Receiving a letter of claim accusing you of copyright infringement can be a jarring experience, whether or not you have knowingly infringed someone’s copyright. Our first piece of advice is, don’t panic. Take some time to consider how to respond, though be mindful of any timescales for response set out in the letter. If needs be, you can simply acknowledge the letter and state that you need more time to consider the issues raised and that you will reply in due course. For a full breakdown of the correct steps to take in response to a copyright infringement letter, watch our video and take the necessary actions that follow, depending on your specific circumstances.
Response to a copyright infringement letter: An Overview
Being accused of copyright infringement can be a difficult situation, whether or not you have knowingly infringed someone's copyright. Here our copyright lawyer, Lindsay Gledhill, suggests a useful legal route to take to stop an infringement claim from blowing up.
Steps to take in response to a copyright infringement letter
Establish whether an infringement has occurred
Firstly, consider whether an infringement has, in fact, occurred. Does the copyright infringement letter provide you with enough information to verify this? Does the letter include a copy or an example of the infringing work?
Only the copyright owner or an exclusive licensee has the right to sue or issue takedown notices for copyright infringement (though a non-exclusive licensee may also claim in certain limited circumstances). Has the person accusing you of copyright infringement confirmed that they are the owner or licensee of the relevant copyright work? Has the author of the copyright work been identified? This may be a different person to the copyright owner, and it should be verified that ownership of the work has in fact passed to the person writing the letter.
Does the letter set out details of how the work qualifies for copyright protection in the UK? The work in question must fulfil certain requirements to qualify for protection. The work must be original, and the author must have qualified for copyright protection under the Copyright, Designs and Patents Act 1988 (CDPA), either because:
- At the time they created the work, they were British, domiciled or resident in the UK or a company incorporated in the UK (or, in each case, another country to which the CDPA extends); or
- The work was first published in the UK, or a country to which the CDPA extends.
Does the letter provide details of when the copyright owner discovered the infringement? Has the owner contacted you promptly? Although this may only be relevant in the most serious of cases, if the copyright owner is seeking an interim injunction, any delay would hinder the argument that irreparable damage has been, or is likely to be, caused by the infringement.
What are your options in terms of response?
How you respond will depend very much on whether you feel their claim is potentially valid. You may need further information at this stage, for example, if some of the information described above has not been provided. In this scenario, you could contact the claimant and ask for more detail before deciding what to do next.
However, if you know you have infringed the claimant’s copyright, you may simply choose to make an offer to settle. If the claimant had contacted you via another means, such as the phone or through social media, and claimed you had used their material without permission, you may well have simply offered to make payment of a reasonable fee, and so this may still be the best course of action to try and stop the infringement claim in its tracks. You can make an offer to settle in a ‘without prejudice’ or ‘open’ letter.
A ‘without prejudice’ letter?
A ‘without prejudice’ letter is a letter with an offer to settle that the Judge is not permitted to see until the case has been heard and the judgment has been made about whether the copyright was infringed. There are advantages to ‘without prejudice’ letters in certain circumstances, but it is often more advantageous to write an open letter.
Or an open letter?
We typically advise our clients to write an open letter in the first instance. An open letter is a letter that anyone can draw to the court’s attention at any stage of court proceedings. It is important to make it clear in the letter that you are not admitting liability. Very few cases are clear cut and so there is nothing to gain by admitting liability at this stage.
Consider making an offer to pay a reasonable, sensible sum in relation to your use of their material. Think about what a reasonable sum would be in normal circumstances – i.e. what sort of licence fee would you usually expect to pay to use this particular material? Have a think about what you’re comfortable with and make that offer now. There is nothing to lose at this stage as you have not admitted liability. The rights owner may seek to negotiate a higher fee but making an offer to settle now is a sensible first step.
How the claimant responds to your offer will dictate next steps. They may ask you to make a payment, agree to licence terms and/or sign an undertaking.
At what point should you instruct an IP solicitor?
Intellectual property is a complex area of law and we would recommend seeking the advice of an expert copyright solicitor as soon as you receive a letter of claim so that you can respond promptly and effectively. This will help you to avoid common pitfalls such as admitting liability before getting all of the details required to establish fault, and more importantly give you the confidence that you’re in the best possible hands to help you navigate the best possible outcome for you and your business.