Copyright Comparative Guide

1 Legal framework

1.1 What legislative and regulatory provisions govern copyright in your jurisdiction?

The main rules governing copyright in the United Kingdom are contained in the Copyright Designs and Patents Act 1988 (CDPA). Since coming into force, it has been subject to numerous updates and amendments. Prior to Brexit in 2020, UK law was subject to EU directives harmonising copyright throughout the European Union. A significant amount of that EU legislation has been retained and incorporated into UK domestic law.

1.2 Is there common law protection for copyright in your jurisdiction?

Copyright protection in the United Kingdom is governed by statute, principally the CDPA. There is no common law copyright (or right of first publication) remaining in the United Kingdom. However, as the United Kingdom is a common law jurisdiction, copyright jurisprudence is influenced by case law derived from decisions of the courts.

1.3 Do any special regimes apply to specific types of works or subject matter (eg, software; data and databases; digital works; indigenous works)?

UK law contains provisions that protect specific types of works outside of mainstream copyright (in other words, what are known as related or neighbouring rights). These include:

• a database sui generis right (databases, tables and compilations can also be protected as literary works);
• semiconductor topography design rights;
• digital information management and protection rights (software code and computer programs are also protected as literary works);
• a publication right (in works published for the first time after the expiry of copyright);
• a public lending right;
• an artist's resale right; and
• performers' rights.

1.4 Which bilateral or multilateral instruments or treaties with effect in your jurisdiction (if any) have relevance for copyright protection?

The United Kingdom is a signatory to the following international treaties and conventions:

• the Berne Convention for the Protection of Literary and Artistic Works;
• the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations;
• the World Intellectual Property Organization (WIPO) Performances and Phonograms Treaty;
• the WIPO Copyright Treaty;
• the Agreement on Trade-Related Aspects of Intellectual Property Rights;
• the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled; and
• the Beijing Treaty on Audiovisual Performances.

1.5 Which bodies are responsible for implementing and enforcing the copyright regime in your jurisdiction? What is their general approach in doing so?

The Intellectual Property Office (IPO) is the official UK government body responsible for IP rights, including patents, designs, trademarks and copyright.

IPO is an executive agency, sponsored by the Department for Science, Innovation and Technology.

2 Copyrightabilty

2.1 What types of works qualify for copyright protection in your jurisdiction?

Section 1 of the Copyright Designs and Patents Act 1988 (CDPA) states:

The United Kingdom operates a 'closed list' system to qualify for copyright protection. In other words, a work needs to fit into the existing categories of copyrightable works for copyright to apply.

In the United Kingdom, the following are protected as copyright works:

• original works (known as 'authorial works'), such as books, plays and songs; and
• the way in which original works are recorded or distributed (known as 'entrepreneurial works'), such as recordings of music and broadcasts.

This is in contrast to certain other jurisdictions, which operate an authors' right system in which entrepreneurial works are protected not as copyright works, but as neighbouring rights. In the United Kingdom, there is no requirement of originality for entrepreneurial works to qualify for copyright protection.

Nevertheless, the range of works afforded copyright protection in the United Kingdom is broad.

Literary works include books, journals and so on, but also spoken words such as speeches (if they meet the requirements of originality, qualification, fixation, etc).

Dramatic works include screenplays and scripts and other works that are "capable of performance". A film can also qualify as a dramatic work in itself, as well as a recording of a dramatic work.

Musical works in the United Kingdom consist of music alone – any accompanying words in a song, for example, will have a separate copyright as a literary work.

Artistic works cover a very wide range of works, including:

• paintings, photographs and sculptures;
• utilitarian graphic works such as maps, charts and plans;
• works of architecture and architectural models; and
• works of artistic craftsmanship, which have been held to include items such as pottery and ceramics, among other things.

Works in Section 1(b) can include derivative works – such as the recording of a symphony – but also the recording of non-derivative works, such as the recording of birdsong.

Finally, Section 1(c) covers the typographical layout of a published edition of a work or part of a work. However, whatever the content of the published edition, it is protected as a whole, rather than line by line.

2.2 What are the requirements for copyrightability?

In addition to being a work that falls within one of the categories stated in question 2.1, there are three further requirements that apply for a work to be eligible for copyright protection in the United Kingdom.

