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Difference Between Primary and Secondary Infringement of Copyright

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Manish Jindal

February 2, 2024

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Difference Between Primary and Secondary Infringement of Copyright

Are you curious to know the ‘Difference Between Primary and Secondary Infringement of Copyright’?

A content creator’s job is crucial and extremely revenue gaining. Also, if you are a content creator, you should understand the copyright law and its significance.

Every infringement is not the same. While you accuse someone for the copyright infringement, you should also understand the difference between primary and secondary infringements.


They can be broadly categorised into two types: primary and secondary violation.

This distinction plays a critical role in determining the liability and potential legal consequences faced by the infringing party.

Let us look into the key differences between primary and secondary infringements.

In this blog, we will also explore the understanding of the following concepts and how it will effect the content creators in the digital age.


Copyright Infringement Consequences

A copyright violation will have unlikely consequences. The impact will be on both sides of infringer and copyright holders.


These consequences can range from financial penalties to legal ramifications and brand reputational damage. Below are some of the potential outcomes of copyright violation:

Monetary Damages

Infringers may be required to pay damages to the copyright holder, which can be calculated in various ways, including actual damages, statutory damages, or the infringer’s profits resulting from the violation.

Depending on the nature and extent of the violation, these amounts can be substantial.

Injunctions

A court may issue an injunction, ordering the infringer to cease the unauthorised use of copyrighted material immediately.

This can result in the removal of infringing content from websites, social media platforms, or other distribution channels.

Criminal Penalties

In some cases, particularly severe or repeated instances of copyright violation may lead to criminal charges. These can result in fines, imprisonment, or both.

Legal Costs

In addition to damages and penalties, infringers may be responsible for the copyright holder’s legal expenses, including attorney fees and court costs.

This can add a significant financial burden on top of other penalties.

Reputational Damage

Being found guilty of copyright violation can harm an individual’s or a company’s reputation.

This negative perception may impact future business opportunities, relationships with clients or partners, and overall credibility in the market.

Loss of Business Opportunities

Infringing companies may lose contracts, licenses, or partnerships as a result of their unlawful actions.

This can lead to a decline in revenue and potential business growth.

Seizure and Destruction of Infringing Material

Courts may order the confiscation and destruction of any infringing materials, such as counterfeit goods, unauthorised copies, or equipment used to produce them.

Revocation of Internet Services

In some cases, internet service providers (ISPs) or website hosts may terminate services to individuals or businesses involved in copyright violation, resulting in the loss of website access or online presence.

To avoid these severe consequences, it is crucial to respect intellectual property rights and ensure that any use or distribution of copyrighted material is done with the proper permissions or within the bounds of fair use.

Primary Infringement

Copyright owners have moral and exclusive rights for their content. In case of direct infringement, also known as the primary violation, the violation of the exclusive rights will occur.

The primary infringement will violate the rights such as reproducing, performing, displaying and distributing.

If an infringer creates derivative works based on your content, it is also considered as primary violation.

Primary infringement occurs when someone engages in any of these activities without obtaining the necessary permissions from the copyright holder or falling within the scope of exceptions, such as fair use.

Examples of primary infringement include:

Reproducing copyrighted material: Making unauthorised copies of a copyrighted book, movie, song, or artwork.


Distributing copyrighted material: Sharing or selling unauthorised copies of copyrighted material, either physically or digitally, without the copyright holder’s permission.


Public performance or display:
Playing a copyrighted song or movie in a public space or showing a copyrighted artwork without obtaining the necessary licenses or permissions.


Creating derivative works: Adapting a copyrighted work into a new format or creating a new work based on the original without the copyright holder’s permission, such as translating a novel or producing a sequel to a movie.

Primary infringers are typically held directly liable for their actions and can face legal consequences, including monetary damages, injunctions, and even criminal penalties in severe cases.

It is essential for individuals and businesses to be aware of and respect copyright laws to avoid engaging in primary violation and its associated consequences.

