Gavin Howe
Copyright infringement is a complex issue that varies across different countries and legal systems. In general, it refers to the unauthorised use or reproduction of copyrighted material, which can lead to civil or criminal liability. Common law copyright grants protection based on the common law of various jurisdictions, rather than statutory law. This means that in some cases, common law rights can automatically protect original creations when they are made public, even without official registration. However, the specific definition of copyright infringement and the recourse for copyright holders can vary between countries and their respective laws.
| Characteristics | Values |
|---|---|
| Definition | "As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner." |
| Nature of offence | "Strict liability" offence, i.e. intention to infringe is not considered by courts |
| Punishment | Case-specific; may include jail time and/or fines |
| Fair practice | National laws must provide for limitations to copyright, so that copyright protection does not extend to certain kinds of uses that fall under "fair practice", including but not limited to minimal quotations used in journalism and education |
| Fair use | Using a copyright-protected work without infringing their copyright is possible in some cases, e.g. with the permission of the copyright holder or under "fair use" |
| Licensing | Copyright holders can grant permission to use their works through licensing arrangements |
| Registration | Registration is voluntary but recommended for a number of reasons, e.g. having the facts of their copyright on the public record, being eligible for statutory damages and attorney's fees in successful litigation, and serving as prima facie evidence in a court of law |
| Copyright scope | Copyright covers both published and unpublished works, including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture |
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What You'll Learn
'Willful' infringement
Copyright infringement is the use or production of copyright-protected material without the permission of the copyright holder. In the US, willful copyright infringement carries a maximum fine of $150,000 per instance.
Willful infringement occurs when the infringer has knowledge that their activity constitutes infringement or recklessly disregards the possibility of infringement. For example, if a defendant is found liable for infringing a monthly newsletter over a two-year period, the award would be the amount chosen by the court multiplied by 24, as 24 newsletters were infringed over the period.
To refute evidence of willful infringement, the defendant must establish a good faith belief in the innocence of their conduct and show that it was reasonable to hold such a belief. Even if notified of an alleged infringement, continued use of a work does not constitute willfulness so long as one believes reasonably and in good faith that they are not infringing.
Proposed laws such as the Stop Online Piracy Act broaden the definition of "willful infringement" and introduce felony charges for unauthorized media streaming.
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International copyright enforcement
International copyright conventions and treaties have been established to provide a degree of uniformity and set obligations for member countries to implement in their national laws. Examples include the Berne Convention, which mandates that national laws include limitations to copyright to allow for certain "fair practices," and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which requires signatory countries to establish criminal procedures and penalties for "willful trademark counterfeiting or copyright piracy on a commercial scale."
The World Intellectual Property Organization (WIPO) also plays a significant role in international copyright issues. The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGC) works on issues related to folklore and traditional cultural expressions, while other WIPO committees focus on copyright registration, documentation, and development.
In the United States, the Office of Policy and International Affairs (PIA) within the U.S. Copyright Office handles international aspects of intellectual property protection and provides support to Congress on statutory amendments. While U.S. copyright owners can be assured of protection for their works in foreign jurisdictions, enforcing their rights often requires lawsuits in foreign courts under foreign laws, which can be challenging.
Differences in national laws and the absence of common definitions for certain terms can further complicate international copyright enforcement. For example, early court cases regarding Internet service providers (ISPs) and online intermediaries varied widely due to differences in legal systems. The U.S. Digital Millennium Copyright Act (1998) and the European E-Commerce Directive (2000) provide limited immunity from liability for online intermediaries, but the specific laws and their interpretations can differ across jurisdictions.
Overall, international copyright enforcement relies on a network of treaties, conventions, and national laws, with ongoing efforts to harmonize regulations and guidelines to provide better protection for copyright owners across borders.
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Criminal vs civil lawsuits
Copyright is a form of protection that grants the owner of creative works exclusive rights to their distribution. Copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.