Originality: Literary, dramatic musical and artistic works must be original. 'Originality' has traditionally been defined in UK law as the "skill, labour and judgement" expended by the author on the creation of the work. During the United Kingdom's membership of the European Union, its copyright law was influenced by jurisprudence of the Court of Justice of the European Union (CJEU) (the consequences of which were the subject of much debate). This led to the United Kingdom adopting the EU test of originality that a work had to be the product of the author's own intellectual creation. Following Brexit, this test has been assimilated into UK law; however, subsequent developments in EU jurisprudence are not binding on the UK courts and this may lead to divergence. See Lord Justice Arnold's remarks in THJ Systems v Sheridan [2023] EWCA Civ 1354 that the revised originality test set out by the CJEU in Cofmel to include the requirement that a work must be expressed in a form that makes it identifiable with sufficient precision and objectivity is now "more demanding" than the test in the United Kingdom. Central to these debates are the contrast between the closed list system in the United Kingdom and the open expression test in the European Union.

There is no requirement for sound recordings, audiovisual works, broadcasts or typographical works to be original in UK law.

Derivative works can meet the threshold of originality, even when they are based on infringing copies of the subject work

Databases are subject to a higher requirement of originality.

Fixation: UK law requires works to be fixed in material form to gain protection. Fixation can be in many forms, including:

• recording by writing; or
• recording by digital or analogue means.

Fixation need not be made by the author, or with their permission or even knowledge

Qualification: A work qualifies for copyright protection in the United Kingdom if either:

• the author is, at the time of the work's creation, either a UK citizen or resident in the United Kingdom; or
• the work is first published or, in respect of a broadcast, first broadcast in the United Kingdom.

Separately, UK law grants protection to works or authors who are covered by the reciprocal arrangements in the Berne Convention for the Protection of Literary and Artistic Works and other international treaties. Effectively, copyright applies to these works and authors to the same extent as is does to UK authors and works.

2.3 What types of works are ineligible for copyright protection in your jurisdiction?

To be protected by copyright in the United Kingdom, a work must:

• fit into one of the categories of work set out in question 2.1; and
• meet the other conditions for protection set out in question 2.2, as required.

Failing this, a work will not be protected by copyright. Traditionally in the United Kingdom, titles, names and common speech fail to gain protection for lack of originality.

In certain 19th and early 20th-century cases, works were denied protection on grounds of 'gross immorality'; however, the CDPA does not follow this line of jurisprudence. There is a general public policy defence available to a claim for infringement of copyright – but this amounts to refusing to enforce copyright on public policy grounds, rather than declaring the work ineligible for copyright.

3 Scope of protection

3.1 What legal rights are conferred by copyright in your jurisdiction?

The owner of copyright in a work has the following exclusive rights over the work (these are known as the acts restricted by copyright):

• to copy the work (the reproduction right);
• to issue copies of the work to the public (the distribution right);
• to rent or lend the work to the public (the rental and lending rights);
• to perform, show or play the work in public (the public performance right);
• to communicate the work to the public (the communication right); and
• to make an adaptation of the work or do any of the above in relation to an adaptation (the adaptation right).

Copyright in a work is infringed by any person that does, or authorises anyone to do, any of the restricted acts without the permission of the owner.

Performance of a work in public includes:

• 'live' performance – for example, a performance of a play at a theatre or a stadium concert;
• the delivery of lectures, speeches and sermons; and
• 'non-live' performance to the public of sound or audiovisual recordings or broadcasts – for example, showing a film in a cinema or playing the radio in a bar.

Rental of a work involves making a work available for a limited period for financial gain. Lending covers making the work available to the public for a limited period not for financial gain. In the United Kingdom, this right is broadly covered by the public lending right.

Communicating the work to the public includes broadcasting the work and making the work available online (eg, through websites, social media or content streamers) (the making available right).

3.2 Are there special rules that limit the scope of protection for works that are useful/utilitarian/functional in your jurisdiction?

In general terms, IP laws in the United Kingdom separate the subject matter protected into the different regimes:

• Inventions are protected as patents;
• Commercial signs are protected as trademarks; and
• Cultural works are protected by copyright.

However, there are overlaps and grey areas.

Design rights: UK copyright law features a form of artistic work known as a work of artistic craftsmanship (WOAC). This term is not defined in the Copyright Designs and Patents Act (CDPA), so it has been left to the courts to interpret its meaning. The following categories of artistic works are explicitly stated to be protected "irrespective of artistic quality":

• graphic works – that is, paintings, drawings, diagrams, maps, charts or plans, engravings, etchings, lithographs, woodcuts and similar works;
• photographs;
• sculptures; and
• collages.

