Infringement Notes (Part 1) PDF

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Summary

Notes on the topic of infringement, please refer to Part 2 for the entire topic....

Description

Kinds of Copyright Infringement

Primary Infringement

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S.16 of the CDPA.

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Targets direct infringing acts.

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Strict liability applies here; ignorance is not a defense.

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Primary infringement occurs whenever a. An activity falls within one of the copyright owners’ exclusive rights (the restricted act is carried out in relation to the whole work or a substantial part of said work, as well as with respect to protected parts of the work; there is no protection of ideas, facts, and information); and b. There is a causal connection between the work used by the alleged infringer and the copyright work.

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When activities such as reproduction or adaptation are carried out without the copyright holder’s authorization, they may be amount to a copyright infringement. Defenses may apply.

Whole or substantial part

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It is a two-step process.

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It must first be established: what is the work? The parameters of the work must be defined and distinguished from protected elements of the non-protected elements (such as facts etc.)

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Secondly, has a substantial part thereof been taken? This step involves identifying the part that has been taken and assessing its relative importance.

Causal connection

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There is no infringement unless the similarity is caused by actual copying (the defense of ‘independent creation’).

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Did the defendant have access to the claimant’s work (subconscious copying)?

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Can said similarity have other plausible explanations (both works addressing the same source, belonging to the same genre, use of commonplace elements or expedients, or even mere coincidence)?

Secondary Infringement

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S.22-s.26 of the CDPA.

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Targets commercial dealings with infringing materials, such as the importing, distribution and selling of infringement copies.

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Liability only if defendant knew or had reason to believe the copies were infringing.

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S.22 – importing infringing copy.

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S.23 – possessing or dealing with infringing copy.

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S.24 – providing means for making or creating infringing copies.

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S.25 – permitting use of premises for infringing performance.

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S.26 – provision for apparatus for infringing performance, etc.

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It includes acts of facilitating or supporting infringement and/or dealing with infringing copies (copies obtained via primary infringement).

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Secondary infringement depends on the knowledge or fault of the infringer, such as when the defendant ‘knows or has reason to believe’ the work is infringed.

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If there is no primary infringement, there can be no secondary infringement....