Copyright law lies at the heart of much of the work I do – it is fundamental to the publishing industry, the media and entertainment industries and the IT industry. I have specialised in copyright law since I qualified in 1979 because I was lucky enough to join a firm that had for generations acted for publishers, authors, musicians and other creative people whose work involves copyright.
I contribute to the leading practitioners’ (lawyers’) work on copyright – Copinger and Skone James on Copyright (now in its 15th edition) — this is the book that lawyers turn to when they want to know what the law is on any aspect of copyright. I also write the volume on Copyright for the Encyclopaedia of Forms and Precedents – another book aimed only at lawyers, but this time including lots of sample contracts and forms relating to copyright and how it is exploited, which lawyers adapt to suit their particular requirements, as well as including commentary on the law of copyright.
I advise businesses and individuals on how to acquire, protect and exploit their copyrights (and other Intellectual Property Rights) to their best advantage. Many businesses are now affected – just because you or your business is not in the media or entertainment business does not mean that copyright does not affect you – it does! For example, all of the business correspondence, reports, memos, charts and so on written in the course of your business are protected by copyright, but what if one of your staff gave copies to a competitor?
To help you appreciate the extent to which copyright can impact on your work and your business, I will set out here some of the key features of copyright, according to UK law.
Firstly: What is copyright?
It is a property right, and this means that it is capable of being owned, it is capable of being sold and it is capable of being licensed. In short, it is a very valuable commodity. A distinction can be drawn between copyright as an economic right (since it gives the owner the opportunity to derive financial reward from the ownership of the right) and moral rights (which derive from the same statute as copyright, but which protect an author’s sensibilities in relation to his work). For more about moral rights [insert link], see below.
What does copyright protect?
Copyright does not protect ideas as such. It protects the expression of ideas in the form of certain specific categories of works, but only once they have been created and recorded in some tangible form. These are the categories of works that are protected, with some examples:
- literary works: books, articles, letters, reports; computer software; tables and compilations (Note: these do not have to have any literary merit in order to qualify as literary works).
- dramatic works: plays, screenplays, TV scripts; choreography.
- musical works: music (but not song lyrics – these are literary works);
- artistic works: paintings, drawings, sketches, plans, works of architecture including buildings, works of artistic craftsmanship.
- sound recordings;
- the typographical layout of published editions of literary, dramatic and musical works.
Who is the author of a copyright work?
In general, the author is the person who created the work.
What is the significance of authorship?
In general, the author is the first owner of the copyright in a work. There is, however, one vital exception to this rule, and that is where an employee creates a copyright work in the course of his employment: in that case, the copyright belongs to the employer, unless there is some agreement to the contrary. This exception only applies to employees though, and does not apply to freelancers. Therefore I advise businesses which traditionally engage a lot of freelancers that they must make sure that the freelancers are engaged under written contracts which provide expressly that the employer owns the copyright in any works created by the freelancer.
What rights does copyright confer?
The copyright in a work confers the exclusive right to do various things which are described as “the acts restricted by the copyright in a work”. These are as follows:
- copy the work, which means reproducing the work in any material form, including storing the work in any medium by electronic means;
- issue copies of the work to the public;
- rent or lend the work to the public;
- perform, show or play the work in public;
- communicate the work to the public, meaning communication by electronic transmission, and including broadcasting and internet; and
- make an adaptation of the work or to do any of the above in relation to an adaptation: an adaptation, in respect of a literary or dramatic work, means a translation of the work, or a version of a dramatic work in which it is converted into a non-dramatic work and vice versa and a version of a work in which the story is conveyed wholly or mainly by means of pictures in a printed form. In relation to a computer program, translation includes converting a program into or out of a particular computer language, otherwise than incidentally in the course of running the program.
What is copyright infringement?
Copyright is infringed when someone does any of the acts restricted by copyright in relation to the whole or a substantial part of a copyright work without the permission of the copyright owner. The question of what is a substantial part of a work depends as much on the quality of the part as the amount.
How long does copyright last?
- Literary, dramatic, musical and artistic works: life of author plus 70 years;
- Sound recordings: 50 years from making or from release;
- Films: 70 years from the death of the last to die of the following persons connected with the film: the principal director, the author of the dialogue, the author of the screenplay, and the composer of the music specially created for and used in the film;
- Broadcasts: 50 years;
- Published editions: 25 years.
