Secondary infringement definition

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Ownership and issues regarding copyright works created at home—checklist

Ownership and issues regarding copyright works created at home—checklist Employees and contractors are increasingly working more from home. This has resulted in an increase in content being created at home and posted or shared online, for example by teachers to share with their pupils via video communications. When content is created at home in these circumstances, the ownership of IP rights, use of third-party material and infringement of third-party rights should be considered. For further information on issues raised by this Checklist, see Practice Notes: • Copyright—protectable works • Copyright—authorship and ownership • Copyright & associated rights—overview • Copyright infringement • Copyright—secondary infringement • Copyright infringement—remedies • Copyright—permitted acts and defences • Joint ownership of intellectual property rights The third column can be used to record observations or comments as the Checklist is worked through. Checklist Further information Notes (if any) Copyright origination ☐ Identify the copyright work. Copyright is an unregistered right—it comes into being automatically on the creation of a qualifying work.The main categories of ‘work’ are:—literary,...

Using IP as security: key issues—checklist

Using IP as security: key issues—checklist This Checklist is drafted from the lender’s perspective, and it is designed to highlight the key issues to consider and steps to follow when using IP as security, such as to: • consider the nature of the IP right • consider the type of security • consider ownership, duration, and third-party rights • consider validity and maintenance of the right • value the IP right • consider associated rights and property • register the security at the appropriate registry For further information on taking or perfecting security over IP, see: • Practice Notes: Taking security over intellectual property rights, Taking security over intellectual property—practical points, Perfecting security over intellectual property rights and registering security at an intellectual property registry and Effect of registering security at IP registries on priority of security interests • Precedents: Assignment of intellectual property by way of security, Agreement for assignment of patent by way of security in pursuance of loan agreement: Encyclopaedia of Forms and Precedents (21(1)) [1172], Mortgage...

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Copyright infringement action—flowchart

Copyright infringement action—flowchart Stage 1—preparing to bring a claim and pre-action matters Claim preparation and pre-action matters—Practice Notes • Copyright―protectable works • Copyright—subsistence and qualification • Copyright—authorship and ownership • Copyright infringement • Interim and final injunctions—overview • Copyright—permitted acts and defences • Copyright—secondary infringement • How to run an IP dispute • Disclosure scheme—overview • Types of dispute resolution • IP and mediation • IP and arbitration Claim preparation and pre-action matters—Precedents • Cease and desist letter—IP infringement Claim preparation and pre-action matters—Checklist • Disclosure Scheme timetable—checklist Claim preparation and pre-action matters—Forms • Application for injunction • Application notice • Notice of hearing of application Claim preparation and pre-action matters—News Analysis • The use of intellectual property insurance Stage 2—letter of claim alleging copyright infringement Letter alleging copyright infringement—Practice Notes • Copyright infringement • How to draft a letter of claim in an IP dispute • Unjustified threats of intellectual property right infringement • Civil and criminal remedies for intellectual property infringement • Copyright infringement—remedies Letter alleging...

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Copyright—secondary infringement

Whereas primary infringement requires in most instances the act of reproduction, secondary infringement is about dealing commercially in infringing copyright works.Acts of secondary infringementSecondary infringing acts are those of importing, possessing, selling or dealing, providing the means for making copies, permitting the use of premises for an infringing performance and supplying apparatus for an infringing performance. Secondary acts deal with those further down the ‘chain’. Unlike primary infringers, who are strictly liable regardless of their state of knowledge, secondary infringers require knowledge of infringement. Copyright owners can seek assistance to prevent importation of infringing copies by writing to HMRC. If infringement proceedings are contemplated, a claimant should write to the potential defendant, put them on notice and give them time to evaluate the claims made against them. Those in the frame for infringement will bear scrutiny of their evidence adduced on independent effort and creativity at the disclosure stage of the court action. There is no statutory provision that would restrain threats of copyright infringement being made but practitioners should...

