Evidence of copyright infringement: what evidence is needed?

Imagine a situation: you are the author of, say, a piece of music, a book or software. You have put a lot of time, effort, talent, and sometimes sleepless nights into your creation. And then one day you discover that someone is using your work without your permission, making a profit to which, by the way, they have no right. Is it offensive? Of course, yes! Of course, such devaluation of creativity cannot help but be outrageous. In such cases, of course, one must defend one’s evidence of copyright infringement. And here the evidence comes to the fore.

In other words, without convincing evidence confirming the fact of the violation, your chances of successfully defending your rights will be, to put it mildly, slim. Of course, you can use your emotions to prove your case, appeal to the conscience of the offender, but will he hear you? The judicial system, as you know, operates with facts and evidence. They are the unshakable basis on which a fair judgement is built. Well, and emotions. Emotions stay outside the courtroom door. Therefore, whatever the case may be, a proper evidence base is the alpha and omega of successful defence of your copyright. And here it is important to realise that the evidence must be collected not in an ad hoc manner, but in compliance with all the requirements of the law. Otherwise, the court will simply not take them into consideration.

In this article, we, lawyers with 20 years of experience in intellectual property law at Polikarpov Law Firm, will take an in-depth look at what kind of evidence of copyright infringement is needed and how to properly collect it so that it is accepted by the court and, consequently, becomes the foundation for the protection of your rights.

I. Types of evidence

Before we delve into the legal maze, so to speak, let us be clear about what we mean by “evidence” in the context of copyright protection. Imagine that your work is your home, and the infringer is an uninvited guest who has unceremoniously entered your home. To kick him out and get justice, you will need to convince the court that you are the rightful owner of that “house” and that the “guest” has indeed violated your rights. And this is where the evidence comes into play. In other words, these are the bricks from which you will build the wall of your defence.

In this part, we will take a closer look at exactly what types of evidence can be used to prove your copyright infringement. Believe me, the spectrum here is quite wide: from the usual written documents to modern electronic evidence, and sometimes even unexpected things. The lawyers of our Polikarpov Law Firm have faced very different cases in their practice, and, sometimes, it was an unconventional approach to gathering evidence that helped to win seemingly hopeless cases. Let’s get to the bottom of it!

Subsection 1.1: Written evidence

Let’s start with the classics, so to speak, with the base – with written evidence. This is probably the most common and the most understandable type of evidence that probably everyone has encountered. It includes anything that can be recorded on paper or in other printed form and that can prove both your authorship and the fact that your work has been misused.

• • For example, you have original works: a book manuscript, sketches for a painting, musical notation of a musical work.
  • Or you may have signed contracts with publishers or others that clearly state your copyright.
  • You may have licence agreements that give third parties the right to use your work under certain conditions. Or you may have discovered that your work is being used without a licence.

All of this, of course, can be a strong argument in your favour.

Another important point worth mentioning is notarised screenshots of web pages. Imagine a situation: you found your work, say, a photograph, on someone else’s website without your permission. Of course, you can make an ordinary screenshot, but will it be legally valid? Not really. But a notarised screenshot is a different matter. A notary, as an independent person, certifies that at the time of the application, on a particular web page was really posted your work. And such evidence, believe me, will be much more difficult to challenge in court.
Therefore, to prove copyright infringement, collect all the papers relating to your creation.
This is, of course, not a complete list of written evidence, but I think you understand the general principle. Next, we will look at other types of evidence of copyright infringement that may also be useful to you.

Subsection 1.2: Physical Evidence

Continuing our discussion of evidence, we move on to more “tangible” things, so to speak, namely physical evidence. What is it? Simply put, they are any items that may be related to infringement of your copyright.

Well, for example, the most obvious example is counterfeit copies of works. Say, pirated discs of your music, books printed without your permission, or fake paintings pretending to be yours. Of course, the presence of such “pirated copies” is direct evidence that your rights are being infringed. And here it is important not only to find these copies, but also to record the fact of their existence, for example, through a controlled purchase, which we will talk about later.

But, you know, physical evidence can be more than just counterfeit goods. Sometimes it can be quite unexpected things. For example, illegal copying equipment. Imagine a situation: you have discovered a whole underground workshop where they stamp pirated copies of your discs. And the very equipment on which this is done can also be physical evidence.