What are the remedies for infringement of copyright?
If a court decides that someone has infringed copyright, then the court can award the following against the infringer:
- An injunction to stop any further infringement;
- Damages to compensate for infringement: this is usually assessed as the fee that would have been charged for a licence to do the act that amounted to infringement;
- Additional damages for a particularly flagrant infringement, where ordinary damages would not be sufficient to compensate;
- An account of profits made by the infringer as a result of the infringement: this means that the infringer has to give up all his profits from the infringement to the copyright owner — this is an alternative to damages;
- Delivery up and destruction of the infringing items.
Exceptions to copyright protection
There are a number of occasions where the doing of certain acts in relation to copyright works does not infringe the copyright. Some of the key ones are these:
- fair dealing for the purposes of criticism or review and for the purpose of reporting current events;
- fair dealing for the purposes of research and private study;
- various uses of copyright works in the course of education; and
- various copying which can be done by libraries.
There are four moral rights that UK copyright law confers:
- The right to be identified as the author of a copyright literary, dramatic, musical or artistic work or as director of a copyright film;
- The right not to have one’s work subjected to “derogatory treatment” — amounting to a distortion or mutilation of the work or being otherwise prejudicial to the honour or reputation of the author or director;
- The right not to have a literary, dramatic, musical or artistic work falsely attributed to oneself as author and not to have a film falsely attributed to oneself as director; and
- A right of privacy in respect of certain photographs and films that are commissioned for private and domestic purposes, preventing them from being published, exhibited or shown in public or communicated to the public electronically.
These rights last for as long as the copyright in the relevant works lasts — with the exception of the false attribution right, which only lasts until 20 years after a person’s death.
There is no infringement of any of these rights if the person entitled to the right has consented to the act in question or has waived his or her right. In practice, in many areas of the entertainment industry (including publishing), persons entitled to moral rights are asked to waive them to make sure that the party exploiting the product of the right-owner’s services can do so without fear of a claim for moral rights infringement. This is particularly so in the case of the film and television industry and electronic publishing, where an author’s work may be changed considerably in the course of exploiting it. For example, compare a feature film with the book on which it was based: a film company (and those providing the finance for making the film) could not take the risk of a moral rights claim by the author of the original book, and so the author must waive his or her moral rights in order to sell the film rights. The same would apply to the director of the film.
These are personal rights which cannot be assigned (i.e. sold) during a person’s lifetime, but they can be transferred under a person’s will.
The UK law on databases is an unusual and important aspect of copyright – and it changed significantly with effect from the 1st January 1998.
What is a database? The answer is: a collection of independent works, data or other materials which are arranged in a systematic or methodical way and are individually accessible by electronic or other means. This includes electronic databases but also paper databases too, such as printed directories or tables in a book. A website could constitute a database.
Before 1998, a database was regarded under UK law as a compilation, and was protected by copyright as a literary work. This protected the structure and order of the database, quite separately from any copyright that might subsist in all of the individual works included in the database. Now the structure of a database will only be protected where it is original, which is defined as where “by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation”. It is no longer sufficient that a lot of time and effort and probably money, too, have gone into creating a database. This was intended to bring the UK into line with the rest of Europe, which has always had a stricter test of creativity for a work to qualify for copyright protection.
However, all is not lost for database owners. Any database that was in existence before the 28th March 1996 and protected by copyright continues to be protected by copyright even if it would not qualify under the new law. Furthermore, there is a new right called database right, which protects the contents of a database even where the database does not qualify under the new law for copyright. The database right arises where there has been a substantial investment in obtaining, verifying or presenting the information and preparing the database, and it protects against the extraction or re-utilisation of material from the database, including the systematic and repeated extraction or re-utilisation of insubstantial parts of the database. The database right lasts for 15 years, but can in effect be perpetually renewed by making substantial further investment in updating the database. Any database created between 1st January 1983 and 31st December 1997 has the protection of database right for 15 years from the 1st January 1998, and this is in addition to any copyright protection which the database may still have. It is particularly interesting that the database right has been introduced to reward investment as distinct from creativity, whereas copyright is generally conferred in order to reward and encourage creativity.
To find out more about Bernie Nyman visit https://www.bmnyman.co.uk/