Copyright Implications: Self-published books and 3rd parties materials

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Copyright Implications: Self-published books and 3rd parties materials

Post by jofaleeva » Sun Oct 28, 2018 8:12 pm

I am a law student and have just started studying IP law. Your forum is amazing and I have already read a lot of topics which are extremely helpful. However, I am a little bit confused about the application of the law regarding the following matter.

If you publish some sort of a compilation (a commercial one) featuring other people's collages that include third parties' materials, such as images, logos, brochures, articles, etc., it raises copyright infringement on so many levels, right?

Firstly, the process will amount to primary infringement because you (as a publisher) copy the original literary and artistic works that belong to their authors (in case they were not created in the course of employment), such as photos or articles, on the pages of your publication. Secondly, there is a risk of copyright infringement in terms of the typographical arrangement in case those collages include substantial parts of the pages of newspapers, for example. You would also be considered as a secondary infringer as soon as you start to print and distribute those compilations in the course of a business. Or, as a publisher, you will only be liable for secondary infringement and the primary infringers would be the authors of collages? But what, if they create them with no intention to commercialise their works, i.e. nobody except their relatives have seen these collages before?

It is also quite clear that you (as a publisher) also won't be able to rely on any defences under the CDPA 1988 because a) your compilation does not fall under the permitted purposes and b) the dealing is not fair, because you will charge money for your products. So, inevitably there will be copyright infringement found by the court.

Overall, intuitively I realise that the whole idea of such a business is highly problematic but I can't identify the root of the infringement... It is extremely interesting but I am frustrated I can't get a good grasp of the reasoning behind it :)

I feel like the more I think about it, the more confused I become. I would be extremely grateful if you could briefly explain how you should approach this scenario. Extremely sorry if this has already been answered (I am sure of it), but I am new to the forum and still playing with the search engine!
Thank you so much in advance!

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Re: Copyright Implications: Self-published books and 3rd parties materials

Post by AndyJ » Mon Oct 29, 2018 9:50 am

Hi jofaleeva,

Welcome to the forums. No need to apologise. I don't think we have covered this particular issue before, or if we have it would have been some time ago.

it is probably best to set the compilation aspect to one side for a moment. So the fact that your example includes several species of copyright work, both literary and artistic, doesn't really affect the way of looking at the liability issue. All it means is that there may be more than one complainant. Clearly the presence of just one infringing work within the overall compilation would render the whole compilation an infringing work.

If you copy or publish a work which is protected by someone else's copyright without permission and there is no fair dealing or other defence you can invoke, you will be liable for primary infringement. Both copying and publishing are rights which are restricted to the copyright owner (section 17 and 18* respectively). So issuing copies to the public, ie publishing, would be primary infringement even if the infringing work had been made by a third party as in the collage example.

Secondary infringement is there for those who only deal in infringing goods (eg books or DVDs) but weren't involved in the copying or publishing aspect, so for instance an importer, bookseller, library, website like eBay or a person who used go round pubs trying to sell fake DVDs of Hollywood movies. This is where UK law is slightly at odds with EU law, because the latter doesn't recognise the concept of secondary infringement per se. As you will be aware, the InfoSoc Directive (2001/29) refers to three distinct rights: the Reproduction Right (ie copying), the Right of Communication to the public which includes the making available right, and thirdly the Distribution Right. This last right largely encompasses what UK law calls secondary infringement dealing (section 23**). EU law doesn't specifically address any of the other species of secondary infringement (for instance importing infringing goods or owning etc the means for making infringing goods). Therefore if your hypothetical compilation became the subject of a legal complaint, the complainant's legal advisor would probably argue that because EU law has primacy, the court should treat all the alleged infringing acts (copying, publishing, marketing etc) as primary infringement leaving the defence team an uphill battle to argue that some acts were secondary in nature. This would normally be the case where several defendants were involved, with some of them only involved in the dealing aspect. The obvious benefit of getting the court to accept an argument in favour of secondary infringement is that it is not a strict liability issue as there is a defence of not knowing that the work was an infringing copy.

So moving on to your point about the person who made the collages. While they did this for their own private study purposes (or possibly educational purposes (see section 32), and the distribution was restricted to family members then section 29*** fair dealing would probably apply (technically speaking it would only apply if the collage maker had provided a credit to the original authors). However, as you point out the fair dealing exception would no longer apply once the collage was made available (by whatever means) to the 'public'. If the person who made the collage was not responsible and did not authorise this making available process, then I don't think they would be liable for infringement. However the author of compilation would be liable for primary infringement (ie publishing) and since this is a matter of strict liability, it is irrelevant whether this second person (the publisher) knew that the collage was an infringing work or not.

I hope this clarifies the issues a little.

. As you are at law school, go to the library and take a look at chapter 15 of Laddie, Prescott and Vitoria The Modern Law of Copyright and Designs for a much deeper explanation of how Distribution Right and section 18 relate to each other and to secondary infringement.

* Note that section 18 has recently been amended by The Copyright and Related Rights (Marrakesh Treaty etc.)(Amendment) Regulations 2018 (SI 2018/995), and this is not yet reflected in the main text on the Legislation website. The amendment inserts a new subsection (2) as follows “(2) References in this Part to the issue to the public of copies of a work are to the act of putting into circulation in the United Kingdom copies not previously put into circulation in the EEA by or with the consent of the copyright owner.”

** The secondary infringement provisions formed part of the original Copyright Designs and Patents Act when it came into force. Since then this part of Chapter II has remained relatively unchanged despite the growing body of EU law which has had to be incorporated elsewhere in the Act

*** Again, technically speaking, section 29 does not comply with EU law, as such use should be accompanied by fair compensation to the rights holder. (see Article 5(2)(b) of the InfoSoc Directive).
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

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