Principles of Copyright Law – Cases and Materials

INFRINGEMENT AND ENFORCEMENT

A. INFRINGEMENT

Copyright infringement occurs when anyone, other than the copyright owner or

someone authorized by him, does an act – e.g., reproduction, translation,

adaptation, public performance – that is the exclusive right of the owner.

The plaintiff must show that he owns the copyright, and:

(a) that the defendant did an act, the exclusive right to which belongs to

the copyright owner, in relation to the work or a “substantial part” of it;

and

(b) that the defendant did not have the plaintiff’s express or implied

authority to do the act.

Once the plaintiff proves these elements, he has prima facie proved

infringement. To avoid liability, the defendant must provide a valid defence: e.g.,

“fair dealing” in the U.K. and the Commonwealth, “fair use” in the United States,

or some other specific exception.

The following illustrates the practical operation of some of the relevant rules and

principles:

1. DOING AN UNAUTHORIZED ACT IN RELATION TO THE
   WHOLE COPYRIGHT WORK IS AN INFRINGEMENT

The plaintiff must first prove that the defendant has exercised one of the rights

that is granted to the plaintiff exclusively: the reproduction right, the adaptation

right, the public performance right, etc.

The clearest case is where the defendant has exercised the right in relation to

the whole work: e.g., a whole musical work is taped, or a whole literary work is

photocopied.

EXAMPLE:

Recall the case of Antiquesportfolio.com v. Rodney Fitch & Co. Ltd [2001]

E.C.D.R. 51 (U.K.: High Court)mentioned above in “Reproduction right”. The

defendant had photocopied a third party’s photographs, scanned them into a

computer, reduced them in size, and used them, without authorization, as

elements of a website it was constructing for the plaintiff. The court held that

the copyright owner’s reproduction right had been infringed:

It is said that ... a very small representation of the photograph on a computer screen
does not infringe, on the basis that it does not benefit from any of the originality
involved in making the photograph: e.g., it does not benefit from the lighting or
camera angle.
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IV. INFRINGEMENT AND ENFORCEMENT

CHAPTER IV.