The first industry to copy words industrially was the printing industry. Soon a pattern developed; the entrepreneur secured a work from the author and organised its printing and sale. However the earliest entrepreneurs found that if the work had merit it was soon emulated and they were denied their profit. They turned to the crown for assistance and found a willing ear in the form of Mary Tudor. Mary I gave the Stationer Company a charter which allowed them exclusivity for publishing their books as well as the right to search out and destroy books which had been published in contravention to charter or proclamation. The Company soon organised a register of books. The right to make an entry on the registry was confined to the members of the Company. In 1694 the Charter, having been allowed to lapse, was refused renewal by Parliament. The stationers were forced to look at their trade and custom to protect their privilege and were left to claim “copy-right”. The first Copyright Act was passed in 1710.
1988 Copyright, Designs and Patents Act
Copyright exists in different types. Original, literary, dramatic, musical and artistic works are accorded copyright if the author has expended sufficient skill and judgment in the creation of the work. This copyright can last for the lifetime of the author plus 70 years.
Copyright in a film (if made after 1/7/1994 ) vests in the last survivor of either the producer, director, the screen play author or the author of the screen music, plus 70 years.
The copyrights in sound recordings, broadcast and typographical format do not necessarily need to be “original”. They generally last for 50 years (25 years in the case of typographies).
Originally British copyright required registration with the Stationers’ Company as a condition of first acquiring and later enforcing copyright in a published work. Since the adoption of the Berne Convention, no formality is required before a work can attract copyright beyond that the work must exist in some permanent form.
In order to prove infringement the Claimant must prove that the Defendant, directly or indirectly took the copied work from the copyright work. The owner must show a “causal” connection that one work is derived from another. Where there has been copying, the 1988 Act requires that a substantial part must have been copied. The Claimant must also prove that the Defendant has issued copies of the work to the public without licence or approval.
There is also copyright associated with “moral” and performance rights.
If the Claimant can prove that the Defendant has infringed copyright by commercially exploiting the work and the Defendant knew (or ought to have known) that the copies were infringements when they were made.
On the assumption that the Claimant can prove this the burden shifts to the Defendant to prove that he can bring himself within one of the exceptions to copyright. These are sometimes known by the misnomer ” the defences ” .
One of the most important exceptions to copyright is the “fair dealing” exception which is not clearly distinguished from the concept of “insubstantial” taking. However, included are the concepts of research or private study, reporting of current affairs, criticism or review. Beyond these exceptions there are many other “exceptions” to copyright too numerous to mention here. Call the experts at Brand Protect for further details.
An action for infringement gives rise to a range of civil remedies (damages, court orders, specific performance, delivery up of offending articles, destruction, account of profit etc.) and criminal remedies (if the action brought is of a criminal nature).
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