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Peter James of Gardner Leader

Understanding copyright is vital for business owners – Gardner Leader

Copyright legislation exists to protect original ideas – and it’s important to understand how copyright works to avoid falling foul of the law, as Peter James of Gardner Leader explains.

The main legislation relating to copyright in the UK is the Copyright, Designs and Patents Act 1988.

In the UK, copyright is an unregistered right – so it arises automatically on the creation of an original work – unlike the registration systems for trademarks and patents.

It protects the expression of an idea, not the idea itself. A good example a number of years ago was a copyright infringement claim relating to the format of a game show. There was no copying of any material, trademarks etc, so copying the concept or idea was not an infringement of copyright.

Unlike patents, owning a copyright does not create a monopoly. If by chance, a third party creates a work which is identical or very similar to the copyright work, but without any conscious or sub-conscious copying, that work will not infringe the copyright in the first copyright work.

This is one reason why the courts are often busy with music copyright cases, where a tune or lyric may be similar to another, but it is claimed that they were created entirely independently.

Copyright has proved to be one of the most flexible of the IP rights – accommodating technological advancements over many years.

Copyright protects a range of works. These include original literary, dramatic, musical or artistic works, such as books, software, music downloads, paintings, photographs etc, as well as sound recordings, films and broadcasts.

What is needed to create copyright in a work?

The work must be original, it must be in some tangible form, it must still be within the permitted duration and it must qualify for copyright protection (which depends, broadly, on the nationality of the author or where the work was first published).

As regards ownership, the general rule is that the first owner of copyright will be the author.

An important exception to this rule relates to employees. If a work is created by an employee in the course of their employment (and there is no agreement to contradict the standard position), the work will belong to the employer.

There is a very common misconception regarding contractors and consultants. Simply because you commission a work does not mean you own the copyright in it. If you do not obtain an assignment from a contractor or consultant, the copyright in the work will remain with them.

It can then prove expensive if you need to obtain such an assignment later, if for example you are selling your business and the copyright in a key piece of software belongs to a consultant that you no longer have a relationship with. You may think things like this never happen – but unfortunately, they do!

How do you prove copyright ownership?

Because in the UK copyright is not subject to a registration system, this can be difficult. It is a good idea to retain and mark any development stages and the final version of your copyright work with a copyright legend – © Peter James [date] – but this is not absolute proof – it provides a presumption of copyright ownership, but that presumption can be overturned.

Duration

OK, so you have created a copyright work. How long does copyright last?

Copyright exists for a fixed period, usually the life of the author plus 70 years from the end of the calendar year of the author’s death.

For computer-generated works and sound recordings, copyright expires at the end of 50 years from when the copyright work was made.

Copyright can be infringed in a number of ways. Briefly, these are:

  • Copying it
  • Issuing copies of it to the public
  • Renting or lending the work to the public
  • Performing, showing or playing a copyright work in public
  • Communicating the work to the public
  • Making an adaptation of a copyright work or doing any of the acts listed above in relation to an adaptation

As regards copying, the test is qualitative, not quantitative, so for a book, it may not be necessary to show that a whole chapter was copied for there to be copyright infringement, if the page that was copied contained the key theory or message of the book.

There are some permitted acts such as copying for the purposes of criticism or review or parody, but these are quite limited in scope.

As for IP rights generally, the remedies for copyright infringement can be quite draconian, emphasising that they are to protect author creativity and should act as a deterrent to copying.

Peter James is a partner at Gardner Leader LLP and head of the commercial team https://www.gardner-leader.co.uk

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