Copyright infringement. Remedies and criminal sanctions.

Irina Atanasova
PhD student-South west university-‘Neofit Rilski’, Law and history department
1‘Georgi Izmerliev’ sq., Blagoevgrad 2700, Bulgaria
e-mail: atanasova_irina@yahoo.com

Abstract: Copyright law protects the owner of property rights in literary and artistic works against those who
“copy” or otherwise take and use the form in which the original work was expressed by the author. Copyright
infringement is the unauthorized use of works covered by copyright law, in a way that violates the copyright
owner's exclusive rights. There are some exceptions to liability for copyright infringement -“fair use” in USA
and “fair dealing” in UK. The remedies and the criminal sanctions in USA and some EU countries are analyzed.

Keywords: copyright legislation, copyright infringement, fair use and fair dealing, remedies, criminal sanctions

1. Copyright law. Protected works and rights.

Copyright legislation is part of the body of law known as “intellectual property,” which protects
the interests of creators by giving them property rights over their creations. These rights of property are
recognized under the laws of most countries in order to stimulate human intellectual creativity and to
make the fruits of such creativity available to the public. Copyright law protects literary and artistic
works as well as creations in the field of so-called “related rights.” Literary and artistic works include
books, music, works of fine arts such as paintings and sculptures, and technology-based works such as
computer programs and electronic databases. Copyright law protects only the form of expression of
ideas, not the ideas themselves.1.
The most important international treaty concerning copyright infringement is the Berne
Convention of 1886 as amended. The protected works according to the Article 2 of the Berne
Convention are as follows2:“ every production in the literary, scientific and artistic domain, whatever
may be the mode or form of its expression, such as books, pamphlets and other writings; lectures,
addresses, sermons and other works of the same nature; dramatic or dramatico-musical works;
choreographic works and entertainments in dumb show; musical compositions with or without words;
cinematographic works to which are assimilated works expressed by a process analogous to
cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography;
photographic works, to which are assimilated works expressed by a process analogous to photography;
works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to
geography, topography, architecture or science; translations, adaptations, arrangements of music and
other alterations of a literary or artistic work; collections of literary or artistic works such as
encyclopaedias and anthologies”. Computer programs are not included in the list contained in the
Berne Convention and are protected under the copyright laws of a number of countries, and under the
TRIPS Agreement3.
The owner of copyright in a protected work may use the work as he wishes, and may prevent
others from using it without his authorization. There are two types of rights under copyright-
economic rights, which allow the owner of rights to derive financial reward from the use of his works
by others, and “moral rights,” which allow the author to take certain actions to preserve the personal
link between himself and the work. The exclusive economic rights granted to authors under the Berne

1
BASIC NOTIONS OF COPYRIGHT AND RELATED RIGHTS , Document prepared by the International Bureau of WIPO
2
Article 2, Berne Convention-//www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html
3
Agreement on Trade Related Aspects of Intellectual Property, TRIPS http://www.wto.org/english/docs_e/legal_e/27-trips.pdf