Playing music in a place of business

Playing music in a place of business The need for a licence to play music—copyright-protected works Copyright protects certain types of works from unauthorised (largely commercial) exploitation. When dealing with playing music in a place of business, the following types of copyright-protected works are relevant: • music (musical works) • lyrics of songs (literary works) • recordings of songs or music (sound recordings) • radio or television (TV) broadcasts The owner of the copyright in any of the above works can control their commercial exploitation by either preventing or charging (licensing) third parties for permission to play or perform them in public. Music A ‘musical work’ is a ‘work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music’. For a work to attract musical copyright protection, there are three essential ingredients: • it must consist of ‘music’. Music is distinguished from ‘mere noise’ as being a combination of sounds for listening to and which produces effects of some kind on...

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What are the requirements for establishing secondary infringement of UK unregistered design right and what practical steps can practitioners take when seeking to prove that an act of secondary infringement has taken place?

What are the requirements for establishing secondary infringement of UK unregistered design right and what practical steps can practitioners take when seeking to prove that an act of secondary infringement has taken place? Infringement of UK unregistered design right (UDR) requires proof of subsistence or validity of the UDR and proof of copying. Requirements for a valid UDR An unregistered design right (UDR) is a property right which exists in the design of the shape or configuration of the whole or part of an article (section 213(1)–(2) of the Copyright, Designs and Patents Act 1988 (CDPA 1988)). For a UDR to subsist, a design must be original, in the sense that it must not have been copied and it must also not be commonplace in the field of design at the time of its creation (CDPA 1988, s 213(1) and (4)). The test that a design must be original and not commonplace is not a high bar. In Action Storage Systems Ltd v G-Force Europe.Com...

Would handling (infringing) goods (eg storing, packing and dispatching them) on behalf of the manufacturer in itself constitute infringement of any intellectual property rights protecting the goods where title in the goods remains with the manufacturer?

Would handling (infringing) goods (eg storing, packing and dispatching them) on behalf of the manufacturer in itself constitute infringement of any intellectual property rights protecting the goods where title in the goods remains with the manufacturer? Patent infringement A patent or published patent application is infringed if certain acts are performed in the UK without the consent of the patent proprietor or patent applicant. The acts in question, where the invention is a product, are set out in section 60(1)(a) of the Patents Act 1977 (PA 1977), and include making, disposing of, offering to dispose of, using or importing the product or keeping the product whether for disposal or otherwise. The meaning of keeping the product, whether for disposal or otherwise, has been interpreted very narrowly by the courts and does not cover mere possession of a product or simply purchasing a product. In Smith Kline & French v RD Harbottle [1980] RPC 363 (not reported by LexisNexis®), it was held that it means keeping in stock,...

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Testing the limits of confidentiality—when does use become misuse? (Illiquidx Ltd v Altana Wealth Ltd and others)

Information Law analysis: This was a High Court case involving issues of confidentiality, trade secrets and copyright. It centred around two firms who had entered into a non-disclosure agreement (NDA) and subsequently embarked on a joint venture to set up an investment fund. Following the breakdown of the business relationship, one of the firms, Atlana, set up its own fund which was very similar to the one envisaged under the joint venture. The High Court ruled that in setting up its own fund, Atlana had breached the terms of the NDA by misusing confidential information and in turn had also infringed trade secrets. The judgment reinforces the importance of precise drafting in NDAs and provides clarifications around the meaning of information being in the public domain. It also emphasises the importance of originality when establishing copyright infringement, particularly in the context of business presentations and other materials which may be more difficult to prove. Written by Marija Nonkovic, associate at Kemp IT Law LLP.

Court rejects summary judgment application in generative AI dispute (Getty Images (US) Inc v Stability AI Ltd)

TMT analysis: The Court rejected Stability’s application for summary judgment or strike out of parts of Getty’s claim concerning Stability’s image-generation AI, Stable Diffusion. Getty pleaded only an inference of primary copyright and database infringement in the UK, based on members of Stability’s team residing and working there. However, Getty’s claim has a real prospect of success because of evidence potentially pointing to UK acts, unanswered questions and inconsistencies in Stability’s evidence and the potential impact of disclosure. Further, the trial judge should decide whether ‘article’ for the pleaded secondary copyright infringement claims covers software, since this was a novel question and not straightforward. Getty was also allowed to amend its pleadings. As well as illustrating the challenges of obtaining summary judgment or strike out for a claim based only on an inference, the judgment contains clues as to Stability’s litigation strategy in a case where, almost a year in, it is yet to file a defence. Written by Matt Hervey, head of Artificial Intelligence Law at Gowling WLG.