Infringement
Penalties for infringement may include:
- Injunctions
- Destruction of infringing articles
- Damages and profits
- Costs and attorney's fees
- Criminal charges
What is infringement?
Violating any of the exclusive rights of a copyright owner constitutes
an infringement of the copyright. Infringement can occur with or
without the infringer's knowledge, and with or without any intent
to infringe. This means that you can be guilty of infringement even
if you didn't know you were doing it and didn't mean to!
When any right of the copyright owner is infringed the owner can
sue the individual directly responsible for the infringement, as
well as others who may have contributed to the infringement either
directly or indirectly. The infringer could be ordered to pay either
the cost of the actual damages to the owner or statutory damages
of up to $20,000 per offense, and up to $100,000 per offense if
the infringement is found to be willful. In addition, if the infringement
is found to be willful and for commercial purposes, criminal charges
may apply.
Avoiding infringement
The old adage that "ignorance is no excuse" holds true for copyright.
We are all responsible for knowing the copyright rules and abiding
by them. Knowing and abiding by the rules of copyright will help
avoid a claim of infringement.
- Copyright owner has 5 exclusive rights, including: the exclusive right to copy, adapt, distribute, display and perform the work.
- Be aware how your use of a work will be viewed with respect to these five rights.
- If your use is not clearly within one of the exemptions or a license, you need permission to use the work.
What if permission is not practical?
Sometimes it is impossible to find the owner of a work or obtain permission.
Publishers go out of business, authors may be deceased and heirs are
not known, or a work found on the Internet may not have any information
to identify who owns the work. What happens if you know you need permission
but you can't get it?
- The best answer is not to use a work if you don't have the permission you need.
- If you proceed, you run the risk of being charged with willful infringement.
Alternate Approach
- Consider using an alternate work for which you can obtain permission or don't need permission.
- Consider if it is possible to point your audience to the work, such as a link to a website or to a resource in the library, rather than copying a work.
Adaptation Right
Anyone that has worked in a creative endeavor knows that many new
works build to one degree or another on the earlier works of others.
From the copyright perspective, when is building on the works of
others considered a proper inspiration and when is it considered
improper infringement?
It is hard even for courts to draw the line between the two. It
is fairly easy to determine whether a work is copied in its entirety.
It is harder to determine if a work that is similar to another is
an unauthorized adaptation.
You can be inspired by and reuse ideas, facts, or style of another's
earlier work to form a new work without infringing a copyright.
This is because these elements of a work are not protected by copyright
and thus they can be reused and recast into new original expression.
To copy all or part of an earlier author's copyright-protected
expression in a new work may infringe the earlier author's rights.
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