Of course, collecting physical evidence is not the easiest task. Sometimes it can be difficult and sometimes even risky. And here it is important to act carefully and, preferably, with the support of lawyers. Because, however you look at it, amateurishness in such cases can only do harm.
The importance of this type of evidence can hardly be overestimated, because it clearly illustrates the fact that your work has been illegally reproduced.

Subsection 1.3: Electronic Evidence

We live in the era of digital technologies, and no matter how you look at it, this fact has an impact on all spheres of our lives, and on the protection of intellectual property, in particular. Therefore, today, perhaps, no one can be surprised by such a concept as electronic evidence. Moreover, in some cases they may be almost the only way to prove copyright infringement.

What do we classify as electronic evidence? Here, it’s actually quite broad. Let’s try to understand it with the help of a list:

• Electronic correspondence: Suppose you negotiated with a potential licensee, sent him copies of your work, discussed the terms of cooperation, and he finally refused the deal, and then you suddenly see that your work is quietly being used without your permission. In such a case, the correspondence can become a weighty evidence in the case. Of course, if it is properly authenticated and contains dates, times of correspondence and other important information.
• Information from websites: As we mentioned earlier, copyright infringement is very common on the Internet. Someone illegally posts your photos, someone copies your articles, someone sells your e-books without your knowledge. And here it is important to properly record this information, take screenshots, notarise them, or use other legal tools to record the content.
• Source files and metadata: Don’t forget about the source files of your works. For example, if you are a photographer, original RAW files with metadata containing information about the date, time, and place of capture, as well as the camera and author, can be conclusive proof of your authorship.
• Editing logs: When it comes to text, software code, or other works that are created and edited on a computer, file editing logs can also provide valuable information to prove the process of creating the work and authorship.

Of course, working with electronic evidence has its nuances. For example, you need to know how to properly collect, store and submit them to the court in order for them to be recognised as admissible. It is therefore, without exaggeration, difficult to do without the help of a qualified lawyer who specialises in cybersecurity and intellectual property protection in the digital space.

Subsection 1.4: Witness testimony

Sometimes, no matter how you look at it, you cannot do without the human factor. And in matters of copyright protection, in particular, a significant role can play witness testimony. Of course, this is not the most common type of evidence, but nevertheless, in some cases it can be decisive.

Who can act as a witness in copyright infringement cases? In fact, anyone who has information that may be relevant to the case. This could be, for example:

• Persons who were present when the work was created: Friends, colleagues, family members who saw you working on your work can attest to your authorship.
• People who know about the infringement: For example, people who have seen someone illegally selling counterfeit copies of your work, or heard your musical work performed publicly without your permission.
• People you’ve told about your work: Sometimes, even just talking about your work with friends or acquaintances can be helpful. Of course, if they can then corroborate your words in court.

It is important to realise that the testimony of witnesses must be clear, consistent and, most importantly, truthful. Any discrepancies or inaccuracies can be used against you. Therefore, before involving witnesses in a case, it is worth carefully analysing their testimony and making sure that they can really help you protect your rights. Also, don’t forget that witnesses should be prepared to testify in court under oath, which, you may agree, is quite a responsibility.

And, of course, one should not neglect the help of lawyers in preparing witnesses for the trial. A lawyer will help witnesses to formulate their thoughts correctly, focus on important details and avoid mistakes that may negatively affect the outcome of the case.
In other words, witnesses are like actors, and a lawyer is a director who prepares them for their responsible role in the performance “copyright protection”.

Subsection 1.5: Expert Opinions

Sometimes, in order to establish the truth in copyright disputes, special knowledge in one or another field is simply necessary. Well, you must agree, it is difficult to expect a judge to be perfectly versed, say, in the intricacies of musical composition, or in the peculiarities of software code. And this is where experts come to the rescue, and their expert conclusions become a weighty component of the evidence base.

Expertise can be appointed by the court, or it can be carried out at the request of one of the parties. However, in any case, the expert’s opinion is a document that is of great importance for the case and can significantly influence the court’s decision.

