23 May 2023

What do you need to know about copyright law? In our article series focusing on copyright law, we will explore the basics behind legislation, copyright protection, infringement and key things businesses need to know. 

In the first article in our copyright series, we provide an overview on the basics of copyright, explaining some fundamental copyright concepts, including what copyright is, what can be protected by copyright, and tips on how to protect your rights.

What is copyright law?

The Copyright, Designs and Patents Act 1988 governs copyright law in the UK. Copyright is a property right which protects the expression of creative output. Unlike some other intellectual property rights in the UK, copyright arises automatically on creation of a work, so there is no registration process and there are therefore no registration fees. The position on registration does vary from country to country, so please do look into local requirements when dealing outside of the UK.

Copyright is entirely separate from ordinary property rights in the work itself. It is perfectly possible for one person to own a painting and for another to own the copyright within it.

Copyright protects original works that are fixed in some form. Under UK law, we have a number of categories set out in the legislation, which specify different types of works that may attract copyright protection. The list includes literary, dramatic, musical and artistic works among other things such as broadcasts and typographical arrangements. There is further clarification as to what specifically falls under these categories in the legislation, but it is often forgotten that things such as computer programmes, 2D and 3D designs, and databases, may also be protected by copyright.

As mentioned, a work must be original in order for it to attract copyright protection. This does not mean that the work must be unique, it is just that expression and form of the idea must be original. The author must have created the work through their own skill, judgment, and individual effort and it must not have been copied from other works. Names, titles, short phrases and colours are not generally considered unique or substantial enough to be covered, but a creation such as a logo that combines these elements may be.

Proving copyright

In order for copyright to subsist, the work must be recorded in some form. So a folk song held in the head of a busker or the great idea for a novel that you have carefully thought out but not written down are not protected by copyright until they are fixed in some form (whether that's lyrics or a melody for the busker, or written in some form for the novel).

As there is no registration process, it is important to ensure that you keep careful notes and records to evidence dates of creation, and any iterations of the work.

Who owns the copyright?

Copyright is generally owned by the author (i.e. the creator) of the work, but there are a number of exceptions to this rule.

In some cases, there can be more than one author and therefore potentially more than one owner of copyright. If there are multiple authors, no author can do anything with the work without the consent of all the others.

Importantly, employers will usually own any copyright created by their employees if it was created as part of their job. This does not apply where a business is working with a consultant or freelance designer, so businesses should take steps to ensure that there is a contract in place to record who owns the works created.

As a general rule, the work qualifies for protection if the author was at the material time a British citizen or domiciled in the UK; or if a company is incorporated in the UK; or if the work was first published in the UK.

Some detective work may be necessary to track down the author, as the work may be anonymous, have a number of authors, or have been created by someone unexpected. This process can be long and expensive, but will be essential for any individual or business looking to assert copyright in a work.

So once you have a work with copyright in it, what does that give you?

The copyright owner has the exclusive right to copy, publish, perform, show, and adapt the work in the UK, to license the work to others (in some cases for royalties), as well as the right to sue others for infringement of their copyright.

If you have licensed your copyright, licensees, whether exclusive or non-exclusive, can also sue third parties (other than the copyright owner) for infringement.

In the UK, the duration of copyright protection varies, but for literary, artistic, dramatic and musical works, the owner of the copyright will have these rights for the life of the author plus 70 years.

Copyright infringement

Copyright is infringed if someone who is not the owner copies at least a substantial part of the work. In this context, 'substantial' is a question of quality rather than quantity. That is to say, if someone were to copy the most recognisable or important part of another's work, this might be more likely to be a 'substantial part' than copying larger amounts of less important parts of the work. There are specific examples in the legislation for different works as to what might qualify as 'a substantial part'.

There are several exceptions to infringement, one of which is 'fair dealing' whereby using a work which is copyright protected for certain activities is permitted. Fair dealing includes things like research and private study; as well as criticism, review, and news reporting.

As one of the leading IP firms in the UK, we advise a plethora of clients on their IP protection strategy, reviewing their current processes and working with them to improve them. This can avoid costly legal proceedings where IP rights are at risk. Of course, we advise on infringement actions as well. If you would like more information on how best to protect your IP rights, please contact a member of our team.

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NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.