Expert Media Lawyer in London, UK | PAIL® Solicitors

Did you wake up to a letter, email or phone call placed by a copyright owner? Are they accusing you of using (part of or all) their copyrighted material without permission? Worry not. This section will help you understand your possible liability and any defences. However, you need to first respond to the letters within the stated timelines to avoid further liability and comply with the Civil Procedure Rules.

When someone suspects that you have infringed on their copyright, they are required to initiate contact with you as part of the pre-action protocol. This action is essential in clarifying the specific elements of copyright infringement, determining the parties' attitude and generally laying the foundation for an amicable settlement of the dispute. When you receive such communication, it is prudent to respond on time.

Below are some of the issues you should consider while determining your liability

1. Did you use the copyrighted material?

2. Was the copyrighted material that you used in the public domain?

3. If you used copyrighted material, what was your motivation? For example, did you use the copyrighted material for criticism? Using copyrighted material for a parody or criticism is a common practice, especially on sites such as YouTube, where people post reaction videos in the case of ECB & Sky v Tixdaq [2016] EWHC 575 (Ch). The court held that this use, accompanied by the acknowledgement of the original source, did not infringe on copyright.

4. Was there a licensing agreement authorising the use of the work? A licensing agreement authorising the use of the work could also include a creative commons license.

5. Did you use work that is covered under copyright exceptions?

If your answers to the above questions indicate that you might have infringed copyright, you can either engage a copyright agent or do your due diligence to ascertain the claimant's right to the work. This step helps determine whether they are the real owners of the copyright you have infringed.

If appropriate, you may decide to accept liability at this stage and negotiate with the copyright owner to reach a financial settlement.

It is important to note that copyright does not need registration and the right arises even when no © symbol is placed on the work. Secondly, wide use of a given work does not limit or eliminate your liability. Similarly, you can still be held liable for copyright infringement even when your use of the work does not result in profits.

There is a no-fault rule on copyright infringement in the UK. As such, despite not intentionally infringing a copyright, you can still be held liable. In the same line, UK copyright law can apply retrospectively. As such, if you used some copyrighted work then stopped, its owner can sue you for infringement for the period you used their work. These rules are stringent, and they ensure that the intellectual works of creativity, especially in this age of technological advancement and the heavy use of social media, is protected. As such, the general public must educate itself on various aspects of copyright and intellectual property law.

Under certain circumstances, it is essential to pursue court action to resolve conflicts arising from copyright infringement. In the UK, different courts hear copyright disputes depending on the economic value.

In England, the local county courts will hear copyright disputes with a monetary value of £10,000. If need be, they are transferred to the Intellectual Property Enterprise Court (IPEC) Small Claims Track, where they are heard by judges who specialise in Intellectual property law. Mr Justice Mead is the Judge in charge of intellectual property. The current Presiding Judge of IPEC is HHJ Hacon and nominated barristers and solicitors, all experienced in IP law, sit as deputy IPEC judges. Higher value disputes in IPEC are multi-tracked. Higher value claims take longer to decide, and different rules of recovery are applied. To start a small claim suit at the IPEC, you have to lodge a claim form in London. All details relating to the claim, including the technology solicitors particulars of infringement and the infringer's details, have to be clarified in the claim form. The owner of the copyright is required to serve the infringer with the legal papers. According to the civil procedure rules Part 63, the defendant files their response. If they fail to respond after service, a copyright owner can get default judgment.

After filing the initial submissions, the court sets a hearing date, and the process of determining liability is actualised. It may take several months, even in a court-like IPEC, designed for quicker justice, for the final decision to be issued by a court. If the parties do not want a court-issued decision, they can opt for an out-of-court settlement.

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