Consumers’ FAQs on copyright: What is copyright infringement?

There has been published a very useful guide for consumers and for anyone who is curious about copyright. This guide explains different things, relating to IP rights, in simple way. The project has been commissioned by the European Union intellectual property office.

The Guide aims to give ‘answers to the most frequently asked questions (FAQs) average consumers have in relation to copyright for all twenty-eight EU Member States.’ The present Summary Report highlights the convergences and differences in national copyright laws in relation to the 15 consumer questions.

An act that is covered by any of the author’s economic or moral rights or by any related right, and that has neither been authorised by the author or rights holder, nor is allowed on the basis of an exception or limitation or any other defence, amounts to copyright infringement.

As to infringement of exclusive rights, examples given include the upload of a work without the author’s permission, the download of a work without authorisation or without a statutory defence being applicable, the distribution of copies of a work, or the adaptation of a work. Typical examples for infringement of moral rights would be the use of ‘another person’s work without indicating his name or referring to it as your creation (so-called plagiarising) or distorting another person’s work’. In Malta, a user must have used a substantial part of a copyrighted work in order to be liable for copyright infringement.

In a few Member States, the risk that rights holders will initiate legal actions against end-users appears to be relatively low. In Belgium, for example, it appears that ‘in practice, only end-users committing large scale infringements will be targeted, although rarely, as the copyright owners focus on the intermediaries’. According to the Croatian expert, up to the date on which the answers were handed in, there had been no cases on the issue. According to the Polish expert, there is no established practice of granting injunctions against end-users in Poland.

However, so-called coercive and monetary sanctions are available in all Member States, and may in theory be imposed upon end-users. The exact nature, scope and modalities of these sanctions may diverge across the EU. In all Member States, a rights holder may ask a court to order an injunction against an (individual) infringer; through an injunction, a rights holder urges the infringer to terminate the infringing use. An injunction may be temporary and/or permanent. This is one of the most typical sanctions that would be imposed on end-users if the rights holder decides to initiate legal actions. Other coercive remedies available in the Member States include seizures or publicity measures. In France and in Spain, the internet connection of a (repeated) infringer may be suspended.

Apart from coercive measures, different monetary remedies are available in all Member States. Usually, a rights holder may claim damages for the prejudice suffered. Modalities of determining the amount of damages vary. Other monetary damages mentioned in the submissions of the experts include the restitution of profits made through the infringement, penalties where the judgment is not respected, compensation or a payment of a ‘reasonable royalty’. Some experts mention the possibility of unjust enrichment claims.

In theory, criminal sanctions can be imposed upon an end user in several Member States (BE, BG, CZ, DK, DE, IE, EL, ES57, FR, HR, IT, CY, LV – in the event of substantial harm caused to the rights holder, also in LT, LU, HU, MT, NL, PL, RO, SI, SK, FI, SE, UK). The experts from Belgium, Croatia, France, and Malta highlight that in practice, criminal sanctions against end-users acting in the private sphere appear unlikely in these countries. In Hungary, criminal sanctions do not relate to infringements of the right to reproduction for non-commercial purposes.

As to monetary remedies, the fact that an infringer knew or had reasonable grounds to know that he or she was infringing copyright, can have an impact at least in the context of damages in many Member States (CZ, DK — no damages if no knowledge, DE, IE, EL, HR, IT, CY, LU, HU, MT, NL, AT, PL, SI, SK, FI, SE, UK). Where knowledge plays a role, it is usually considered when weighting the different interests at stake or when determining the amount of damages; it does not necessarily play a role in the principle of liability itself.

Many experts point out that knowledge has no impact on at least civil liability. Some mention that even where no damages can be claimed due to lack of knowledge, the infringer can be held to pay compensation (see, e.g. LT, SK, FI, SE). In Cyprus, for example, a rights holder can still claim the profit made by the infringer.