However, courts have repeatedly held that WOACs must have some aesthetic appeal or effect. Following the decision of the Court of Justice of the European Union (CJEU) in Cofmel – which is not binding on the United Kingdom post Brexit – UK copyright law has arguably departed from the European Union in that UK law imposes conditions on the eligibility for copyright protection outside of those set out in that case. In the UK, copyright can apply to any 'work' which:

• exists as an original object;
• is identifiable with sufficient precision and objectivity; and
• is the expression of intellectual creation – that is, the author has expressed sufficient creative choice in creating the work.

Another CJEU decision, in Levola, has cast doubt on whether the United Kingdom's 'closed list' system of copyright protection is now compatible with the regime in the European Union, where there is no such restriction on the subject matter for protection – only a requirement that the work meet the cumulative test set out in Cofmel.

3.3 Are neighbouring rights protected in your jurisdiction? If so, please outline the applicable regime.

In line with (or exceeding) the provisions of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations and the World Intellectual Property Organization Performances and Phonograms Treaty, the rights of performers, the producers of phonograms (ie, sound recordings) and broadcasters are protected under UK law. Additionally, the United Kingdom recognises rights in published editions. However, like other common law jurisdictions, the United Kingdom protects certain works (eg, sound recordings and broadcasts) by copyright itself, rather than classifying it as a 'neighbouring right', as is the case in civil law jurisdictions.

As the rights of phonogram producers and broadcasters are classified as copyright in the United Kingdom, the applicable regime broadly covers the same rights as set out in question 3.1. There are certain differences – for example, sound recordings, films and broadcasts are not covered by the adaptation right.

'Performers' include:

• musicians;
• singers;
• actors;
• comedians;
• dancers; and
• circus performers.

Performers' rights also apply to a person that has recording rights in relation to a performance. The applicable regime provides twofold protection, encompassing:

• economic rights, including the right to:
• • make a direct or broadcast of recording of a live performance; and
  • record a live broadcast performance; and
• property rights, which are classified as both economic rights and property rights, and include:
• • the reproduction right;
  • the distribution right;
  • the rental and lending right; and
  • the making available right.
• Property rights can be assigned and transferred in the same way as copyright and infringement can be subject to legal action in the same way.

Performers are also granted the moral rights of integrity and paternity on the same lines as authors (see question 3.4).

3.4 Are moral rights protected in your jurisdiction? If so, please outline the applicable regime.

Moral rights were introduced into UK law for the first time by the CDPA. Prior to that, the United Kingdom considered that the provisions of common law or existing statutory law fulfilled the requirement to protect moral rights under the Berne Convention for the Protection of Literary and Artistic Works and elsewhere.

In the 1988 act, authors were granted

• the right of paternity (the right to be identified as the author of the work); and
• the right of integrity (the right to object to derogatory treatment of the work).

However, although these rights, as non-economic rights protecting the connection between the author and the work created by them, cannot be assigned or transferred away from the author, they can be waived in UK law. This includes a total blanket waiver of moral rights in a work. Other restrictions to the operation of moral rights in the United Kingdom also apply. Uniquely, the paternity right must be asserted by the author for it to be enforceable. Additionally, the rights apply only to commercial publication of a work.

The scheme of the CDPA also includes two other rights within the ambit of moral rights, although in fact, neither are actually moral rights of the author:

• the right not to be falsely identified as the author of a work (in fact, this a version of the tort of passing off); and
• the right to privacy of certain photographs and films – basically, this applies where a person has commissioned the photographs and films for private and domestic purposes (so in fact, it is more line with a privacy right).

These two moral rights apply to anyone, not just authors.

3.5 Are any blanket exceptions to copyright infringement (eg, fair use/dealing) or specific exceptions to copyright infringement (eg, backup copies, interoperability, right of repair) available in your jurisdiction? If so, under what conditions do they apply?

There are numerous exceptions to copyright infringement or permitted acts with copyright works within UK copyright law. Strictly speaking, these are not blanket exceptions, but fit within the three-step test set out in the Berne Convention (and now elsewhere) that requires exceptions to:

• be limited to certain special cases;
• not conflict with the normal exploitation of the work; and
• not unreasonably prejudice the legitimate interests of rights holders.

