IP 1.8 INFRINGEMENT OF COPYRIGHT
The copyright act grants owners of copyright the power to control the doing of the acts enumerated in Section 6, 7 and 8 of the act. Subject to the exceptions provided in Schedule 2 of the Act.
Section 15 of the Copyright Act provides that Infringement occurs where a person without licence or authorization does or causes to be done any act which only the owner of copyright has the right to do.
Independent creations which could otherwise have infringed copyright are excused –Ladbrooke V. William Hill. To constitute infringement, there must be a causal connection between both works.
In Francis Day and Hunter Limited V. Bron: The court of appeal held that, to constitute infringement, there must be:
- Sufficient similarity between both works.
- Derivation from the copyrighted work.
- There must be a causal connection between the infringing work and the copyrighted work.
- Eventually, it has to be a question of fact. Also it is necessary to show that the defendant was in fact aware of the plaintiff’s work.
Once it can be established, it is no defence to say that the defendant did not know that he was committing an infringing act.
In determining causal connection: The degree of familiarity, striking impression and the possibility that it may be a coincidence are taken into account.
ACTION FOR INFRINGEMENT
Presumptions and affidavit evidence.
An affidavit is a written declaration made under oath.
Section 42 of the Copyright Act provides a rebuttable presumption in respect of facts stated in the affidavit: It is presumed that:
- Copyright subsisted in the work at the time stated.
- Person named is the author.
- The work exhibited is the true copy.
- The author is a citizen of or domiciled in the named country if a company, that it is incorporated by or under the laws of the named country… and the work was first published in the named country.
- The certificate is the true certificate of registration of the company.
Section 43 in respect to infringement of copyright a rebuttable presumption that;
- Copyright subsists in the work.
- The plaintiff is the owner of the copyright.
- The name appearing on the work is the name of the author.
- Name appearing is that of the publisher
- That the work was produced or published at the date and place appearing on the work.
The copyright act provides that infringement could be of the whole or substantial part of the work. The decree does not explain what substantial means.
The courts are warned not to look at only quantity because a little portion can be extracted and all the substance of a work taken.
Construing substantiality often is a question of fact. Both quantity, quality and degree are looked upon.
In Hawkes V. Paramount Films Services limited: the court held that playing a half minute extract from the 4 minutes work of the plaintiff amounted to an infringement. It constituted a substantial part because it could be recognized by everyone who heard it.
Section 16 (1) provides that it is actionable at the suit of the owner, assignee or exclusive licensee.
The Federal High Court (in the place where the infringement occurred) has jurisdiction to entertain both civil and criminal suits relating to infringement of copyright. Same provision in Section 46 of the act.
However, note the exception provided in the second schedule. Which includes:
- Fair dealing.
- Parody, pastiche.
- Incidental inclusion in a film or broadcast form which it can be viewed by the public.
- Educational use.
- Approved broadcasting
- Direction of the government
- Not more than three copies of the book in a public library
- Conversion into braile and so on by government approved institutions.
And a host of others. It is however instructive to note that the major theme is: That the work or a substantial part of it should not be used for commercial purposes, not competitive and balancing public interest with that of the copyright owner.
One of the most important and well-established limitation.
The central theme in consideration (in an infringement action) is whether any competition is created between the infringer and the copyright owner.
In Hubbard V. Vosper: The court had to consider the use of fair dealing in relation to a book called the mind benders. In this case, the defendant made use of large portions from the book and used in making his criticisms. Lord Denning (in this case) adumbrated that:
- It is impossible to define fair dealing.
- It must be a question of degree. Consider;
- The number and extent of quotations and extract
- The use made of them. (for criticism: acceptable but if to pass the same message, this may be unfair dealing)
- The proportion (long portions with few comment may be unfair)
- After all said and done, it must be a matter of impression left to the tribunal of fact to decide.
The American Copyright Act provides principles that should guide the courts in determining.
- Is it for commercial or non-profit purpose?
- What is the nature of the copyrighted work?
- Was a substantial amount or proportion of the work used/lifted?
- Is it competitive or non-competitive?
All depending on the facts of the case. Where its usage is fair, the user is to acknowledge the author.
Before we proceed, please note that fair dealing and substantiality are not the same. It is only when the court has determined that a substantial part of the work has been used that the question of fair dealing comes to play.
It has been held in University of London press V. University Tutorial Press. That the mere fact that a work is republished for private use does not mean that there is fair dealing.