Copyright Infringement: What you need to know

In the digital age, copyright infringement has become a critical issue, particularly for businesses and content creators. This blog will explore the complexities of copyright infringement, particularly concerning images, and highlight essential legal considerations to keep in mind.

What is Copyright Infringement?

Copyright infringement occurs when a protected work, such as a photograph, music, or written content, is used without the rights holder’s permission. In the UK, copyright is governed by the Copyright, Designs and Patents Act 1988 (the “1988 Act”), which grants creators exclusive rights over their original works.

A common misconception is that images found online are free to use simply because they are publicly accessible. However, most images are protected by copyright, and using them without permission can lead to legal consequences, including damages claims.

Watermarks or the “©” symbol are not necessary for copyright protection. Under the 1988 Act, copyright arises automatically at the moment an original work is created. Therefore, even if an image lacks a watermark, it is still likely protected by copyright.

“I Didn’t Know It Was Copyrighted”

Many infringers may mount a defence a using section 97(1) of the 1988 Act. Section 97(1) provides that damages may not be awarded if the infringer did not know, or had no reason to believe, the work was copyrighted. However, this defence is narrow and only applies when it’s reasonable to assume the work was not protected.

In Nottinghamshire Healthcare NHS Trust v News Group Newspapers Ltd, the court clarified that this defence is limited and unlikely to apply to modern works, particularly photographs. Even if section 97(1) applies, it only provides protection against damages, not other remedies available for copyright infringement. Therefore, infringers may still face other legal remedies, such as interdicts.

Damages and Compensation

Copyright holders can seek compensatory damages for losses incurred due to infringement. A court typically assesses these damages based on the “user principle” – the amount the infringer would have paid for a license if they had sought permission.

In Absolute Lofts South West London Ltd v Artisan Home Improvements Ltd, Artisan used 21 photographs from Absolute Lofts’ website without permission. The court awarded £300 in compensatory damages, reflecting what Artisan would have paid for stock photos. This decision shows that damages are calculated based on what a willing licensor and licensee would have agreed upon in a hypothetical negotiation, not necessarily the actual market rate for custom photographs.

Additional Damages

In cases of flagrant infringement, additional damages may be awarded. Section 97(2) of the 1988 Act allows additional damages when the breach is intentional or the infringer benefits significantly. Article 13 of the Directive on the Enforcement of Intellectual Property Rights 2004/48/EC also permits extra damages for lost profits, unfair gains by the infringer, and moral prejudice.

In Absolute Lofts, the court found Artisan’s breach was flagrant. This was because the images boosted the company’s profits by encouraging visitors to its website to buy a loft conversion. For flagrancy, the court awarded an additional £6,000 in damages. This higher sum compensated for the seriousness of the infringement and the benefit Artisan gained from using the photographs.

This case is notable because it clarifies the relationship between UK law and the Directive. The court confirmed that both Section 97(2) and Article 13 can apply, with the rights holder entitled to the higher measure of damages. In this instance, the final award totalled £6,300, a significant increase from the base compensatory sum.

Conclusion

Copyright infringement can lead to serious financial and legal consequences, even if no profit is made from the infringement. Courts assess compensatory damages based on a hypothetical licensing agreement, while additional damages may be awarded for flagrant breaches or unfair gains. Understanding these legal principles can help protect content creators and businesses from costly infringements.

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