Many of the permitted acts apply in very specific situations, including:

• temporary copies made as an essential part of a technological process;
• incidental inclusion in an artistic work, sound recording or film;
• copies made for educational purposes;
• copies made by libraries and archives;
• copies made for the purposes of public administration (including use in parliamentary and judicial proceedings and the reporting of those proceedings);
• copies made for the purpose of assisting disabled persons to access to works for personal use;
• copies for the purpose of non-commercial data mining and textual analysis;
• back-up copies of computer programs;
• lawful use of databases; and
• articles made from a design document or model.

Many of the above permitted acts:

• apply only in certain specific circumstances; or
• are subject to conditions and qualifications.

It is important to check Chapter III of the CDPA.

Fair dealing exception: The most significant exception is the defence to copyright infringement provided by the fair dealing exception. This defence applies in circumstances where infringement of copyright has taken place and the infringer would be liable but for the fair dealing defence. Unlike the fair use defence, which applies under US copyright law, but in line with the United Kingdom's 'closed list' approach to copyright, the infringing use must fit within one of the categories of fair dealing use set out in the CDPA. These are:

• research (non-commercial) and private study;
• criticism or review;
• reporting of current events;
• quotation; or
• parody, caricature or pastiche.

'Fair dealing' is not defined in the CDPA; however, the defence first requires that the infringing use fall within one of the categories of fair dealing. For these purposes, the categories are interpreted liberally but cannot be extended beyond a certain point. For example, the criticism or review exception may cover the views expressed in a work as well as the style of the work, but must cover the content of the work itself, rather than, for example, using the work to criticise something else.

The assessment of whether the use is fair will then take into account:

• the amount of the work that has been used – the greater the amount taken, the less fair it is likely to be (although there is no set number of words or lines that can be used fairly – each case will depend on its own facts);
• the quality of the work that has been taken – taking the core of the work is less likely to be fair;
• whether the use was commercial;
• whether the use deprived the owner of a sale or otherwise competed with the original; and
• whether the original has been published or made available to the public – making an unpublished work public is less likely to be fair (see the recent case involving a previously unpublished letter sent by Meghan Markle to her father).

In respect of non-commercial research and private study, sufficient acknowledgement of the source must be given unless this is impossible for practical reasons. It is also possible for a third party (eg, a librarian) to make copies on behalf of an individual student, but not for a whole class.

For criticism, review or quotation:

• the work must have been made available to the public; and
• sufficient acknowledgement must have been given, unless this is practically impossible.

For news reporting, the work must be accompanied by sufficient acknowledgement; however, sound recordings, films and broadcasts are not required to meet this requirement where this would be impossible for practical reasons. Photographs are excluded from the fair dealing for news reporting provisions.

3.6 How are derivative works protected in your jurisdiction? Who is the owner of a derivative work?

Derivative works are protected as copyright in the United Kingdom by meeting the same requirements as other works. This means that derivative works can be both authorial (eg, the dramatisation of a novel) and entrepreneurial (eg, the filming of a screenplay). Following the general rules, the derivative authorial work would need to meet the requirement of originality, while the entrepreneurial work would not. Similarly, the first owner of any copyright is the same:

• for an authorial work, the author; and
• for an entrepreneurial work, the person that made the arrangements for production (and in the case of a film, the director).

It is in the nature of copyright to form layers – for example, when a song is played on the radio, there is:

• a copyright in:
• • the broadcast;
  • the recording;
  • the music; and
  • the lyrics; and
• rights in the performance.

Hence, modern media creates many different derivative works.

It follows that copyright can exist independently in two or more works which have been derived one from the other. For example, the transcript of a speech may not have sufficient originality to gain protection in its own right; but a painting derived from a photograph may be sufficiently altered not to be an infringing copy of the photo.

Unlike in the United States, a derivative work which is an infringing copy of another work can still be protected by copyright, despite its infringing status.

3.7 Can copyrightable works also be protected by other IP rights (eg, trademarks and designs) in your jurisdiction?

In general, the scheme of UK IP law is such as to separate the different areas of protection. However, overlaps do arise. For example, a business may have a logo which is an artistic work, but which is also protected as a trademark. However, the protection here is of two different orders:

• the trademark protecting the logo as used as a commercial indicator of the origin of the company's goods or services; and
• the copyright protecting the reproduction and other copyright uses without permission.

In terms of the overlap between design rights and copyright, there are provisions in place to keep these rights separate. For example, it is not an infringement of copyright in a design document to make an article based on that design. In other words, a design right will have to apply to afford protection, not copyright.

