How to claim for copyright infringement (UK): evidence, letter before action, next steps

How do you claim for copyright infringement in the UK? The process starts not in court but with a letter before action, and most of the work is in gathering evidence and drafting that letter properly. This page covers the main principles first, then walks through the ten steps I use with clients, from collecting evidence to what to do if the infringer ignores you.

What is copyright?

Copyright is work, artistic work, that you have created using your skill or judgement. It arises automatically. It is a right that you do not need to register, as opposed to, for example, trademarks, which you should register with the UK IPO. I explain that process in how to register a trademark. With copyright, the moment you create the work, the right exists. That is convenient, but it also means there is no official record to point to, which is why the evidence of when you created the work becomes so important if someone copies it.

What is copyright infringement?

Copyright infringement, in simple terms, is when someone uses your copyright without your permission. That might be copying your photographs, your written content, your designs or your software and using it as their own. The infringer does not need to have copied all of it, and they do not need to have known it was yours; what matters is that your work has been used without your permission.

What is a letter before action?

A letter before action is a letter you must use to comply with the pre-action protocol. The pre-action protocol is a procedure the courts want you to follow to try to resolve the issue in an amicable way before going to court. The reason is that court proceedings are lengthy and costly, and the courts do not want everyone jumping straight into litigation. If an issue can be resolved outside court, the courts expect you to at least try. The letter before action is how you show you have tried, and in many cases it resolves the matter on its own, because the infringer realises you are serious and that you can prove your case. I cover the general approach to this kind of letter in how to write a letter before action.

Collect evidence of copyright infringement

• Step 1: gather the evidence. Collect, in one place, evidence that the copyright is actually yours, evidence of when you produced the work, screenshots showing the other party infringing your copyright, and ideally the date on which the infringement occurred. Dates are extremely important, because you want to show that your copyright was created before the infringing company started using it. A simple evidence checklist helps you make sure nothing is missed. I give clients a short evidence document for this purpose, with a section for each category, so that the proof of ownership, the proof of creation date and the proof of infringement are all captured in a consistent way. The more organised the evidence is at this stage, the stronger the letter will be, and the easier it will be for a solicitor to pick the matter up later if it escalates.
• Step 2: save it in one place. This is a technical step. Save the evidence you have gathered as a PDF so that everything is in one document, ready to attach to the letter.

Draft a letter before action

• Step 3: draft the letter. Work from a template letter before action for copyright infringement, with square brackets for your particular information: your logo and company details, the details of the infringing company, and so on. The letter is broken into two main sections. The first is a table of defined terms: on the left, the term used in the body of the letter; on the right, the actual definition, for example your company's registered name against the term "Company". The second is the body of the letter, which is where you tell the infringing company to stop infringing your copyright. Work through every square bracket in the template and replace it with your own information; a letter that still contains template placeholders undermines the seriousness of everything else in it.

Undertakings and attaching evidence

• Step 4: amend the undertakings. The letter should include an annex of undertakings that you request from the infringing company. Undertakings are legal promises to do or not do something. Ideally, when you send the letter, the infringing company returns the undertakings signed, promising to do or not do what you have asked. A template might contain eight main promises, but not all of them will be relevant to you, so remove any that are not and amend the ones you keep to make them as specific to your situation as possible. Specific undertakings, naming the exact work and the exact use that must stop, are much harder for the infringer to sidestep than general ones.
• Step 5: attach the evidence. Attach to the letter a copy of the evidence you gathered in step 2. Download the drafted letter, ideally as a PDF, and combine it with the evidence so the infringer receives both together. The evidence is what turns an assertion into a case: it shows them that you can prove ownership and prove the copying, which is usually what persuades them to engage.

Sign and date the letter

• Step 6: sign and date. The date on the letter needs to be the date you send it to the infringing company. If you sign and date it today, you need to post it today too, because deadlines in the letter run from that date.

How to send a letter before action

• Step 7: send it by signed-for first class post. Use Royal Mail signed-for first class post, addressed to the infringing company's registered office address. You can find the registered office on the Companies House database. Sending to the registered office means the company cannot argue the letter went to the wrong place. If you have an email address for the company you can send a copy that way too, but the posted, signed-for letter to the registered office is the one that counts.

Keep the tracking code and set a reminder

• Step 8: store the tracking code. Royal Mail will give you a tracking code. Keep it somewhere safe for future reference, alongside your evidence PDF and a copy of the signed letter, because it is strong evidence that your letter was successfully delivered to the infringing company. They cannot then argue they never received anything from you.
• Step 9: set a reminder. In the letter you will have told the infringing company when they should respond, defined as the response date. Set a reminder for that date so you know when to act if you have heard nothing. It is easy to send the letter and then let the matter drift; a diary entry makes sure the pressure you have created is followed through.

What if the infringer doesn't respond?

• Step 10: deal with the response, or the silence. This is the most unpredictable step, because you do not know how the infringing company will react. If they respond, you may be able to resolve the issue amicably, for example through negotiation. If they do not respond, which strangely is not uncommon in the slightest, you may need to instruct an IP litigation or dispute resolution solicitor to take the matter further. Having followed the pre-action protocol, and having the evidence and the proof of delivery ready, you will be in a much better position for that next stage than someone who went straight to a solicitor with nothing prepared.

In my experience the quality of the letter makes a real difference to both outcomes: a letter with proper evidence attached and specific undertakings is far more likely to get a response, and far more likely to get compliance when it does.

Next steps

Start by gathering your evidence, with dates, and saving it as a single PDF. Then draft your letter before action with the defined terms, the body and the tailored undertakings, attach the evidence, sign and date it on the day you post it, and send it signed-for to the infringer's registered office. Keep the tracking code and diarise the response date. If the infringer ignores the letter, or you want the letter to carry more weight from the outset, speak to an intellectual property solicitor.