In today’s digital age, where content creation and dissemination have become effortless, the concept of copyright has taken center stage.

Copyright grants creators exclusive rights over their original works, protecting their creative endeavors from unauthorised use.

However, the intricate interplay between causality and copyright has often remained elusive to the general public.

This article aims to demystify this causal connection in copyright, shedding light on the fundamental relationship between causality and creative ownership.

Causal Connection in Copyright

In the context of copyright, a causal connection refers to the relationship between the original work created by an author or creator and subsequent work that may have copied or infringed upon the original work.

Establishing a causal connection is crucial in copyright infringement cases, as it demonstrates that the alleged infringing work was derived from or substantially similar to the original work.

Elements of Causal Connection

The elements of causal connection are as follows:

  1. Access: This means that the person who copied your work must have had a way to see or know about your work. It’s like if someone wants to copy your drawing, they need to have seen it before.
  2. Similarity: This means that the copied work has to be similar to your original work. It doesn’t have to be exactly the same, but there should be enough similarities that show they used your ideas or work.
  3. Copying: This means that they actually used your work to make their own. They might have copied parts of it or used it as inspiration. It’s like if someone looked at your drawing and then made their own drawing that looks really similar.

To prove the causal connection, you need to show that the person who copied your work had access to it, that their work is similar to yours, and that they actually used your work in some way.

Factors Influencing Causal Connection

Nature of the Works

The nature of the original and copied works can influence the establishment of a causal connection.

Consider the type of creative expression involved, such as visual art, literature, music, or film.

The uniqueness and distinctiveness of the works play a role in determining the strength of the connection.

For example, let’s say there is a popular book called “The Magical Adventures of Alex.”

If someone later writes a very similar book titled “The Enchanted Journeys of Andy” with comparable characters, settings, and plot elements, it suggests a strong causal connection due to the clear similarities in the nature of the works.

Level of Access

The level of access the alleged infringer had to the original work is an important factor in establishing a causal connection.

It refers to whether the person had the opportunity to view or know about the copyrighted work before creating their own.

For instance, if a musician releases a song on a widely accessible platform like YouTube, and another musician who is known to have access to the platform releases a strikingly similar song shortly after, it raises the question of access and strengthens the causal connection between the two works.

The Extent of the Similarities

The extent of similarities between the original and copied works is a crucial factor in proving a causal connection.

It involves assessing the significant elements of the works, such as characters, storylines, themes, melodies, or visual aesthetics, to determine if there are substantial overlaps.

For example, if an artist creates an intricate painting featuring a specific arrangement of colors, shapes, and subjects, and another artist produces a remarkably similar painting with identical color schemes and subject matter, it suggests a strong causal connection due to the extensive similarities between the works.

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Other Relevant Factors

Various additional factors can contribute to establishing a causal connection in copyright infringement cases.

These factors might include:

  • Timing: Examining the timeline of the creation and release of the original and copied works to assess any suspicious proximity.
  • Independent Creation: Determining the likelihood of independent creation versus copying by considering the uniqueness and complexity of the creative elements involved.
  • Expert Analysis: Involving experts in the field to provide their professional opinions and analysis on the similarities and likelihood of a causal connection.

For instance, in a case where an author accuses another author of plagiarising their book, the timing of publication, evidence of access, and expert analysis comparing the storylines, characters, and writing style can all contribute to establishing a causal link.

These factors, when supported by evidence and examples, assist in establishing a strong case for proving a causal connection between the original and copied works.

The Complexity of Establishing Causal Connection

Proving a causal connection in copyright infringement cases can be a complex task due to several factors involved. The following aspects contribute to the complexity of establishing a causal connection:

The Subjectivity of Similarity Assessment

Assessing the similarity between two works can be subjective, as it involves comparing various elements such as themes, characters, plots, or artistic expression.

Different individuals may perceive similarity differently, leading to challenges in establishing an objective measure of the degree of similarity.

Lack of Direct Evidence of Copying

In many cases, direct evidence of copying may be challenging to obtain.

The alleged infringer may not have left behind a clear trail indicating that they directly copied the original work.

Proving copying often relies on circumstantial evidence and inference based on the similarities between the works.

Independent Creation Defense

The alleged infringer may claim independent creation, asserting that their work was created without any knowledge or influence from the original work.

It can be difficult to disprove this defense, especially if the works share common ideas or generic elements.

Challenges in Access Proof

Establishing access to the original work is crucial in demonstrating a causal connection.

However, proving that the alleged infringer had access to the work can be challenging, particularly when the work was not widely distributed or protected by strong access controls.

Originality and Transformative Works

In cases where the accused work is a transformative adaptation of the original, the issue of whether the similarities are substantial or if they fall within the bounds of fair use can introduce complexities.

Determining the boundary between infringement and permissible transformative works requires careful analysis and legal interpretation.

Expert Analysis and Testimony

In complex copyright cases, expert analysis and testimony may be necessary to establish a causal connection.

This involves engaging professionals with expertise in the relevant field to provide opinions and assessments of the similarities between the works, adding an additional layer of complexity and potential subjectivity.

Legal Standards and Jurisdictional Variances

The standards and criteria for establishing a causal connection may vary across jurisdictions.

Different courts may have different interpretations of the degree of similarity, access requirements, and burden of proof, further complicating the process of proving a causal connection.

It is crucial to have competent legal representation and a thorough examination of the relevant factors to build a strong case for a causal connection.

