- Himanshu Dasare
- Updated: Wed, 11th Jan 2017
We are specialists in the latest laws of copyright which is a fast moving sector in this digital age. Our aim is to preserve rights and enhance revenue. We deal with personal and brand violation issues where the creator of copyright is at risk of negative publicity. We are equally skilled in bring a copyright infringement claims as we are in defending spurious allegations.
Our copyright service includes:
Extent of protection of copyright
The following categories of works are protected under UK copyright law and capable of protection:
- Literacy works: including webpages, computer programs, books and instruction manuals;
- Dramatic and musical works: including the music to songs;
- Sound recordings, films or broadcast;
- Databases: both paper and electronic; and
- Typographical arrangements of published editions.
Unlike the position with trade marks, design rights and patents it is not possible to register your ownership of copyright in the UK. Nonetheless, the rights can be of value as the owner gains an exclusive right to use the copyright and receive fees directly or under licence.
Our role is to find the best way of protecting the asset of the copyright.
How much originality is enough?
The work must be original to be capable of establishing the ownership needed for copyright protection. The work must not have been copied from another. The laws surrounding copyright originality are intricate. We establish the level of originality required for the work to be subject to copyright protection. For a work to be seen as original, it can be sufficient that only aspects of the work are original.
Example for a musician
For example if you are a musician and you have been accused of copying a musical arrangement from another artist:
We will first see whether the musician that has accused you of infringing actually owns the copyright;
- Next we will identify if you had access to the copyright work.
- If you did not and you independently created the work then we will defend you on that basis.
- If you did have access to the work, we will compare the two pieces of music along with the cord progressions to see if they are substantially similar under the latest laws on copyright to prove ownership or copying as the case may be.
The copyright ownership rule
The general rule is that the first owner of the copyright is whoever created the works. If more than one person created the work for example co authors, they will have joint ownership.
Problem with contractors: Where the copyright has been created by contractors, consultants, or delivered by a third party for example under a framework agreement unless there is provision to the contrary the assumption is the copyright is owned by the contractors. In our experience it is only when there is a sale of the copyright or other intellectual property that the issue of ownership of assets emerges. Often sales are held up whilst negotiations commence and the fall out is usually cash settlements that are paid to the creators for them to assign the copyright and other intellectual property if appropriate. The solution is to include assignment rights of the copyright within the commercial agreements with contractors.
Mixing ownership of copyright: Ownership of copyright can be mixed within one asset. For example, if you created a mobile application (Apps), then one entity could own the source code, but if someone else designed the layout, then they would own the copyright to that part of the product. Obviously such as situation is not commercially desirable but it can be avoided if copyright ownership is considered and documented at the start of the App development.
Exception to the copyright ownership rule: An exception to the rule that the creator is the owner of copyright is where there are works created by employees. Copyright created at work is usually owned by the employer if it was created during the normal course of employment. Problems can arise where there is no employment documentation evidencing the assignment of rights to the employer as employees may argue it was created in their spare time.
Proving you own the copyright
Creators should mark their work with a copyright notice. This is the copyright symbol © followed by their name and the year.
Best practice is to keep the draft documents you used to create the final work. This documentation helps the creator should someone else claim copyright by virtue of creation.
Duration of copyright
Copyright runs out. The duration of copyright depends on the type of work it is.
- Copyright in written, dramatic, musical and artistic works lasts for 70 years after the author’s death.
- Sound and music recordings last for 70 years from when it was first published.
- Films last for 70 years after the death of the director, screenplay author and composer.
- Broadcasts last for 50 years from when it was first broadcast.
As the owner of copyright work, it is important to know how long your copyright will last for, so that you are able to exploit it within the time frame. As a licensee of copyright work, it is important to be mindful of when copyright will expire to save you from needlessly wasting money.
Sale of copyright
The usual ways of selling copyright are:
- Licence the use of copyright; or
- Assign the full ownership of copyright.
Licence of copyright
We draft and review licence agreements to ensure that you are protected and that copyright returns to you upon expiry. Having licenced the copyright, issues of infringement do arise which we resolve. For example, it is not unknown for licensees to refuse to stop using the copyright after the licence has expired. Similarly, we deal with many cases where the licensee has over stepped the usage permitted under the licence. We have the expertise to bring licence infringement actions and defend licensees accused of breaching the licence contract.
Assignment of copyright
If you want to transfer copyright absolutely to a third party you need a deed of assignment rather than a licence. The chances are you do not want to be connected with the copyright post assignment or take responsibility for any misuse the transferee gets up to. To avoid this risk the assignment will need an exclusion of liability clauses.
Any of the following acts, in the UK, without the consent of the copyright owner, is a copyright infringement:
- Copying a copyright work. This includes photocopying or reproducing a printed page by handwriting or typing its content. It also includes making a copy of recorded music;
- Lending the work to the public;
- Issuing copies of the copyright work to the public;
- Performing, showing or playing a copyright work in public. This includes performing a play or music, showing films or videos in public;
- Communicating the work to the public; or
- Adapting the copyright work, or any of the above acts in relation to the adaptation.
