Each restricted act requires some form of positive act by the infringer, so that mere possession of an infringing copy cannot be primary infringement, although in some situations possession may be a secondary infringement.
Section 16(2) of the Act states: ‘Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.’
The person carrying out any unauthorised restricted acts is infringing copyright, even if they did not intend to do so. Ignorance of the existence of copyright in a work is no defence to such a ‘primary infringement’.
Secondary infringement is usually reserved for the criminal activities – where knowledge would be an essential part surrounding infringing copyright by direct or indirect means, such as selling or dealing in unlicensed copies or in some way assisting or amplifying a primary infringement. It is mainly concerned with commercial dealings affecting works made in infringement of copyright and also with assistance given to primary infringers. The list of secondary infringements is as follow:
importing infringing copies;
possessing and dealing with infringing copies;
making, importing or possessing equipment which is designed for the manufacture of infringing copies;
transmitting the work by means of a telecommunications system, e.g. internet, mobile phone;
permitting the use of a place of public entertainment for a performance which infringes the copyright in a literary, dramatic or musical work; and
supplying apparatus, or premises for the use of apparatus, which infringes the copyright in a work by means of public performance.
In contrast to a primary infringement, where ignorance is no defence, in the case of a secondary infringement the CDPA imposes liability upon a defendant ‘knowing or having reason to believe’ that an infringement had taken place. For example, the existence of a copyright notice on the work will generally suffice to demonstrate the necessary level of knowledge for the defendant to be liable for secondary infringement.