In what cases may an expertise be needed? Here are just a few examples:

• Establishing the fact of plagiarism: Perhaps the most common case. An expert, such as a musicologist, literary scholar or art historian, may compare two works and determine whether one is plagiarised from the other.
• Determining the originality of a work: Sometimes there is doubt as to whether a work is truly original or whether it may be a compilation of existing works. An expert can help clarify this issue.
• Establishing whether a work has been reworked: If you believe someone has illegally reworked your work (arranged, translated, adapted, etc.), an expert can help you determine whether the reworking actually took place and whether it was done with your permission.
• Computer forensics: In cases involving software, you may need the help of a computer expert. He or she may, for example, examine the source code of a program for illegal copying, or establish the fact of unauthorised access to a computer system.

It is important to realise that you should approach the choice of an expert very responsibly. It should be a truly qualified specialist in his field, with an impeccable reputation and, preferably, with experience in court cases. Because, no matter how you look at it, the fate of the entire case may depend on the quality of the expert report. And, of course, we should not forget that expert services, as a rule, are not free. Therefore, before ordering an expert review, it is worth weighing up the pros and cons and assessing the potential costs.

II. How to prove authorship?

So, we have learnt what kind of evidence of copyright infringement there is. We have learnt that they range from written documents to witness testimony and expert opinions. But, you will agree that before you can prove the fact of infringement, you must first prove that you are indeed the author of the work whose rights you believe have been infringed. In other words, you need to have strong arguments that would confirm your authorship.

In legal practice, unfortunately, it is very common to encounter situations where a person who considers himself to be the author cannot properly confirm this fact. And this, of course, greatly complicates the process of protecting rights. After all, how can you protect something that does not formally belong to you? Therefore, in this section we will focus on how to confirm your authorship, what documents and actions may be useful to you, and how to create a solid evidence base for copyright protection.
Remember, confirmation of authorship is the foundation on which all further defence is built. Without it, any claim of infringement may be in vain.
Let’s look together at how to build this foundation as securely and thoroughly as possible.

Subsection 2.1: Documents evidencing the creation of the work

One of the most important, and probably the most obvious aspects of proof of authorship is the availability of documents testifying to the process of creation of your work. Of course, few authors, creating their masterpiece, immediately run to the notary to certify every stage of their work. But, nevertheless, certain documents that arise in the process of creativity, can become a weighty proof of your authorship.

What might these be?

• Drafts and sketches: If you are a writer, it could be your manuscripts, drafts, plans for your work. If you are an artist – sketches, sketches, sketches. If a composer – musical notes, drafts of melodies. All of these show that you actually worked on the work, that you are its author.
• Source files: In the case of photographs, digital illustrations, software, electronic music tracks, these are the original files from which the final product was ultimately “born”.
• Working materials: Any other materials that were used in the process of creating the work can also be useful. For example, for a sculptor it could be plaster or clay sketches, for an architect it could be building models and the like.

Of course, the more such documents you have, the better. But it is important not only to have them, but also to store them properly. Because it would be a shame if your drafts were lost and the original files were accidentally deleted from your computer.

Therefore, our advice is to treat the process of documenting your creativity responsibly. Keep all working materials, make backup copies of files, and, if possible, notarise the most important documents. And remember that even a seemingly insignificant detail recorded on paper or in electronic form can become decisive evidence in a case to protect your authorship.
Also, do not forget about the dates of creation of documents – they will become your reliable reference points in time.

Subsection 2.2: Registration of copyright

Although copyright, unlike, say, the right to a trade mark or invention, arises automatically, at the moment of creation of a work, and does not require mandatory state registration, nevertheless, such registration can be a very powerful and sometimes decisive argument in your favour in case of disputes about authorship.

What does copyright registration provide ?

• Official recognition: A certificate of copyright registration is an official document issued by the state in the person of UKRNOIVI, which confirms your authorship of the work.
• Presumption of authorship: In other words, until proven otherwise, the person named in the certificate is considered the author of the work, and no one has the right to dispute this until they provide strong evidence to the contrary. This, you will agree, greatly simplifies the process of protecting rights.
• Evidentiary value: In case of court proceedings, the registration certificate will be a strong proof of your authorship, which, by the way, will be difficult to challenge.
• Simplification of the defence procedure: Having a certificate in hand, it will be much easier for you to prove your case in court and demand the termination of the infringement of your rights, payment of compensation and the like.