Establishing Causal Connection in Copyright Infringement: Insights from Henkel KGaA v Holdfast New Zealand Ltd

In this case, the court highlighted the importance of establishing a causal connection in copyright infringement cases.

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It emphasised that evidence must demonstrate that the alleged infringing work was copied from the copyrighted work.

The Assistant Commissioner opined that,

The ultimate issue in a breach of copyright case concerns derivation, not similarity, albeit the degree of similarity between the copyright work and the allegedly infringing work has evidentiary significance. Proof of copying will seldom be direct; in most cases the Court will rely on inference. The closer the similarity between the two works the stronger the inference is likely to be that the one was copied from the other. If the alleged infringer has had access to, and therefore an opportunity to copy, the copyright work, and the similarity between the works supports an inference of copying, it may well be appropriate for the Court to conclude, on the balance of probabilities, that there was indeed copying.”

Although the infringing work was an exact match to the copyrighted work, the Commissioner hesitated to conclude that it was copied only based on the significant level of similarity, without additional evidence.

In legal cases involving computer programs, the courts have taken a distinct stance on establishing a causal connection.

Reverse engineering a product through computer programming to create a similar product may not establish a causal connection if the defendant did not have access to the original program.

Significance of Causal Connection in Copyright

The causal connection is of significant importance in copyright law for several reasons:

  1. Establishing Infringement: Causal connection is necessary to demonstrate that the alleged infringing work is derived from, copied, or influenced by the original copyrighted work. It establishes a link between the two works, showing that the infringing work is not a coincidence or independent creation but rather a violation of the copyright owner’s exclusive rights.
  2. Protecting Creative Works: Copyright law aims to protect and incentivise creativity by granting exclusive rights to creators. The causal connection requirement ensures that these rights are respected and that unauthorised copying or use of copyrighted works is not allowed. It helps maintain the integrity of the creative process and promotes a fair and balanced system of intellectual property protection.
  3. Determining Liability: Causal connection plays a crucial role in determining the liability of the alleged infringer. Establishing the connection between the original work and the infringing work enables the copyright owner to hold the infringer accountable for their unauthorised use or reproduction of copyrighted material. It provides a legal basis for seeking remedies and enforcing copyright rights.
  4. Setting Precedent: Causal connection is essential in shaping legal precedents and establishing guidelines for future copyright cases. Court decisions based on a causal connection help define the boundaries of copyright protection, clarify the scope of infringement, and provide guidance to creators, users, and legal professionals in interpreting and applying copyright law.
  5. Evidence and Burden of Proof: Causal connection serves as evidence in copyright infringement cases. It demonstrates that copying or appropriation of copyrighted material has occurred, fulfilling the copyright owner’s burden of proof. It substantiates the claim of infringement and strengthens the legal position of the copyright owner in seeking legal remedies.
  6. Encouraging Licensing and Fair Use: The requirement of causal connection incentivises licensing agreements and promotes fair use of copyrighted works. By establishing that a causal connection exists, it encourages individuals and entities to seek proper authorisation or licenses for using copyrighted material, fostering a system that respects and rewards the rights of creators while allowing for legitimate uses under fair use provisions.
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It is a fundamental element that helps maintain the balance between promoting creativity and protecting the rights of creators in the realm of intellectual property.


The concept of causal connection is an essential feature in copyright protection and the pursuit of justice in cases of infringement of copyright.

The inference of copying, based on objective similarities and non-literal elements, forms the backbone of establishing a causal connection between the original work and the alleged infringement.

From musical elements to expressive elements in various artistic forms, the presence of material similarities helps make an inescapable inference of copying.

Breach of copyright becomes apparent when features of similarity extend beyond mere coincidence and align with the original work’s expressive elements.

Access to the initial copyright is vital in proving a causal connection, as copyright infringement claims cannot stand without access to the copyrighted material.

The absence of access weakens the claim and undermines the aim of copying.

Whether it is the copying of articles, broadcasted works, or other forms of creative expression, the identification of causal connections ensures the protection of the copyright owner’s rights and promotes a fair and balanced system of intellectual property.

In essence, the establishment of a causal connection is the crux of any copyright infringement claim, as it bridges the gap between the original work and the alleged infringement, safeguarding the integrity of creative works and preserving the rights of creators.


What is a causal connection in copyright?

Causal connection in copyright refers to the establishment of a link between the original copyrighted work and an alleged infringing work.

It demonstrates that the infringing work is derived from, copied, or influenced by the original work.

Why is causal connection important in copyright?

A causal connection is crucial in proving copyright infringement.

It helps establish unauthorised use, protects the rights of copyright owners, determines liability, and forms the basis for seeking legal remedies.

How is a causal connection established?

A Causal connection is established by demonstrating similarities between the original work and the alleged infringing work, along with evidence of access to the original work.

The presence of objective similarities and expert testimony can help support the claim of causal connection.

Is it necessary to show direct copying to establish a causal connection?

No, it is not necessary to show direct copying. The causal connection can be established even if there are indirect or non-literal elements of copying, as long as there is evidence to prove that the infringing work derives from the original work.

What is the difference between primary and secondary infringement of copyright?

Primary infringement of copyright refers to the unauthorised act of directly copying, reproducing, distributing, or performing copyrighted work without the permission of the copyright owner.

Secondary infringement, on the other hand, involves facilitating or enabling primary infringement.

This includes activities such as providing devices or services that aid in copyright infringement, such as selling or distributing tools or technologies specifically designed for unauthorised copying or providing platforms that allow users to share copyrighted content without authorisation.