UK: UK Copyright Law

The purpose of the law of copyright universally, is to grant those who create, produce or author works the exclusive right to do certain acts in relation to their works. This bundle of rights is exclusive to them and others can only perform these acts with the copyright holder’s authority and consent or, of course, when copyright has expired. This exclusive bundle of rights, which is collectively known as "copyright", is a right in property, which is as valuable and palpable (even though copyright technically represents intangible or incorporeal property) as a piece of land (even though it is not real property) or a car!

Historically, copyright is the consequence of the Gutenburg press of four centuries ago and was utilised initially to protect printed matter but has been liberally amended over the last century to include films, sound recordings, photographs, broadcasts and cable programmes.

In so far as the UK Copyright, Designs and Patents Act 1988 (as amended) (‘CDPA’) is concerned, copyright is the exclusive right given to authors, composers, publishers, playwrights or distributors to exclusive publication, production, sale or distribution of original literary, dramatic, musical or artistic works. Any other person who does any of these acts in respect of a substantial portion of a work, whether directly or indirectly, without the consent, permission or licence of the copyright holder infringes copyright and is liable to damages, injunctions, account of profits and delivery up.

Traditionally, it is necessary, in order to get copyright protection, to reduce an idea to a material form or express it in such terms. As Peterson J said in London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601: ‘Copyright Acts are not concerned with the originality of ideas, but with expression of thought’. Indeed, section 3(2) of the CDPA implies this by providing that copyright ‘does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise’.

Thus, clearly, copyright protects expressions rather than ideas. So while an idea in a person’s mind, even if it is uttered to someone who does not do anymore than just hear it, is never copyrightable, it does become so when it is reduced into or expressed in some material form. So a story in your head, however rattling good a yarn it may be, cannot obtain copyright protection, even if you have told it to your children or grandchildren, until and unless it is put on "paper"! Thus, the spoken word, without more, is incompatible to the subsistence of copyright.

However, recently some have challenged this traditional view – which appears to have received continuous support from the courts over the centuries – by arguing that ‘the law ought to recognise the potential for copyright to subsist in any perceptible expression emanating from the intellect of a person and intended to appeal to the aesthetic sense or intellect of others, regardless of the expression’s materiality.’

Pursuant to section 1(1) of the CDPA, copyright subsists in:

• original literary work
• original dramatic work
• original musical work
• original artistic work
• sound recordings
• films
• broadcasts
• cable programmes
• the typographical arrangement of published editions

This means that the protection of copyright is extended to these nine categories authors’ and entrepreneurial works.

Literary Work means any work, other than a dramatic or musical work, which is written, spoken or sung and includes a table or compilation, computer program and preparatory design material for a computer program and database.

Dramatic Work means a work of dance or mime.

Musical Work means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music

Artistic Work includes a graphic work, photograph, sculpture or collage, irrespective of artistic quality; a work of architecture being a building or a model for a building; or a work of artistic workmanship

Sound Recording means a recording of sounds, from which the sound may be reproduced or a recording of a literary, dramatic or musical work from which sounds producing the work may be produced.

Film includes a recording on any medium from which a moving image may by any means be produced.

Broadcast includes a transmission by wireless telegraphy of visual images, sounds or other information which is capable of being lawfully received by members of the public or is transmitted for presentation to members of the public.

Cable Programmes include any item included in a cable programme service, i.e. a service which consists in sending visual images sounds or other information by means of a telecommunication system (excluding wireless telegraphy).

Published Edition means (in the context of copyright in the typographical arrangement of a published edition) a published edition of one or more literary, dramatic and musical works.

Literary, dramatic, musical or artistic work must be original for copyright to subsist in them. The term original is a term of art which has been explored and explained by the courts in many cases. It is clear that that word does not imply the existence of literary merit or novelty. It simply means that the work must emanate from the author as a consequence of the application his skill, taste, effort and judgement.

The exclusive right of a copyright owner to copy his work is infringed if anyone copies another’s work without the consent of the copyright owner. However, there is no infringement if the copying is not of a substantial part of the work. In other words the old de minimis rule applies. This rule derives from the rule that de minimis non curat lex, that is to say "the law does not concern itself with trivialities". By section 16(3) infringement must involve the whole or any substantial part of the work, thus enshrining the de minimis rule in the CDPA. As to what amounts to a substantial part of the work, the courts have tended to take a rather subjective view of it, relying more on the quality and not quantity of the copying.

There are two ways in which a work can qualify for copyright protection. First, by virtue of the nationality or residency of the creator of the work. So if the author of a work is either a British citizen or a resident of the UK, his work qualifies for copyright protection under the CDPA in the UK. Second, by virtue of the country of first publication. So if a book, for example, which is authored by anyone immaterial of his nationality or residency is first published in the UK. It receives copyright protection here. In respect of first publication a grace period of 30 days applies. This means that the work must be published in the UK or in another country to which the provisions apply (including the EC, the US and most Commonwealth country, including all other Berne Convention signatory countries) within 30 days of its first publication if this occurred in another country.

However, in respect of broadcasts or cable programmes to qualify for protection, the broadcast must have been made from the UK or in another country to which the provisions apply and cable programmes if it is sent from a place in UK or in another country to which the provisions apply.