It is worth noting that the procedure of copyright registration in UKRNOIVI is quite simple and accessible. You will need to submit an application of the established sample, a copy of the work and pay a small fee. And after a while, if everything is in order, you will receive the coveted certificate. Of course, registration is not a panacea for all problems, and it does not guarantee 100 per cent protection against infringements. But, nevertheless, it is a very effective tool that can make your life much easier in case of copyright disputes. Therefore, if you are serious about protecting your copyright, we strongly recommend you not to neglect the possibility of registration.
It will become your armour in the world of intellectual property, your shield against unfair encroachments.

Subsection 2.3: Deposit of the work

In addition to registration of copyright in UKRNOIVI, there is another, perhaps less known, but also quite effective way of fixing authorship – it is the deposit of the work. What is it and how does it differ from registration?

Depositing, in essence, is the transfer of a copy of your work to a specialised institution which certifies the fact of acceptance of the work on a certain date and, if necessary, can issue a document confirming this date. So, in other words, depositing is like a safe where you put your work, and the key to this safe is a document confirming the date when you put the work in this conditional safe.

How can escrow be useful?

• Fixing the date of creation: Depositing allows you to fix the date on which you deposited your work. While this is not a formal acknowledgement of your authorship, as is the case with registration, it can still be a powerful piece of evidence in the event of a dispute.
• Additional proof of authorship: In conjunction with other evidence (drafts, source files, etc.), an escrow can be an additional argument in your favour.
• Alternative to registration: If for some reason you do not want to or cannot register your copyright with UKRNOIVI, escrow can be an alternative way of fixing authorship.

Where can I deposit?

• Specialised organisations: There are organisations that provide deposit services for works. Usually these are private companies, but sometimes some public organisations may also provide such services.
• Notaries: Some notaries also offer escrow services. This can be a convenient option, because the notary, as a person with authority, can give escrow more weight.

It is important to realise that escrow, like registration, is not a panacea. It does not protect you from unlawful use of your work, but it can be a powerful piece of evidence in the event of a dispute about authorship. Therefore, when choosing a method of fixing authorship, it is worth weighing up the pros and cons and choosing the option that best suits your needs and capabilities.
Finally, escrow is another tool in your arsenal that, along with others, will help you feel more confident in the world of copyright.

III. How to fix the fact of infringement?

So, let’s imagine that you have done everything in your power to confirm your authorship: you have collected all the necessary documents, registered the copyright in UKRNOIVI, or deposited your work. You are sure of your rights and are ready to defend them. But, unfortunately, this is not enough. The next, no less important step is to fix the fact of infringement itself. Because, no matter how you look at it, without evidence of infringement, your claims, even in the presence of undisputed authorship, will be groundless.

And here we come to, perhaps, the most difficult, and the most responsible part of our quest – how to properly record the fact of infringement, so that the collected evidence was recognised by the court and became the basis for the protection of your rights? Believe me, there are subtleties and nuances here, without knowing which, you can make mistakes and, in the end, be left with nothing.
In other words – you can compare this process to the work of a detective who meticulously collects evidence at the scene of a crime, recording every detail, every little thing that may be important for solving the case.

In this section we will look in detail at different ways of fixing copyright infringements, analyse their advantages and disadvantages, and give practical recommendations on how to act in this or that situation.
So, get ready to plunge into the world of legal intricacies, where every detail matters, and correct fixation of infringement is the key to successful protection of your copyright.

Subsection 3.1: Screenshots of web pages

In the digital age, perhaps one of the most common ways to infringe copyright is by illegally posting works online. Someone publishes your photos on their website without permission, someone copies your articles and passes them off as their own, someone sells access to your online courses without having any rights to do so. And, of course, the first thing that comes to mind in such a situation is to make a screenshot of of the page where your work is posted. But is that enough?

In fact, a simple screenshot taken on your computer may not be enough. The court may question the validity of such evidence, because it is very easy to falsify. Therefore, in order for a screenshot to be legally valid, it must be taken and certified properly.

