IP Basics: Copyright Law (Podcast) – Copyright

Copyright is an integral part of every business. It is essential
for every business, and in particular creators of original works,
to understand this legal right in order to protect their
creations.

In this latest episode in our IP Basics podcast series, Khemi
Salhan, in our Intellectual Property team, provides listeners with
an overview of copyright law including:

• what copyright law is;




• what and who copyright law protects;




• copyright infringement, and how to know when a work has been
  infringed; and




• the benefits and limits of copyright law.

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Transcript

Welcome to the latest episode of Gowling WLG’s
global Intellectual Property podcast where we discuss a range of
topics to help you protect your brands, creations and
inventions.

Khemi Salhan: Welcome to this podcast on
copyright law.

Lots of people have heard of copyright before but many do not
know what it actually is, how it works and what protection you get.
My name is Khemi Salhan and I work in the Intellectual Property
team at Gowling WLG and specialise in brands, copyright and designs
and advise many clients on how copyright can help them.

In this podcast, we explore the basics of copyright, explain
some fundamental concepts including what copyright is, what can be
protected by copyright and when something amounts to copyright
infringement.

So, starting at the beginning. What is copyright? At its most
basic copyright protects the expression of original works.
Originality does not mean that the work must be unique. The test
for originality has typically been that the work must be the
author’s own intellectual creation and they must not have been
copied from other works. Once an original work has been created it
must then be fixed in some form in order to attract copyright
protection.

Importantly, copyright law does not protect ideas. Ideas are
protected by laws around confidentiality mechanisms, such as trade
secrets. The two key principles of copyright are therefore; that
the work must be original, and the work must be fixed in some
form.

We then need to consider, “what does copyright actually
protect?”. Under UK law there are a number of categories set
out in the legislation recording different types of copyright works
that can be protected. In particular, the list includes literary,
dramatic, musical and artistic works – the so-called
‘LDMA’ works – amongst other things such as films,
software, broadcast and typographical arrangements.

So looking at those LDMA works in more detail. Literary works
include works such as scripts, novels, lyrics and articles.
Dramatic works are works that are capable of being performed, such
as works of dance or mime, but do not include any words spoken as
these words are protected as literary works. Musical works protect
the rhythm, harmonies and melodies of a piece and not the lyrics
sung – which again are protected as literary works. Artistic
works can include graphic works that are painted or drawn,
photographs, sculptures and works of artistic craftsmanship.

This category of work often explains why people think of
copyright when they think of creative industries such as music or
the arts. However, they also protect works such as the words on a
website or the images that are used in marketing brochures.

In addition, works such as computer programmes and databases can
also be protected by copyright. Names, titles, short phrases and
colours are generally not considered unique or substantial enough
to be covered, but creations such as a logo, that combines many of
these elements, may well be.

Copyright is entirely separate from the ordinary property rights
that may exist in a work. For example, you could own a copy of a
book but you do not own the copyright in that book. It is important
to note that you can have multiple copyright protected works within
a single item or product. So, for example, if you take the rather
old school example of a DVD: you would have literary copyright for
the screenplay and script and also the blurb on the back of the
DVD; you would have musical copyright protection for each of the
pieces of music on the soundtrack; you might have artistic works
used on the front of the DVD packaging if it is a photograph or an
illustration; and you also have copyright protection for the film
itself.

Once you have established that copyright might exist, then you
need to determine who owns that copyright. Copyright is generally
owned by the author or the creator of the work. So if you sketch
something on a piece of paper you, as the author, will own artistic
copyright in that sketch.

As a general rule, work qualifies for protection if: the author
was a British citizen or domiciled in the UK; in the case of a
company where the company is incorporated in the UK; and also when
the work was first published in the UK.

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

There are also a number of exceptions to the rule that the
creator of the work will be the first owner. Most importantly,
employers will usually own any copyright created by their employees
if it was created as part of their job, or where the creation of
something outside of work would have been considered to have been
created within the scope of their job role. Nevertheless, there is
an important exception to this exception. A business will not
automatically own the copyright of a work where the work has been
created by a consultant or freelance designer. Commonly, we see
agencies or consultants employed for photography, web design,
development of marketing materials. In these cases, the consultant
or freelance designer will likely own the copyright and the work.
This is a common trap we see many businesses fall into, so please
make sure that all agreements with third party non-employees who
are producing materials on your business’s behalf also transfer
ownership to your business of that copyright by way of
assignment.