1
Convention include the right of translation (Article 8), the right of reproduction “in any manner or
form” (Article 9), the right of public performance of dramatic, dramatico-musical and musical works
(Article 11), the right of broadcasting and communication to the public by wire, by re-broadcasting or
by loudspeaker or any other analogous instrument of the broadcast of the work (Article 11), the right
of public recitation (Article 11), the right of adaptation (Article 12), the right of making
cinematographic adaptation and reproduction of works, and the right of distribution of the works thus
adapted and reproduced (Article 14)4.
2. Copyright infringement and exceptions- “fair use” and “fair dealing”.
Copyright infringement (or copyright violation) is the unauthorized or prohibited use of works
covered by copyright law, in a way that violates one of the copyright owner's exclusive rights, such as
the right to reproduce or perform the copyrighted work, or to make derivative works5. In other words,
whenever the form or expression of an idea is copied an infringement of copyright has occurred. The
reproduction does not have to be exactly the same as the original, nor does it have to reproduce the
original in its eternity.
One must seek the permission of the copyright owner if he wants to make, distribute, rent or loan
out copies of the author’s work, or to adapt, perform, show or broadcast it. This applies to work on the
internet too. However, the copyright owner is under no obligation to give such permission. Some
examples of copyright infringement are duplication of a CD or other recorded media containing
copyright material without permission of the copyright holder; unauthorized downloading of
copyrighted material and sharing of recorded music over the Internet, often in the form of MP3 files;
sampling of copyrighted music for use in other works; sneaking a camcorder into a movie theater and
secretly taping the projection –a.k.a. ”camming”; unauthorized use of text content on the world wide
web by coping from one site to another without consent of the author, etc.
There are some exceptions to liability for copyright infringement in common law countries like
USA and UK, know as “fair use doctrine in USA and “fair dealing” in UK.
The United States became the 80th signatory of the treaty with the Berne Convention
Implementation Act of 1988. The US signed the treaty with one important exception: it did not accept
the recognition of moral rights in article 6 of the Berne Convention, which rights enable a copyright
holder to "object to any distortion, mutilation, or other modification of, or other derogatory action in
relation to, the said work, which would be prejudicial to his honor or reputation." 6 In US an exception
to liability for copyright infringement is made under the ‘fair use’ doctrine. The doctrine only existed
in the U.S. as common law until it was incorporated into the Copyright Act of 1976. It allows limited
use of copyrighted material without requiring permission from the rights holders, such as for
commentary, criticism, news reporting, research, teaching or scholarship. The US courts determine
whether a particular use is fair on case-by-case basis, depending on the circumstances of each case. The
law offers four factors to evaluate: (1) the purpose of the use, including a non-profit educational
purpose; (2) the nature of the copyrighted work; (3) the amount of the copying; and (4) the effect of the
copying on the potential market for, or value of, the original work.7
UK copyright law has a set of exceptions to copyright known as fair dealing. Database right has
a similar set of exceptions. Fair dealing is much more restricted than the American concept of fair use.
It only applies in tightly defined situations, and outside those situations it is no defence at all against a
lawsuit for copyright infringement. According to section 29 of the UK Copyright, Designs and
Patents Act 1988 “fair dealing with a literary, dramatic, musical, etc, work, for the purpose of research
4
INTERNATIONAL PROTECTION OF COPYRIGHT AND RELATED RIGHTS, Document prepared by the International Bureau of WIPO
5
Wikipeadia- http://en.wikipedia.org/wiki/Copyright_infringement
6
see Berne Convention Article 6- http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html
7
Crews, Kenneth D.- Copyright law and graduate research, http://www.umi.com/en-US/products/dissertations/copyright//

2
or for a non-commercial purpose, does not infringe any copyright in the work, provided it is
accompanied by a sufficient acknowledgement of the source”8.Section 30 of the same act provides that
“fair dealing with a work for the purpose of criticism or review, of that or another work, or of a
performance of a work, does not infringe copyright in the work, provided it is accompanied by a
sufficient acknowledgement, and provided the work has actually been made available to the public”.
Educational establishments, libraries and archives in UK have many exceptions that are applicable only
to them, which enable them to do their work.
3. Remedies and criminal sanctions.
When one of those copyrighted works is copied by a third party without permission, the owner
of the copyright (the plaintiff) may sue that third party (the defendant) for copyright infringement. The
plaintiff can obtain injunctions to prohibit future copying and money damages to compensate and, in
some cases punish, the defendant for copyright infringement.
Infringement of copyright is usually established through circumstantial evidence. Such
evidence typically must show a substantial similarity between the original and the copy, as well as
prove that the copier had access to the original. This means that where two works are similar or
identical, there is nevertheless no infringement if each work was produced through the original and
independent work of its creator. Although infringement does not require that even a large portion of the
work be similar, it does require that a substantial part be similar. It is irrelevant if the copied work is an
improvement of the original work9.
3.1 According to the European Union legislation.
The European Union created many copyright norms in multiple European Union Directives that
address copyright, which are implemented by Member States, including the harmonization of the term
of protection, the legal protection of software and databases, enforcement of intellectual property
rights. The most important international treaty concerning copyright infringement is the Berne
Convention of 1886 as amended, which provides that EU copyright protection is automatic and no
formal registration is necessary. The TRIPS agreement10, signed in 1994 imposes a set of remedial
standards, which require local judicial authorities to have power to issue injunctions (Art.44), assess
damages (Art.45), and impose border control (Art. 50-60).
Copyright laws have been standardized to some extent through international conventions such as
the Berne Convention. Although there are consistencies among nations' intellectual property laws,
each jurisdiction has separate and distinct laws and regulations about copyright. The EU copyright
legislation and local procedural codes empower courts to issue preliminary and permanent relief
against continuing infringement of copyright. Compensatory monetary relief is also generally available,
and in most countries requires a showing that the defendant knew, or recklessly disregarded the fact,
that its conduct was infringing. As a rule, preliminary relief is available to enjoin copyright
infringements without the requirement of any showing that the defendant committed the infringement
intentionally or negligently11. Permanent injunctive relief is generally available to a prevailing
copyright owner without any proof required that the defendant acted knowingly or that the copyright
owner would be harmed if an injunction failed to issue.
The sanctions for criminal copyright infringement are fines and terms of imprisonment.
Copyright infringement is generally considered to be an economic crime, and differences exist from
country to country over whether infringement of an author’s moral right should come within the
8
UK Copyright, Designs and Patents Act 1988, http://www.opsi.gov.uk/acts/acts1988/UKpga_19880048_en_1.htm
9
Law Encyclopedia-copyright infringement, http://www.answers.com/library/Law+Encyclopedia-cid-18442
10
Agreement on Trade Related Aspects of Intellectual Property, TRIPS http://www.wto.org/english/docs_e/legal_e/27-trips.pdf
11
Goldstein, Paul. International Copyright : Principles, Law, and Practice.
Cary, NC, USA: Oxford University Press, Incorporated, 2001. p xix , page 322

