Dennemeyer & Associates
Did you ever copy your friend's homework or sneak a peek over someone's shoulder during a test? While such classroom indiscretions might have landed you in hot water (way) back then, the “grown-up” equivalent can have very serious consequences.
Copyright infringement is far from victimless mischief – it can be reputationally very damaging and financially ruinous. Yet, it is all too common. We look at why this kind of Intellectual Property (IP) infringement is so pervasive nowadays and explore the definitions, motivations, penalties and proof requirements involved in copyright violations.
With a little context and some practical examples, you too can avoid being a victim… or a perpetrator.
Talk to an expertWhen creators apply their intellect to produce an original work and express it in a perceptible form, that work is generally protected by copyright automatically upon creation. What this means is that the copyright holder, usually the author, immediately has exclusive rights to reproduce, modify, distribute and create derivations from the artistic expression. Though we usually think of copyrights in relation to literature, music and film, this form of IP protection can extend to a much broader spectrum of works, including visual art and photographs, architectural designs and even computer code.
While longer-lived than patents, which generally last for a maximum of 20 years, copyrights are not susceptible to being renewed indefinitely as trademarks are. In many jurisdictions, including the United States and the European Union, the term of copyright protection for most works extends for the whole of the author's life plus an additional 70 years, after which a work enters the public domain.
With this in mind, it becomes clear that when someone reproduces, distributes, adapts, performs or displays a copyright-protected work, in part or entirely, without permission, it is an infringement of the owner's IP rights. Right? Not necessarily.
The principles of fair use (in the United States) and fair dealing (in other English-speaking countries) allow for copyright-protected material to be reproduced without the rights holder's authorization for the purposes of education, research, commentary or critique. Although broadly similar, these fairness rules are not exactly equivalent across jurisdictions. Meanwhile, copyright laws across the EU have been substantially harmonized, including with respect to the exceptions and limitations that permit certain uses of copyrighted works without the rightsholder's authorization. While different in their legal structure, these exceptions broadly serve a similar purpose to fair use and fair dealing doctrines.
And so, unless you are certain your reproduction of someone else's material falls under one of these exceptions, that song you put in your video diary or that paragraph you pasted into your blog could (depending on the circumstances) make you an infringer.
Of course, you may utilize creations that their owners have specifically licensed for public use through mechanisms such as the Creative Commons framework, but you should always comply with the attribution and other requirements when doing so.
Copyright infringement takes unfair advantage of another's time, creative energy and potential revenue – yet it is rife on the internet. Why is this the case?
One uncomplicated reason is convenience. In days gone by, you first had to track down a physical version and copy it by hand. This was a very deliberate, involved process that has been obfuscated by the ease of access granted by the internet. With how easy it is to copy and paste digitally, people might not realize the gravity of what they are doing. Or, they might be unaware that what they believe to be legitimate sharing is actually unauthorized use.
Naturally, ignorance of IP law does not confer immunity from IP law. And the same can be said of the excuse that the widespread nature of copyright infringement reduces the damage or severity of individual cases. If anything, this attitude creates a negative feedback loop that emboldens further online infringement. Just because you see other people doing it does not mean you can or should do it.
After all, consider how being exposed as a copyright infringer would impact your standing and reputation as an individual or organization. Potential business partners would be much less inclined to work with someone who has demonstrated a lack of regard for IP rights, whether through bad faith or neglect. This is to say nothing about the litigation and other financial repercussions you could face.
Here are some common examples of copyright infringement in a digital environment:
Using copyrighted images on a website without permission / a license
Uploading or downloading pirated music, films or software
Reproducing or copying substantial portions of a book, report, article or blog
Sharing copyrighted content via file-sharing platforms
Creating derivative works without authorization
These cases illustrate that infringement can lie even in seemingly minor or unintentional actions.
The legal repercussions of copyright infringement vary depending on the applicable jurisdiction and whether the offense is tried as a civil or criminal case. Besides the severity of potential penalties, the main difference lies in the burden of proof and the intent behind the impinging behavior.
