Copyright FAQ

Printing press

Author Brett Osteen
Source Wikipedia
Creative Commons Licence

Jane Lambert

8 Aug 2016

What is Copyright?

Copyright is an intellectual property right ("IPR") that protects investment in creating, publishing and distributing works of art and literature. It restricts the copying, publication, renting, lending, performance, communication to the public and adaptation of a work in which copyright subsists ("a copyright work") to the copyright owner. These are sometimes called economic rights to distinguish them from certain right conferred on the author of a copyright work which are known as moral rights.

Who benefits from Copyright?

Basically the so-called "creative industries", that is to say:

“those industries which have their origin in individual creativity, skill and talent and which have a potential for wealth and job creation through the generation and exploitation of intellectual property” (see Department for Culture, Media and Sport Creative Industries Economic Estimates January 2015 13 Jan 2015).

They include advertising and marketing, architecture, broadcasting, crafts, design (product, graphic and fashion), film, information and communications technology, music, performing arts, photography, publishing, museums and galleries and visual arts.

In what Works can Copyright subsist?

Copyright can subsist in any of the following:

• original artistic, dramatic, literary and musical works
• broadcasts, films and sound recordings, and
• typographical arrangements of published editions.

Artistic works include graphic works (that is to say, charts, drawings, diagram, engravings, etchings, lithographs, maps, paintings,  plans, and woodcuts), photographs, sculptures, collages, architectural plans and works of artistic craftsmanship. Dramatic works include choreography and screen play. Literary works include computer programs, databases, catalogues, compilations and tables. Musical works include compositions and scores but not the words of songs which are literary works. Original is not defined but it basically means the application of effort, skill and taste. The threshold is not high but it would for example exclude anything that has been copied slavishly from a pre-existing work.

How long does Copyright last?

Depends on what sort of work it is and who owns it.

In the case of artistic, dramatic, literary and musical works it is the life of the author plus 70 years. In the case of films 70 years from the end of the year of the death of the principal director, author of the screenplay, author of the dialogue or composer of the soundtrack, whichever occurs first. In the case of sound recordings 70 years from the end of the year of first publication or first being made available to the public or if it has never been published or made available to the public 50 years from when it was made. In the case of broadcasts 50 years from the broadcast. In the case of published editions 25 years.

In the case of artistic, dramatic, literary and musical works made by or for the Queen, copyrights lasts 125 years. There are also special provisions for works made by or for Parliament and the devolved legislatures and international organizations. 

How do I get Copyright?

First, you have be a citizen or resident of a qualifying country, that is to say the UK or any other country with which we have reciprocal arrangements under the Berne Treaty, TRIPS or some other international agreement, Secondly, you have to create one of the above-mentioned works. In the case of an artistic, dramatic, literary or musical work you must record it in writing or some other medium.  If you are the author of the work you will be the first owner of copyright unless you make the work in the course of your employment or agree that someone else should be entitled to the copyright in which case your employer or that other person would get it.

Don't I have to register at the Intellectual Property Office ("IPO")?

Not in this country nor anywhere else in the EU and not in most Commonwealth countries but Americans still have to register their copyrights with their Copyright Office in the Library of Congress if they want to bring proceedings. A number of other countries also have a system of copyright registration.

How is Copyright infringed?

Doing any of the acts mentioned above that are reserved to the copyright owner without the owner's permission or other lawful excuse. That is to say, copying the whole or a substantial part of the copyright work, publishing it, renting or lending it, performing it in public in the case of say a play or musical score, making it available to the public or adapting it by for example translating it from one language to another.

Note, the ban on copying means that you can't load or run a computer program on a computer without the copyright owner's consent because the computer automatically copies the program when it is running it.

You can also infringe copyright by importing, possessing, selling, letting, offering for sale or hire or distributing an article that you know or have reason to believe to be an infringing copy of a copyright work. Similarly, you infringe copyright by providing the means for infringing copyright by for example making, importing, possessing or dealing in equipment specifically designed or likely to be used for that purpose or by allowing your premises to be used for performing a play or score without permission.

What happens if someone infringes my Copyright? 

You can take the infringer to court. You can claim 

• an injunction (an order by a judge to stop infringing your copyright or else), 
• damages (compensation for your loss) or an account of profits (the disgorging of any ill gotten gains from the wrongdoing) with interest, 
• delivery up of any infringing copies, 
• information about any sales or dealings with infringing copies, and 
• a substantial contribution to your costs (the money you spent in bringing the proceedings).

If you can satisfy a judge that you will suffer irreparable loss or damage before your case comes to trial you may persuade him or her to grant you an interim (that is to say, temporary) injunction until the trial provided you promise to compensate the other side in damages if the court decides that you should not have been entitled to that injunction.

If the infringement occurred in England or Wales you can sue in the High Court or the County Court sitting in Manchester, Liverpool, Leeds, Newcastle, Preston, Birmingham, Bristol, Cardiff, Mold or Caernarfon. 