The duration of copyright is quite extensive. In the case of copyright:

• in literary, dramatic, musical or artistic work, it lasts for the life of the author or creator plus 70 years. However, if the author cannot be identified then copyright runs for 70 years from the year the work was made or 70 years from the year the work was made available to the public.
• of sound recordings, copyright in them expires at the end of 50 years after the death of the last author or creator or from the time they are made available to the public.
• of a film, copyright lasts for 70 years after it was made available to the public
• of a broadcast, copyright lasts for 50 years from the time of the broadcast
• of a cable programme, copyright lasts for 50 years from the time when the programme was included in a cable programme service.
• of typographical arrangement of published editions, copyright expires after 25 years of the publication of the work

(a) First Ownership of Copyright

As a general rule, pursuant to section 11(1) of the CDPA, the author of a work is the first owner of any copyright in it. However, where a original literary, dramatic, musical or artistic work, or film, is made by an employee in the course of his employment, his employer is the first owner. Be that as it may, if there is an agreement to the contrary, the employee/author may still retain first ownership. Sometimes such an agreement need not be explicit but may be implied. For example, where it has been the practise that employees could publish their own works. Because of the potential uncertainty, employers are advised to clarify the position in formal written contracts of employment.

Besides establishing ownership, the identity of the author is important because in respect of original works, it is the death of the author that duration of copyright is calculated from.

(b) Works of Joint Authorship

Where a work is produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other or others, then all the authors become first owners equally. In the case of a film, it shall be treated as a work of joint authorship, unless the producer and director are one and the same. Where more than one person make a broadcast, all of them become joint authors.

(c) Prospective Owners of Copyright

Where an independent contractor, under a contract for services (as opposed to a contract of service, which means an employment contract) – for example a self-employed freelance consultant - is commissioned to create a work (say a portrait or a software program), he becomes the prospective owner of the copyright. It is, therefore, wise in these circumstances to get that person to make an assignment of the "future copyright" (i.e. copyright which will or may come into being in respect of the future work) in the work (even before it has begun) to you, given that you commission and pay for his services. Such an assignment must be in writing and signed by the prospective owner and yourself. By doing so, when the work is created the copyright in it is automatically transferred to you pursuant to section 91.

Under section 16, the owner of the copyright in a work has the exclusive right to carry out the following acts in the UK:

• to copy the work
• to issue copies of the work to the public
• to perform, show or play the work in the public
• to broadcast the work
• to include it in a cable programme service
• to make an adaptation of the work or do any of the above in relation to an adaptation

Because the UK is a signatory to the Berne Convention, the same rights are available on a reciprocal basis in all contracting states. Note, however, that contracting states need not necessarily grant exactly the same rights as those in the UK in their respect national legislation.

Whenever any person without the permission or licence of the copyright holder does or authorises others to do any of the acts which only the copyright owner as his exclusive right can do, he is guilty of infringing the owner’s copyright. These include under section 16(1):

• copying the work
• issuing copies of the work to the public
• renting or lending the work to the public
• performing, showing or playing the work in public
• broadcasting the work
• including it in a cable service
• making an adaptation of the work

Infringement may be direct or indirect and must involve the whole or a substantial part of the work.

If the following acts are done in relation to copyright works, there is no infringement under Chapter III of the CDPA and in that sense acts as defences. These situations are as follows:

• Section 29: Research and private study

Fair dealing with a literary, dramatic, musical or artistic work for the purposes of research or private study does not infringe any copyright on the work or in any case of a published edition in typographical arrangement

• Section 30: Criticism, review and news reporting

Fair dealing with a work for the purposes of criticism or review of that or another work or of a performance of a work does not infringe any copyright in the work provided that it is accompanies by sufficient acknowledgement.

• Section 31: Incidental inclusion of copyrighted material

Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film, broadcast or cable programme. Nor is it infringed by the issue to the public of copies or the playing, showing, broadcasting or inclusion in a cable programme service of anything whose making was not infringement of copyright. However, a musical work, words spoken or sung with music or so much of sound recording, broadcast or cable programme as includes a musical work or such words are not regarded as incidentally included in another work if it is deliberately included.

Sections 22 to 26 contemplate secondary infringements of copyright which arise when a person, without the licence of the copyright holder, imports into the UK for commercial purposes articles he knows or ought to know are infringing copies of the work. Anyone who possesses or deals in such articles is also liable. In other words piracy. This extends to providing premises or apparatus for infringing performances and providing the means for making infringing copies. Some of these acts are criminal offences.

Under section 96 of the CDPA remedies for copyright infringement are specified as:

• Damages
• Injunctions
• Accounts of profit; or
• Otherwise as is available in respect of infringement of any other property right

Pursuant to section 97(1), however, damages are not available if, at the time of the infringement, the defendant did not know, and had no reason to believe, that copyright subsisted in the work. Additional damages may also be available in exceptional circumstances, considering the flagrancy of the infringement and the benefit accruing by reason of the infringement to the defendant. Finally, orders for delivery up are provided for by virtue of section 98.

Certain criminal offences have also been created under section 107. These include:

• for making for sale or hire in the course of business infringing articles
• for importing in the course of business infringing articles
• for possessing infringing articles in the course of business with a view to committing any act infringing copyright
• for selling, hiring, exposing for sale or hire, exhibiting in public or distributing infringing articles
• for distributing not in the course of business but with a view to prejudice the copyright owner
• for making articles designed or adapted for making copies of a particular copyright work
• for having articles in possession knowing that the articles are to be used to making infringing copies for sale or hire or for use in the course of business

Typically punishment upon summary conviction is imprisonment for a term not exceed 6 months or a fine; and on conviction on indictment a fine or imprisonment for a term not exceeding 2 years.

Contrary to popular belief, you do not need to register copyright and indeed there is no official public register but you can always register with the privately operated "UK Copyright Service" for a small fee.