THE Top Ten Most Commonly Asked Questions About Copyright

Question 1: What is copyright?

Copyright is an automatic legal right that protects original creative works by giving the creator exclusive control over how their work is utilised. That includes the exclusive right to copy the work, rent it out, publish it, allow others to use it, convey it to the public and adapt the work.

For example, an author of an original poem has the exclusive right to copy the poem, sell copies to the public, perform it in public, adapt it into a song and thus can prevent anyone else from using the poem in those ways without permission.

Specifically, copyright prevents the reproduction of the whole of the copyright work or any substantial part of it. What counts as a “substantial part” of a work is subject to a qualitative rather than a quantitative test. That means that if only a small part of a work has been copied, but that was the most original or interesting part of the work (for example the chorus in a much longer song), the author may still be able to invoke copyright to prevent its reproduction.

The copyright owner also benefits from “moral rights” such as:

1. The right to be identified as the author or director,
2. The right to object to derogatory treatment of the work, and
3. The right to privacy of certain photographs and films.

Question 2: What are the “works” protected by copyright?

Copyright subsists in the following types of works: original literary, dramatic, musical or artistic works, sound recordings, films or broadcasts, and the typographical arrangement of published editions. For works to be protected by copyright, they must be “original” and must be fixed (i.e. recorded) in a tangible form. For a work to qualify as “original”, it must be the “author’s own intellectual creation”. What is required is that the author was able to express their creative abilities in the production of the work by making free and creative choices so as to stamp the work created with their “personal touch”. It does not require a consideration of artistic merit. There is no copyright protection in work that has plainly been copied from another source, nor for works whose content is dictated by technical considerations, rules or other constraints that leave no room for creative freedom.

Works must be fixed in a tangible form because copyright protects the expression of ideas and cannot protect mere ideas themselves.

If more than one person has contributed to the creation of a work, and their contributions are inseverable, then all contributors will have joint ownership of the copyright. Where the contributions can be separately identified in the works, the contributors will each own the copyright in the severable aspects that they created.

Works do not need to be of high quality, or the product of intense labour, to be subject to copyright protection, so long as a minimal degree of human creativity has been involved in creating them.

Question 3: Do I have to apply for copyright?

No, copyright protection in the UK applies automatically from the moment that you fix your work of authorship in a tangible form. That could be by putting it on paper, recording it, taking a picture of it or filming it.

Question 4: How long does copyright protection last?

Usually, copyright protection expires at the end of the period of 70 years from the end of the calendar year in which the author dies. That is the case for written, dramatic, musical and artistic works for example.

That general rule can differ. For sound recordings, copyright expires at the end of the period of 50 years from the end of the calendar year in which the recording is made. Alternatively, if during that 50-year period, the recording is published or made available to the public, then copyright lasts for 70 years from the end of the calendar year in which it was first published.

For films, copyright generally expires at the end of the period of 70 years from the end of the calendar year in which the death occurs of the last to die of the following people: the principal director, the author of the screenplay, the author of the dialogue, or the composer of the music specially created for and used in the film.

With broadcasts, copyright expires at the end of the period of 50 years from the end of the calendar year in which the broadcast was made.

For the copyright in typographical arrangements of published editions, it expires at the end of the period of 25 years from the end of the calendar year in which the edition was first published.

Question 5: What does the copyright symbol © mean?

The copyright symbol is often used by authors who claim their works to be subject to copyright protection. It acts as information and a warning to others that the author claims copyright in the material it accompanies. There is no legal requirement to use the symbol and using it will not confer copyright where it does not already exist, but the symbol can be a helpful deterrent if others are tempted to copy or exploit the work of the author. Equally, if an author fails to use the symbol, that does not affect the existence of copyright in their work as there is no legal requirement in the UK to employ the copyright symbol.

Although liability is imposed for copyright infringement regardless of the intention of the infringer, their knowledge or intention may influence any remedy awarded to the copyright owner. The judge will consider it in their assessment of the damages to be awarded in a copyright case, along with the flagrancy of the infringement and any benefit that the infringer took from the infringement. Thus, where infringement was knowingly committed, the copyright owner may be able to obtain a greater level of damages than if it had been unknowingly committed; that is a key benefit to using the copyright symbol.

