21 September 2008

Copyright: What is meant by "Secondary Infringement"

The Copyright, Designs and Patents Act 1988 ("CDPA") proscribes 8 separate acts of secondary infringement:

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importing infringing copies

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possessing or dealing with such copies

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providing means for making such copies

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transmitting a copyright work over a telecommunications system

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permitting premises to be used for an infringing performance

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providing apparatus for such infringement

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permitting such apparatus to be brought onto premises, and

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supplying a sound recording or film for an infringing performance.

An essential ingredient of all those acts is some actual or imputed knowledge primary infringement of copyright.

Importing Infringing Copies
S.22 of the CDPA provides that copyright is infringed by importing into the United Kingdom otherwise than for private and domestic use an article in the knowledge or with reason to believe that it is an infringing copy of a copyright work. An "infringing copy" is defined by s.27 (2) as an article whose making constituted an infringement of copyright in the work in question. Sub-section (3), which was for a time repealed by reg. 6 of the Copyright (Computer Programs) Regulations 1992 but restored by reg. 9 (4) of the Copyright and Related Rights Regulations 1996, further provides that an article is also an infringing copy if it has been or is proposed to be imported into the United Kingdom, and its making in the United Kingdom would have constituted an infringement of the copyright in the work in question, or a breach of an exclusive licence agreement relating to that work. Finally, sub-section (5) extends the definition of infringing copy to various copies referred to in certain sections providing exceptions to the restricted acts.

Possessing or Dealing with Infringing Copies
The following acts are also secondary infringements by virtue of s.23 of the CDPA:

  1. possessing in the course of a business,

  2. selling or letting for hire, offering or exposing for sale or hire,

  3. in the course of a business exhibiting in public or

  4. distributing otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright

an article which is, and which is known to be, or where there is reason to believe it to be, an infringing copy of a copyright work without the licence of the copyright owner.

Providing Means for Making Infringing Copies
S.24 (1) of the CDPA provides that copyright in a work is also infringed by making, importing into the United Kingdom, possessing in the course of a business or selling for hire or offering or exposing for sale or hire an article specifically designed or adapted for making copies of a copyright work knowing or having reason to believe that it is to be used to make such infringing copies without the licence of the copyright owner.

Transmitting a Work over a Telecommunications System
The next sub-section also provides that copyright in a work is infringed by transmitting the work without the licence of the copyright owner by means of a telecommunications system, otherwise than by broadcasting, knowing or having reason to believe that infringing copies of the work will be made by means of the reception of the transmission in the United Kingdom or elsewhere.

Permitting Premises to be used for an Infringing Performance
Where the copyright in a literary, dramatic or musical work is infringed by a performance at a place of public entertainment - which includes premises which are occupied mainly for other purposes but are from time to time made available for hire for the purposes of public entertainment - any person giving permission for that place to be used for the performance is liable for the infringement by virtue of s. 25 (1) of the CDPA unless when he or she believed on reasonable grounds that the performance would not infringe copyright when permission was granted.

Providing Apparatus for an Infringing Performance
Similarly, s. 26 (1) provides that where copyright in a work is infringed by a public performance of the work, or by the playing or showing of the work in public, copyright is infringed by supplying apparatus, or any substantial part of such apparatus, for playing sound recordings, showing films, or receiving visual images or sounds conveyed by electronic means, in the knowledge or with reason to believe that such apparatus was likely to be so used to infringe copyright. In the case of apparatus whose normal use involves public performance, playing or showing, it must be shown that the supplier did not believe on reasonable grounds that the apparatus would not be used to infringe copyright.

Allowing such Apparatus to be brought onto Premises
It is also an infringement under s. 26 (3) to permit such apparatus to be brought onto premises if the the occupier of those premises knew or had reason to believe them that the apparatus was likely to be used as to infringe copyright when giving such permission.

Supplying a Sound Recording or Film for an Infringing Performance
Finally, it is an infringement under s. 26 (4) to supply a sound recording or film that is used to infringe copyright if the supplier knew or had reason to believe that he or she supplied (or a copy made directly or indirectly from it) was likely to be used to infringe copyright.

See Also "What is meant by Primary Infringement"

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