Copyright

Copyright

Contents

Copyright

Copyright is a right to stop others from copying one's works without permission and it arises automatically without the need for registration.

Copyright can only exist in the expression of an idea in a tangible form. It is works, rather than ideas, that are protected. The distinction is difficult to draw, but an example may be useful to show what are protected under copyright law.

If a photographer takes a picture of a landscape, that picture will be copyright. The picture cannot be copied without the consent of the photographer. However, this does not prevent another photographer taking a similar picture of the same landscape. The second photograph, though using the idea of the first, would not be a reproduction of the first photograph; indeed a separate copyright would exist in that second photograph.

Copyright law protects only works that are 'original'. Original means that the works are not copies of another work. In other words, the works must originate from their author's own skill and judgment.

The following work types are capable of being protected by copyright:

  • Literary, dramatic, musical or artistic works
  • Sound recordings, films, broadcast or cable programs
  • Typographical arrangement of published editions

The Copyright, Designs and Patents Act 1988 (the '1988 Act') is the principal statute governing UK copyright law. The two international conventions, namely, the Berne Convention and the Universal Copyright Convention (the 'UCC'), lay down minimum standards of protection for copyright owners in countries that have ratified the conventions.

Ownership of copyright

The basic rule is that copyright belongs to the author of the work concerned. If a work is created by two or more persons and it is not possible to identify their individual effort, they will be joint owners of the work. If an employee makes the work in the course of his employment, the employer is the owner of any copyright in the work, subject to contrary agreement.

Rights of the owner of the copyright

The owner of a copyright has exclusive rights in relation to the work in the UK to:

  • Copy it
  • Issue copies of it to the public or to rent or lend copies of the work to the public
  • Perform, show or play it in public, broadcast it or include it in a cable program service
  • Make an adaptation of it
  • Do any of the above in relation to an adaptation of it

'Adaptation' includes e.g. translation, conversion into a strip cartoon, as well as conversion of a literary into dramatic work and vice versa. For example, if a novel is converted into a silent film (there is no reproduction of the original work but reproduction of a dramatic adaptation).

Infringement

Primary infringement occurs if a person, without the copyright owner's licence, does any of the acts outlined above in relation to the whole, or a substantial part, of the work, either directly or indirectly. Copying need not be direct, and it need not be conscious or deliberate. All that is necessary for infringement is that the later work is somehow derived from the original.

Secondary infringement occurs when, in relation to an article which is, or which he knows or has reason to believe is an infringing copy of the work, a person:

  • Imports an infringing copy into the UK
  • Possesses an infringing copy in the course of business
  • Sells or hires or offers or exposes for sale or hire the infringing copy
  • Distributes or exhibits an infringing copy to the public in the course of business
  • Distributes an infringing copy (even if not in the course of business) to an extent which prejudicially affects the copyright owner
  • Without the licence of the copyright owner, makes, imports, possesses in the course of a business or sells or hires, or attempts to sell or hire, an article specially designed or adapted to make copies of an infringing copy knowing or having reason to believe that it is to be used to make infringing copies
  • Without the licence of the copyright owner transmits a copy of the work by means of a telecommunication system, knowing or having reason to believe that infringing copies of the work will be made as a result of receiving the transmission in the UK or elsewhere
  • Permits a performance of an infringing work in a place of public entertainment, unless when that person gave permission he believed on reasonable grounds that the performance would not infringe copyright
  • Supplies apparatus or any substantial part of it for the public performance of an infringing work, or allows such apparatus to be brought onto premises, if he knew or had reason to believe such apparatus would be used to infringe the copyright
  • Supplies a copy of a sound recording or film which he knew or had reason to believe such recording or film would be used to infringe copyright

In contrast to primary infringement, the state of the infringer's mind is relevant to secondary infringement. The infringer will only be liable if they knew or had reason to believe that they were dealing with an infringing copy or that an infringing copy or public performance would be made.

Defences

There are a number of specific exceptions to infringement. Listed below are the more commonly used defences:

  • Authority or consent from the copyright owner
  • In case of secondary infringement, the infringer did not know or had no reason to believe that they were dealing with an infringing copy or that an infringing copy or public performance would be made
  • Fair dealing: this relates to the use of the work for the purpose of research, private study, for criticism, review and news reporting
  • Photographs of works in public places: there is no infringement for someone to paint, draw or photograph a building or a piece of sculpture or suchlike work that is permanently displayed in public
  • Public interest: that disclosure of the work was necessary because it was in the public interest

Remedies

Remedies for infringement of copyright include the following:

  • Damages: usually damages will be based on lost profits or licence fees
  • Account of profits
  • Delivery up of infringing copies
  • Seizure of infringing copies available for sale or hire in premises to which the public have access
  • An injunction (or, in Scotland, interdict) against the infringer to get them to stop

Examples

To have a better understanding of how copyright law works, we will turn to the different types of work that are protected by copyright law to see how long the protection lasts and what amounts to infringement.

Literary, dramatic, musical or artistic works

Generally, copyright in literary, dramatic, musical or artistic work ends after 70 years starting from the end of the calendar year in which the author (or if more than one, the last surviving author) dies. If the author is unknown, copyright ends either 70 years from the end of the calendar year in which the work was made or if made available to the public in that time, at the end of the period of 70 years from the end of the calendar year in which it was made available to the public.

In respect of computer-generated work, copyright ends 50 years from the end of the calendar year in which the work was made.

Sound recordings, films, broadcast or cable programs

Copyright in sound recording expires 50 years after its first release, or if it is not released, 50 years after it was made, or if within that period the recording is not published, but is made available to the public by being played in public or communicated to the public, 50 years from the end of the calendar year in which it was first made available. Released means when the film sound recordings are shown to the public or published, or broadcast or included in a cable service, except where this occurs without authorisation.

Copyright in a film expires 70 years from the end of the calendar year of the death of the last to die of the principal director, the screenplay author, the dialogue author or the composer of any music specially written for the film.

Copyright in broadcasts lasts for 50 years from the end of the calendar year in which the program was broadcast.

Typography of published books and music

There is a separate copyright in the typographical arrangements of published editions of literary, dramatic and musical works, distinct from the copyright in the works themselves.

The copyright belongs to the publisher and lasts for 25 years from publication.