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Copyright or Copywrong?Copyright or Copywrong?

» Posted on: 20 February 2009
» Posted by: Tony Catterall
» Service area: Intellectual Property

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Summary Of UK Copyright Law
The Law of Copyright in the UK is governed by the Copyright Designs and Patents Act 1988, as amended (“the Act”). Those in the textiles, carpets and wall coverings industries will be concerned with those parts of the Act that relate to artistic works, defined in s.4 of the Act as a graphic work irrespective of artistic quality, or a work of artistic craftsmanship.

Graphic Work
A graphic work can be any painting or drawing and can also exist in electronic form only e.g. a CAD file. Note that the work can be substantially derivative of an earlier design and that the degree of originality required for a new copyright is relatively low.

Rights in the Work
The owner of the copyright in a work of any description has the exclusive right to copy (reproduce) the work commercially and to issue copies of the work to the public.

Who is the Owner?
The basic rule is that the author of a work is the owner of the copyright unless the work was made by an employee in the course of his employment, in which case the work is owned by the employer. This is the normal situation where a copyright work is created in a converter’s or manufacturer’s design studio.

However, if the author of the design is a freelance, ownership of the work must be assigned to the manufacturer, otherwise ownership will remain vested in the freelance designer. Similarly a work that is bought in from an independent design house must be assigned to the converter or manufacturer, not merely invoiced.

Copyright in a work is infringed by a person who without the consent of the copyright owner does any of the acts restricted by the copyright, i.e. reproducing the work or issuing copies to the public. Further, it is a secondary infringement of copyright to import into the UK an article which is, and which the importer knows or has reason to believe is, an infringing copy of the work. Secondary infringement also extends to any person who without the consent of the copyright owner possesses in the course of a business, sells or offers for sale, exhibits or distributes an article which is, and which he knows or has reason to believe is, an infringing copy of the work.

There is no practical difference between primary and secondary infringement except that damages cannot be recovered from a secondary infringer who did not know and had no reason to believe that copyright subsisted in the work.

Infringement by copying can take place by reproducing the work in any material form i.e. not only by producing an alternative wallcovering but also preparations for so doing e.g. scanning and storing electronically a copy.

What is a copy?
S.16 of the Act refers to the reproduction of the whole of a work or any “substantial part” of it. Note that:

(a) it is not necessary for the finished appearance of the original work and the copy to be similar;

(b) “substantial part” can relate to the exact reproduction of a small but important part of the original work, or it can relate to the essential features of a work even though no aspects of the original and of the copy are identical: see the leading UK authority Designer’s Guild Limited –v- Russell Williams (Textiles) Limited.

Tony Catterall acted for Designers Guild throughout this case in the High Court, Court of Appeal and House of Lords.

S.96 of the Act affords wide ranging remedies to a successful claimant including an injunction against sale, an injunction to compel delivery up of the infringing products and financial compensation by damages or, at the claimant’s election, an account of the infringer’s profits. Thus if the claimant’s sales have been badly hit by the infringement he can claim for the downturn in his own sales; conversely if the claimant’s sales are not badly affected but the infringer has made substantial profits from the copy, the claimant can elect to take those profits. In appropriate cases of flagrant infringement, the claimant can also recover additional damages i.e. more than 100% of the loss he has suffered (s.97 of the Act).

It should also be noted that in UK proceedings, the successful claimant is entitled to an award of his legal costs although the recoverable amount is usually less than 100% of the costs incurred.

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