The Copyright Platform
Copyright in an artist’s work is infringed when someone carries out one of their ‘exclusive rights’ without their permission and an exception to copyright does not apply.
As the copyright owner, your ‘exclusive rights’ are:
l The right to communicate your work and issue copies of your work to members of the public
lThe right to rent or lend (‘license’) your work and to adapt it
As the copyright owner, it is up to you whether you allow or prohibit anyone else from doing any of the above with your artwork.
What are the exceptions?
There are exceptions to copyright that allow someone to use your copyright-protected work in limited situations for certain uses. These exceptions are found in the Copyright and Neighbouring rights Act, CAP 68:02, PART III, Exceptions to Exclusive Right to Copyright (ss 12-21). A number of these exceptions must pass the ‘fair dealing’ test, such as the exceptions for research, reporting current events, or criticism and review of an artist’s work. This means that the way in which the work is used must meet certain criteria or else it is an infringement.
How can I tell if my work has been infringed? An infringement can occur when someone directly copies one of your works in its entirety or if they use substantial elements of your work without your permission. What is determined by ‘substantial’ is not necessarily about proportion or size. A small but distinct element of your work can be copied and this could still amount to an infringement.
In cases where an artist has been accused of infringing another artist’s work, or where a company has used parts of an artist’s work on a product they are selling – the assessment for copyright infringement has been made by looking at the similarities, rather than differences.
For copyright infringement to be determined there must be a connection between the infringing work and the original work – the infringement has to be derived from the original.
There are ways of establishing the connection by looking at surrounding circumstances, such as availability. For example, the original work could be easily accessed online or in public platforms. Additionally, any contact with the infringing party such as discussions to use the work, or even engagement on social media, will help establish that they were aware of your work before making the infringing version.
The test for infringement is done on a case-by-case basis. If you claim your work has been infringed, you will have to prove this. Once it has been established, it will
Can ideas be infringed?
Copyright does not protect ideas but instead expressions of ideas. An ‘idea’ includes the thought that prompted the work, such as the subject matter, or the style in which it was created. So, an infringement is unlikely to take place when two artists depict someone sitting on a chair or if two artists produce an abstract painting. In these instances, only a direct copy of the work would amount to an infringement, but a depiction of the same idea would not.
This concept is evolving, however. Recent cases have looked at the idea behind artistic works more closely to establish if an infringement has taken place, especially where the idea is very original.
What should I do if my copyright has been infringed? If you think your work has been infringed by another artist, or if a company has used your work without your permission, the first step is to contact them and seek out their defence. It is useful to keep records of your work should you need to rely on them.
If your work has appeared online without your permission, you can issue a ‘notice and takedown’ request.
Most websites have a mechanism for this, even outside of America where they are required to by law. This mechanism is also provided by online payment services such as PayPal – so use it if you see someone selling products online which infringe your work.
We also advise you seek independent legal advice and that of the Companies and Intellectual Property Authority (CIPA), which specialises in copyright.
Remedies you can seek include a retrospective licence, an injunction to stop the perpetrator using the work or ‘delivery up’ of copies made – which means all copies of the infringing work are returned to you and taken off the market. There is a criminal liability for infringement where the infringer is acting in the course of business and knows that the works they are handling are infringements.
Tel: (+267) 392 8055
Like us on Facebook: Copyright Society of Botswana (COSBOTS)
LinkedIn: Copyright Society of Botswana (COSBOTS)
Twitter: COSBOTS (CosbotsInfo)
Instagram: Copyright Society of Botswana (@cosbots)
Physical Address: Unit 1, Plot 93 Gaborone International Commerce Park
Postal Address: P/Bag B075 Gaborone