Intellectual property, Back to Basics part 1
This is the first in a series of “Back to Basics” articles looking at intellectual Property and its potential value and relevance to you and your business.
This article outlines what we mean by ‘copyright’, what it protects, who owns copyright and how a copyright owner can protect and commercially exploit its copyright.
An individual or business can expend considerable time and resources in creating original material, such as content for a website, or graphics for a brochure. It is therefore important to understand not only how to protect that work from others reproducing it without permission, but also to know how to commercially exploit that work to make the initial investment of time and money worthwhile.
So, what is Copyright?
Generally speaking, copyright is the protection afforded to the expression of an idea, not the idea itself. For example, copyright will not protect the idea of building a house but it will protect the architectural drawings behind it.
Copyright is a right that arises automatically on the creation of a work, so it is not necessary to register or apply for copyright protection. You don’t even have to use the © symbol to enjoy protection (although as discussed later, use of the © symbol can be helpful).
Copyright restricts the reproduction (copying) of the whole or a substantial part of a piece of work without authorisation of the copyright owner. It will also restrict a change of format, for example, it could prevent the online publication of a book in electronic form that has previously only been available in hard copy. However restrictions around copyright protection are not absolute and there are some exceptions that allow copying without the copyright owner’s permission, which are discussed later in this article.
What type of work does Copyright protect?
Copyright can protect various types of work, including:
- “Original literary work”: this includes, by way of example, novels, instruction manuals and newspaper articles. In a business context, this typically also covers terms of business (a surprising number of businesses will ‘cut and paste’ from the competition!), inspection reports (and templates), and website text; and
- “Original artistic work”: which includes photographs (or other images, including illustrations), architecture, technical drawings and logos.
There are also other types of work which are covered by copyright: typographical arrangements or layouts (in the publishing of a book); musical works; the recordings of a work (including sound and film); broadcasts of a work; dramatic works (for example, dance); software (computer programs and games) and databases (the selection and arrangement of contents). The extent to which protection is available will vary depending on the nature of the work.
It is important to note that literary, artistic, dramatic and musical works will only attract protection if they are original, and they are only original if they are the result of independent creative efforts. A work is not original if it has been copied from something that already exists.
What isn’t protected by copyright?
Generally speaking, names, titles and internet domain names do not attract copyright protection however it may still be possible to protect these through, for example, registering a trade mark. We will look in more detail at trade marks in a future article in this series.
Who owns copyright?
The approach to identifying the owner of copyright in a work is relatively straightforward.
In respect of literary, artistic and musical works (text, images etc. as outlined above), the creator or author of the work is the first owner of any copyright in the work (for example, the photographer of an image or the writer of a book).
However, what happens when someone is commissioned to produce an original work? Who owns the copyright then? The simple answer is, subject to any agreement to the contrary, the owner of the copyright will be the person/company who has been commissioned to carry out the work. For example, in the case of a business retaining a web designer to produce a website with original content, the web designer will own the copyright in the original content of that site; it does not matter than the commissioner has paid for the work.
Whilst the commissioner of the work may enjoy an implied licence to use the work in the absence of agreed terms, parties are best advised at the outset to ensure that there is a clear agreement, evidenced in writing that the copyright will transfer to the commissioner upon payment. Otherwise, a commissioner may be vulnerable to potential future legal disputes.
Did you know?
So, what about work created by employees? By way of exception to the above rule, the first owner of copyright in work created by an employee during the course of their employment will be the employer.
In respect of the ownership of copyright, it is open to the parties to make any agreement they wish and it is advisable to seek legal advice in this area to ensure the correct agreement is reached.
Duration of Copyright
How long will copyright last? The rules on copyright duration can be complex, however the general rule (to which there are many exceptions) is that the term of protection for an original literary, musical or artistic work in the UK is the life of the creator plus 70 years from the end of the year in which they died.
Copyright in a work is a potentially useful revenue-generating asset, which can be sold (known as an ‘assignment’) or exploited through a licence.
The advantage of licensing your copyright work is that it allows you as the owner to monitor and control the use/reproduction of the work and in return to benefit from on-going royalty payments. It also allows the work to be ‘sold’ (or at least the licence to use the work can be ‘sold’) to multiple people, maximising revenue.
An assignment on the other hand means that all rights in the work pass to the new owner. While this does not give the creator the ability to control how their work is used, a commissioner is likely to pay a premium for an assignment and this financial benefit may outweigh the loss of control.
With a vast ocean of content and resource online, a greater focus has inevitably now fallen on the protection of copyright.
If you are the owner of copyright in a work, how do you protect your rights?
Include the © symbol together with your/the company’s name
and the date of creation, on every work in which you claim
copyright protection. Whilst this step is not strictly necessary to
afford the work copyright protection, it will act as a warning that
action may be taken if it is copied.
As mentioned above, the unauthorised use or reproduction of the whole or a substantial part of a copyright protected work is copyright infringement. What if you suspect that your rights are being infringed?
There are various ways in which to approach copyright protection:
- the Courts will encourage the parties to attempt to resolve their dispute outside of Court proceedings, and so an initial Letter Before Claim sent to the infringer is a normal initial step. The letter will seek Undertakings from the infringer to stop the infringement and seek damages and costs;
- if the Letter Before Claim is not successful in bringing the infringer to heel, then a copyright owner can look to issue a claim at Court, seeking not only damages for any loss suffered (unpaid royalties for example, for the use of an image) but also an injunction to prevent any on-going infringement.
The Intellectual Property and Enterprise Court (formerly known as the Patents County Court) has a special ‘Small Claims Track’ for small value claims (those where damages are below £10,000), which is designed to make it easier for copyright owners to protect their work.
In addition to the civil remedies listed above, it may also be possible to refer the infringement for criminal prosecution.
As an alternative (or in addition) to an aggressive ‘cease and desist’ approach, you may wish to adopt the commercial approach of offering, on a Without Prejudice basis, to enter into a licence agreement with the infringer, to permit the use of the work in exchange for royalty payments.
However before sending a Letter Before Claim, issuing proceedings at Court, or proposing a licence agreement, it is advisable to seek legal advice to ensure the best strategy is adopted from the outset to protect your position.
Other people’s Copyright
If you would like to use someone else’s copyright protected work, the above highlights the need to approach them and seek permission before using the work or you risk infringing copyright yourself.
With any rule, there are of course exceptions, and copyright is no different. Whilst a detailed analysis is outside the scope of this article, you should be aware that there are some circumstances that allow the use of part, or all of a copyright protected work without the copyright owner’s permission (known as ‘Permitted Acts’), for example:
- educational purposes;
- disability (the making of accessible copies); and
- library and archiving.
On 1 June 2014, the above exceptions were expanded and in due course, further exceptions will be implemented to allow format shifting (for example, copying a CD onto an MP3 player for personal use), parody (use is subject to a ‘fair dealing’ provision) and quotation (again, this is subject to a fair dealing provision).
The majority of users of copyright protected material will however still require permission to use the work and the above exceptions should be approached with caution. Put simply: if in doubt, seek advice.