the public domain.

The totality method, also known as the "total concept and feel" approach takes the work as a whole with all elements included when determining if a substantial similarity exists. The individual elements of the alleged infringing work may by themselves be substantially different from their corresponding part in the copyrighted work, but nevertheless taken together be a clear misappropriation of copyrightable material.

Modern courts may sometimes use both methods in its analysis of misappropriation. In other instances, one method may find misappropriation while the other would not, making misappropriation a contentious topic in infringement litigation.

Defenses to infringement

A defendant in an infringement action may rebut the presumption of copying by a showing of independent creation. It is possible for an author to create a work independently while bearing similarities to another. If access is not established, there is no copying, even if there is a striking similarity between the two works. For this reason, corporations will destroy or return unsolicited mailings from authors as a policy.

The legal doctrine of de minimis non curat lex, "the law does not care about trivial things," provides a de minimis copying defense against infringement. When the plaintiff establishes only a trivial use of the copyrighted work by the defendant, there is no infringement. For example, an out-of-focus copyrighted picture appearing only momentarily in the background of a commercial is not infringement. The Beastie Boys successfully used this defense in a lawsuit over the use of three musical notes in the song "Pass the Mic." The Beastie Boys had obtained a license to use the recording, but the rights to the song itself were retained by the original composer (copyrights can be divided). The court held that use of three notes was not a sufficient use and amounted to de minimis copying. However, the Sixth Circuit has held that the de minimis defense is not available for the sampling of sound recordings because of their intrinsic value in saving the sampler time and costs in hiring musicians to perform the music however short.

The two most important defenses to copyright infringement are the first sale doctrine and fair use.

The first sale doctrine is a defense to infringement of the distribution right. It permits a lawful purchaser of a copyrighted work to resell or otherwise dispose of it. This, however, is not a defense to the reproduction right.

Fair use is an affirmative defense, but its application will vary greatly depending on the facts and circumstances of the case. Courts apply a four part balancing test examining the scope of infringement, the effect on the copyright owner's rights (e.g. his or her ability to sell the work), the amount of the work copied, and the purpose of the infringement. Courts have held that a non-commercial use is not fair use when it has a substantial market effect. In cases with a small-scale impact, courts are more receptive to arguments regarding the effect on the copyright owner's market or potential market.

Amendments to the 1976 Copyright Act

With the passage of the so-called No Electronic Theft Act (NET Act), US copyright law was changed to allow for the civil and criminal prosecution of persons allegedly engaged in copying of copyrighted works without permission that did not result in personal financial gain; historically, the criminal copyright law required infringement to be for financial gain. Among other things, the NET Act altered the definition of financial gain to include bartering and trading. In addition, under this US law, members of software piracy groups could also be prosecuted for participation in a criminal enterprise.


In British Law, any modification of data stored on a computer so that unauthorised access is gained to software packages, games, movies, and music would be a criminal offence under §3 Computer Misuse Act 1990. So, if a read-only music CD is placed in a PC drive and the contents loaded into the computer's memory for playing, any application that allows the music to be copied and stored on the machine or an MP3 player would commit the offence in theory but, so far, there have been no prosecutions on this set of facts. More generally, §16 and 20 Copyright, Designs & Patents Act 1988 (as amended by the Copyright, however this does grant the right to create backup copies of software, so that the original can be kept safe from damage, technically meaning companies must provide either additional discs or the means to overcome any copy protection. and Trade Marks (Offences and Enforcement) Act 2002) cover copyrighted materials, and people who distribute and download copyrighted recordings without permission are liable to face civil actions for damages and penalties (the largest to date is £6,500, or $12,120.55). As in the United States, the enforcement agencies were able to identify the IP addresses and the ISPs were obliged to disclose the name and address of the owner of each such internet account but legislation was passed recently so that it isn't compulsory to hand over the information.

A 2006 survey carried out for the National Consumer Council indicated that over half of British adults infringe copyright law by copying and ripping music CDs, with 59% stating a belief that copying for personal use is legal. However, ripping music from CDs to another format, such as MP3, is currently illegal. In 2006 The Institute for Public Policy Research called for a "public right to copy". In January 2008 the government proposed changes to copyright law that would legalise copying for personal use.

Criminal offences

For the most part, the criminal law is only used for commercial copyright infringement with one exception, and an offence is committed when knowing or reasonably suspecting that the files are illegal copies, and without the permission of the copyright owner, a person:
  • makes unauthorised copies e.g. burning music files or films on to CD-Rs or DVD-Rs;
  • distributes, sells or hires out unauthorised copies of CDs, VCDs and DVDs;
  • on a larger scale, distributes unauthorised copies as a commercial enterprise on the internet;
  • possesses unauthorised copies with a view to distributing, selling or hiring these to other people;
  • while not dealing commercially, distributes unauthorised copies of software packages, books, music, games, and films on such a scale as to have a measurable impact on the copyright owner's business;
  • publishing someone else's original copy work and claiming you have made it. (This is known as plagiarism and is completely different to copyright infringement, but laws concerning it come under the section of copyright law in some countries);
  • certain copyrights allow Archival copies of software to be made however these are not to be distributed.

The penalties for these "copyright infringement" offences depend on the seriousness of the offences:
  • before a magistrates' Court, the penalties for distributing unauthorised files are a maximum fine of £5,000 and/or six months imprisonment;
  • in the Crown Court, the penalties for distributing unauthorised files are an unlimited fine and/or up to 10 years imprisonment.

Also note §24 Copyright and Related Rights Regulations 2003 which creates a range of offences relating to the distribution of any device, product or component which is primarily designed, produced, or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures. When this is for non-commercial purposes, it requires there to be a measurable effect on the rights holder's business.


All 50 States. View free previews and law summaries. Download in Word format. Copyright Forms


Online Copyright Infringement Liability Limitation Act

Copyright Law of the U.S. - U.S. CODE: Title 17, Chapter 5

Copyright infringement in the UK - The Copyright Infringement fact sheet outlines suggested procedure to follow in the event that your work is infringed.

All times are GMT -5. The time now is 01:43 AM.

Use of the Forums is subject to our Disclaimer which prohibits unapproved advertisements, solicitations or other commercial messages, and false, harassing or abusive statements. All postings reflect the views of the author but become the property of WORLD Law Direct. Questions and information submitted in the Forums are assumed inquiries for general information and not legal advice.
Copyright © 2000-2016 by, Inc.