Further Reading: 4 Collateral Copyright Infringement Damages

Secondary Infringement

Secondary infringement, also known as indirect infringement, occurs when a person or entity contributes to, facilitates, or benefits from the unauthorised use of copyrighted material without directly engaging in the infringing activities themselves.

Unlike primary violation, where the infringer is directly involved in violating the exclusive rights of the copyright holder, secondary infringement involves a more indirect role in the infringement process.

There are two main types of secondary violation: contributory infringement and vicarious infringement.

Contributory Infringement: This occurs when an individual or entity knowingly contributes to or assists another party in infringing on a copyright holder’s exclusive rights.

For contributory infringement to be established, the accused must have had knowledge of the violation and materially contributed to the infringing activity.

Examples include providing software tools designed to circumvent copyright protection measures or offering a platform that encourages the sharing of unauthorised copyrighted material.

Vicarious Infringement: Vicarious violation arises when an individual or entity has the ability to control or supervise the infringing activities of another party, benefits financially from the infringement, and fails to take reasonable steps to prevent or stop the violation.

Examples include a website owner who profits from advertisements displayed alongside unauthorised copyrighted content or a venue owner who allows and benefits from unauthorised public performances of copyrighted works without taking action to stop them.

Secondary infringers can also face legal consequences, including monetary damages and injunctions.

It is crucial for individuals and businesses to be aware of their potential liability as secondary infringers and take appropriate measures to ensure they do not facilitate or contribute to copyright violation.

Suggested Reading: Secondary liability for copyright infringement

Consequences of Primary Infringement of Copyright

Primary infringement of copyright, also known as direct infringement, can lead to various legal consequences for the infringing party.

These consequences are designed to protect the rights of the copyright holder and to deter future violation.

Some of the key consequences of primary violation of copyright include:

Injunctions

A court may issue an injunction, which is a legal order directing the infringer to stop the unauthorised use of the copyrighted material.

This can include ceasing the reproduction, distribution, display, or performance of the copyrighted work.

Monetary damages

The copyright holder may be entitled to monetary compensation for the damages suffered as a result of the violation.

This can include actual damages, which are based on the financial loss suffered by the copyright owner, and/or statutory damages, which are predetermined amounts set by law per instance of violation.

Disgorgement of profits

In some cases, the infringer may be required to give up any profits they have earned as a result of the unauthorised use of the copyrighted material.

This is meant to prevent the infringer from benefiting financially from their unlawful actions.

Destruction of infringing materials

A court may order the infringer to destroy all unauthorised copies of the copyrighted work, as well as any materials or equipment used to produce those copies.

Legal fees and costs: The legal fees and costs will affect the infringer largely.

They have pay all legal costs that also includes attorney’s cost for infringing the copyright.

Criminal penalties

In some cases, particularly when there is willful violation and involves a significant amount of copyrighted material, criminal penalties may be imposed.

These can include fines and imprisonment, depending on the severity of the violation.

It is important to note that the specific consequences of primary infringement of copyright can vary depending on the jurisdiction and the particular circumstances of each case.

Consequences of Secondary Infringement of Copyright

Secondary infringement of copyright, also known as indirect or contributory infringement, occurs when an individual or entity contributes to, facilitates, or enables another party’s direct infringement of a copyrighted work.

The legal consequences of secondary infringement can be similar to those of primary infringement, although they might vary depending on the jurisdiction and the specific circumstances of each case.

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Some of the key consequences of secondary infringement of copyright include:

Injunctions

Similar to primary infringement, a court may issue an injunction ordering the secondary infringer to cease their involvement in the violation, such as by stopping the provision of resources or services that enable the direct infringer to continue their unauthorised activities.

Monetary damages

Secondary infringers may also be held financially responsible for the damages suffered by the copyright holder.

They may be required to pay actual damages based on the financial loss suffered by the copyright owner or statutory damages, which are predetermined amounts set by law per instance of violation.

Disgorgement of profits

In some cases, secondary infringers may be required to relinquish any profits they have earned as a result of their involvement in the infringement.

This is meant to prevent the secondary infringer from financially benefiting from their unlawful actions.

