A Reminder About Copyright Infringement

As many people remember from their school days, it is much better to create something on your own than to copy someone else's work. But where do you stand when matters are not so clear cut, when there are elements of grey, when you suspect that someone has copied your work but knowingly or unfairly altered various aspects or when you have been accused of copyright infringement in relation to a work that you hadn't seen before?

If faced with such scenarios, allegations of copyright infringement are unlikely to be far away. You may wish to protect and enforce your rights or defend your position. If so, you may want an understanding of how the Courts are likely to approach the question of copyright infringement.

The recent case of John Kaldor Fabricmaker UK Limited -v- Lee Ann Fashions Limited is not a bad place to remind yourself of the main elements involved in copyright infringement. Heard in the High Court's Intellectual Property Enterprise Court, the parties were commended by the Court for their sensible approach to the dispute which meant that it could focus on the key issues in order to provide an important summary of the law, including previous authorities, and to explain how it would, as a result, apply it when copyright infringement is alleged, without getting drowned in extraneous detail.

The legal background

The law surrounding the question of copyright infringement stems from the Copyright, Designs and Patents Act 1988 (also known as the CPDA). Under the CPDA, original literary, dramatic, musical and artistic works may be protected by UK copyright for the life of the author plus seventy (70) years. During that period, the copying (which under the CPDA means reproducing the work in any material form) of the protected work is prohibited without permission.

What are literary, dramatic, musical and artistic works?

An original literary work is normally formed of the written word (whether online or in print) such as marketing literature, a novel, an article or correspondence. An original dramatic work is typically a work of action with or without words or music which can be performed - examples include screenplays, dances and mimes.

An original musical work is a work that consists exclusively of music, and has been defined by the Courts as the combination of sounds for listening to and which are not mere noise but created for human emotions or intellect. An original artistic work is defined by the CPDA as a graphic work, photograph...