Copyright Definition

When an employee or consultant obtains works without a license and they are used within a business (such as photographs or software), they will infringe copyright. In the ordinary course, employers are vicariously liable for the acts of employees during the course of their employment and for the acts of independent contractors. A copyright owner is likely to have several courses of recovery for the infringement against:

the employee or consultant for authorising the infringement by the employer;

the employer on the basis of vicarious liability;

a person responsible for a place of public entertainment, for allowing or permitting to be used for performance of a literary, dramatic or musical work;

a person providing the means by which to reproduce the work.

Obviously, the employer is the most likely target for a claim to damages, as they are seen to be 1. a stable enterprise with a vested interest in avoiding litigation followed by a damages payment; and 2. the employee is more than likely not going to be in a position to satisfy a judgment and the legal fees incurred in the conduct of a claim.

The Measure of Compensation

Damages are said to be at large in copyright cases, as they are not fixed to any particular measure. Damage caused by infringement of copyright is quantified by the value by which the copyright is diminished as a chose in action.

The measure of pecuniary damage likely to be ordered in an action for copyright infringement is that of its commercial value. The commercial value of a work in the circumstances of infringement is reached by one of two methods. Firstly, where the infringing works are sold (by the defendant), the commercial value is represented by the loss of profit to the owner, as the owner has been deprived of the opportunity to sell licenses for the work. The alternate means applies where the work is simply used by the defendant, and not resold by them.

Sales of Goods and Diversion of Customers

When a copyright work is copied and sold, the owner of copyright is entitled to recover their loss of profit caused by the diversion of trade to the defendant. Thus, in a case where the claimant was in the business of producing Christmas cards and offering them for sale to the public, the claimant was awarded the profits that the claimant was deprived by the actions of the defendant.

This is not to say that the claimant would be entitled to recover for all of the sales made by the defendants, as the claimant may not have sold as many as the infringer; whether the claimant will be entitled to recover for all of the infringing sales of the defendant depends on the circumstances of the case at hand. In the events that the particular copyright work is sold at reduced prices serves aggravate the damage suffered by the claimant.

The owner is also entitled to recover for the loss to the reputation of the original copyright work. A loss of reputation will take place where the works are sold at a reduced price, at a reduced quality or in a vulgar or distasteful fashion, such the claimants’ own sales in the future would be prejudiced.

Reproductions without Sale

Where the defendant does not trade in the goods copied, such as using photographs on a website, or uses infringing software, the method of calculation described above (which accounts for loss of profits for diversion of trade) is not the appropriate measure for calculating damages. The proper measure in these circumstances is a reasonable license fee that the copyright owner would reasonably charge for a license to use the photographs in the particular circumstances. The award of damages will be that of a willing copyright owner and a person in the position of the notional licensee, being the defendant.

Conclusion

Simply because a copyright owner seeks to recover from business, does not prevent the business seeking recovery from the employee or consultant who was responsible for, that is, authorized the infringement by obtaining the copyright work unlawfully and making it available to the business for use.

Despite frequent claims of excessive damage by owners, they are not in a position to enforce a claim for a sum of compensation greater than the loss that they are able to prove with reasonable certainty. This process takes in a process of ascertaining on the particular facts what the copyright owner would in fact be entitled to recover at law.

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Examining the value of a particular invention is an aspect that is very much important while issuing a patent. Whenever any application is filed for a patent in a Patent Office, the application is examined for patentability by a Patent Examiner.

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Background

Mr Ray was a highly respected expert in classical music in England, reputed to have an encyclopaedic knowledge of classical music. He was engaged by Classic FM in the United Kingdom in 1991 to compile the radio station’s repertoire, compile playlists, categorising tracks for play lists, and rate their popularity under each of the categories. The contract did not deal with intellectual property rights. The consultancy agreement was originally for 11 months, however the work of Mr Ray proved beneficial for Classic FM, and his services were extended until 1997. Some 50,000 tracks were eventually categorised. The results of the work were incorporated into a database that was used to select music on a rotational basis, and prevent overplaying.

The project was success. After internal use for about 5 years, Classic FM proposed to licence the database to overseas companies. Mr Ray objected and commenced proceedings to prevent Classic FM licensing the use outside the UK without his permission, on the basis that he was the author of documents that were incorporated into the database.

The Decision of the High Court

Mr Justice Lightman in the High Court ruled that in the case of a consultancy, the author retained the copyright in the absence of an express or implied term to the contrary effect. Where services by a consultant are performed for an express purpose, a court will readily imply a term into a contract for services that a client is entitled to use it for that purpose. In this case, Classic FM always intended to utilise the Mr Ray’s work in the UK. It was not until 1996 that Classic FM intended to exploit Mr Ray’s work overseas. The court was not prepared to imply a licence into the contract that Classic FM would be entitled to exploit his work overseas. Classic FM was prevented from exploiting their database abroad without the consent of Mr Ray, which would require payment of license fees.

When implying licences in this way, a court will only go so far as is necessary in the circumstances to give effect to the intention of the parties. If a grant of a licence is required, the ambit of the licence will be the minimum required to give effect to the intention of the parties at the time of the contract. An implied term that copyright would be assigned to a client will be exceptionally rare, as most often an exclusive licence will have the same effect in law.

The judge held that the contractor retains the copyright in default of some express or implied term to the contrary effect. The contract may expressly state which party is entitled to the copyright, and the mere fact that the contractor has been commissioned - performed by a contractor - is insufficient to grant rights in the copyright to the client. In the absence of express rights, the client is left to establish an entitlement under the express or implied term of the contract.

Conclusion

The decision means that contractors retain the copyright in the absence of an implied or express term. An implied licence must be reasonable and equitable; necessary to give business efficacy to the contract, capable of clear expression and not contrary to any express term of the contract, and so obvious that it goes without saying. This means that a licence will be implied for the client to use the work for the stated purposes at the outset of the engagement. It is important to document the purposes of the engagement and the intended use for the copyright work created during the course of the engagement.

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Copyright initially was conceived as a way for government to restrict printing. It is defined as the legal right granted to an author, composer, playwright, publisher, or a distributor for exclusively producing or publishing their original work. Work that is not copyrighted is known to be available in the public domain, and anyone is free to access such work and use it without seeking permission from the original creator.

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To have a profession is to hold higher than average abilities in a given field, and is expected to hold high regard for the responsibilities of this field. A professional providing a service, paid or un-paid, has a duty of care. This liability involved fluctuates with relation to the type of contract entered into. Claims made as part of the contract must be adhered to and if they are not met the Claimant has grounds to sue for damages. However the level of damages issued by a judge varies with regard to each situation.

As with any other profession a law professional working on your behalf should only be working in your interests. If a solicitor is found to have completed work which has ultimately had a negative impact on their client this can cause grounds to sue. There are certain requirements when making a successful claim of professional negligence. There has to have been liability attached to carelessness which is actionable by law. The standard set by law is not adhered to by the professional involved. There is a clear link between the poor conduct and the resulting damage. The damage is feasible and relatable to the professional involved.

The most common types of legal negligence is missing a time limit set by a court or failing to submit important documents by their deadline. Other types of claim result from solicitors missing important facts, not having the right level of expertise needed or not making the correct claim for the case.

Any professional who gave advice or provided a service within their professional capacity can be held liable for damages inflicted due to poor conduct. The standard test used to determine a breach of care is whether the defendant matched the abilities of a reasonable person. This prevents claims which are unrealistic from reaching the courts.

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