Copyright is the legal protection of various types of intellectual property which is provided for by the laws of a particular country to authentic owners of the intellectual property. Copyright law essentially covers the following types of property; literary, multi-media, dramatic, film, musical, graphic, artistic and pictorial work. The protection also covers software, unpublished and digital work, including their digital broadcast and subsequent use.
What is copyright infringement?
Copyright infringement is the illegal use of intellectual property that is protected by copyright law before/ without permission, thus breaching particular exclusive rights of the copyright holder/ owner regarding the reproduction, performance, distribution and/or display of the work/ intellectual property.
The copyright holder/owner is essentially the creator or publisher of the work, or any other party to whom the right has been duly assigned. The owner must take technological, legal and other necessary measures to prevent possible copyright infringement so as to safeguard his/her interest in the intellectual property.
Owners, publishers or license holders of intellectual property are the only parties who can take legal action against individuals/ organizations that are perceived to have infringed on their copyright.
A court of law can declare that copyright infringement has actually occurred if and only if the plaintiff provides sufficient evidence to prove that the work is considerably similar in design, content and structure such that it can be easily established that it was indeed adapted or copied from the plaintiff’s original work, and was not a matter of coincidence, incidental inclusion or an adaptation of a similar concept or idea.
In order to support his/her case, a plaintiff is typically required to provide sufficient evidence to prove that there was copyright infringement on his/her work.
The evidence may consist of one or more of the following elements: a copy of the original work, copy of the -infringing work, copy of the –registered version of the plaintiff’s work, official registration date, development work (e.g. rough drafts, synopsis or previous versions) and supporting documents (e.g. letters that refer to work before infringement occurred).
Steps that must be taken before filing the copyright infringement case in court
The legitimate owner of the work must first raise a formal objection with the infringing party using a letter that consists of the following; name of the intellectual property in contention, reason why it amounts to infringement (adaptation/ unauthorized copy), a statement the owner strongly believes that the other party’s work is an infringement and that he/she must stop forthwith.
The complainant should then state that the defendant needs to take (e.g. withdrawal of the content), a reasonable deadline during which the specified action must be taken and the complainant’s intention of seeking legal redress if the defendant fails to take the specified action.
Copyright infringement generally consists of one or more of the following illegal activities;
1. Downloading and/ or sharing MP3 music, games and video files without the copyright owner’s express authority.
2. Using logos belonging to individuals or organizations without obtaining express authority from the concerned parties.
3. Scanning a published photograph and subsequently using it before/ without attribution and/or permission.
4. Downloading software that has been licensed from unauthorized sites without obtaining permission/ authorization from the license holder/ owner.
5. Availing a considerable or whole part of a movie on a particular website without obtaining permission from the copyright owner.
6. Using images obtained from the internet without attribution or permission. Images that have no specified license should only be used after obtaining permission, whereas images that have a Creative Commons License should only be used if the source is properly attributed.
There are several factors that make encourage people/ organizations to engage in copyright infringement. Some of the motivations are as follows:
1. Pricing: some people may be unwilling and/or unable to pay the price needed to acquire a particular intellectual property.
2. Anonymity: some people are motivated to download work from websites which allow anonymous downloading, whereas obtaining the same work from the rightful owner’s website may require the user to register with a valid email address.
3. Unavailability: legitimate sellers of particular intellectual property may not be readily available in certain locations, may not have launched the service in those locations yet or may have already withdrawn sales.
4. Shopping experience: legitimate sellers who can provide the property with the desired quality and quantity through elaborate shopping systems or online distribution with the desired levels of user friendliness may not be readily available.
5. Usefulness: the legitimate products may consist of elaborate security features such as; DRM, BlueRay region code, region lock or DVD region code to ensure legitimate use only (backups, offline usage or use on different devices). This may encourage users to engage in copyright infringement in order to get rid of such inconveniences.
Limitations of copyright infringement
Copyright law doesn’t give authors and publishers total exclusive control over their intellectual property.
According to the -International Berne Convention, national laws should have limitations concerning copyright laws, such that the protection doesn’t extend to particular aspects which the treaty considers as fair use, fair practice or fair dealing, e.g. minimal quotes applied in education and journalism.
A party who is found guilty of copyright infringement by a court of law is required to;
1. Compensate the copyright owner for the lost profits/ damages.
2. Pay the copyright owner a specified sum of money which the court of law considers as reasonable.
3. Compensate the copyright owner for all the costs incurred while filing the legal suit (legal fees paid to the plaintiff’s advocate and other incidental costs).
4. Obey a court injunction imposed by the court to stop any further unlawful act (infringement).
5. Submit the copyrighted materials to the court (if the court rules that the goods must be impounded).
6. Go to jail for a prescribed period of time.
Possible solutions to copyright infringement
There following measures need to be taken to prevent copyright infringement:
1. Awareness campaigns and public education forums should be conducted concerning the safeguarding of intellectual property rights, and this should be a joint effort among copyright owners, law enforcement agencies and other stakeholders.
2. There is need to modernize/ upgrade protection mechanisms for copyrighted materials to match the fast changing trends technology such as cloud computing and the increased use of networked electronic devices.
3. There is need to strengthen the enforcement of the laws on intellectual property by dedicated more financial, human and technological resources to the effort. These can be achieved by having specialized enforcement units, regular trainings for judiciary officials and law enforcement officers, having enhanced cross border operations between law enforcement agencies and fulfilling the legal obligations as prescribed by WTO’s agreement on TRIPS ( Trade Related Aspects – of Intellectual Property –Rights).
4. The government should lead by –example by using licensed software only, implementing effective SAM programs (software assessment programs) and encouraging the use of legitimately acquired intellectual property among suppliers, contractors and in all government departments.