Facts You Should Know About Protecting Copyright

What Is Copyright?

Copyright is an area of law that deals with the protection of literary, musical and artistic works created by an individual or a group of people. It’s part of Intellectual Property Law.

Copyright is one of the oldest forms of intellectual property – it has been in the UK since 1709. It gave, for the first time, books authors control over the copying of their works – so they could grant (or withhold) ‘the right to copy’ their books to publishers and thus make money from the sale of their works. Publishers, in turn, were able to print books without the threat of competitors printing cheaper copies and undermine their profits.

Over time, copyright has expanded to literary works, dramatic works, musical works and artistic works, films, sound recordings and broadcasts. The rights granted have similarly expanded and in today cover reproduction rights, distribution rights, lending rights, performance rights, communication rights and adaptation rights. The basic principle remains the same – copyright gives the owner the right to control the use of their work.

Why Is Copyright Relevant to Business?

Those in the creative industries rely on copyright to turn a profit. However, for those who are not movie producers or commercial artists, what is the relevance of copyright?

In fact, any business that has a website or gives customers an instruction book or advertises its services should think about copyright.

The reason for this is that literary, dramatic, musical and artistic works are defined very broadly and in the UK and US there is no requirement for the works to have ‘merit’ from an aesthetic or cultural point of view. This means that such prosaic things as business plans, financial reports count as literary works and charts or diagrams can be protected as artistic works.

The essential thing is that the work is a new creation, not copied from another work. For businesses, a wide variety of material from the content of websites and advertising copy, to brochures, guides and instruction books all are potentially protected by copyright – which means you can control what happens to the work – either preventing others from using it or even licensing an attractive or successful work to others. Copyright can thus work for businesses both in allowing them to exploit and protect works they have created.

How Does Copyright Work?

It is important to remember that copyright does not protect ideas themselves only their expression in some form. Unlike almost all other forms of intellectual property, copyright does not need to be registered in order to acquire protection (although in the USA registration is required to obtain extended protection).

Copyright in a work comes into existence automatically as a result of creating the work. Nor in the UK or EU is there any obligation to use the © symbol. Yet, this can be useful to mark works over which you are claiming copyright with the © symbol the name of the rights holder and the date of creation this will make it clear to any users of your copyright material that you are asserting your rights over it.

In fact, there are few formalities to copyright protection, literary, dramatic and musical works have to be recorded in a material form – such as being written – which includes everything from pen on paper to posting on the internet (while material such as broadcasts and sound recordings have to exist in the relevant form to be protected).

Literary, dramatic, musical and artistic works will only be protected if they are ‘original,’ which means that they are independent creations and that some labour effort or skill has been expended on creating them (in the traditional British test).

Copyright lasts for 70 years from the death of the creator in most cases.

Ownership of Copyright

For businesses, it is important to differentiate between works created by your employees and works created by self-employed or freelance contractors. Copyright in works created by employees in the course of their employment is presumed to be owned by their employers, while the presumption works the other way with self-employed contractors. This means that when engaging web designers, copywriters or brand consultants you should be clear about who will own the copyright in works they produce for you.

Copyright is a form of property right and can be bought and sold or leased. If you want to own the copyright called an assignment –  then this will need to be done in writing. The alternative to an assignment is a licensing – the copyright equivalent of a lease – this can be exclusive or non-exclusive and will give you the rights to use the work concerned in defined ways for a defined period.

Copyright in Short Works and Titles

Traditionally, titles, brand names or business names or very short works were not protected as copyright. The Courts gave various reasons for this, often that a title could not be original enough to acquire protection. It is also the case that in these areas there is a crossover between protection as trademarks and as copyright and the Courts wanted to maintain the distinction. Equally, there are good policy reasons for not allowing individual words or short phrases to become protected as copyright – it would be crazy to have to ask permission every time you used such a phrase.

Copyright in Databases and Computer Programmes

Perhaps surprisingly, computer programmes, software are protected by copyright as literary works. Databases are also potentially protectable by copyright if the arrangement and layout of data is sufficiently original. If you buy proprietary software, you are granted a licence to use the software, which may be limited to a number of users or for a certain time period. If you want to extend or expand your use of the software you will need to buy another licence. If you are commissioning bespoke software from a developer then you should read the IP clauses of the contract very carefully to see who will have copyright in the software when it is completed.

At the very least, you should retain your rights in any preparatory or initial work and if you do not own the copyright then you should establish to whom and on what terms the developer can sell the software to others – for instance your competitors. It is worth taking advice from a specialist copyright lawyer on these points, before signing the deal.

Exceptions to Copyright

There are numerous exceptions to copyright. In the UK the most important are defined as ‘fair dealing’ exceptions. These allow the use of copyright works without permission for the purposes of research and private study, criticism and review and reporting current events. In the UK these exceptions have, traditionally been tightly controlled – while in the US the equivalent regime is known as fair use and has a much wider interpretation.

How do you know if you have taken too much? This is a difficult question partly because the Courts decisions in this area are in a state of flux. Say you wish to feature a photograph that you do not have the rights to on your website, or you want to play a piece of music on your new training video. The sensible thing is to contact the copyrights holders for permission.

The internet may appear to be a ‘copyright free zone’ and organisations such as the Pirate Party are campaigning for reform of copyright law to achieve such an outcome, but as things stand unauthorised copying of protected work is infringement and could lead to criminal sanctions as well as civil claims for breach of copyright.

What to Do If Your Copyright is Infringed

The basis of infringement is illegal use of a copyrighted work. Copyright will not protect you in situations where someone else comes up with the same idea as you, but if a substantial part of a work that you own is used without permission then you potentially have a claim for infringement of your copyright. If a polite email to the infringer does not solve the problem then the next step would be to consider a ‘cease and desist’ letter drafted by a media lawyer.

Copyright is a fast developing area of the law – the right advice on any copyright issues can make the difference between making or losing money from your work.

Robert Taylor is a Media and Entertainment Solicitor. He specialises in UK, US, and EU Copyright Law and can give expert and detailed advice on copyright issues such as ownership of copyright, exploitation and reservation of rights, fair dealing and exceptions to copyright. Robert is also an expert on international copyright issues.

As of April 2013 Robert is a Consultant at Cubism Law. For more information and to get in touch with Robert follow the link. Or email Robert at Robert.taylor@cubismlaw.com

This article was first published in Fab magazine. ©Robert Taylor.

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PS. Who do you know who is a content creator and would benefit from this piece? Please don’t keep it a secret, refer to your friends or colleagues.

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