Here are some tips on how to properly take a screenshot of a web page with proof of copyright infringement:

• Use special programmes or browser extensions: There are programmes that allow you to take screenshots not only of the visible part of the screen, but also of the entire web page, which can be very important, especially if your work is placed at the bottom of the page and does not fall into a regular screenshot.
• Display the URL and date: Make sure that the screenshot clearly shows the URL of the page where the offence was committed, as well as the date and time when the screenshot was taken.
• Take multiple screenshots: Do not limit yourself to a single screenshot. Take multiple screenshots from different angles to capture as much detail as possible.
• Keep the original screenshotfiles : Do not edit or crop screenshots. Keep them in their original format and quality.

But, even by following these rules, you cannot be completely sure that your screenshot will be recognised by the court as proper evidence. Therefore, the best option is to notarise a screenshot of the web page. The notary, as an independent person, will confirm with his certifying inscription that at the time of appeal to him, on a particular web page was really placed your work, and such evidence will have much more weight in court. Also, there are services that allow you to certify screenshots online, which can be more convenient and cheaper than going to a notary.

Remember that fixing copyright infringement on the Internet is an important step towards protecting your rights. And the more thoroughly you approach this issue, the better chance of success you will have.

Subsection 3.2: Notarisation

We have already mentioned notarisation in the context of recording online infringements, but the scope of this tool is actually much broader. Notarisation can be useful in any situation where you need to record a certain fact that is relevant for the protection of your copyright.

So what can a notary public notarise?

• Web page content: As we discussed earlier, a notary can go to the site where your work is illegally posted, inspect it, and record this fact in an inspection report. The protocol is usually accompanied by printouts of the pages, which are, in fact, notarised screenshots.
• Presence of counterfeit products: A notary may be present during the control purchase of counterfeit copies of your work and record this fact in the protocol.
• Public performance of the work: If your musical work, for example, is publicly performed without your authorisation, the notary can be present at the event and record the infringement.
• Contents of documents: A notary can certify the contents of any documents that relate to your work, such as contracts, correspondence and the like.

Why exactly is notarisation so important?

• Official status: A notary is a person authorised by the state to perform notarial acts. His actions have an official status and are recognised by the court.
• Independence and impartiality: The notary acts as an independent party, he is not interested in the outcome of the case, but only records the facts occurring at the time of application to him.
• Evidentiary value: Documents certified by a notary have increased evidentiary value in court. They are much more difficult to challenge than ordinary evidence.

Of course, notary services are not free. But, in case of infringement of your copyright, the cost of notarisation can be quite justified, because it significantly increases your chances of successfully defending your rights in court.
In other words, notarisation is your investment in justice, your trump card in the fight against infringers.
Therefore, if you are faced with infringement of your copyrights, do not neglect the possibility of notarising evidence. It can be a decisive factor in your case.

Subsection 3.3: Video and audio recording

Sometimes, only photographs or documents are not enough to fix a copyright infringement. Especially when it comes to cases when the infringement occurs in dynamics, when it needs to be fixed in motion, in time. And this is where video and audio recording comes to the rescue.

When might a video or audio recording be necessary?

• Public performance of a musical work: If you are a composer and your work is performed without permission at a concert, restaurant or any other public place, a video recording of the performance is the best evidence of the violation.
• Unauthorised use of an audiovisual work: For example, if a segment of your film or video is used in an advertisement without your permission, a video of that advertisement will be strong evidence of the infringement.
• Sale of counterfeit goods: A video recording of the sale of counterfeit copies of your work can be evidence of infringement not only of copyright but also of trade mark rights, if registered.
• Recording online infringements: For example, if someone conducts an online broadcast using your work without permission, you can make a screen recording to document this fact.

What are the nuances of video and audio recording of infringements?

• Quality of the recording: Try to make the recording in the highest possible quality so that the work that is the subject of the offence and, if possible, the persons committing the offence can be identified.
• Date and time: Make sure that the recording captures the date and time when it was made. This can be done, for example, by activating the corresponding function on the camera, or by commenting with your voice during recording.
• Continuity of the recording: If you make a video recording, try to make sure that it is continuous so that the court does not have any doubts about its authenticity.
• Legality of obtaining the recording: Remember that surreptitious filming may be illegal. Therefore, before making a video or audio recording, make sure that your actions are not contrary to the law.