Civil suits are typically initiated by the copyright holder seeking compensation or remedies. These actions are designed to redress injury caused by unauthorized use and to restore, as far as possible, the rights holder's financial and commercial position. Possible outcomes include:
Actual damages, reflecting the financial loss suffered
Statutory damages, which may reach significant amounts depending on the jurisdiction
Injunctions to stop the infringing activity
Recovery of legal costs and fees
In the United States, statutory damages for willful infringement can reach up to $150,000 per work affected. This is because it is not always straightforward or possible to quantify actual damages, so the availability of statutory damages is particularly important in providing a strong deterrent against infringement while offering reasonable financial recompense.
Importantly, a work must be registered with the United States Copyright Office before an infringement occurs or within three months of first publication to be eligible for statutory damages.
Where there is willful infringement involving more egregious or large-scale activity, such as organized piracy, law enforcement agencies may step in. Offenders can face:
Large fines
Seizure of infringing materials
Imprisonment
Reflecting the more grievous nature of the violations and the punishments, criminal cases prosecuted by government authorities must meet a higher burden of proof than their civil counterparts. Namely, civil infringement requires proof on the balance of probabilities, or an equivalent standard, while criminal infringement calls for proof beyond a reasonable doubt, or its jurisdictional equivalent. As a result, criminal charges will typically be pursued only where there is substantial evidence of intent and significant harm.
It is all well and good to avoid reproducing someone else's material without their permission, but how do you know if your works are the subject of copyright infringement, and what can you do about it? Depending on your particular business sector, AI tools and plagiarism trackers can be useful to detect instances of infringement. For music and video, YouTube's Content ID system consists of a verified database of copyrighted material submitted by the rights holders, usually large media conglomerates. When a new video is uploaded to the website, it is compared against this catalog, and any possible conflicts are flagged for further action.
Content creators and streamers need to be aware not only of the legality of using others' music or video without permission, but also the risks to their own copyrighted work and any income that depends upon it.
Not surprisingly, neither of these approaches can be applied everywhere and at all times. It is often not feasible to scan the internet actively for reproductions of your material. Thankfully, this otherwise herculean task is simplified by the practical realities of business – your immediate competitors may be among those most likely to reproduce or closely monitor your content, and chances are you are keeping tabs on them already.
In this regard, Dennemeyer has first-hand experience. As we are sure you have noticed, we produce a lot of content on all manner of IP topics: reports, whitepapers, analyses and, of course, this blog. And if you have noticed, then that means other players in the IP industry have, too. In what could only be described as an instance of supreme irony, our guide to IP “theft” and how to avoid it was pilfered by a competitor. But rest assured, like any good craftsperson, we recognize our handiwork the instant we see it and are quick with an appropriate response.
Our first measure – and in this instance, the only one necessary – was to send the infringing party a cease and desist letter. The recipient immediately complied with our demand and removed our copyrighted material from their website. However, not all violations are so quickly resolved.
In another occurrence of our material being used without our permission, a different organization in the IP sector committed multiple acts of infringement, even going so far as to promote the information through third-party publishers. When faced with a more recalcitrant opponent, a series of letters was needed to bring about the incremental removal of all the appropriated material.
Though sending a firm cease and desist letter is often the preferred first course of action, it is not always the last. Litigation may well be the next step if an out-of-court remedy cannot be found within a reasonable timeframe. It is worth mentioning that although the considerable financial expenditure of a lawsuit might be recouped in judgment, the time invested cannot. For these reasons, it is usually a good idea to pursue outreach and consider all legal options in response to copyright infringement.
They say a lawyer who represents himself has a fool for a client, and they may be right. But an IP law firm that has walked a mile in a client's shoes knows how to get the job done. Reach out to the experts at Dennemeyer for more information on protecting your crucial IP assets and enforcing your rights across the globe.
