Author: Colleen Washington
Copyright in the UK reaches every aspect of life – the music you listen to on the way to work, the software on your computer or phone, the content and appearance of the apps you use, the newspaper you pick up for the train journey home, and the movie you watch in the evening! It is likely that they are all protected by copyright, which is an incredibly wide-ranging and useful Intellectual Property Right. However, it is also very easy to overlook copyright and to end up on the wrong end of an allegation of copyright infringement.
In this article, I explain the key points you need to know about copyright in the UK and answer some frequently asked copyright questions from our clients at Sonder & Clay.
What is copyright?
Copyright is an important Intellectual Property Right in the UK and gives a range of exclusive rights to the creators of original works including literary, dramatic, musical and artistic works and also sound recordings, films, broadcasts and the typographical arrangement of published editions. These rights are all set out in the Copyright, Designs and Patents Act 1988 and enable the copyright owner to control what happens to their copyright work and to prevent others taking unfair advantage of their hard work and expertise.
Why is copyright so important?
Copyright protection is of great importance to many of Sonder & Clay’s clients and we often receive enquiries relating to copyright protection, particularly from clients in the Tech or IT sectors or in creative industries. Below are some of the key reasons why copyright\ is so important.
- It is very wide-ranging
Copyright in the UK, protects a very wide range of original creative works, including written works like books and magazines, computer software and software apps, the appearance of webpages and graphical user interfaces, artistic works such as drawings, paintings, sculptures and ‘flat’ designs applied to wallpaper or fabrics, photographs, video clips and films, music and sound recordings, broadcasts…the list goes on.
- Copyright protection is automatic
Copyright subsists automatically in the UK, once a work is created and recorded in a permanent form, provided that certain qualifying criteria are met (which in practice they almost always are). There is no need for a copyright work to be registered in order to benefit from copyright protection. There are also long-standing international conventions which extend copyright protection for UK copyright works to most other commercially significant countries.
- Copyright can have a lengthy duration
Copyright can also last a very long time, although the precise length of copyright protection depends on a number of factors, including the type of work. For example, in the case of literary, dramatic, musical or artistic works, copyright in the UK generally lasts from the date when the work was recorded and does not expire until 70 complete calendar years have passed from the end of the calendar year in which the author of the work died. This means that many apps and other new software products (which are protected as literary works) will likely continue to enjoy copyright protection deep into the next century.
- Copyright gives the owner exclusive rights
The copyright owner has the exclusive right to do, and authorise others to do, certain acts in relation to their copyright work; these include (amongst other rights) the exclusive right to make copies the work, to issue copies of the work to the public and to put a protected work on to a website. It is an infringement of copyright in the UK to do any of those acts without the authorisation of the copyright owner. Importing, possessing in the course of a business and selling items which you know or have reason to believe are infringing copies is also unlawful. There are some exceptions which apply in limited circumstances, but these don’t arise very often. Note also that certain acts that amount to copyright infringement can also give rise to criminal liability on the part of the infringer.
6 copyright FAQs
Copyright can be complex and every situation will raise different issues. Copyright is relevant to many ordinary and everyday business activities and here are a few of the questions that commonly arise.
1. I paid for a design agency to create an illustration for me. Do I own the copyright in the illustration?
Generally, the author of a copyright work is the first owner of the copyright in that work, subject to any contractual provisions to the contrary.
This is why it is so important to enter into clear written contracts with third parties who create copyright works for you. Those written contracts with third parties, such as design agencies, marketing and PR consultants, and website developers, should contain express provisions that deal with ownership and use of the copyright (and any other intellectual property rights) in the work that they create for you. Typically, if you are asking a third party to create something original for you, you will want to own the copyright in that work, so you will want to ensure that the contract includes an assignment of the copyright (and any other intellectual property rights) in that work.
However, even if you did not enter into a written contract which deals with copyright ownership, all is not lost; in the absence of express contractual terms dealing with ownership, the law will usually imply terms that are necessary to give business efficacy to an agreement. However, this can result in a costly dispute about the precise scope of the rights that should be implied and it is always best to make the position clear in a written contract at the outset.
The position for employee creators is different; if an employee creates a literary, dramatic, musical or artistic work or a film in the course of their employment, the copyright in such works is generally owned by their employer, unless there is an agreement to the contrary.
2. I developed a website for a customer and I incorporated some of my pre-existing software into the development. What happens to my pre-existing software?
Computer software/code is protected as a copyright work in the UK. If you own pre-existing software, you should clearly deal with this in the development contract with your customer. You will want to ensure that you retain ownership of your pre-existing software/code, so that you can use it for other developments and customers. You might also want to consider whether you can negotiate retaining some of the rights in the developed software, at least on a royalty-free licence basis, so that you are able to use parts of the code that you have developed for other clients in non-competing fields.
3. I am an employee and I have made a copyright work in my own time, outside work. Who owns the copyright in that work?
As mentioned above, if an employee creates a literary, dramatic, musical or artistic work or a film in the course of their employment, the copyright is generally owned by their employer, unless there is an agreement to the contrary. Disputes often arise about precisely what falls within the scope of an employee’s ‘course of employment’ and therefore whether something created by the employee belongs to the employer or the employee. As an employee, if you don’t have an agreement with your employer dealing with ownership of your independent project, make sure that your employment contract is clear about what your role is and what you are engaged to do for your employer and be careful to ensure that your independent project does not fall within the scope of those employment duties. Also, make sure that you work on your independent project wholly outside work hours and that you do not use work computers, work software licences or other work-related information or materials or opportunities that you are only aware of through your employment.
4. Do I have to register my copyright work in the UK in order to have copyright protection?
No. Copyright subsists automatically once the work is recorded in a permanent form.
5. I only used part of someone else’s copyright work. Is that still an infringement of copyright?
Many people believe (wrongly) that they can avoid copyright infringement by copying just a part of someone else’s copyright work. In fact, copyright is infringed by doing a restricted act (such as copying) in relation to the whole or a substantial part of the copyright work. What amounts to a ‘substantial part’ of a copyright work is not determined by the quantity of the work taken, but rather by the quality of what is taken. What matters is the significance of the part that has been taken. Each situation will be different, but there is a risk of copyright infringement, even if you take just a part of someone else’s copyright work. There is an old adage in copyright law: if it is worth copying it is worth protecting.
6. I found a photograph on the internet and I want to use it on my website. Does copyright in the UK protect material that the copyright owner has put onto the internet?
Yes. Just because material is posted or available on the internet, or is otherwise widely available, does not mean that it can be copied and used freely. The photograph is likely to be protected by copyright and should not be copied without authorisation.
We specialise in copyright law
Our accomplished Chartered Trade Mark Attorneys and IP Solicitors provide guidance on all aspects of copyright law to maximise commercial value and protect creative works against copyright infringement. With our guidance, you can ensure creative assets are adequately protected to prevent others from taking them, commercialise your copyright by licensing it and add tangible value within your business.
Read more about our Copyright services, meet our team or get in touch to book a free consultation with us.