19 September 2008

Copyright Overview

Copyright consists of two sets of rights, namely "economic rights" and "moral rights." Economic rights protect the value added by independent literary or artistic creation. They are exclusive rights to copy, publish, rent, lend, perform, communicate to the public or adapt a work in which copyright subsists ("copyright work"). They come into being automatically upon the creation of such a work. Moral rights protect the integrity of certain types of copyright work and the reputation of their authors.

Copyright Works
These include original artistic, dramatic, literary and musical works. They also include sound recordings, films, broadcast and typographical arrangements of published works.

There are two kinds of copyright infringement, namely primary infringement and secondary infringement. Primary infringement is direct infringement - doing or authorizing an act restricted to the owner of the copyright ("restricted act"). Secondary infringements are indirect - selling or dealing in unlicensed copies or otherwise facilitating a primary infringement. The big difference between the two is that a mental element, such as actual knowledge or reason to believe that copyright had been infringed in making the infringing copies, is required for liability for secondary infringement.

Scope of Protection
It is important to appreciate that copyright protects value added. Thus, it frequently happens that more than one copyright may subsist in a single product. For instance, in an anthology of poems separate copyrights subsist in each poem, commentary, illustration as well as the compilation and arrangement of the poems and the layout and preparation of the publication.

Source of Law
Copyright law in the UK is codified in the Copyright, Designs and Patents Act 1988. The Act has been modified several times by subsequent statutes and statutory instruments. The legislation is analysed elsewhere on this website. The Act as amended implements HM government's obligations under the Berne and Universal Copyright Conventions and TRIPs as well as under various EC directives.

A work does not have to be "copyrighted" or even registered for copyright to subsist in the UK. The right comes into being automatically on the creation of a copyright work. The only formality is that the creator of the work ("the author") has to be a "qualifying person", that is to say a national or resident of a state that provides reciprocal copyright protection to the works of British nationals either under the Berne or Universal Copyright Convention or some other agreement.

First Ownership of Copyright
The author is usually the first owner unless he made the work in the course of his employment in which case it will belong to his employer. Works made by the Queen or by her officers or servants in the course of their duties belongs to the Crown ("Crown copyright"). Special provisions apply to works made by or under the direction of the House of Lords or House of Commons ("Parliamentary copyright").

This varies according to the nature of the work and whether it was Crown or Parliamentary copyright. The term for literary, dramatic, musical and artistic works is the life of the author plus 70 years. The term for sound recordings is 50 years. In the case of films, the term is 70 years after the death of the principal director, author of the screenplay, author of the dialogue or composer of the film music whoever is the last to die. In the case of broadcasts it is 50 years. In that of typographical arrangements it is 25 years.  Crown copyright subsists for 125 years for most types of copyright work.

Assignments and Licences
Title to copyright can be transferred by assignment. Permitting things that would otherwise infringe copyright is known as licensing. Licences may be granted to a group of persons, to one person exclusively or to one person other than the licensor. Such licences are known respectively as non-exclusive, exclusive and sole licences.

Moral Rights
These are rights conferred on authors of most literary, dramatic, musical or artistic works and on directors of films. They include the right of paternity (that is to say, the right to be identified as author or director provided the right is asserted by a written instruments to that effect signed by the author or a statement in an assignment of copyright), the right of integrity (the right to object to derogatory treatment of a work) and the right against false attribution (the right not to have a literary, dramatic, musical or artistic work falsely attributed). Persons who commission photographs or films for domestic purposes are entitled to object to publication, exhibition or broadcasting of the work. Moral rights are discussed in detail elsewhere on this site.

Related Rights
These include database, unregistered design and publication rights and rights in performances, all of which are discussed elsewhere.

An action for the infringement of copyright, database right or design right must be brought in the Chancery Division of the High Court or any county court in England and Wales to which a Chancery District Registry is attached. Like any other dispute, there is no reason why the parties should not refer the issue to arbitration.
This article first appeared on the IP/OT Update website.