Secondary infringement

Secondary infringement

1. Accessorial infringement

2. Differences from primary infringement

   • PI => concerned with people who are directly involved in the reproduction, performance etc of CR work >< SI => concerned with people in a commercial context who either deal with infringing copies, facilitate copying etc
   • State of mind of D important in SI

3. Types of secondary infringement

   • The distribution of infringing copies
     • Ss 22 + 23 CDPA
     • s27(2) CDPA: an article is an infringing copy if its making constituted an infringement of CR in the work in question; for imported copies => 'notional infringement',
   • Providing the means for making infringing copies or performance
     • s24(1) CDPA: a person is liable for infringement where they supply an article that is specifically designed or adapted for making copies of CR work
     • Article must be SPECIFICALLY designed for the copying of a particular work => if someone were to make a template or mould of CR work that is used to create infringing copies
     • s24(2) CDPA: CR in a work is infringed by a person who without licence transmits the work by means of a telecommunication system; does not apply to communications to the public
     • Any person giving permission for a performance in public of CR work is liable for infringement, unless they gave permission on reasonable grounds that the performance would not be infringed
     • s26 CDPA: where someone facilitates public performance

4. Actual or constructive knowledge

   • D must know or have reason to believe that the activities in question are wrongful
   • Vermaat v Boncrest: deciding whether D has actual or constructive knowledge is decided objectively
   • LA Gear v Hi-Tec Sports: D must be in a position from which he is able to evaluate the information given to them (usually 14 days)
   • Hutchinson Personal Communications v Hook Advertising: info D is given must be sufficiently detailed as to the nature of the work in question; general allegations about infringement will not suffice
   • ZYX Music GmbH v King: it is not enough for the facts to lead a reasonable person to SUSPECT the relevant conclusion
   • Pensher Security Doors v Sunderland City Council: it will enhance C's case is D is supplied with copy of CR work but the circumstances of the case may be such that the reasonable D could have known about the wrongful nature of their activities without ever having seen the CR work