Legal fees and costs

As with primary violation, secondary infringers may be required to pay the copyright holder’s attorney fees and other legal costs associated with the enforcement of the copyright.

Criminal penalties

In certain cases, especially when the secondary violation is willful and involves a significant amount of copyrighted material, criminal penalties may be imposed on the secondary infringer.

These can include fines and imprisonment, depending on the severity of the infringement.

Secondary violation of copyright is taken seriously under the law, and the potential consequences emphasise the importance of avoiding any involvement in the unauthorised use of copyrighted material.

How Copyright Infringement Impacts the Copyright Holder?

Copyright infringement can have various negative effects on the copyright holder, impacting their rights, financial situation, and creative incentives.

Some of the key ways copyright violation impacts the copyright holder include:

Loss of income: Violation can lead to a significant loss of income for the copyright holder, as unauthorised use or distribution of the copyrighted material can reduce the demand for legitimate copies, lowering sales and licensing revenues.

Loss of creative control: When copyrighted material is used without the owner’s permission, they may lose control over how their work is presented, distributed, or modified, which can lead to undesired alterations or associations with substandard products or services.

Damage to reputation: Copyright violation can harm the copyright holder’s reputation, as the unauthorised use or distribution of their work may lead to a perception of lower quality or diminished value.

This can be especially damaging if the infringed material is altered or presented in a negative context.

Reduced incentive to create: If copyright holders cannot reliably protect their rights and earn a fair return on their creative investments, they may be less motivated to continue creating new works.

This can lead to a reduction in artistic and cultural output, which is detrimental to society as a whole.

Increased enforcement costs: Copyright holders often need to invest time, effort, and financial resources in monitoring and enforcing their rights against infringers.

This can be a significant burden, especially for individual creators and small businesses that may lack the resources to effectively protect their copyrights.

Market distortion: Widespread copyright violation can distort markets, as it creates an unfair advantage for those who engage in unauthorised use or distribution of copyrighted materials.

This can undermine the ability of legitimate businesses to compete fairly and sustainably.

Claim of Infringement

As a copyright holder, when they come across the violation, they will accuse the infringers. The claims will be processed against the infringer for violating the exclusive rights.

The rights can be reproduction, distribution, performance and displaying the work.


When making a claim of violation, the copyright holder typically provides the following information:

Identification of the copyrighted work: A clear and specific description of the copyrighted material that has allegedly been infringed upon, including titles, authorship, and registration information if applicable.

Identification of the infringing material: A detailed description of the allegedly infringing content or activity, along with its location or means of distribution, to enable the alleged infringer or relevant intermediary (such as an internet service provider or platform) to locate and review the material in question.

Contact information: The copyright holder should provide their name, mailing address, telephone number, and email address, enabling the alleged infringer or intermediary to communicate with them regarding the claim.

Statement of good faith belief: A declaration that the copyright holder genuinely believes that the use of the copyrighted material is not authorised by the copyright owner, their agent, or the law.

Statement of accuracy and authority: A statement affirming that the information provided in the claim is accurate and that the claimant is either the copyright owner or is authorised to act on behalf of the copyright owner.

This statement should also acknowledge that, under penalty of perjury, the claimant is providing truthful information.

Signature: The claim should include the physical or electronic signature of the copyright holder or their authorised representative.

Remedies for Copyright Infringement

Remedies for copyright violation are legal actions or resolutions available to a copyright holder when their exclusive rights have been violated by an unauthorised party.

These remedies are designed to compensate the copyright holder for their losses, deter future infringement, and restore their rights. Some of the key remedies for copyright violation include:

Injunctions

Courts can issue injunctions, which are legal orders directing the infringer to stop the unauthorised use of the copyrighted material.

Injunctions can be preliminary (temporary measures during litigation) or permanent, and they may require the infringer to cease reproduction, distribution, display, or performance of the copyrighted work.

Monetary damages

The copyright holder may be entitled to monetary compensation for the damages suffered due to the infringement.

