The owner of the copyright has the exclusive right to undertake or permit others to undertake acts restricted by copyright law. Copyright is infringed when a person undertakes or authorises another to undertake a restricted action without the consent of the rightful owner. The restricted acts include copying the work, making the work available to the public, making an adaptation and copying or making available the adaptation.
Restricted acts and infringement are to be interpreted by reference to the work as a whole or a substantial part. It may be direct or indirect. It may be unintentional or deliberate. It is also an infringement to interfere with copyright protection embedded in the work.
The right of an owner of copyright to copy a work or authorise other people to do so is known as the reproduction right. Copying the work includes reproducing or storing the work in any medium. Storage in a medium would include scanning or capturing it in an electronic form. Uploading an image onto the Internet or sending it constitutes copying.
Printing out copyright material constitutes copying. The production in 3D of a 2D work involves reproduction.
The temporary reproduction for technological purposes in the context of transmitting works between networks for lawful use is not an infringement. The act must have no economic significance to enjoy this exemption.
Copying may take place by any means. There is copying when there is reproduction in any material form. This covers physical and electronic forms. The concept is applicable to all works as well as economic/entrepreneurial types of copyright.
What constitutes copying will be determined to some extent by the nature of the work concerned. With text and literary copyright, the elements that are copied may be readily apparent. In the case of musical, dramatic and artistic copyright, the elements that are claimed to be copied may be more impressionistic and abstract.
With the advent of digital technology, copying may take place easily and on multiple occasions. There may be copying by multiple parties. Persons placing the material onto the Internet is clearly copying and infringing if they do so without consent.
Sending by email is likely to constitute copying. Others who reproduce the material in a form such as by downloading or saving it. may also breach the reproduction right.
It appears that merely looking at websites and bringing up the page does not by itself constitute copying leaving the user liable for infringement. The legislation does exempt the induced copying from happening automatically by way of temporary copies as part of the operation of the website.
The copying need not be literal or complete copying. The copying of a substantial part of the work constitutes an infringement. A substantial taking of another’s work may constitute copying. Copying is given its everyday meaning.
Copying may take place at high thematic levels. Ideas, however, are not protectable.
Works which are similar may be produced coincidentally. However, where it is shown that one author had access or another author’s work and there are striking similarities, the court may conclude that there was copying. There must be some element of cause and effect from one to the other, even if subconscious.
There must be substantial taking of a significant part of the work. The extent of copying may not be measured simply in quantitative terms.
If a key part is taken which is critical to the economic investment of the author, this may constitute a substantial taking. If the claimant’s work is taken by the defendant in order to save time and effort, there is more likely to be infringement. Small key snippets of songs have been held to be substantial for this purpose.
It is necessary to identify what elements of the work have been copied. The court considers the similarities. If they are sufficiently close, numerous and extensive so that copying is more probable than independent creation, there may be copying. Where there are sufficient similarities in the copyrighted material, the onus is on the respondent to prove that notwithstanding the same, the later work did not result from copying.
If the subject matter is commonplace unoriginal, and comprises general ideas, the reproduction is less likely to constitute infringement. Elements of the earlier work may not qualify for copyright in that they lack the requisite standard of originality. Later works may derive from common sources.
Right to make Available
The right to make available to the public includes making it available through various means through which it may be accessed. This may include lending, renting or issuing copies to the public, performing, broadcasting, including it in a cable service or showing the work.
The provision of facilities for enabling the making available to the public of copies of a work does not, of itself, constitute an act of making available to the public copies of the work. Where a person who provides facilities is notified by the owner of the copyright in the work concerned that those facilities are being used to infringe the copyright in that work and that person fails to remove that infringing material as soon as practicable thereafter, that person shall also be liable for the infringement. A form of notice may be given.
An application may be made to the High Court for an injunction against an intermediary. Where copyright in work is infringed by its being performed, played or shown in public, by means of apparatus for receiving sounds, images or data or any combination of sounds, images or data, or the representations thereof, conveyed by any means, the person by whom they are sent is not liable for the infringement. A performer shall not be regarded as liable for the infringement to the extent that the infringement relates to his or her activity as a performer.
Placing a literary or artistic work in a place to which the public has access does not constitute making it available to the public. Showing is limited to visual and audio works. It does not create a right to exhibit work.
The copyright holder has the right to distribute the work. The right to distribute the work to the public is known is the distribution right.
This includes putting copies into circulation in the EU where copies were as not previously in circulation in the EU or putting them in circulation outside the EU where they were previously in circulation in the EU or elsewhere. This does not cover copies lawfully in circulation already.
What constitutes making work available to the public has been broadly interpreted. While the mere provision of physical facilities does not amount to communication, the distribution of a signal by means of a television set by hotel to customers constitutes communication to the public. The CJEU indicated that the private nature of a hotel room does not preclude the communication of the work by means of television sets from constituting communication to the public.
In further cases involving hyperlinks, the court indicated that the concept of communication to the public requires an individual assessment. Account is taken of several criteria, which may vary depending on the situation. This includes the role played by the user and the deliberate nature of the intervention. The user makes an act of communication when it intervenes in full knowledge of the consequences of that action to give access to a work to customers in circumstances where they would not otherwise enjoy the work communicated.
The European Court indicated that the transmission of a broadcast to television screens in public constituted a communication to the public. Equally, communication to customers in a cafe restaurant by speakers also constituted communication to the public.
The CJEU has distinguished between copyright free linking and linking constituting infringement. It considers the knowledge of the person creating the link in relation to infringement as relevant. Where it is carried out for-profit, a higher standard of verification is required. In some cases, it may be evident that the link is to something which was not authorised by the copyright holder. There may be an onus on the person creating the link in some cases to verify that what was once authorised is still authorised.
Lending & Rental
The copyright holder has a rental and lending rights. It applies to literary, dramatic and musical works, films and original database and sound recordings It applies to artistic works other than building a model for a building or applied art.
Rental and lending do not cover making copies available for performance in public broadcasting, cable programmes service, exhibition in public or on the spot reference or use. The making of a copy of a work available in establishments to which members of the public have access shall not infringe the copyright in the work.
There are certain limitations on the rental and lending rights. The lending rate is limited to certain cases where a scheme of remuneration of authors is in effect in relation to a class of work in which the work is included. The Minister may establish a public lending remuneration scheme to remunerate authors from public monies for lending by a public library of certain categories of works.
Right to Adapt
Adapting a work constitutes an infringement. This includes turning a work from one format to another, such as adapting a play to a novel or vice versa. Other adaptations from one format to another may constitute infringement.
Adaptations of work include recording in writing. Adaptation of literary, dramatic works, films, sound recordings broadcast or cable programme includes a translation arrangement or other alteration or version of a dramatic work. It includes conversion into a non-dramatic work or the conversion of a non-dramatic work into a dramatic work and a version of a work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction.
- Adaptation of a musical work, includes a translation, arrangement or other alteration or transcription of the work;
- Adaptation of an artistic work includes a collage of the work with other works, an arrangement or other alteration of the work;
- Adaptation of a a computer program, includes a translation, arrangement or other alteration of the computer program; or
- Adaptation of an original database includes a translation, arrangement or other alteration of the original database.
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