Copyright infringement can have serious repercussions for both the copyright holder, and the infringer. After all, infringing copyright is a serious matter, and the most serious of cases can result in a maximum term incarceration of 6 months and/or a fine of up to £50,000. Then there is destruction of all infringing copies and financial compensation through damages or an account of profits which the copyright holder can seek.
What we have found is that companies, or individuals, who infringe a copyright do not often understand the seriousness of their act(s). Copyright infringement, or any other intellectual property (IP) for that matter, are similar to theft. There are legal implications of copying or using original, creative or artistic work without permission.
On the other side, copyright owners are also unaware of their rights and what a copyright is in general. In many cases, we have to explain the process of notifying and putting a stop to infringement to new clients. In this post, we will explain the first step in trying to stop copyright infringement. A cease and desist letter!
What is a cease and desist letter?
A cease and desist, or a letter of claim, is a document which is served to an individual or company to request they cease from continuing a specific act. A cease and desist contains:
- An overview of the illegal act that the other party is conducting, which they need to put a stop to.
- The actions required from the infringing/offending party to correct the situation.
- In some cases, an outline of compensation for the damage that has been caused from the act.
- An undertaking outlining the steps needed to be taken by the other party, and for it to be signed and returned by the infringer/offender.
Cease and desist is not only used for copyright infringement. It is also used for other forms of IP such as trade marks, designs or patents, and in cases of defamation or harassment.
What should a cease and desist letter for copyright contain?
The main purpose of the cease and desist letter is to point out wrongdoing by the other party with a clear legal justification. In case of copyright infringement, it is important to establish:
- Whether copyright exists in the claimed work; which is known as subsistence.
- Who is the owner of the copyright.
A copyright is an unregistered right unlike a registered trade mark. There is no register to refer to so it is important to investigate the creation of work. If the work cannot be categorised as a copyright or ownership cannot be established, there is no claim for infringement.
Through the letter, the aim is to resolve the claim of infringement. The infringing party is put on notice, and in the case the matter ends up in court, this is seen as a necessary first step.
The letter in matters relation to copyright infringement should:
- Set out the copyright claim in full.
- Provide a copy of the work and the infringing party’s work should be enclosed to notify them of the infringement.
- An undertaking outlining the steps needed to be taken by the other party, which they should be asked to sign and return.
- In some cases, the infringing party could be required to acquire a licence of the copyright in return for payment of a royalty.
The infringing party should be given a reasonable time period to respond to the claim. In most cases, 14 to 28 days are sufficient.
Is a cease and desist letter legally binding?
A cease and desist letter is not legally binding. It represents a legal opinion of a person, usually an intellectual property (IP) solicitor who has been instructed by an aggrieved person or party.
The letter is not an indication of court action being pursued, but it is likely to be the next course of action if the letter doesn’t achieve its intended purpose.
A cease and desist letter does not necessarily need to be drafted by a solicitor, but It is more appropriate for an intellectual property (IP) solicitor to draft it because they understand the necessary prerequisites and what a letter of claim needs to include for it to be effective.
