A Christmas Carol by Charles Dickens was an immediate success when it was first published selling 6,000 copies. Yet, as mentioned in my blog Copyright Protection: How to manage copyright in an unregulated space Dickens made little money from it due to piracy. In Victorian times copyright laws only protected a work inside the country in which it was first produced and created. Therefore after ‘A Christmas Carol’ was published, copies started popping up abroad in America, produced by publishing houses very cheaply. They gave Dickens absolutely no financial benefit.
Copyright is an important right which underpins the economic benefits in many industries apart from publishing. So, it’s worth looking into what copyright covers.
Copyright protects a variety of ‘works’ (names and taglines are not protected by copyright but by trademarks), and the types of copyright works which a business might typically use include:
- books, brochures, letters and contracts
- music and sound recordings
- films and videos
- drawings, illustrations and photographs
- logos and packaging
- computer programs, databases and games.
A work does not need to be of a high quality to enjoy copyright protection. If I began to write a blog post and scribbled a page of notes, I would own the copyright in the notes even if the notes were in serious need of editing.Copyright protection arises automatically, meaning that, unlike patents, trademarks and designs, in the UK it is not necessary to register in order to secure copyright ownership. However, don’t let this lull you into a false sense of security.
One of the many myths about copyright, is that when you pay for a work, you own the copyright. This is not true. The contract terms commissioning the work govern whether you will have copyright. If there is no written contract, copyright will automatically arise in favour of the creator rather than in yours. The person paying for the work just has a licence to use it (and this licence is a lot narrower than the rights copyright ownership would give).
Default rules for copyright ownership
The question of copyright ownership depends in part on who creates it unless there is a specific written legal agreement discussing the matter.
One rule states that the creator of a work automatically becomes the ‘first owner’ of the copyright in the work, except where it is created by an employee. Even if there is no written agreement about copyright with an employee, under English law it is the employer who is the first owner of any work created by the employee in the ‘course of employment’.
An ‘employee’ means a member of staff on your payroll. Freelancers or self-employed contractors, whether permanent or occasional, are not your employees when it comes to copyright, so you would not own copyright in their work.
If you ask another business to produce work for you, be they a sole trader, partnership, company or educational establishment, you will only own copyright in that work if the written agreement between you says so.
This terms should be agreed before you commit to using someone for your project. Note that, in contract law, the time that you are legally bound to use someone’s services may be much earlier than you realise. If you are no longer free to walk away, then unless the other party is willing to give you copyright, you have no right to demand it. The moral is not to leave discussions about ownership of copyright till too late. Otherwise, you will not be entitled to claim copyright.
In practice, if you are having an important product developed, like a piece of software for your business, it’s crucial to address the rights in it before you are committed to using that developer. The easy-going willingness of IT developers to assign rights to you could well turn into resistance when it comes to actually signing on the dotted line. So, get it in writing at the outset rather than leaving it till the end of the project.
Bear in mind that if you don’t take steps to transfer ownership in the early days, when the rights have little value, once they do acquire value, other people may be unlikely to readily agree to transfer the rights over to you without further payment.
Rights of the copyright owner
Copyright is a property right, like many other IP rights. So, it can be sold, bought, given away or left to someone in a will. The copyright owner is the one entitled to ‘exploit’ the work, such as by copying parts of it and selling copies to the public.The rights exclusively enjoyed by a copyright owner include renting or licensing the work to others, broadcasting it, transmitting it over the Internet, adapting it into other languages, and so on.
As always, it’s easier to negotiate rights before you’ve engaged someone’s services than afterwards. The best policy is to write your requirements into the agreement when you commission a work such as a website. If the agreement doesn’t give you a full licence to use the work for all your intended purposes, you may later be charged a further fee for permissions to use it. For example, if you are having a professional photograph taken, agree with the photographer what uses you will be able to make of the photo in future. Is it just for your website and social networking sites? Or could you also use the photo if a journalist asked for your image to accompany a magazine article?
Copying a substantial part of a work
Many people mistakenly assume that you can copy someone’s work as long as you credit them as the author. If you take ‘a substantial part’ of a work, you will be infringing copyright in it. This is a trap for the unwary as, in some cases, even a very small part of a work may count as a substantial part of it. And it doesn’t make it acceptable if you acknowledge the author.
Note that you may sometimes copy a large proportion of a work without infringing copyright, because it may not be a substantial part of the text in question. This would apply if the material was fairly generic. On the other hand, copying a small fraction of the whole work can sometimes be enough to infringe copyright.
In one case, a judge had to decide whether a 20-second recording of a piece of music known as Colonel Bogey (the whole song lasted four minutes) infringed copyright. In finding that it did, he said:
This reproduction is clearly a substantial part of Colonel Bogey … Anyone hearing it would know that it was the march called Colonel Bogey, and though it may be that it was not very prolonged in its reproduction, it is clearly, in my view, a substantial, a vital, and an essential part which is there reproduced.
Unfortunately, there is no rule of thumb for determining what uses you may make of a copyright work. So take care and, if necessary, seek legal advice before borrowing from a copyright work, especially if it’s used for a commercial purpose, such as in a book you’re writing.
If you don’t have permission, and you don’t have a defence under the ‘fair dealing’ exceptions, you would infringe the owner’s copyright.
The fair dealing defence is available if you are using an image for the purposes of review and criticism (such as to report an event in the news), or if it’s purely for non-commercial research or private study. In limited circumstances, you may also be able to use work for parody or pastiche. Similarly, there is no copyright infringement if copyright work is incidentally included in an artistic work, sound recording, film or broadcast (so-called ‘passing shot’ use). However, what amounts to incidental use may be surprising. For example, if music is included in a work (e.g. playing on a radio included in a scene in a film) its inclusion cannot be said to be incidental.
It was not until 50 years after the publication of ‘A Christmas Carol’, that the Berne Convention was created to give authors copyright protection over their work abroad as well as in the country in which the work was created
Copyright covers so many aspects of business life that it is important to have an audit to understand where copyright ownership lies in existing works.That way you can decide which works you would like to own, and what steps you need to take. Otherwise, a dispute or other problems could arise which costs ten times more than if you looked into the matter in advance and sorted it all out.