Damages can include actual damages, based on the financial loss suffered by the copyright owner, and/or statutory damages, which are predetermined amounts set by law per instance of violation.

Statutory damages can be particularly helpful when proving the exact extent of actual damages is difficult.

Disgorgement of profits

In some cases, infringers may be required to relinquish any profits they have earned as a result of the unauthorised use of the copyrighted material.

This prevents the infringer from financially benefiting from their unlawful actions and compensates the copyright holder.

Destruction of infringing materials

Courts may order the infringer to destroy all unauthorised copies of the copyrighted work, as well as any materials or equipment used to produce those copies.

This helps to prevent further violation and restores the copyright holder’s control over their work.

Legal fees and costs

In some jurisdictions, the infringer may be required to pay the copyright holder’s attorney fees and other legal costs associated with enforcing the copyright.

This helps to offset the financial burden faced by the copyright holder in protecting their rights.

Criminal penalties

In cases of willful and large-scale copyright violation, criminal penalties may be imposed on the infringer.

These can include fines, imprisonment, or both, depending on the severity of the infringement and the jurisdiction in which it occurred.

These remedies for copyright violation aim to protect the rights of copyright holders and discourage unauthorised use of copyrighted works.

The specific remedies available and their application can vary depending on the jurisdiction and the particular circumstances of each case.

What is the Difference Between Primary and Secondary Infringement

The primary difference between primary and secondary violation lies in the nature of involvement and the relationship with the unauthorised use of copyrighted material. Here is a brief overview of the two types of violation:

Primary (Direct) Infringement: Primary infringement occurs when an individual or entity directly violates the exclusive rights of a copyright holder without authorisation.

This typically involves activities such as reproducing, distributing, displaying, or performing a copyrighted work without the permission of the copyright owner.

The primary infringer is the party directly engaged in these unauthorised activities, making them liable for the infringement.

Secondary (Indirect) Infringement: Secondary infringement occurs when an individual or entity facilitates, contributes to, or enables another party’s direct violation of a copyrighted work, without directly participating in the infringement themselves.

a. Contributory Infringement: This takes place when an individual or entity knowingly provides material support, resources, or assistance that enables the direct violation to occur.

They must have knowledge of the infringing activity and contribute to it materially.

b. Vicarious Infringement: This occurs when an individual or entity has the ability to control the infringing activity, derives a financial benefit from it, and fails to prevent or stop it, even though they may not have actively participated in the violation themselves.

Conclusion

In conclusion, understanding the difference between primary and secondary infringement of copyright is essential for individuals and entities interacting with copyrighted material.

Primary infringement refers to the direct and unauthorised use of copyrighted works, while secondary violation encompasses the facilitation, contribution, or enablement of another party’s direct violation.

Both forms of violation can result in significant legal consequences, including injunctions, monetary damages, and other penalties.

By recognising the distinctions between these types of violations and ensuring compliance with copyright laws, individuals and entities can avoid legal repercussions and contribute to a fair and thriving creative ecosystem that respects and protects the rights of copyright holders.

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Frequently Asked Questions

What is secondary (indirect) violation of copyright?

Secondary infringement occurs when an individual or entity facilitates, contributes to, or enables another party’s direct infringement of a copyrighted work, without directly participating in the infringement themselves.

It includes contributory and vicarious violation.

What is contributory infringement?

Contributory infringement takes place when an individual or entity knowingly provides material support, resources, or assistance that enables the direct infringement to occur, having knowledge of the infringing activity.

What is vicarious infringement?

Vicarious infringement occurs when an individual or entity has the ability to control the infringing activity, derives a financial benefit from it, and fails to prevent or stop it, even though they may not have actively participated in the infringement themselves.

Can both primary and secondary infringers be held legally responsible?

Yes, both primary and secondary infringers can face legal consequences, including injunctions, monetary damages, and other penalties.

What are the legal consequences of primary infringement?

Legal consequences of primary infringement can include injunctions, monetary damages (actual and/or statutory), disgorgement of profits, destruction of infringing materials, legal fees and costs, and in some cases, criminal penalties.

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