Copyright II – Breach and Free uses of Work

In practice, most of the time people are accused of breaching someone’s copyrights is usually because they don’t know they are doing it to begin with. Copyright essentially is a way that creators of work can decide how they want their work to be used and how they can profit from their hard work and creativity.

What is a Breach of Copyright?

A breach of copyright is using someone’s work without their permission. There are various types of breaches and it is usually more than one at a time, they include the breach of a:

• Reproduction Right- copying the work (using a work as an inspiration is not copying)
• Distribution Right- to issue copy of the works to the public.
• Rental/Lending Right-  to rent or lend the work to the public.
• Public Performance Right- to perform, show or play the work in public.
• Public Communication Right- to communicate the work to the public.
•  Adaptation Right- to make an adaptation to the work.

Real life Examples of Copyright Infringement:

• Downloading music, games, software and movies without suitable payment and licensing
• Recording movies in the cinema
• Using photographs taken by others for your own blog or reposting it on social media without permission of the owner.
• Producing video clips/movies using unlicensed music clips.
• Copying any blogs, articles, books, journals or podcasts etc without permission of the owner.

When thinking of use of copyrighted works you always must consider who the owner is. Click here to read more about copyright ownership and copyrighted works.

How do you prove that you are the owner of the work?

To prove a breach has happened you must prove that it is in fact your work to begin with. For example, you have worked hard on writing a book and somehow information has leaked and you find someone else releasing a book that has copied your own work. Although you have worked hard on it for years, others are taking credit for your work. How do you prove this is originally your work?

• By having a personal journal where you are keeping up to date records of your progress and keeping track of your idea and your inspirations. This way when there is a dispute on ownership you can prove that you are the own who came up with the idea.

Steps for dealing with a breach of Copyright:

Step 1: Polite notice

This is a letter to the person in breach requesting them to stop breaching your copyrights for your work. You should give them a grace period to stop using your work and don’t be afraid to mention Royal Decree and article references (Law of Copyright and Neighboring Rights, promulgated by Royal Decree 65/2008), this will make them more likely to cooperate once they realise they are in breach.

Step 2: Legal Notice (serious notice)

This is the time when you approach a lawyer. The first thing you will have to do is sign a Power of Attorney at the notary at the court. This will give the lawyer the right to act on your behalf. The lawyer will now be able to send a legal notice on your behalf to the person/business in breach telling them to stop and threaten that if they do not cooperate within a certain period (ie 30 days) you will take them to court.

Step 3: Court Claim

If the above two steps don’t work, you can file a case in the court whereby you will have to prove your ownership and will have to prove that there is a breach by the other party.

Free Uses of Work

There are situations outlined by Article 20 of Royal Decree 65/2008 promulgating the Law of Copyrights and Neighboring Rights, where you are allowed to use copyrighted works without the owner’s consent, however you must mention the author and source. This must not prejudice the interests of the owner.

1. Quoting

You are allowed to quote copyrighted texts with correct referencing of the author and the source if you are doing so for purposes of clarification, explanation and/or criticism. You are only allowed to quote as much as needed to achieve your goal.

2. Teaching & Learning

You may use copyrighted works without the authors permission for purposes of teaching in a school or family environment etc, provided there is no direct or indirect financial gain.

3. Reproduction

You are able to reproduce copyrighted works for the following reasons:

a) Use in a study or research

b) To maintain an original or lost copy that can no longer be sourced (only one copy can be made)

4. Public Press and Public Information

Public information is not copyright protected eg. Laws, newspaper articles, news etc

5. Computer Programs

You are allowed to reproduce a single copy of a copyright protected computer program only to preserve lost copies and for archival purposes.

6. Public Performance Exceptions with no financial gain

a) Religious ceremonies

b) Learning and classroom environment eg school plays

7. Broadcasting

Broadcasting agencies are allowed to make temporary recordings of copyright protected works if:

a)They were entitled to broadcast the work to being with.

b) Must destroy the recording after 6 months unless the owner of the work allows an extension.

c) Can keep a single copy of the work for archival purposes only.

In conclusion, if you are using a work you do not own without the permission of the owner you are most likely in breach of the owner’s copyrights. However there are scenarios outlined above whereby using a copyright protected work is not a breach, these must not involve a direct or indirect financial gain and must be properly referenced as to who the author is.

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