It is worth noting that video and audio recording can be not only independent evidence, but also a supplement to other evidence, such as notarised screenshots of web pages, or witness statements.
In other words, this tool is like a spice that can enhance the flavour of your evidentiary dish, making it more rich and convincing for the court.

Therefore, if you have the opportunity to fix the copyright infringement by means of video or audio recording, do not neglect it. It may become a strong argument in your favour in court.

Subsection 3.4: Controlled purchase

Sometimes, in order to prove the fact of copyright infringement, especially when it comes to the sale of counterfeit goods, it is not enough just to record the presence of goods on sale. It is necessary to go further and, as they say, “take the bull by the horns” – to carry out a control purchase.

This is, in fact, the acquisition of a copy of a counterfeit product for the purpose of recording the fact of its sale and further use of this copy as evidence in court. Control purchase can be carried out either by the right holder himself or by his representative, for example, a lawyer or an attorney.

What are the nuances of conducting a test purchase?

• Recording the purchase process: The entire purchase process, from the moment the goods are selected to the moment they are paid for and received, must be carefully recorded. This can be done by video or audio recording, as well as by keeping receipts, receipts and other documents confirming the purchase.
• Identification of the goods: It is important to verify that the goods purchased are indeed counterfeit. This may require an expert examination to establish that the goods are counterfeit and that your copyrights have been infringed.
• Legality of the purchase: A controlled purchase must be conducted in compliance with the law. In particular, the seller must not be provoked to sell counterfeit goods if he does not offer to do so.
• Participation of witnesses, witnesses: For greater reliability, it is possible to involve witnesses who can confirm the fact of purchase in court. Also, sometimes witnesses are involved, especially if the test purchase is conducted as part of criminal proceedings.
• Preservation of physical evidence: Purchased counterfeit goods are physical evidence and should be preserved until the case is heard in court.

Here are some examples of when a test purchase may be appropriate:

• You discover that a shop is selling books with your illustrations printed without your permission.
• You find out that someone is selling pirated copies of your software.
• You have found a shop on the Internet that sells T-shirts with your copyright prints printed without your consent.

Control purchase is, without exaggeration, an active form of defence of your rights, which can bring tangible results. It is like an offensive in the fight against counterfeiting, your decisive step towards justice.
And, of course, carrying out a control purchase is a matter that is better entrusted to professionals, lawyers specialising in intellectual property protection. They will help you to organise this process correctly, avoid mistakes and achieve the desired result.

IV. Evidentiary Requirements

We have already thoroughly understood what types of evidence there are, how to confirm your authorship and how to record the fact of violation. But, unfortunately, it is not enough just to collect a bunch of different documents, photos and video recordings to consider the case done. All of this evidence must meet certain requirements in order to be accepted by the court for consideration.

In other words, imagine that you built a house, gathered all the necessary materials, but did not follow the construction techniques. Will such a house be strong and reliable? I don’t think so. It is the same with evidence. If they do not meet the requirements of the law, the court will simply not take them into account, and all your work will be in vain.
Therefore, before submitting the collected evidence to the court, it is necessary to make sure that it meets the criteria of admissibility, relevance, reliability and sufficiency. It is these four pillars that form the basis of evidence in any court case, and in copyright cases in particular.

In this section we will look at each of these requirements in detail, understand what they mean and how to comply with them in practice, so that your evidence is not just a set of documents, but a really powerful tool for protecting your rights.
Remember that the quality of evidence determines the outcome of a case. Therefore, let’s understand together how to make your evidence flawless from a legal point of view.

Subsection 4.1: Admissibility

The first and perhaps the most important requirement for evidence is its admissibility. In simple terms, evidence is admissible if it is obtained in a lawful manner, in compliance with the procedure established by law. That is, not any evidence, even if it is very convincing, will be accepted by the court.

The main aspects of admissibility of evidence:

• Legality of the source of obtaining it: Evidence must be obtained from legitimate sources. For example, information obtained by hacking into a computer system or illegal wiretapping cannot be used.
• Proper subject of collection: Evidence must be collected by a person who is authorised to do so. For example, in criminal proceedings, the investigator may collect evidence; in civil proceedings, the parties to the case or their representatives may collect evidence.
• Compliance with the recording procedure: Evidence must be properly recorded. For example, in the case of an inspection of a web page, it should be carried out in accordance with the established procedure, preferably with the involvement of a notary or other authorised entity.
• Appropriate form: Evidence must be submitted to the court in the form prescribed by law. For example, written evidence is submitted in originals or duly certified copies.

