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The basics of copyright law

29 November 2017

It is essential for brand owners to understand the basic rules relating to copyrights. In this podcast, Meite Xin introduces you to some basic copyright concepts, including copyright subsistence, the ownership of copyright, the existence and international protection of copyright, the infringement of copyright and the limits to the scope of copyright law.

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Transcript

Hi everyone, I'm Meite Xin, an associate in the Gowling WLG Intellectual Property team. This podcast will introduce you to some basic copyright concepts, including copyright subsistence, the ownership of copyright, the existence and international protection of copyright, the infringement of copyright and the limits to the scope of copyright law.  

First, let's have a quick look at what is copyright and how does copyright subsist?

Copyright is:

  • A property right which subsists in original literary, dramatic, musical and artistic works as provided for by the Copyright, designs and Patents Act 1988 (the CDPA Act). It is an automatic right and arises whenever an individual or company creates a work. It is entirely separate from property rights in the work itself as an object. It is perfectly possible for one person to own a painting and for another person to own the right to copy the painting.
  • Originality is a relatively easy test which can be easily satisfied - the work in question need not be unique in any way. 'Original' means that the author must have created the work through his or her own skill, judgment and individual effort and that it is not copied from other works.
  • There are, however, other types of copyright work - film, sound recordings and broadcasts - which need not be original - for instance, repeat broadcasts each attract their own copyright.
  • 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.
  • It is generally a right of the author (i.e. the creator) of the work. This is reasonably obvious in relation to written, artistic or musical works although it becomes less clear in relation to films, sound recordings or television broadcasts.
  • As a general rule the work qualifies for protection by copyright if the author was at the material time a British citizen or domiciled in the UK; or if a company incorporated in the UK; or if the work was first published in the UK.

Why it is important to identify the author and owner of the copyright?

  • Every copyright work has an author. The author is the person who creates the copyright work. The CDPA Act sets out who is legally regarded as the author of certain categories of work. Ownership of the copyright always flows from the author, as do all rights to reproduce and exploit the work. Therefore, identifying the author is critical.
  • The owner of a copyright work (who may not be the author) has the right to exploit the work and to sue for infringement. Exclusive licensees can also sue third parties (other than the copyright owner) for infringement. Non-exclusive licensees can also sue.
  • There is often more than one author, and therefore potentially more than one owner of copyright. None can do anything with the work without the consent of all the others.
  • The author is often a human being, not a corporation or other legal body. Some detective work is often necessary to track them down, 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.

Existence, registration and international protection

  • Copyright exists as soon as a work is recorded in any form, even transitory forms in many cases. It does not exist in un-recorded works. So a folk song held in the head of a busker or the great idea for a novel that you have carefully thought out are not copyright protected. No formalities are required for UK protection and no registration is possible. What is an issue is evidence. Careful notes and records should be made to evidence dates of creation. Various private registries exist but are of limited evidential effect.
  • Copyright is a territorial right. I.e. it exists under the laws of a sovereign state. International protection is given by treaties principally now the Berne Convention that just about everywhere has signed up to.  The various levels and layers of international protection are extremely complex. Principally you should note that not everything that is protected in the UK (one of the world 's most comprehensive regimes) is protected elsewhere especially outside Europe.
  • In the UK, The duration for copyright varies between different types of work but, for literary and artistic works, the period is the life of the author plus 70 years.

The infringement of copyright law

  • The structure of copyright is that the CDPA Act lists acts which are the exclusive right of the copyright owner. Infringement is therefore doing one of those acts or authorising another to do so without the owner 's consent or without falling within an exception.
  • Primary Infringement is doing one of the core restricted acts preserved for an owner
    • Copying;
    • Issuing copies;
    • Renting or lending;
    • Performing or showing in public;
    • Broadcasting;
    • Adapting.
  • Copyright can be infringed by either copying the whole of the work or a substantial part of it either directly or indirectly. Indeed reproducing the work in any material form will result in the infringement of copyright. This includes storing the work in any medium by electronic means.
  • What substantial means is a question of fact. Fundamentally it is the right to copy (hence copyright) that is protected. Unlike some registered forms of intellectual property it does not give absolute protection to the work itself. If two independent artists come up with strikingly similar pictures they each have copyright in their work independently and neither one has infringed the other.
  • The general position with regard to copyright is that if that which a person wishes to do with a work (which has the benefit of copyright protection) is something which does not fall within one of the exemptions, then it is an infringement if the 'infringer ' does not have a license to act in that way.
  • There are several exemptions, one of which is 'fair dealing ' with a work which is copyright protected is permitted. Fair dealing includes research and private study; & criticism, review, and news reporting.

Finally, let's briefly have a look at the limits to the scope of copyright law.

  • No monopolies
    • Fundamentally, copyright law should not give rise to monopolies. Any person may produce a work which is similar to a pre-existing work as long as the later work is not taken from the first.
    • It is theoretically possible - if unlikely - for two persons independently to produce identical works, and each will be considered to be the author of his work for copyright purposes

      For example, two photographers may each take a photograph of Nelson's Column within minutes of each other from the same position using similar cameras, lenses and films, after selecting the same exposure times and aperture settings. The two photographs might be indistinguishable from each other, but copyright will subsist in both photographs separately. Both photographers have used skill and judgment independently in taking their photographs and both should be able to prevent others from making copies of their respective photographs.
  • No protection of an idea: copyright law protects only the expression of the ideas, not the ideas themselves. This means that a story relating to an orphaned boy who discovers at the age of 11 that he has magical powers would not necessarily infringe J K Rowling 's copyright in Harry Potter.

This concludes this copyright podcast. Thank you for listening. Please do contact us if you have any questions about how you can best protect your intellectual property rights.


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.

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