Copyright Infringement: dispelling the myths and rumours - part 5
Copyright is full of myths and rumours so much so that this is part 5 in the series where we dispel misconceptions and answer some of the common questions around preventing copyright infringement.
I am only displaying part of the copyright protected image – am I still infringing copyright?
Essentially, the question to consider is whether a substantial part of the copyright protected work is being used. You might think that as you have only used half of the work (or less) for example that copyright infringement has not occurred but it is not that simple. Instead of thinking solely about what percentage of the work has been used, the test is one of quality rather than quantity. The courts will consider whether “substantial use has been made of the skill and labour which went into the creation of the” original copyright work (Copinger and Skone on Copyright 18th Ed.). This is nicely explained in the case of Designers Guild Limited v Russell Williams (Textiles) Limited (trading as Washington D.C.)  1 WLR 2416, HL (at page 2426).
“the question is whether what has been taken constitutes all or a substantial part of the copyright work. This is a matter of impression, for whether the part taken is substantial must be determined by its quality rather than its quantity. It depends upon its importance to the copyright work. It does not depend upon its importance to the defendants' work”.
Further, in a recent European Court of Justice decision (Infopaq International A/S v Danske Dagblades Forening (Case C5/08) (also known as “Infopaq 1”)), the ECJ held that no distinction should be made between the part and the whole, provided that the part contained "elements which are the expression of the intellectual creation of the author".
So whether or not copyright infringement has occurred when you have not used the whole of the copyright work, will depend upon whether or not the part used contains a substantial part of the original. As such, even if you have only used a small percentage of the work, copyright infringement could still occur and you would be liable to the copyright owner / exclusive licensee for the period of unauthorised use.
I am a charity / not for profit organisation – does this make me exempt from the copyright infringement provisions of the Copyright, Designs and Patents Act 1988 (the “1988 Act”)?
Whilst there are some exemptions that are specific to charities including the ability to make a copy of a copyright work in a format that can be accessed by a someone who has a disability, generally, charities and not for profit organisations are subject to the same copyright infringement provisions as everyone else. This means that if a charity / not for profit uses a copyright protected work it will be subject to the copyright infringement provisions of the 1998 Act and the resulting consequences.
A small amount of people have seen the copyright work that was displayed on my website – does this still count as a ‘communication to the public’?
Yes. Section 20 of the 1988 Act provides that the communication of a work to the public is an act restricted by the copyright in an artistic work. Under the 1988 Act, “communication to the public" includes making the work available to the public via electronic transmission in such a way that members of the public may access it from a place and time individually chosen by them. Therefore, as soon as the copyright work is displayed on a website which is accessible to the public, a communication to the public has occurred and as a consequence, so has copyright infringement.
This has been shown in the CJEU case of Ochranný svaz autorský pro práva k dílům hudebním, o.s. v Léčebné lázně Mariánské Lázně a. s., Case C-351/12 (the “OSA Case”) where the CJEU ruled that a spa operator was communicating copyright works to the public by distributing the signal carrying the copyright protected works in the guests’ rooms.
According to the CJEU the term “public” as outlined in Article 3(1) of the Copyright Directive refers to an indeterminate number of potential recipients and therefore, a fairly substantial amount of people. As the spa would have welcomed a substantial amount of guests continually throughout the day, the CJEU decided that they had communicated the copyright protected works to the public. Therefore, it is not the actual amount of people who have had access to the works, but the potential amount of recipients that will be considered when determining whether the communication will be a ‘communication to the public’. Therefore, when a copyright work is communicated on a public website, the fact that there is an indeterminate amount of recipients will generally mean that, when the copyright work is uploaded, a communication to the public will have occurred.
If you would like more information on any of the issues covered in this article or any other aspects of intellectual property law please get in touch.
You can read the first four parts of this series here:
15th November 2021
We review the proposed changes to the rules for attending court hearings.
15th November 2021
A new Code of Practice has been introduced for recovering arrears accrued during the pandemic.
11th November 2021
We consider the ongoing impact of current measures on Scottish landlords and tenants.