If your claim for damages or profits is less than £500,000 and your case can be decided in one day you can bring your case before a special court known as the Intellectual Property Enterprise Court ("IPEC").  Your liability to costs in that court is limited to £50,000 but by the same token the costs that you can recover from the other side are limited to £50,000 too.

IPEC also has a small claims track for claims of under £10,000 where your liability for costs would be limited to a few hundred pounds. The judges of the small claims track can grant you a permanent injunction if they find for you at trial but not an interim one.

Infringing copyright on a massive scale (which is sometimes called piracy) is an offence that is punishable by up to 10 years imprisonment and an unlimited fine upon conviction in the Crown Court. Prosecutions can be brought privately as well as by local authority trading standards officers and other officials.

What are the Defences to Copyright Infringement?

There are many.

First. copyright is infringed by copying or doing one of the other restricted acts. It is not infringed by making something similar to the original work. Similarity may indicate copying but it can be explained away in many instances. There may be only one way of expressing an idea or representing an image in which case everybody's work will look the same. Sometimes the original author or artist and alleged copyist get their work from the same source. Sometimes the similarity is mere coincidence.

Even if there has been copying it can sometimes be argued that there was an express or implied licence which is often the case where the original was posted on the Internet, that the alleged copying was insubstantial or that it fell within one of the many exceptions within Chapter III of Part I of the Copyright, Designs and Patents Act 1988.

Note that the words "substantial part" refer to the quality of the thing taken and not to the quantity. The word Jabberwocky may be a substantial part of Alice Through The Looking Glass because that may be the reason why a reader might buy or borrow the book but the entire transcript of a trial that has been reproduced in a play will bot be substantial if the copyright owner did not own the copyright in the proceedings in the first place. 

How can I make Money from Copyright?

If you are a broadcaster, film studio or programme maker you will receive revenue in the form of advertising payments, licence fees, subscriptions or royalties from broadcasting or distributing the film in cinemas. If you helped to make the film or programme you should receive a percentage of those royalties or maybe a fixed fee. The author of the screen play should also get a cut and so on. If the film or programme is made into a DVD you should also get a share of the sales revenues.

Music publishers, recording studios, song writers and composers can expect to share in the revenues from the release of a new recording. There will also be ancillary sales from merchandising in many cases.

If you are a software house you can make money by licensing out the distribution and use of your computer programs.

Print publishers can expect payments for the sale of their publications and journalists and other contributors can expect a share of those proceeds.

Sometimes it is enough simply to supply a copy of a copyright work such as a book, item of jewellery or other article. Other times you need to supply an end user licence agreement as is the case with software. In a few cases you may need to sell the right outright by means of an assignment or exclusive licence. Copyrights, like all other IPR, can be bought and sold, charged, licensed exclusively or non-exclusively. However, you should be aware that licensing by groups of copyright owners known as collecting societies and authors whose identity cannot be traced is regulated under Part VII of the Act and disputes between collecting societies and users are determined by the Copyright Tribunal.

What are Moral Rights?

These are rights that are conferred upon the authors of artistic, dramatic, literary and musical works and the duration of films that are quite independent of the economic rights mentioned above. They include the right to be identified as the artist, author, composer or playwright of the work or the director of a film, the right to object to derogatory treatment of a work, the right not to have work falsely attributed and the right of privacy in films and photographs. They are enforceable by proceedings in the civil courts and remedies include injunctions. damages and costs.

What are Rights Related to Copyright?

These are rights that subsist and operate in the same way as copyright. They include:

• Rights in performances which you will find in Part II of the Copyright, Designs and Patents Act 1988;
• Unregistered design rights which you will find in Part III;
• Publication right: an extension of copyright for publishers of works that were never published during the subsistence of copyright provided by reg 16 of The Copyright and Related Rights Regulations 1996; and
• Database rights: the right to prevent unauthorized extraction and re-utilization of the contents of a database provided by The Copyright and Rights in Databases Regulations 1997.

Where can I look up the Law?

Copyright law in the UK was codified by the Copyright, Designs and Patents Act 1988 which I mentioned abive. The Act has been amended many times to bring our law into line with various international agreements like the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS") and the WIPO Copyright Treaty and several EU Directives. The IPO has published a useful unofficial consolidated version of Parts I and II of the Act. which can be downloaded from the IPO website. Most cases on copyright law over the last 20 years or so and a few older ones are published on the British and Irish Legal Information Institute website. Some Copyright Tribunal decisions appear on the Tribunal's website. Other cases are reported in the Reports of Patent Cases and Fleet Street Reports for which a subscription is required. Very old copyright cases appear in the English Reports which are accessible on the Commonwealth Legal Information Institute. The main practitioners' text books are Laddie, Prescott & Vitoria: The Modern Law of Copyright and Designs Fourth edition and Copinger and Skone James on Copyright.

Where can I get Further Information?

I give talks on copyright law which are aimed at folk in the creative industries rather than lawyers or patent and trade mark attorneys from time to time as do the British Library Business and IP Centre and its associated libraries around the country.

If you want to discuss this article or have a question on copyright law that is not answered here please get in touch with me through my contact form or call me on +44 (0)20 7404 5252 during normal office hours.