Incidental Copying

Term used to refer to technically unauthorized copies of a copyright work made in the course of, and for the sole purpose of making an authorized copy, for example, when a copyrighted work is sent via e-mail a copy may be lodged in the e-mail server. Such incidental copying will not normally provide a basis for a claim of copyright infringement, provided the purpose was the making of an authorised copy – it is in Europe the subject of the temporary copying exception in the European Copyright Directive. Incidental copies (also known as technical copies) of copyrighted works are also temporally made in server and computer caches when they are viewed over the Internet – at least under EU law this is not copyright infringement under the 2014 Court of Justice decision Public Relations Consultants Association Ltd v. Newspaper Licensing Agency Ltd & Os.

The term is also sometimes used to refer to unintentional copies of a work, made because it happens to be present when another work was being made, for example, a picture hanging on a wall in the background of journalist’s interview of another subject, or loud music audible in a filmed piece that was not intentionally included by the person creating that filmed piece. Unless the taking is substantial and central to the item that includes the unintentionally made copy, there is usually no basis for a claim of copyright infringement.

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