To many people the concept of copyright is not always clear. Often there is uncertainty around whether they own the copyright and if so whether they can generate money from the copyright without fear of getting a bad deal. Copyright crops up in a number of sectors such as technology and software, digital media, websites and graphics and in the more traditional setting of books, films and plays. These all create copyright. To help you navigate your way around we have explained some of the basics.
If you have a contract or a suspected copyright infringement situation please do call us. We are always happy to provide a steer on the way forward.
The basics to copyright law
Unlike other forms of intellectual property (such as trade marks) it is not possible to register your ownership of copyright in the UK. The work must be original to be capable of establishing the ownership needed for copyright protection. 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.
The general rule is that the creator of the copyright is the owner. If more than one person created the work for example co authors, they will have joint ownership. In the case of an employee, worked created by them during their normal course of employment will usually be owned by the employer.
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.
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.
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 in a 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.
Achieving the result you want
The risks revolving around moral rights differ depending on who you are.
- 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.