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Options if you suspect your copyright is being infringed

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How to deal with copyright infringement

With more goods being traded online, and ideas and creations being so easily available to view globally, it is not surprising that examples of copyright infringement have increased in recent years.

What can you claim copyright over and how is it infringed?

You can claim copyright over a wide variety of your creative works. Your work, whether joint, or collaborative, will usually be protected by copyright legislation as long as it is original to you and your collaborator. The main criteria to claim copyright over a work is that you must have created it yourself and not copied it from anyone else, either in part or in its entirety.

If you create work as an employee, contractor or consultant, your contract may state that the copyright in any work created in this capacity is owned by your employer/practice.

Traditional examples of the types of works which can be protected by copyright are musical or literary works, broadcasts, paintings, sound and television recordings. Modern claims in copyright are made over databases, and software code or web content that is original. Computer programs, software code and original web content are now classified as literary works, and so are considered to be protected under UK legislation.

In the UK, a work may be protected if you are a UK national, EU or EEA National.

Do you need to register copyright?

It is not necessary to officially register copyright in the same way as, for example, patents or trademarks. 

Has my copyright been infringed?

The question of whether the copyright in a work has been infringed is not always easy to determine.

There are many examples of infringement which are clear, particularly where someone has simply copied an original work and is selling the copy for profit.

This can happen by performing or broadcasting an original work, by distributing original work, selling copies of it, by selling items that contain original work without permission, using originally created wording (for example, from advertising, poetry, songs etc). It can be copying a website, a computer program or computer software.

Your original work does not have to have been copied in its entirety for your copyright to be breached, but the copying needs to be ‘substantial’. What is considered to be substantial is fact specific and not an exact science. The court will consider the type of work and the potential infringement in deciding this, looking at quality rather than just quantity, and how unique and important the copied work is overall. For example, if a small but very important extract from a poem, book or musical piece is replicated, this can be sufficient to show infringement. Musicians who sample an original riff in another’s song that is very identifiable can amount to infringement, even if it is only a small portion of the song which is used.

There have been contentious cases where the person accused of infringement had a genuine belief that they were the original creator of a work, but this was found not to be the case. In other cases, they were found to be right in their belief.

One well publicised case occurred in 2022 after Ed Sheeran was accused of taking parts of his song “Shape of You” from the song “Oh Why” by Sami Chokri and Ross O’Donoghue. The court found in favour of Ed Sheeran and determined that he had produced an entirely original work.

How can you find out if your copyright has been infringed?

It is sometimes difficult to know if infringement is taking place and, depending on resources, your business may have systems in place that continuously monitor for potential infringement. Some larger companies employ third party specialists who will continuously monitor for them.

Alternatively, you may happen upon it by chance, or be tipped off by a third party. In certain industries such as music, you are more likely to become aware of a copy of your work.

If you are worried about infringement, you can regularly monitor sites where an infringement is most likely to occur. For example, if you have created a unique toy, you could monitor the main online marketplaces and social media platforms to see if copies are being sold.

What are your options if you believe your copyright has been infringed?

There are several options open to you if you think your copyright has been infringed. This will depend on the infringement, what form it takes, and where it can be found.

If the infringer is known to you and the infringement is clear, we can send a ‘cease and desist’ letter asking the infringer to immediately cease using your work. If the infringement has caused you financial loss, it is possible to take legal action in court to seek compensation.

Alternatively, you may be happy to licence the use of your work to the infringer, but for a fee. If this is the case, we can help you make arrangements for them to take a licence on the terms that you are content with.

If you notice an infringement on one of the larger online platforms, we would recommend that a ‘take down’ notice is served on that platform. If you have contact details for the infringer (which are not always easy to find), a cease and desist letter can also be served at the same time. When a platform receives a takedown notice, they must remove the infringing material to avoid liability themselves for continued infringement.

If the infringement notice is disputed by the seller, the platform will usually put the material back up until the dispute is settled. This can cause a lot of damage, depending on how long this continues. It is important to be careful regarding allegations of infringement. If you erroneously claim that there has been copyright infringement which is later found not to be the case, you may be at risk of a claim for compensation from the accused. This could be particularly costly if that person’s work or product has been taken down for a period of time by the online platforms, causing a loss of their profits. This is a complex area of law and requires careful handling.

How can we help?

If your copyright is being infringed, it is important that you act fast in order to try to limit the damage that can be caused. Depending on who has infringed, and where the infringement can be seen, the continued exploitation of your work can result in a significant loss of income.

For further information and assistance, please contact Rebecca Beynon-Phillips in the dispute resolution team on 01733 882 800 or email [email protected].

Rebecca Beynon-Phillips LLB, Partner


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