One way to think about it is, “if I saw someone using
something similar to the content on my website or my marketing
materials would I want the right to take action against
that?”. If you do you will need to own the rights and the
works or have a licence that authorises you to take such action.
Some detective work may be needed to track down the author as the
work may be anonymous, have a number of authors or has been created
by someone unexpected. This process can be long and expensive, but
it is essential for any business or individual looking to assert
copyright in a work.

Once you have established who owns the copyright and when they
created that work you can then determine how long copyright
protection in that work lasts. In the UK, the duration of copyright
protection varies but for literary, artistic, dramatic, musical
works the owner of the copyright will have these rights of the
author plus 70 years.

So, how do you go about proving that copyright exists? As we
have explained, in order for copyright to subsist, the work must be
recorded or fixed in some form. So a folk song held in the head of
a busker or the great idea for a novel that has been carefully
thought out but not written down will not be protected by copyright
until they are fixed in some form. Whether that’s lyrics or
melodies for the busker or some writing down for the novel.

Unlike some of the other intellectual property rights in the UK,
copyright arises automatically on creation of a work so there is no
registration process and there are no registration fees. Beware of
organisations that ask you to register or pay to protect your
copyright in the UK. However, please be mindful that the position
on registration varies from country to country, so do look into
local requirements when you are dealing outside of the UK. As there
is no registration process it is important to ensure that you keep
careful notes, drafts, sketches and records to evidence dates of
creation and any iterations of the work.

So, once you have a work with copyright in it, what does that
give you? The copyright owner has exclusive right to copy, publish,
perform, show and adapt the work in the UK. It can also license
that work to others, in some cases for royalty payments, and if you
have licensed your copyright, licensees, whether exclusive or
non-exclusive, can also sue third parties for infringement.

So, ownership of copyright gives you the right to sue for
infringement, but how can you tell if your copyright has been
infringed? Copyright has been 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.
So, 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 and legislation for different
works to what might qualify as a substantial part. It is also why
you often hear in news about estates of famous musicians suing
other musicians over only a few bars of music.

However, it is important to note that not all use by a third
party amounts to infringement. There are several exceptions in the
legislation, one of which is fair dealing – whereby using a work
that is copyright protected for certain activities is permitted.
Fair dealing includes things like research and private study and
there are exceptions for a criticism, review, parody and news
reporting.

So, what are the benefits of copyright and why should you care
about it? There are a number of benefits. First, as discussed,
there are no registration requirements in the UK. Copyright arises
automatically and you do not need to do anything to maintain the
rights that you have obtained. Compared to trade marks this is a
low burden; trade marks you must use them in order to obtain them
whereas copyright will just subsist.

In addition, because you do not register your copyright in the
UK you do not pay any registration fees or renewal fees – it
is free. Copyright also lasts much longer than other intellectual
property rights. Copyright and LDMA works last for life plus 70
years, this is notably longer than patent and design rights.

And copyright is a flexible right. Although there are a number
of statutory categories that set out what can be protected, these
lists are broad in scope. Copyright is usually the intellectual
property right that people look to rely on when dealing with new
developments in a particular area. First, such as websites and the
internet and now with AI.

So, what are the limits of copyright law? Copyright does not
grant you a monopoly. Third parties can create works that are
similar to pre-existing works, provided that the new work has not
been copied from an earlier work. So, it is possible for two
individuals to independently highly similar works and each
individual be considered the author of the copyright protected
work.

In addition, in order to prove infringement you need to show
that the work has been copied. This can be a difficult thing to
prove with a high threshold. You need to be able to show that the
alleged infringer has had access to the work, and if the works have
been kept hidden away or earlier versions were not publicly shared
then authors can struggle to show that they would have been
copied.

In addition, there is no protection of an idea. Copyright only
protects the expression of an idea. This means that a story
relating to an orphan boy who discovers he has magical powers will
not necessarily infringe J K Rowling’s copyright in Harry
Potter.

This concludes this podcast on the basics of copyright. Please
do get in touch with the Gowling WLG Intellectual Property team if
you have any queries about copyright.

Thank you very much for listening.

Thanks for joining Gowling WLG for this podcast. If you
enjoyed this episode please be sure to check out our website at
gowlingwlg.com for more useful insights and resources and don’t
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.