Copyright Guide: Infringement

You stand the risk of infringing copyright if your copying does not fall under any one of the three categories stated below:

A. You have a licence or permission from the copyright owner

B. Your copying is within the scope of one of the permitted uses stated in 4 (Permissible Copying), 5 (Unrestricted Copying), 6 (Computer Programs), or 7 (TV and Cable)

C. Your copying does not involve a substantial taking of copyright material. For the meaning of “substantial”, please see section 2.2 below.

Category A is self-explanatory and Category B is to be found in 4, 5, 6 and 7. What can or cannot be done would then depend on the scope of the licence or permission given by the copyright owner or the scope of the permitted use respectively.

The difficulty is with Category C and the meaning of substantial. This is a question of fact to be determined by the courts. For this reason it is best not to have to resort to Category C.

If at all Category C has to be resorted to, you should be mindful that the court will look at not just how much has been copied in terms of quantity, but also in terms of quality relative to the copyright work. This is a question of fact and degree.

We can only refer to some broad guidelines as to what the courts would consider in deciding "substantiality":

A. Whether the part taken is the essence of the work.

If the part taken is the essence of the work, i.e. a very important part of the work, then the copying could be considered substantial even if only a few lines or pages are taken. It would not matter that you copied only a small quantity of the work.

B. How much of the labour, skill and effort involved in creating the original work have you appropriated?

If a small degree of effort, skill and labour had been used in the creation of the work, then it would require a greater amount of copying by you before the copying can be said to be substantial. For example, copying merely one or two entries from a television listing may not constitute copyright infringement.

You should note that the burden of proving a substantial taking lies on the plaintiff. It is up to the plaintiff to prove that there is a "sufficient degree of objective similarity" between his and your work.

To summarise, if you intend to copy, you must either have permission or be able to raise a defence stated in this Guide or prove that your copying was not substantial. Otherwise you would be infringing copyright.

Infringement can be direct or indirect. There are three (3) ways in which infringement may arise:

A. Primary Infringement

B. Infringement by Authorisation

C. Secondary Infringement

Primary Infringement

If you do any of the acts, which may be done only by or with the permission of the copyright owner, for example, reproducing a substantial part of copyright material by photocopying, storing in a disk or other method of reproduction, you have committed primary infringement.

Infringement by Authorisation

If you allow someone to commit primary infringement either expressly or impliedly by failing to take reasonable steps within your control to prevent it, you may be liable for copyright infringement by authorisation. If, for example, the supervisor of a student project allows the students to copy the work of others and incorporate the same into the project or a lecturer knows that his students are using unlicensed software on SP terminals but does nothing to stop it, then the lecturers in both the examples may have committed infringement by authorisation.

Secondary Infringement

If you import or sell or let for hire infringing copies of software, books or sound recordings, or other protected works or subject matter, or you make infringing copies for the purpose of sale or hire you are said to have committed secondary infringement. If you have five (5) or more infringing copies of any work or other protected subject matter it will be presumed that you had the copies for the purpose of sale.