A reminder about copyright infringement
As many people remember from their school days, it is much better to create something on your own than to copy someone else’s work. But where do you stand when matters are not so clear cut, when there are elements of grey, when you suspect that someone has copied your work but knowingly or unfairly altered various aspects or when you have been accused of copyright infringement in relation to a work that you hadn't seen before?
- There needs on the face of it to be an inference of direct or indirect copying due to the similarities between the works.
- Similarities which have no connection to the literary, dramatic, musical or artistic nature of the work are disregarded.
- Similarities which are commonplace give little or no inference of copying. Or in other words, the more original the similarity, the stronger the inference of copying.
- The inference of copying can be defeated by evidence of independent creation. The stronger the inference, the stronger the evidence needed.
- No copying will mean no infringement. But if there has been copying, to be infringing, it needs to have been done in relation to the whole or a substantial part of the original work.
- There are two approaches to substantial part. The first is to decide whether the similarities establish a substantial part of the original work. The second, which applies to altered copying, is whether a substantial part of the original intellectual creation has been incorporated.
- Commonplace similarities do not count in the substantial part test.
- Where copying is found, it will regularly lead to the substantial part test being satisfied. But this is likely to be influenced by the strength or weakness of the similarities.