Secondary infringement of copyright
It is also an infringement to authorise or facilitate another to do any of the above restricted acts. This is known as secondary infringement. An infringement will arise where one of the restricted acts is committed in respect of the whole or substantial part of the work, either directly or indirectly.
For example, if you import merchandise which includes messages illegally copied and sell it to the public you will commit secondary infringement and will face claims. This is despite the fact that you did not physically make copies of the merchandise. The solution is to monitor what you are importing or facilitating.
If you are a person responsible for the day-to-day management of the business, you need to be careful not to authorise or procure infringing goods. For example a nightclub manager, who authorises and purchases the music played in the club, could be liable for copyright infringement if they fail to obtain a licence. Same rule applies to other activities such as films, videos and music for apps.
Bringing a copyright infringement claim
As the owner of a copyright work, if you find that your work has been infringed, you have the exclusive right to bring infringement proceedings. We can help you bring infringement proceedings. Success depends upon marshalling strong facts and acting tactically. Our approach is usually:
- First we gather information. We look at your work and the infringing work and see if there is a real case for infringement.
- Next we will write to the infringer informing them about your objections and telling them to stop. Before starting proceeding we will always attempt to settle the claim, by putting forward a reasonable settlement and time frame. This is in order to minimise cost, save you time, ensure you get your money quicker and get the infringer to stop using your copyright. Bringing an infringement claim can be very time consuming as court processes can be slow.
- If no settlement can be made we will proceed to take court action. We can apply for an injunction to stop your copyright work from being sold, communicated, published or broadcasted. This means that the work will have to be removed, which will stop future revenue slippage. In a bid to recover lost revenue, such as loss of sales, we will seek damages.
- Before launching court action mediation should be considered which is surprisingly successful and much cheaper than court applications.
Defending copyright infringement claims
We have resolved many disputes which are basically a “try on” where someone wants a settlement on the basis of no claim. Our experience and careful eye will take you to disposing of unfounded allegations as quickly as we can.
Brand and reputation protection
The personal brand and reputation of creators of copyright is automatically protected by the common law concept of “moral rights”. Moral rights only apply to copyright. Moral rights can only be waived by express consent in writing and cannot be assigned.
Unless expressly waived, original authors have the following protections as moral rights:
- To be identified as the author or director of a copyright work; for example if you have directed a movie, you have the right to be identified as the director of that movie.
- To object to derogatory treatment of a copyright work; for example if you are an artist, you have the right to stop others from changing the work and using it the way you oppose.
- Not to suffer false attribution of a copyright work; for example if you are a singer and someone is posing as you and using your reputation to promote their songs, you have a right not to be associated with those songs.
- To privacy in respect of certain films and photographs that you have commissioned for private or personal use; for example if you have decided to have a photoshoot, you have the right not to have copies of your work issued or exhibited to the public without your permission.
As the original author if you feel that you or your work have been subject to any of the above and you have not signed an express waiver then you may be able to stop activity which is damaging to your personal reputation and brand.
Risks if there is commercial usage of copyright
The risks revolving around moral rights differ between sellers and purchasers of copyright.
- Purchasers of copyright: If we are advising on the purchase of copyright under a commercial agreement such as a licence we will always raise the waiver of moral rights to protect the purchaser from the risk of claims.
- Sellers of copyright: Conversely, if we are advising on the sale of copyright, we consider whether the author needs express exclusions of use as a means of protecting the reputation and branding of the author. The common law concept of moral rights does not extend to express exclusions. This means, unless dealt with in the commercial agreement the author is potentially exposed.
Our copyright track record
Over the years we have dealt with copyright issues arising in a range of industries. Every copyright case is different but all clients are looking for solid advice and solicitors who can respond within the timescales. Our focus is always to find solutions before litigating. Most of our clients resolve issues without recourse to the courts which is good for them.
- Software infringement claim for an engineering company. Enforcement action was taken against a company in Brussels who bought software in the UK and reverse engineered it.
- Document literacy works for a children’s publishing company. Enforcement action against the company’s competitor.
- Database management for a recruitment company: using updated database regulations to gain protection afforded to customer satisfaction reviews.
- Court documentation for a TV production company to copyright a television format as a dramatic work. The production company later succeeded in a passing off claim, under common law rules, to prevent another TV production company copying the format.
- Managed film portfolio to obtain future copyright protection under the rules regarding performances.
Copyright is a valuable commercial asset. If it forms your stock in trade you have to protect it. Taking simple steps now, can mean you win a claim that your copyright has been subsequently infringed or stolen. If you are accused of infringement you need to take action even if you are innocent. Costs will soon mount if you don’t. We realise the pressures and respond quickly.
If you want to maximise the commercial value of your works then consider copyright protection. Why not call or email me to arrange an informal discussion...