Question 6: Does the nationality of the author affect copyright protection?

The nationality of the author will not usually affect copyright protection of works in the UK. For works originating from another jurisdiction, the UK has entered several copyright treaties such as the Berne Convention and trade agreements, like the EU-UK Trade and Co-operation Agreement, which bind the UK to recognise and protect copyrighted works from other countries.

The Copyright, Designs and Patents Act 1988 also provides that work qualifies for copyright protection if the author was, at the time it was created or first published, a “qualifying person” The following are “qualifying” persons:

1. British citizens, British Dependent Territories citizens, British Overseas citizens, British subjects or British protected persons within the meaning of the British Nationality Act or,
2. Individuals domiciled or resident in the UK or in the Channel Islands, the Isle of Man or Gibraltar or in a country to which the relevant provisions of Part I CDPA 1988 extend or,
3. Bodies incorporated under the law of a part of the UK or of the Channel Islands, the Isle of Man or Gibraltar or of a country to which the relevant provisions of Part I CDPA 1988 extend.

Orders may be made under section 159 CDPA 1988 to apply Part I CDPA to countries to which it does not presently extend. A work also qualifies for copyright protection if at the time the work was created or published, the author was a citizen or subject of, an individual domiciled or resident in, or a body incorporated under the law of, a country to which one such Order relates.

A literary, dramatic, musical or artistic work, a sound recording or film, or the typographical arrangement of a published edition, qualifies for copyright protection if it is first published in the UK, the Channel Islands, the Isle of Man or Gibraltar, or in a country to which the relevant provisions of Part I CDPA apply in virtue of Orders made under section 159 CDPA.

A broadcast qualifies for copyright protection if it is made from a place in the UK, the Channel Islands, the Isle of Man or Gibraltar, or a country to which Part I CDPA extends in virtue of section 159.

Question 7: Are there exceptions to copyright protection?

Yes, there are important exceptions to copyright protection. In very general terms, they are as follows:

1. Making of temporary copies which has no independent economic significance
2. Making of personal copies for private use
3. Research and private study which must be classified as “fair dealing”
4. Making of copies for text and data analysis for non-commercial research
5. Use in criticism, review, quotation and news reporting which must be classified as “fair dealing”
6. Use for caricature, parody or pastiche which must be classified as “fair dealing”
7. Incidental inclusion of copyright material
8. Disabled persons may make accessible copies of works for personal use
9. Accessible copies may be made, communicated, made available, distributed or lent by authorised bodies
10. Intermediate copies may be made, communicated, made available, distributed or lent to authorised bodies

For those exceptions above which must be characterised as “fair dealing”, the court will ask if a fair and reasonable person would have used the works in the same way. There is no statutory definition for “fair dealing”; to determine if use of copyright work qualifies as “fair dealing”, the court will consider a range of factors including:

1. Acknowledgement given to the original work or author
2. Whether the use of the copyright works was necessary to achieve the intended purpose of the person using them
3. Whether less of the copyright work could have been included to achieve the same end
4. Whether the use of the copyright work influences the market for that work.

These questions will be answered as a matter of fact and degree in each case.

Question 8: Can copyright be inherited?

Yes, copyright can be inherited once the author passes away, and the author can make provision for this in their will. This is why copyright is capable of lasting longer than the lifetime of the author.

Question 9: What happens when copyright expires?

Once copyright has expired, the author has no right to prevent others from using or commercially exploiting their work. It enters the public domain, and it stays there forever. Anyone can use, reproduce, distribute or adapt it.

Question 10: What should I do if I believe someone is infringing my copyright?

If you believe that someone is infringing your copyright, you should contact an IP specialist for legal advice. Ionic Legal is here to advise on any IP-related legal queries. Some of the standard remedies for copyright infringement include the grant of injunctions, damages, an account of profits and delivery up/ destruction of infringing works.

Please note, guide is intended give a broad overview of copyright. It is not legal advice. For specialist IP service from Ionic Legal, please instruct us so we can give full and tailored advice.