Copyright infringement can be pursued as either a civil or criminal matter. In a civil case, an individual or company sues another person over a dispute. In a copyright infringement case, the owner of the work may take the alleged offender to federal court to recover monetary losses. The plaintiff must prove that the defendant violated their exclusive rights to the work. The defendant may be required to compensate the plaintiff for court costs and attorney's fees, and may be barred from continuing the infringement in the future.
In a criminal case, the government pursues the issue as the defendant has violated laws enacted by the state or federal government. Criminal copyright infringement requires that the defendant acted willfully, and that they sought financial gain or had another commercial impetus. A person convicted of criminal copyright infringement may face incarceration and fines.
The penalties for copyright infringement vary depending on the circumstances of the offense. For example, in the US, willful infringement carries a maximum fine of $150,000 per instance, and criminal penalties can include imprisonment for up to five years and fines of up to $250,000 per offense.
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Copyright trolling
Copyright infringement is the use or production of copyright-protected material without the permission of the copyright holder. Copyright trolling is a term used to describe a party (a person or company) that enforces copyrights it owns for the primary purpose of making money through strategic litigation. This litigation is often considered unduly aggressive or opportunistic and may involve exploiting the market for copyright claims.
The term "copyright troll" is a pejorative nickname for someone who manipulates intellectual property laws to force a settlement payout. Copyright trolls use technology to identify potential unintentional infringement activity and send template demand letters for payment. These letters are filled with threats and misrepresentations of how the law would likely be applied. The amount requested is usually too little to initiate federal litigation but substantial enough that the recipient is afraid and concerned.
Some examples of copyright trolling include the case of Perfect 10, Inc. v. Google Inc., where an adult magazine set up image links intending to sue Google for infringement after the images were added to its image search service. In another instance, a Nevada lawyer took "affirmative steps" to have his legal writings included in Google's search results so that he could sue for infringement. More recently, the term has been used to describe entities bringing questionable claims against companies in the fashion industry over purported copyrights in fabric patterns.
The rise of copyright trolling has been facilitated by evolving technology, particularly the ability to efficiently scour the internet for alleged infringements using modern search tools and software. This has led to concerns about the imposition of unnecessary costs on defendants and limitations on creativity. While there is hope that greater copyright protections may emerge in response, the absence of a coherent legal basis to curb copyright trolling persists, and unscrupulous practices continue.
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Fair use
Copyright infringement is the use or production of copyright-protected material without the permission of the copyright holder. The U.S. Copyright Office defines it as follows:
> As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.
The U.S. "fair use doctrine" is generally broader than the "fair dealing" rights known in most countries that inherited English Common Law. The fair use right is a general exception that applies to all different kinds of uses with all types of works.
Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.
The U.S. Supreme Court has traditionally characterized fair use as an affirmative defence, but in Lenz v. Universal Music Corp. (2015), the U.S. Court of Appeals for the Ninth Circuit concluded that fair use was an expressly authorized right, and an exception to the exclusive rights granted to the author of a creative work by copyright law.
It is important to note that fair use rights take precedence over the author's interests. Thus, the copyright holder cannot use a non-binding disclaimer or notification to revoke the right of fair use on works. However, binding agreements such as contracts or licence agreements may take precedence over fair use rights.
While fair use permits certain uses without liability, many content creators and publishers seek a license from copyright owners for any use of non-public domain material, even in situations where a fair use defence would likely succeed. This is because the license terms negotiated with the copyright owner may be much less expensive than defending against a copyright suit.
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Frequently asked questions
Copyright infringement is the use or production of copyright-protected material without the permission of the copyright holder.
Certain uses of copyrighted works are considered "fair use" or may fall within a limitation or exception to copyright law, such as minimal quotations used in journalism and education.
Punishment for copyright infringement varies case-by-case and country-by-country. In the United States, willful copyright infringement can carry a maximum fine of $150,000 per instance.
Copyright exists automatically from the moment the work is created. However, registration is recommended as it can be considered prima facie evidence in a court of law and may make the work eligible for statutory damages and attorney's fees in successful litigation. Additionally, the United States has copyright relationships with most countries, meaning they honor each other's citizens' copyrights.
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