Examples of inadmissible evidence:

• An audio recording of a telephone conversation made without the consent of one of the participants.
• A screenshot of a messenger conversation obtained through unauthorised access to another person’s phone.
• Testimony of a witness who received information from an anonymous source.

What does the use of inadmissible evidence lead to?

• Exclusion of evidence from consideration: The court may recognise the evidence as inadmissible and exclude it from the case file.
• Losing the case: The use of inadmissible evidence can result in a losing case, as the court will not take it into account when making a judgement.
• Liability: In some cases, using inadmissible evidence can lead to legal liability, for example, for violating the confidentiality of correspondence or telephone conversations.

Therefore, before collecting evidence, carefully check whether your actions are in accordance with the requirements of the law. Remember that admissibility is like a filter that filters out illegally obtained evidence, leaving only the evidence that complies with the letter of the law. Ignoring this filter can negate all your efforts to protect your copyright.
In other words, admissibility is legitimacy in the world of evidence and should not be neglected.

Subsection 4.2: Ownership

The second important requirement for evidence that we will talk about is its ownership. What does this term mean? Proper evidence is that which is directly relevant to the case at hand and can confirm or deny the circumstances relevant to the resolution of the dispute. So, in other words, the evidence must not just be admissible, but also relevant.

Main aspects of relevance of evidence:

• Relation to the subject of proof: The evidence must relate to the subject of proof in the case. In the case of copyright infringement, the subject of proof is, inter alia, the fact that you have copyright in the work, the fact of infringement and the identity of the infringer.
• Confirmation or refutation of circumstances: The evidence must be able to confirm or refute the circumstances relevant to the case. For example, if you claim that your work was illegally published on a certain website, a notarised screenshot of that webpage would be proper evidence.
• No extraneous information: Evidence should not contain information that does not relate to the case and is not relevant to its resolution.

Examples of improper evidence:

• Your neighbour’s testimony that you are talented, in a case of copyright infringement of a musical work.
• Photographs of your workplace, in a case involving illegal use of your photograph.
• Your high school diplomas, in a case involving the sale of counterfeit copies of your book.

What does the use of improper evidence lead to?

• Delaying the case: The court will be forced to spend time examining evidence that is irrelevant to the case.
• Increased court costs: The cost of gathering and presenting improper evidence may be wasted.
• Negative impression on the court: Presenting improper evidence may give the court the impression that you are not serious about the case or are trying to mislead the court.

Therefore, when gathering evidence, carefully analyse whether it is really relevant to the case and whether it can help you prove your case. Remember that affiliation is like a compass that points to the evidence that is really relevant to the case, helping you to stay on the path to a fair judgement. Ignoring this compass can lead you into the maze of unnecessary information and ultimately away from your desired goal.
Do not try to overwhelm the court with quantity, focus on the quality and relevance of your evidence.

Subsection 4.3: Credibility

The next important requirement for evidence is its credibility. What is behind this word? Credible evidence is evidence that is true, truthful and beyond doubt as to its authenticity. So, in other words, the evidence must be not just admissible and proper, but also truthful.

The main aspects of credibility of evidence:

• Relevance: Evidence must reflect actual facts and events that took place. For example, if you claim that your work was published on a certain website on a certain day, a notarised screenshot of that website should confirm this fact.
• No contradictions: Evidence should not contradict each other. For example, if one witness claims to have seen your work being illegally sold in a market and another witness claims to have seen you in another place at the same time, there is a contradiction that casts doubt on the reliability of both testimonies.
• Reliability of the source: The reliability of evidence depends on the reliability of the source from which it is obtained. For example, official documents issued by public authorities are considered more reliable than the testimony of an anonymous source, by the way.
• Verifiability: Evidence should preferably be independently verifiable. For example, the validity of a photograph can be verified by consulting the metadata of the file, or by forensic examination if necessary.

