Software or website developers, publishers, musicians, actors, artists, designers, architects, photographers, authors, media production companies, marketing agencies, anyone involved in the creative industries can call on our broad experience in helping de-risk, secure, exploit and protect copyright works, performers and moral rights and in obtaining appropriate rights clearances.
What is copyright?Copyright protects the economic rights of authors in the works they create. The definition of “works” is broad and covers almost anything that has been fixed in a recorded format of some sort – from the painting of the Mona Lisa, to a line or two of code in an accounting app, or a handwritten note of a meeting.
The Copyright, Designs and Patents Act 1988 (“CDPA”) breaks protected works down into a number of categories, each with its own rules.
Authors (or owners, if an author has sold their work – see below) have a number of exclusive rights in relation to their works. These rights include copying a work, issuing it to the public, lending it to the public, performing it in public, communicating it to the public, or creating adaptations (such as translations) of it. Without the permission of the author, any of these acts when undertaken by a third party can constitute copyright infringement.
Copyright is distinct from “moral rights”, which are also granted to authors by the CDPA. These protect personal interests in a work, rather than economic interests. Examples include the right to object to derogatory treatment, or be named as an author of a particular work. They can be waived in writing by the author, and this is common practice in most cases outside of artistic creation, journalism, or authorship in the traditional book/article sense of the word.
How do works qualify for protection?Copyright works are protected in the UK without registration. There is no copyright register. Protection arises automatically upon creation by a qualifying person or entity.
TIP: Even though there is no register, make sure that easily accessible records are kept, setting out: the author’s details, the date of creation, the location of creation, and of course of the work itself. A Court will want to see this evidence if it is being asked to rule that an infringement has happened.
How long does protection last for?For works created under the protection of the CDPA, protection generally lasts for 70 years after the death of the author. However, there are some exceptions to this rule. For example, protection in sound recordings lasts for 50 years from the end of the calendar year in which they were created, or for 70 years from the end of the calendar year in which they were published. There may also be further complications if the work was created under previous acts (like the Copyright Act 1956).
TIP: Particularly with older works, check which Act they were protected under – they may not be protected for the same amount of time as more recent works.
Can I sell or licence my copyright?
The owner of a copyright has the ability to licence or assign all or part of any owned work and all or part of any of the rights in respect of it. Whilst it is true that licences and assignments have arisen ‘equitably’ in certain cases, without the need for a written document, it is a pre-requisite for a legal assignment to be in writing.
TIP: Any assignment or licence should be in writing. Written assignments can clarify what rights are owned and by whom. They can cover works that have already been created (a confirmatory assignment), and/or works that will be created in the future.
How is copyright infringed and what can I do about it?Copyright is infringed whenever the exclusive rights in a work (see Chapter II of the CDPA) are exercised by someone without permission of the owner. This is known as “primary infringement”. The CDPA also provides remedies for “secondary infringement”, which covers acts such as importing infringing copies of a work, possessing or selling/hiring them, and/or providing the means for making infringing copies or for performing them. A successful claim, in the absence of a copyright register, requires proof both that the right exists and that the relevant work was copied. Copying can be implied even if there is no “smoking gun”.
When considering whether a copy infringes or not, the test that the Courts apply is whether or not it copies “a substantial part” of the original work. This is a qualitative test – it does not matter if the part of the work copied is only a small section if it is a qualitatively important part. The Courts sometimes have to consider difficult issues on this subject. For instance when someone writes a new story for a fictional character, or copies aspects of a fictional character and their back story, but doesn’t use their name or directly copy sections of a book or a film in which they appeared. Is that copyright infringement? Have a look at the Willy the Wizard v Harry Potter case as an example of this.
What are the defences to a copyright action?The CDPA provides some limited “permitted acts”. Many hinge on the whether or not use of the work constitutes “fair dealing” - a principle that is decided on a case by case basis. If a copier takes only a “fair” amount for private study, to review/criticise/parody, to report on current events, or for quotation – it can be legally permissible. For example, it’s normally fine for a snippet of a film to be played during a TV review, but there would likely be problems if this snippet was 5mins in duration.
There is a limited defence if the infringer did not know of the existence of copyright protection, and there was no reason to believe that the work in question was protected by copyright. This defence of innocent infringement may prevent damages from being awarded to the author or owner. However, it is narrowly interpreted by Courts, and does not prevent an order for any other remedy from being made.
TIP: It is always best to seek permission to use suspected copyright material, especially when it is unclear as to whether or not any defences under the CDPA apply.
Do I need to use the © symbol?There is no specific requirement to display the © symbol at law. However, displaying it puts anyone viewing it on notice of an active copyright in the work. This can act as a deterrent and, more importantly, it can help to prevent the innocent infringement arguments mentioned above.