Infringement
First, a quick recap: as owner of the copyright, only you have the right to perform the acts specified for the kind of work in question. This means, also, that only you have the right to permit others (grant them a licence) to do those things.
The question that arises in infringement cases is whether the defendant is exercising one of those rights, and whether he is doing so without the permission or authority of the person who owns the copyright. In this discussion we will call the owner the plaintiff.
Direct infringement
By far the most important and frequently occurring question is whether the defendant has reproduced the work in which the plaintiff owns copyright.
Remember the fundamental principle that copyright is about copying. For there to be infringement, there must have been copying in some way or another. Put differently, the defendant’s work must have come from the plaintiff’s work.
Perhaps this illustration will help. Most of us know that the song ‘Yesterday’ is quite famous. Most of us have heard it before. The lyric (a literary work) was composed by Sir Paul McCartney. Now, many of us have probably heard of the random probability theory which says that if you give a thousand monkeys each a computer with a keyboard, in a thousand years of typing they will have reproduced the complete works (all the plays) of William Shakespeare. I have my doubts, but it is not impossible.
It is also not impossible that some hermit somewhere, a poetic guru-type of person, may come up with a poem one day that is exactly like the lyrics of ‘Yesterday’. Our hermit has never heard the song or read the words. He just came up with the poem after much musing and thinking about his past. Has he infringed Sir Paul’s copyright? Definitely not, because he did not copy the song.
A handy test has been developed to determine whether a defendant copied (i.e. reproduced) a plaintiff’s work. Of course, if the defendant admits that he did, then it does not need to be tested. There will not even be a court case, which happens when the defendant denies the plaintiff’s allegations and the judge is called upon to decide. The test has two parts.
The first question is whether the defendant’s work looks like the plaintiff’s work. Objectively speaking, does it look substantially similar? If the answer is no, well, that is the end of it — there can be no question of copyright infringement.
If the answer is yes, we go to the next question: is there an explanation (for the similarity) which links the defendant’s creation of his work to the plaintiff’s work? In other words, is there a causal connection? If there is no causal connection, there is no reproduction. In the example of our reclusive poet in the mountains, there is (a) objective similarity but (b) no causal connection. Therefore, there is no reproduction, and no copyright infringement.
The Latin term for a causal connection is nexus, and it is used in copyright law to describe this concept.
The underlying principle of copyright infringement is that it is not fair to take for yourself the benefit of someone else’s creative skill and efforts, and it is not acceptable. Therefore it does not really matter how the copying was done: whether the defendant worked with the plaintiff’s book at his elbow; or took a photograph in the art gallery, on his cell phone, and painted a picture from that. It has even been decided by judges that innocently remembering something and reproducing it much later (‘subconscious copying’) creates that causal connection.
This notion presents difficulties in the creative arts where influence from the style of a composer, an artist, or a guitarist or writer is used to build upon and develop further. Virtually every top creative will tell you who her top influences are. So, to exclude influence — which would, in this sense be permissible — sometimes only makes the assessment more difficult than it is anyway. Another point is this: in Western music, for example, there are only twelve notes in an octave. Music is made up of notes, the spaces between notes, and combinations of notes to form chords. How much scope is there for completely original compositions forevermore? Not much, you might think. Besides, genres demand similarities: simple blues as played by the old masters, is often only three chords (of the I IV V pattern; E, A and B, for example) repeated in the same 12-bar rhythm. Speed that up, on the other hand, and you have plain rock ‘n roll (as made popular by many performers, notably Chuck Berry). Or, add some fancy seventh and/or ninth notes, and you are getting close to simple jazz.
It is sometimes said that if you change a work by 10% or 20% or 30%, you avoid copyright. This is bad advice. Objective similarity is a value judgment assessed not on the quantity of how much the copyist has taken, but on a qualitative assessment. Looking at the defendant’s work, is the substance of the plaintiff’s work apparent?
Indirect infringement
We have seen that it is an infringement to do (without permission) those acts which only the copyright owner has the right to do. This is called direct infringement.
There is also indirect infringement. This is where the defendant (again, without permission) imports, sells, rents out, or distributes an article (or acquires an article relating to a computer program) if he knows that making it would have constituted an infringement of copyright. This latter aspect is referred to as ‘guilty knowledge’. This means the defendant must be aware of the facts which would reasonably inform him of the probability that copyright subsists, and that the article in question is an unauthorized reproduction.
Read section 23(2) of the Copyright Act.
Another instance of non-direct infringement is where the owner of a venue allows the public performance of literary or musical works, if he is aware that the performance infringes those rights. This is why theatres, pubs, restaurants and the like must get ‘clearance’ from the licensing societies: SAMRO, SAMPRA, DALRO, etc.
Read section 23(3) of the Copyright Act.