Examples of unreliable evidence:

• A forged document.
• A falsified video recording.
• The testimony of a witness who gives false testimony.
• An expert report that contains false data or that contradicts other, more substantiated, findings.

What does the use of unreliable evidence lead to?

• Losing the case: If the court finds that the evidence is unreliable, it will not take it into account in reaching a judgement, which of course can result in losing the case.
• Losing the court’s confidence: Presenting unreliable evidence can undermine the court’s confidence in you as a party to the case.
• Liability: In some cases, using unreliable evidence, especially if done intentionally, can result in legal liability, up to and including criminal liability.

Therefore, when gathering evidence, carefully check it for accuracy. Do not try to mislead the court by using forged or falsified evidence. Remember that credibility is like the foundation on which your entire evidence base rests. And if this foundation is shaky, the whole structure may collapse, burying your chances of a fair judgement underneath.
Honesty and objectivity are your main allies in ensuring the credibility of your evidence, and thus your success.

Subsection 4.4: Sufficiency

Last but not least, the last but not least requirement for evidence is its sufficiency. What is meant by this term? Sufficient is a body of evidence that is convincing to the court and allows it to make a reasoned decision in the case. So, in other words, the evidence must not just be abundant, it must not just be admissible, proper and reliable, but also convincing in its totality.

Basic aspects of sufficiency of evidence:

• Coherence and Complementarity: The evidence must not simply exist separately from each other, but must form a coherent picture, complementing and reinforcing each other.
• Convincing: The body of evidence must be convincing enough to leave no doubt in the court’s mind that you are right.
• Absence of gaps: There should be no significant gaps in the evidence that would cast doubt on the validity of your claim.
• Reasonable balance: Sufficiency does not mean that you need to gather absolutely every possible piece of evidence. It is important to find a reasonable balance between the quantity and quality of evidence, focusing on the most important and compelling evidence.

Example of insufficient evidence:

• You claim that your musical work was illegally used in an advertisement, but you provide as evidence only a poor quality audio recording of the advertisement, on which your work is barely audible.
• You claim that your work was stolen and published under someone else’s name, but provide no evidence to prove your authorship.
• You claim that a certain website is infringing your rights, but you provide no evidence that the site is operational and that it is distributing your work.

What does insufficient evidence lead to?

• Losing the case: Even if your evidence is admissible, proper and reliable, but not enough to support your case, the court may decide against you.
• Incomplete Satisfaction of Claim: The court may partially satisfy your claim if there is not enough evidence to support it fully.

Therefore, when gathering evidence, try to create a coherent and convincing picture that leaves no doubt in your favour. Remember that sufficiency is like a jigsaw puzzle, where each individual piece of evidence is an element, but all together they add up to a whole, which is the basis for your victory.
It is not enough just to have separate fragments, you need to put them together to get a complete picture.
Only then your evidence base will be really strong and will help you to effectively protect your copyright.

Conclusions

To summarise the above, I would like to emphasise once again that evidence of copyright infringement is, without exaggeration, the cornerstone of the entire process of protecting your intellectual property. Without a proper evidence base, collected scrupulously and in compliance with all the requirements of the law, your chances of success in court, to put it mildly, will be slim. Moreover, they will be close to zero.

We have considered in detail what types of evidence there are, how to confirm your authorship, how to properly record the fact of infringement, and what requirements evidence must meet in order to be accepted by the court. We hope that this information will be a reliable guide for you in the complex, but so important issue of protecting your rights.

Remember that evidence is not just a formality, it is your weapon in the fight for justice. And the result of this fight will depend on how skilfully you will wield it. Do not neglect the opportunity to seek help from professionals, because qualified legal support can be a decisive factor in the case. Polikarpov Law Firm lawyers, having 20 years of experience of successful defence of clients’ interests, are always ready to provide you with comprehensive advice and help you to gather a solid evidence base.

And lastly, we would like to wish you never to face with infringement of your copyrights. But if you do, remember that you are not alone. You are armed with knowledge, you have support, and therefore you are able to protect your rights and get justice! For our part, we will always be happy to help you.

If you want to know more about how to protect your rights in case of their violation, we advise you to read the article “Copyright infringement: how to protect your rights?” on our website.

Do not be afraid to fight for your rights, because, as you know, water does not flow under the lying stone!