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Joshua, Lawyer
Category: Law
Satisfied Customers: 29201
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I fixated my written works 6 years ago in writing, now some

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I fixated my written works 6 years ago in writing, now some one else has published the exact same piece of work, as I fixated it first is my work protected?

Hello and thank you for your question. My name is ***** ***** I will be very pleased to assist you. I'm a practising lawyer in England with over 15 years’ experience. Please be aware that although I will endeavour to reply to you promptly, I am also in full time private practice and so I may not be available to respond immediately and it may also take me a few minutes to prepare a reply. The site will notify you as soon as I respond. I look forward to working with you to answer your question fully.

I am very sorry to read of the above and I imagine what a difficult position it must be. I will certainly try to clarify your options.

may I clarify what kind of works these are please? For example a novel?

Customer: replied 17 days ago.
it is a television programme idea. I fixated it in 2014, it was sent to a broadcaster, I pitched it to them, they then claim in 2018 they had the one is denying it is identical...what they are saying is that they came up with the same idea 4 years after I had already fixated it as a defence
  1. Thank you. When you refer to "fixation" are you referring here to writing the idea down and developing the idea fully or something else?
  2. Do you have evidence that you created the idea in 2014 or thereabouts as you say if the other party that is now copy the idea claims you did not?
Customer: replied 17 days ago.
I have 100% evidence the idea was already written in a professional format, even more, I pitched the idea to the broadcaster 6 years ago, they do not deny it..but the claim some one else in their company came up with the idea after in 2018. I am under the belief that my work is protected as it was fixated
Customer: replied 17 days ago.
the broadcaster is claiming that some one came up with the idea with out knowing about my works in 2018.

thank you. the defence the broadcaster has raised is a curious one because it is not one that is recognised by the Copyright, Designs and Patents Act 1988 which instead imposes strict liability in respect of copyright infringement.

In other words, it is not a defence to claim that you accidentally by pure coincidence copied somebody else's idea even if it is completely true. Providing the original author of the work can prove that they created it first then the person that created it second, even as above, to the extent this was a genuine creation on their part with no knowledge of your work whatsoever ( though it seems rather too coincidental that someone at the broadcaster with whom you shared your idea happened upon the same idea themselves) this would still amount to a breach of copyright and the person or broadcaster if they created the idea in the context of an employee of the broadcaster, be liable to you for damages for breach of copyright which would as a starting point be commensurate with royalties you would have been due had the broadcaster paid for the rights under a commercial agreement

Customer: replied 17 days ago.
thats what I thought
Customer: replied 17 days ago.
the program is due to be aired in the Autumn, Can I take out an injunction to stop the broadcast, what should I do next

Do you have any estimate on the amount of royalties you may have been able to negotiate for the rights in ballpark terms?

Customer: replied 17 days ago.
is this conversation published?

It may be publicly available but you can ask that it is locked by dropping customer services online asking to lock the thread for privacy:

Customer: replied 17 days ago.
where does it say in the CDP 1988 imposing strict liability?
Customer: replied 17 days ago.
I am also trying to find where the law says that creating a work already created is not a defence?

s17 Copyright, Designs and Patents Act 1988 sets out when the infringement takes place and no knowledge of prior work is necessary for such infringement to take place

Customer: replied 12 days ago.
are you sure the law has not changed? any case law?

Not to my knowledge. If you consider the position it would offer a party a simple defence so as to make the law largely unworkable in many cases if this were not so

Customer: replied 12 days ago.
the broadcaster are claiming that no knowledge is a defence
Customer: replied 12 days ago.
Where an infringer did not know and had no reason to believe that copyright or design right subsisted in the work, the rights owner cannot claim damages (albeit there is still infringement). This protection appears in the Copyright, Designs and Patents Act of 1988. However, in practice it is rarely used as the knowledge goes to whether rights subsist, not who owns the rights; and in any event, the copyright owner can still stop the work being used... is this correct?
Customer: replied 12 days ago.
the “innocent copying” defence to damages under Section 97 CDPA

It is necessary to separate the criminal offences and civil liability under CDPA. Strict liability offences relate to criminal liability not civil damages.

In respect to innocent reproduction and s97 CDPA, this defence only applies where the defendant can reasonably show that they did not know of any copyright subsisting at the time having done appropriate due diligence. If they can establish that then this can operate as a defence to damages for infringement itself, but not for profits the defendant makes from the infringement and not for flagrancy damages in the event the reproduction is flagrant in nature.

Accordingly even where the defence can be established, it only protects potentially against one element of a potential claim and will not protect the defendant from profits or flagrancy damages.

In any event, as you say, injunctive relief can be sought to prevent use of works even to the extent that section 97 defence is available to the defendant.

There is a helpful summary here:

Customer: replied 12 days ago.
okay, so I have told the broadcaster (before my pitch is broadcast) and they are continuing with the defence

It seems to me that you may need to consider appointing representation to protect your interests.

Customer: replied 12 days ago.
im trying to understand the term fragrancy

"flagrancy" relates to how egregious the breach is. Intentionally or grossly negligently using copyrighted work can give rise to such claims. They are the exception rather than the rule.

Customer: replied 12 days ago.
forgive me for asking again, but now they know the work is owned by me, and that they have produced a programme, does this give them a right to continue?
Customer: replied 12 days ago.
put it another way, now they know, before broadcast, can they expect a court to think it unfair to stop them broadcasting?

On a practical level they can, but if they do so they will be liable to pay you damages for on account of profits (remembering that this is not protected under a s97 defence even if they are successful in such a defence) and also potentially (though less likely) flagrancy damages which there is a potential ground for if they proceed with use of a reproduced work when they know it is copyrighted. I would also question whether a s97 defence could succeed if they go ahead with broadcast if you can prove you have made them aware of the copyright. The defence only holds to the extent it does at all up to the point they can claim not to have been aware. It seems to me you can consider either negotiating for a fair settlement for royalties or advise them that you will be seeking injunctive relief to prevent the broadcast proceeding or allow the broadcast to proceed and claim damages as against their profits.

Customer: replied 12 days ago.
Thankyou very much

I'm glad the above answers all your questions. If there is anything else I can help with please reply back to me otherwise thank you very much for visiting JustAnswer and I hope we will see you again in the future.

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