3
criminal sanction. However, most national legislations impose a higher standard of willfulness on
criminal defendants than on civil defendants, but national legislation varies on the role of evidential
presumption in proving guilt.12 Below, the copyright legislation of some EU countries is provided.
In UK the Copyright, Designs and Patents Act 1988 (CDPA), as amended by the Copyright
and Trade Marks Act 2002 currently protects copyrighted materials. Acts that may be criminal offences
according to Article 107 of the CDPA include: making copies for the purpose of selling or hiring them
to others; importing infringing copies (except for personal use) ; offering for sale or hire, publicly
displaying or otherwise distributing infringing copies in the course of a business; distributing a large
enough number of copies to have a noticeable effect on the business of the copyright owner; making or
possessing equipment for the purposes of making infringing copies in the course of a business; publicly
performing a work in knowledge if the performance is unauthorized. The penalties for these copyright
infringement offences depend on the seriousness of the offences and may vary: a maximum fine of
£5,000 and/or six months imprisonment. On indictment (in the Crown Court) some offences may
attract an unlimited fine and up to 10 years imprisonment13.
French copyright law is defined in the ‘’Code de la propriété intellectuelle’’, which implements
European copyright law (directives). Contrary to the position in most Common Law jurisdictions, the
breach of proprietary rights is a criminal offense in France: -counterfeiting (contrefaçon)-Arts. L335-2
to L335-4.14 Counterfeiting consists of reproduction; representations or diffusion, by any means
whatsoever, of an intellectual work in breach of copyright or of the laws and regulations pertaining to
the property of authors15. This attracts a fine of up to 300,000 Euros and a term of up to three years
imprisonment. These penalties are increased to a fine of up to €500,000 and a term of up to five years
imprisonment if the offense is committed in an organized group. There is no distinction between the
breach of French copyright and the breach of foreign copyright, though the breach must occur in France
to be punishable.
The Belgium Copyright Act 1994 (Loi relative au droit d’auteur et aux droits voisins) contains a
series of provisions categorizing any voluntary or fraudulent violation of a copyright, or of a
neighboring right as a criminal offence. This applies to the fraudulent use or application of an author’s
name or distinctive sign. The Copyright Act provides that the profit resultant from counterfeiting
activity or fraudulent representation or performance of a work, may be seized and, if requested,
assigned to the owner of the copyright and/or of the neighboring rights (such assignment will be
considered in deducing what damages be allocated to said owner). 16 The legal entities (the companies)
are liable, in tort, for any criminal offences committed by their administrators and other representatives.
In Finland the legislation is in harmony with the corresponding laws of the Nordic countries.
According to the Finnish Copyright act 404/61 some criminal offences are: willful production of a
copy of a work or making a work available to the public in violation of a protected work; importation
of an unauthorized copy of a work for distribution to the public, if the infringement is committed with
gain. The sanction is a fine or a maximum of two years of imprisonment. The author receives fair
compensation and if such use is willful or a result from negligence, the infringer must, in addition to
the compensation, pay damages for any other losses. Confiscation and seizure can be obtained at an
early stage of the criminal proceedings.
3.2 According to USA legislation

12
Goldstein, Paul. International Copyright : Principles, Law, and Practice., page 327
13
Guide to offences- http://www.ipo.gov.uk/crime/crime-resources/crime-offenceguide.htm
14
French copyright law- http://enc.tfode.com/Copyright_Law#EU_Legislation
15
Metaxas-Maranghidis, George: Intellectual Property Laws of Europe, John Wiley & Sons. 1995, ISBN 0–71–95212–5
16
Metaxas-Maranghidis, George: Intellectual Property Laws of Europe, John Wiley & Sons. 1995, ISBN 0–71–95212–5, page 69

