Protecting your copyright
Copyright is one of the most flexible intellectual property rights, as well as one of the oldest. As early as the sixth century, the King of Ireland ordered Saint Columba to deliver up a copy he had made of a borrowed manuscript to the manuscript’s owner: “As to the cow its calf, so to the book its copy.”
Today, orders for delivery up are often made in copyright infringement cases relating to pirated software, video games or printed fabrics, and copyright remains one of the most important rights a business can own or have the right to use.
What is copyright?
Copyright includes the rights to prevent others from copying, adapting or performing your works, and the right to control the first communication of your works to the public.
Copyright can subsist in a wide range of works, which the UK’s Copyright Designs and Patents Act 1988 groups into
- Literary, dramatic, musical or artistic works
- Sound recordings, films or broadcasts
- The typographical arrangement of published editions.
There are also “related rights” such as rights in performances.
Computer software is treated as a “literary work” for these purposes, whereas architectural works come under “artistic” works, as do “works of artistic craftsmanship” such as the Barcelona chair or the Philippe Starck lemon-squeezer. Video games are included within “films”.
If something can be recorded or “fixed” in any reproducible form, generally it is capable of being a copyright work.
To be protectable, a work has to be “original”. The bar for originality is set quite low; it is completely different from the requirements for “novelty” and “lack of obviousness” required for patent protection.
Copyright only protects the form in which a work is expressed, not the idea underlying it. For example, if you publish a recipe book, those recipes attract copyright, but someone making a lemon drizzle cake to your recipe is not infringing your rights. Furthermore, if someone is inspired by your lemon drizzle cake recipe to create their own and write it down, it is unlikely their recipe will infringe copyright in yours.
Copyright ownership and copyright protection
Copyright is not a registered right; it arises by operation of law as soon as a copyright work comes into existence. As the UK is a signatory to numerous international copyright conventions, works created by UK nationals enjoy the same protection in other signatory states as is given to nationals of those states. As a result, in practice copyright is the closest thing to a truly international intellectual property right which exists.
In most cases, the term of UK copyright is the life of the author plus 70 years from the end of the year in which the author died. Even where a specific type of work has a flat period of protection from the date of creation, without reference to the life of the author, such periods of protection are typically 70 years long or more.
There are complicated rules about anonymous works, works of joint authorship and works which do not have an identifiable human author.
These very long periods of protection mean that if a work has been created within the last century or so, it is very likely that someone owns copyright in it. The question often is, who?
In general, the first owner of copyright is the creator of the work. The principal exception is where works are created by employees working in the scope of their employment, in which case they will belong to the employer. This limited exception only applies to employees, so that if you engage third parties such as software developers, advertising agencies or website creators to develop copyright works on your behalf then you need to make sure that you do so on the terms of a written agreement which expressly assigns copyright to you and which warrants that there are no encumbrances over the work and it does not infringe anyone else’s copyright.
Because copyright arises by operation of law, it is impossible to check a register to see who owns copyright. People frequently use the copyright symbol © to assert copyright in specific works (for example, at the foot of website pages) but using it is not necessary and its absence should not be taken as an indication that the work in question is free to use.
In fields such as music licensing, collecting societies will act for groups of rights holders, requiring people who want to do things like play recorded music in a workplace to obtain a licence from them. Sums raised are then divided among the rights-holders whom they represent, without the individual business having to seek out and obtain individual permissions.
Copyright is infringed by doing one of the acts reserved to the copyright owner, without the owner’s permission or without another lawful reason. This includes copying the work in whole or in “substantial part”. Because running a computer program or reading an ebook involves the creation of transient copies, this means that the unauthorised downloading or sharing of digital media constitutes copyright infringement.
Other acts of infringement include making unauthorised adaptations or translations of copyright works, performing copyright works in public without the permission of the rights’ holder and selling or supplying infringing copies.
Copyright infringement cases can be brought in the High Court or the Intellectual Property Enterprise Court.
Questions of intellectual property infringement raise numerous technical issues, so any threat of infringement needs to be referred to a specialist copyright lawyer.
Contact a copyright lawyer
We offer a full service contentious and non-contentious copyright service, dealing with all aspects of copyright exploitation and enforcement.
Our lawyers are always happy to have a free initial chat. If you think you have a copyright issue, you can contact Roy Crozier or Susan Hall directly using the details given on their profile pages, or by calling 0800 652 8025.
A source says: ‘They have a very good level of IP knowledge and experience, and their office clearly has sufficiently deep resources to handle high-value High Court litigation’.
Chambers UK 2020
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Partner/Head of Intellectual Property
Roy Crozier is a Partner and Head of Clarke Willmott solicitors' Intellectual Property team specialising in both contentious and non-contentious IP law.View profile >
Partner/Head of Technology
Susan is a Partner in Clarke Willmott's Manchester Intellectual Property team specialising in Intellectual Property and Information and Communications Technology.View profile >
Senior Trade Mark Attorney
Kate is a Senior Trade Mark Attorney in Clarke Willmott’s Southampton Intellectual Property team and advises on the inherent registrability of trade marks, trade mark clearance searching, filing and prosecution of UK, EU and Madrid Protocol trade mark applications.View profile >