Copyright

How you claim and protect copyright

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Copyright

Copyright law is a fast moving sector in this digital age.  We know this means that you need the latest advice and promptly. Our aim is to preserve copyrights to enhance revenue.  We are equally skilled in bringing copyright infringement claims as we are in defending spurious copyright infringement allegations.

We are a boutique specialist London commercial law firm working with a range of creators of copyright. Our clients include musicians, creatives and software developers. We work with individual personalities and their corporate trading vehicles.

Who owns 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.

Copyright cannot be registered but it is still an income generator

Unlike the position with other forms of intellectual property (such as trade marks) it is not possible to register your ownership of copyright in the UK. But, copyright is of value as the owner gains an exclusive right to use the copyright and receive fees directly or under a licence to use 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. For a work to be seen as original, it can be sufficient that only aspects of the work are original.

Online copyright content

The growth of online commerce means publication of your copyright work to the general public.  This may result in online copying of music, images, films and by use of gadgets that come with pre-loaded copyright work.

If you as a copyright owner believe that your work is copied then you have the option to bring an IP infringement claim.

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.

Copyright and contractors

The assumption is that copyright is owned by the contractors.  In our experience it is only when there is a transaction that the issue of ownership of copyright emerges.  Often sales are held up whilst negotiations commence.  The fall out is usually cash settlements have to be made to the copyright creators for assignment of copyright so that complete title can be given.  The problems are particularly acute in the software and technology industries.

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. The benefit of good employment documentation to you is that the scope for employees to claim copyright was created outside of employment is removed.

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.

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 copyright ownership 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 or over step permitted usage.

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 that you do not want the responsibility of being connected with the copyright post assignment. To avoid this risk you will need to include in the assignment an exclusion of your liability.

Copyright infringement – bringing and defending claims

In the UK we have the concept of primary copyright infringement and secondary infringement.

Primary copyright infringement

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. There is the risk of a claim. This is despite the fact that you did not physically make copies of the merchandise. You will be responsible for monitoring what you are importing or facilitating.

Stopping copyright infringement

Success depends upon marshalling strong facts and acting tactically.

Steps you should consider

There are a variety of approaches for you to consider depending upon the facts. A typical approach is usually:

  • You need to gather information. We look at your work and the infringing work and see if there is a real case for infringement.
  • You need to communicate to the infringer informing them about your objections and asking them to stop. Before starting proceeding we will always attempt to settle the claim, by putting forward reasonable settlement proposals. Settlement will be quicker and cheaper than court action in the majority of cases.
  • Settlement discussions can be run in parallel with court action. There are a variety of court actions you will need to consider.  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, you can seek damages.
  • Before launching court action, mediation should be considered.  Mediation is surprisingly successful and much cheaper and quicker than court applications.

Defending copyright infringement claims

We have resolved many disputes.  We do see “try on” cases and dispose of them for you.

Reputation and moral rights

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.

Moral rights capable of protection

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.

Risks to establishing moral rights

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.

Copyright – recent problems solved

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.
  • Copyright infringement action against multiple parties for illegal music downloads.
  • Document literacy works for 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.