BRACHER RAWLINS | What can you do if you suspect your copyright is being infringed?

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.

‘However, what actually constitutes copyright, how a business can prove that their copyright has been infringed, and what action can be taken to remedy this, is not always fully understood,’ says George Masefield, litigation Partner with Bracher Rawlins in London. ‘This area can be complex, covering many different forms of intellectual creation and often involving different legal jurisdictions.’

George Masefield considers what is copyright infringement, and how your business can take action if you believe your copyright is being misused and your business is being damaged as a result.

What is your copyright, and do you own it?

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.

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

A few examples of the traditional types of works that can be protected by copyright are musical or literary works, broadcasts, paintings, sound and television recordings. Nowadays, copyright is also claimed 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, or an EU or EEA National.

Do you need to register copyright?

It is not necessary to register copyright officially in the same way as, for example, a patent.

Has my copyright been infringed?

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

There are many examples of infringement of copyright 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, from poetry, from songs etc). It can be copying a website, or a computer program or computer software of some sort.

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’ to constitute infringement. What is considered to be substantial is fact specific and is not an exact science. The court will consider the type of work and the potential infringement in deciding this, looking at quality not just quantity, and how unique and important the copied work is overall. For example, if a small but very important extract from a poem or book or musical piece is replicated, this can be sufficient to show infringement. This can be seen in the case of musicians who ‘sample’ an original riff in another’s song that is very identifiable. This can amount to infringement even if it is only a small portion of the song in its entirety.

There are many examples of 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. Other times, they were right in their belief.

For example, in 2022, 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. However, the court found otherwise, and determined that he had produced an entirely original work.

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

This is more difficult 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 just happen upon it, or be told of it. Usually, if you are working in a particular industry, you are 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 can monitor the main online marketplaces and social media platforms to see if copies are being sold.

What options are open to you if you believe 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, then 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, then 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, then we would recommend a ‘take down’ notice is served on that platform. If you have contact details for the infringer (which is not always easy to find), then 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.

However, if that 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, as if you erroneously claim that there has been copyright infringement which is later found not to be the case, you may open yourself up to a claim for compensation from the accused person. 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 significant loss of income.

We have many years’ experience in copyright issues, and can advise you on the quickest and most cost-effective course of action.

For further information and assistance, please contact George Masefield in the litigation team on +44 (0)20 7404 9400 or email george.masefield@bracherrawlins.co.uk. Bracher Rawlins is based in Holborn, London.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.