Focus on Copyright

Most people will be familiar with the © symbol for copyright which can be found on all types of media from books and images to films and computer games. This article describes what copyright is and explores some aspects of this interesting area of intellectual property.

In the UK, copyright is governed by the Copyright, Designs and Patent Act of 1988 (CDPA) which begins by defining categories of ‘works’ for which copyright protection is available. The most recognisable of these are original literary, dramatic, musical or artistic works, sound recordings and films, but copyright also protects more esoteric works such as databases, computer programs and broadcasts. Importantly, there is no requirement that the work has any artistic merit – terrible books and songs have as much protection under the law as literary masterpieces and number-one hits! 

Unlike other types of intellectual property rights such as patents and trade marks, copyright is a right which does not need to be registered. This means that as soon as the work is created, copyright exists. However, in some jurisdictions, such as the USA and China, copyright can be registered, and there can be advantages in simplified enforcement that result from such registration. 

The CDPA refers to the ‘author’ of the work, a term which is used in a broad sense to include not just for example the author of a book but whoever is responsible for the creation of the work. A photographer is thus the ‘author’ of a photograph, and a songwriter the ‘author’ of a song for copyright purposes. Single creations may contain more than one copyright work and so have more than one author, for example, one author for the lyrics of a song, another author for the melody and yet another for the author of the recording. 

The first owner of the copyright in the work is the author, unless the work is created as part of the author’s employment, in which case the first owner is the employer. In common with all intellectual property rights, copyright may be sold or licensed or otherwise transferred by its owner.

The owner of a copyright has the legal right to prevent the unauthorised use of the relevant work, that is, to prevent copyright infringement. However, here again, copyright differs from other types of intellectual property rights. A finding of copyright infringement can only be made if it can be proven that the relevant work was actually copied. This is in contrast to say, patent infringement, where legal protection is provided irrespective of any act of copying or even knowledge of the patent. It is thus possible for copyright to validly exist for essentially identical works and for no infringement to occur. To take an example, if two tourists take a photograph of a landmark from the same location at the same time, each will enjoy copyright in their own photographs even though their images are identical. Each photograph was created independently and neither tourist copied the other’s work.

Although copyright does not have to be registered and there is no associated cost, it does have a defined duration, after which the relevant work is generally free to use. Copyright duration differs between the various categories of work and is most often determined with reference to the death of the author or the date of completion or availability of the work. In the UK, literary works, such as books, enjoy copyright protection for 70 years following the death of the author. Copyright protection for sound recordings, songs and the like lasts for 50 years from the date of creation of the work in the UK.  There is also some variation in terms of protection between jurisdictions.

Conceptually, copyright is simple in the sense that it exists to prevent unauthorised copying. In practice however, legal disputes concerning copyright are among the most complex of intellectual property cases. Often there are significant sums of money involved, for example in high profile cases where well-known musicians stand accused of copying the songs of others. Lengthy arguments as to what, if anything, was copied, by whom and when, are common. Copyright also impacts the more mundane too. The internet is awash with images, videos and other media which are all freely accessible. However, each will have an author, and thus a copyright owner and so it is important to recognise that free-accessibility does not mean that content found on the internet can be freely copied.

Our attorneys here at Mathisen & Macara can guide you through this intricate field of intellectual property, whether you have concerns over your own copyright works being used without authorisation, or if you wish to ensure that you and your teams do not inadvertently impinge upon copyright belonging to third parties.

Finally, in this festive season some of you may be looking forward to attending a pantomime, perhaps Peter Pan. While writing his timeless story, J M Barrie lived close to London’s famous childrens’ hospital, Great Ormond Street. He wanted to support their work and so arranged for all royalties from sales or performances of Peter Pan to be for the benefit of the hospital. The copyright in Peter Pan expired in 1987, 50 years after Barrie’s death, but the hospital continues to benefit. The CDPA 1988 contains a specific exemption for Peter Pan, effectively extending the copyright in perpetuity, under which royalties are still received by the hospital. Great Ormond Street hospital honour J M Barrie’s wish that the amount of money raised through Peter Pan royalties should not be made known, but his generous gift of his copyright has doubtless helped many sick children over the years.