Copyright—secondary infringement
Copyright—secondary infringement

The following IP guidance note provides comprehensive and up to date legal information covering:

  • Copyright—secondary infringement
  • Acts of secondary infringement
  • The five acts
  • Knowledge
  • Using customs authorities to prevent importation
  • Taking the matter further
  • Threats

Whereas primary infringement requires in most instances reproduction, secondary infringement is about dealing commercially in infringing copyright works.

Acts of secondary infringement

Secondary 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 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 beware bundling claims with other IP rights that attract such protection.

For secondary acts of infringement, the defendant’s state of mind is relevant: they must know or have reason to believe that the item they deal in is infringing or the acts they perform are infringing acts. The acts are concerned mainly with dealing in