4
 In USA in order to prove copyright infringement, the plaintiff must prove ownership of the
copyright in the allegedly infringed work and copying of the work by the defendant. In a simple case, if
the defendant admitted that they obtained a copy of the work, this would be enough to find the
defendant guilty of copyright infringement. But if the defendant can show there was no access to the
work and, in fact, the work was created independently, there will be no copyright infringement even if
the works appear to be an exact copy. Also, if the defendant knew about the work, but it is substantially
different from the allegedly infringing work, there is no liability for copyright infringement.17
If infringement is established, the court can grant preliminary and permanent injunctions, or
court orders that restrain the offending party from continuing to infringe the copyright. A court may
also award monetary damages as a remedy for copyright infringement. The copyright owner can
claim for actual financial losses and any additional profits that the infringer earned from the
infringement. He may instead choose to receive statutory damages, which range from a minimum of
$250 to a maximum of $10,000. The court may adjust these limits based on the innocence or
willfulness of the infringer. If the court finds that the defendant acted willfully, the court may increase
the damages to a maximum of $100,000 per act of infringement.
In the case of profit, the copyright owner bears the burden of proving the infringer’s gross
revenues, and the infringer bears the burden of proving the “deductible expenses and the elements of
profit attributable to factors other than the copyrighted work”18 American courts either employ either of
two basic measures for damages19. If the infringer is in the same market as the copyright owner, courts
will employ lost sales as the measure of damages, on the assumption that every sale made by the
defendant is one that otherwise would have been made by the copyright owner. If the infringer occupies
different market than the copyright owner, courts will employ a reasonable royalty measure of
damages, on the assumption that the value of the copyrighted work in the infringer’s market
corresponds to the sum that the infringer would have agreed to pay for licensing the work in that
market.
The court can also order the defendant to pay the plaintiff's attorney's fees and court costs. Willful
copyright infringement can be a federal criminal offence punishable by as much as $10,000 or one
year's imprisonment. In this case the infringement has to be for the "purposes of commercial advantage
or private financial gain"20 As piracy of music and motion picture recordings has become increasingly
common, the Piracy and Counterfeiting Amendments Act of 1982 was passed, which allows
punishment of up to $250,000 in fines or five years in prison.
Conclusion
Copyright law provides an incentive to create software, music, literature and other works by
ensuring that the creator will be able to reap the financial benefits of the work. Copyright infringement
is a serious economic crime. If it is determined that a person is guilty of copyright infringement,
penalties could include a court order to stop producing that item, confiscation of the items, and paying
the owner of the copyright any profits the infringer received (or could have received) as well as
attorney fees. Although there are consistencies among nations' intellectual property laws, each
jurisdiction has separate and distinct laws and regulations about copyright. However, it is important
that the penalties available are proportionate to the harm caused.

17
Radack, David V.-Remedies for Copyright Infringement, http://www.tms.org/pubs/journals/JOM/matters/matters-9805.html
18
U.S.1976 Copyright .Act. § 504(b)).
19
Goldstein, Paul. International Copyright : Principles, Law, and Practice.
Cary, NC, USA: Oxford University Press, Incorporated, 2001. p xix , page 326
20
U.S.1976 Copyright .Act. § 506(a)).

5
References:

1. Agreement on Trade Related Aspects of Intellectual Property, TRIPS agreement

http://www.wto.org/english/docs_e/legal_e/27-trips.pdf

2. BASIC NOTIONS OF COPYRIGHT AND RELATED RIGHTS , Document prepared by the International
Bureau of WIPO

3. Berne Convention-//www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html

4. Crews, Kenneth D.- Copyright law and graduate research, http://www.umi.com/en-

US/products/dissertations/copyright//

5. French copyright law- http://enc.tfode.com/Copyright_Law#EU_Legislation

6. Goldstein, Paul. International Copyright : Principles, Law, and Practice, Cary, NC, USA: Oxford University
Press, Incorporated, 2001. p xix

7. Guide to offences- http://www.ipo.gov.uk/crime/crime-resources/crime-offenceguide.htm

INTERNATIONAL PROTECTION OF COPYRIGHT AND RELATED RIGHTS, Document prepared by the
International Bureau of WIPO

8. Law Encyclopedia-copyright infringement, http://www.answers.com/library/Law+Encyclopedia-cid-18442

9. Metaxas-Maranghidis, George: Intellectual Property Laws of Europe, John Wiley & Sons. 1995, ISBN 0–71–
95212–5

10. Radack, David V.-Remedies for Copyright Infringement,

http://www.tms.org/pubs/journals/JOM/matters/matters-9805.html

11. Wikipeadia- http://en.wikipedia.org/wiki/Copyright_infringement

12. U.S.1976 Copyright .Act- http://www.copyright.gov/title17/circ92.pdf

13. UK Copyright, Designs and Patents Act 1988, http://www.opsi.gov.uk/acts/acts1988/UKpga_19880048_en_1.htm