You should consider the following:
The letter:
- sets out the basis of the claim i.e. the copyright owner, what it does etc;
- sets out the details of the infringement and the date on which it was discovered;
- sets out the infringing acts of communication and reproduction under sections 16 and 20 of the Copyright, Designs & Patents Act 1988 and is based on the assumption that the ISP’s server is located in the UK;
- puts the ISP on notice of the copyright infringements and asks the ISP to act expeditiously to remove or disable access to the Offending Webpage in accordance with (1)(a) of Article 14 of the E-Commerce Directive (2000/31/EC);
- asks the ISP to confirm within a short period (seven days, for example) that it has removed or disabled access to the offending page. It goes on to warn the ISP of the possible consequences of not providing the requisite confirmation.
The remedies available to a copyright owner in an action for copyright are set out in Sections 96-100, 113-114 of the Copyright, Designs & Patents Act 1988. Section 96(2) provides generally that “all such relief by way of damages, injunctions, accounts or otherwise is available to the claimant as is available in respect of any other property right”.
Considerable care has to be taken in pre-action correspondence as it may not always be a good idea to send a letter like this, primarily for two reasons:
Threats actions: threatening or even hinting at the possibility of launching patent, trade mark or registered design infringement proceedings can be actionable in the United Kingdom; and,
The Civil Procedure Rules require parties to any kind of dispute to exchange information and documents and to consider mediation, arbitration or other forms of dispute resolution before issuing proceedings.
Copyright infringement actions can be costly so it is in most cases advisable to informally negotiate between parties before sending official formal notices such as this and to seek specific legal advice from an IP practitioner. Use our Request-a-Quote option for this.
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