Intellectual Property Protection

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. Read more here

Infringement suit in the United states

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.

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.

Fair use

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. Fair use is used mainly in the United States. Other common law jurisdictions have the more rigidly defined defence of fair dealing, while civil law jurisdictions also have similar defenses.

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