Copyright: what is it?

Copyright is a legal right that exists in most countries, which grants the creator of an original work exclusive rights to determine whether and under what conditions this original work may be used by others.  This right is usually time limited.

Copyright protects material, such as literature, art, music, sound recordings, films and broadcasts. These rights are all unregistered and come into existence as soon as the “work” is created.

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 (see the 1988 Copyright, Designs and Patents Act). Copyright in a film (if made after 1/7/1994) vests in the last survivor of either the producer, director, the screenplay 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). When a work becomes available for use without permission from the copyright owner, it is said to be “in the public domain”.

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, and beyond that the work must exist in some permanent form. We have included a page for games developers, as they often face copyright issues, and added a list of 10 steps designed to help games developers and people developing similar products.  In addition, here is a link to 3 FAQs on copyright; these have arisen from work we have undertaken with the greetings card industry.

Remedies for infringement of copyright

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.

To bring an action, the Claimant needs to be able to prove that the Defendant has infringed copyright by commercially exploiting the work, and that the Defendant knew (or ought to have known) that the copies were infringements when they were being made. On the assumption that the Claimant can prove this, the burden shifts to the Defendant to prove that he can bring himself /herself within one of the exceptions to copyright. These are sometimes known as “the defences”, (which is in practice a misnomer).

One of the most important exceptions to copyright is the “fair dealing” exception, and this is – in general – not clearly distinguished from the concept of “insubstantial” taking. Other exceptions include; research or private study, current affairs reporting, criticism or review. Beyond these there are many other “exceptions” to copyright, too numerous to mention here. Any such action for infringement gives rise to a range of civil remedies and criminal remedies. Civil remedies include, e.g. damages, court orders, specific performance, delivery-up of offending articles, destruction, account of profit etc., whereas criminal remedies are only appropriate if the action brought is of a criminal nature. For further details, please call the experts at Brand Protect.

The history of copyright

The first industry to copy words mechanically 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 that allowed them exclusivity for publishing their books as well as the right to search out and destroy books that 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.

The Brand Protect team has extensive expertise in copyright, please call them for a free initial conversation on how they may be able to help you.