Copyright Infringement, Exceptions and Fair Dealing

Understand Infringement, Exceptions and Fair Dealing

Key rules to remember

Civil remedies (section 55(1))

Injunction + damages + accounts + other remedies conferred by law for infringement of a right

Available to the owner of the copyright, except as otherwise provided by the Act.

Innocent infringer proviso (section 55(1))

Defendant proves: not aware AND no reasonable ground for believing copyright subsisted → only injunction + decree for whole or part of profits from sale of infringing copies

The defendant must prove both limbs. The court decides how much of the profits is reasonable. No damages in this case.

Presumption of authorship or publisher (section 55(2))

Name appearing on published copies (or on an artistic work when made) → presumed author or publisher unless contrary proved

Covers literary, dramatic, musical and artistic works, and, subject to section 13(3), cinematograph films and sound recordings.

Costs (section 55(3))

Costs of all parties = discretion of the court

Applies to all proceedings in respect of infringement of copyright.

Section 39 exceptions

(a) private use or bona fide teaching/research recording; (b) fair dealing excerpts for current events reporting or bona fide review, teaching, research; (c) acts not infringing copyright under section 52

These protect against infringement of broadcast reproduction right and performer's right.

How to solve Infringement, Exceptions and Fair Dealing questions

1. 1Identify the work and the right: is it a literary, musical, film or other work, or a performer's or broadcast right?
2. 2Identify the act done by the defendant: copying, publishing, selling, hiring, public communication or something else.
3. 3Check whether the defendant had a licence from the owner or Registrar, and whether its conditions were followed.
4. 4Test the exceptions: section 52 for copyright, section 39 for performer's and broadcast rights. Look at the purpose, the extent of use and the effect on the owner.
5. 5If no exception applies, conclude that there is infringement.
6. 6State the civil remedies under section 55: injunction, damages, accounts. Add the innocent infringer limit if the facts show lack of knowledge.
7. 7Mention criminal remedies briefly if the question asks for all remedies, and end with a clear conclusion.

Quickest way: Act, Exception, Remedy

Common mistakes in Infringement, Exceptions and Fair Dealing

• Treating any use with credit to the author as fair dealing.

  Students think acknowledgement is a defence.

  Fix: Fair dealing depends on purpose and extent of use. Credit helps but does not by itself make a use fair.

• Giving full damages against an innocent infringer.

  Students forget the proviso to section 55(1).

  Fix: If the defendant proves no awareness and no reasonable ground to believe copyright subsisted, the owner gets only an injunction and a decree for profits from sale of infringing copies, as the court deems reasonable.

• Applying section 39 to ordinary copyright in a book.

  Both sections talk about fair dealing.

  Fix: Section 39 deals with broadcast reproduction right and performer's right. Section 52 deals with copyright exceptions.

• Placing the burden of proof on the wrong side in the authorship presumption.

  Students read section 55(2) loosely.

  Fix: The person whose name appears is presumed to be the author or publisher unless the contrary is proved. The challenger must prove otherwise.

• Mixing civil and criminal remedies in one list.

  Both flow from infringement.

  Fix: Write them under separate headings. Section 55 covers the civil side: injunction, damages, accounts and otherwise.

• Saying costs follow the result automatically.

  General litigation habit.

  Fix: Section 55(3) leaves costs of all parties to the court's discretion.

Worked examples