Introduction to Copyright

Copyright is an automatic IP right that relates to the expression of an idea (not the idea itself) as soon as that idea is fixed (written, drawn, recorded or stored on your computer).

You do not need to formally apply or pay for copyright protection.

Copyright (other than moral rights) can be sold, licensed or assigned to someone else.

Copyright is an area of IP law that is becoming increasingly important, particularly with the creation and dissemination of a wide range of works now done by electronic means.

The digital revolution is impacting not just on software copyright and music but in areas as diverse as book publishing, computer software, satellite broadcasting and databases. There is also much debate as to the impact of AI on the ownership and protection of copyright.

Copyright protects sound recordings, films, broadcasts and original artistic, musical, dramatic and literary works. This includes books, websites, computer programs, videos, databases, maps, photographs, sculptures, maps and logos. To be protected a work must be original, which broadly means it must be the creation and/or intellectual expression of its author (and not copied from someone else).

There is some uncertainty in the UK as to whether this closed set of works remains appropriate, or whether copyright can subsist in anything (including for instance functional designs) as long as it is an expression of its author’s creativity (which is the approach taken by the courts of the European Union). We eagerly await guidance from the UK courts on this point.

The owner of a copyright work is either (1) its author, or (2) its author’s employer, if created by an employee during the course of their employment.

Contrary to popular belief, the copyright in commissioned works does not automatically belong to the commissioner. This includes a vast array of works, such as architects drawings, marketing materials, product designs, and logos. It is therefore important to discuss and document the agreed position regarding the ownership of copyright if engaging an external agency to produce content for you.

Copyright arises automatically and you do not need to register or apply to protect your copyright. In the UK there is no mechanism for the registration of copyright.

In some countries (notably the USA and China) it is possible (and advisable) to register copyright, not least because it will alert the public to your claim and provide evidence of your claim to ownership.

For literary, musical, artistic and dramatic work copyright lasts for the creator’s lifetime, plus 70 years after their death. This applies also to software and can even apply to some functional (but still artistic) articles.

Where films are concerned copyright lasts for 70 years after the death of the last of the directors, score composer and screenplay authors.

The layout of published editions (such as newspapers, magazines and books) is protected by publisher’s right, which lasts for 25 years from the date of creation.

The © symbol can be used after your name and the date to show who created a piece of work and when. It does not need to be used, but it is helpful to demonstrate your claim to ownership and to educate the public that it is a protected work.

A dated copy of your work can be deposited with a bank or solicitor, or posted by recorded delivery to yourself (and left unopened) in order to provide evidence of when it was created. Should someone copy your work without permission this dated copy of your work could be important in proving that you created your work first.

Individual authors (who are not necessarily the legal owners) of works will have the benefit of moral rights, which essentially can be used to protect the integrity of the work. Authors also have the right to be identified as such when a work is copied or communicated.

This occurs when a third party copies your work, or a substantial part of your work, without your permission.

There are also various other acts, besides copying, that can amount to infringement where a third party does them without the consent of the copyright owner. These include issuing or lending copies to the public, performing works in public, making adaptions of works and even possessing, dealing in, or providing the means for making infringing copies.

The most common defence to a claim of copyright infringement is that the infringing works is not substantially similar to the protected work, or that it has not been copied. However, there are also a number of exceptions to the infringement provisions (known as permitted acts). In particular:

• Fair dealing with works is permitted, this can include:
  • Research and private study
  • Criticism or review
  • Reporting current events
  • Quotation
  • Parody, caricature, pastiche

• Individuals are allowed to make copies of works they have acquired legitimately for their own personal use.
• The incidental inclusion of a work in another work is not necessarily an infringement.

Some copyright owners always license their works, by which royalties are paid to the copyright owner in exchange for using their material in your business. Blanket licenses give permission to use the rights of a particular group or type of creations, and are typically purchased from an organisation which represents groups of copyright owners.

There are also various schemes, such as the Creative Commons (CC) scheme, which allows the public to use selected copyright works subject to certain (often minimal) restrictions.

Historically copyright has been the least harmonised of IP rights, globally, mainly because different countries have different views of what should be protected and how (and for how long). While there is movement towards greater harmonisation (particularly in the EU), this partial harmonisation raises a large number of complex legal issues, on which specialist advice is vital.