4 Duration, publication and renewal

4.1 When does copyright protection in a work begin and end in your jurisdiction? Are there any proactive maintenance or other requirements to benefit from a full term of protection?

In the United Kingdom, copyright protection begins immediately on the creation of a work that meets the conditions for copyright protection – in other words, on the creation of a work that meets the conditions of:

• originality (as required);
• fixation; and
• qualification.

No other formalities are required. The duration of copyright for works is currently as follows:

• Literary, dramatic, musical or artistic works: Seventy years from the end of the calendar year in which the author dies.
• Sound recordings: Fifty years from the end of the calendar year in which the recording was made; and if the recording is published or communicated to the public during that period, then 70 years from the end of the calendar year in which the publication or communication was made.
• Film: Seventy years from the end of the calendar year in which the last of the following persons dies:
• • the principal director;
  • the author of the screenplay;
  • the author of the dialogue; and
  • the composer of music specially created for the film
• Broadcasts: Fifty years from the end of the calendar year in which the broadcast was made
• Typographical arrangements: Twenty-five years from the end of the calendar year in which the arrangement was first published

The following considerations should be borne in mind:

• The duration of copyright literary, dramatic, musical and artistic works has been set at life of author plus 70 years post-mortem auctoris since 1996 and applies to works created since then and to the works of living authors on the introduction of the Copyright Designs and Patents Act (CDPA) on 1 August 1989.
• Different rules apply to photographs taken after 1 June 1957 but before 1 August 1989.
• Other rules and saving provisions apply in the case of:
• • works of unknown authorship (orphan works); and
  • works unpublished on the death of the author prior to the introduction of the CDPA.

The general effect of these rules is to provide any work that is disadvantaged by the CDPA provisions on duration of copyright the benefit of the longest period of copyright applied to it. These rules are complicated and specialist advice should be sought.

4.2 What is required for a work to be published in your jurisdiction?

No formalities are required for publication in the United Kingdom.

4.3 Can copyright protection be renewed or extended in your jurisdiction? If so, how?

The terms set for duration of copyright are fixed and there is no regime for extension or renewal (outside the application of certain exceptions to some works created prior to the introduction of the CDPA, mentioned in question 4.1).

5 Ownership

5.1 Who can qualify as the owner of a copyrighted work in your jurisdiction? Are there any provisions that deem an owner to be a person other than the author?

The following persons are deemed the first owners of copyright in the categories of work listed:

• Literary, dramatic, musical or artistic works: The author.
• Sound recordings: The producer.
• Films: The director and producer.
• Broadcast: The person making the broadcast.
• Typographic edition: The publisher.

In respect of employees who create work in the course of their employment, see question 5.4.

In UK law, in the case of a literary, dramatic, artistic or musical work that is 'computer generated', the author is the person by whom the arrangements necessary for the creation of the work are undertaken. In this respect, UK law is unusual, apparently recognising computer-generated works (eg, in contrast to the laws of the United States and the European Union, which require a human author). However, doubt has been cast on the efficacy and extent of this provision, given that it is limited to literary, dramatic, artistic or musical works, which require originality (ie, intellectual creation) to gain protection.

5.2 Is corporate, joint or collective ownership of copyrighted works recognised in your jurisdiction? If so, in what circumstances?

In the United Kingdom:

• corporations are permitted to own copyright;
• joint authorship of a work arises when two or more authors collaborate on the creation of a work and the contribution of each is not distinct from the other authors. A work of joint authorship is first owned by all the collaborating authors together; and
• co-authorship arises specifically where the author of a musical work and the author of a literary work collaborate on a work together. In other words, in this case the contribution of each is distinct. In this case, unlike under US law, each author is the owner of copyright in their separate contribution.

5.3 Can ownership of a copyrighted work be transferred in your jurisdiction? If so, how? Are any copyrights, moral rights, neighbouring or related rights inalienable? If so, how can such rights be dealt with (eg, exclusive licence, waivers)?

Ownership of copyright can be transferred in the United Kingdom:

• through formal assignment (the formality requires that the transfer be in writing and signed by the assignee); or
• if the formalities are not met, through equitable assignment.

Moral rights cannot be transferred but can be waived.

Neighbouring and related rights (eg, films and sound recordings) are considered copyright works in the United Kingdom and can be transferred by the same means as other copyright works. Where the rental right in a film is transferred, a right to equitable remuneration arises for the transferring rights holders which may not be assigned; however, under UK law, the amount of this remuneration will not be considered inequitable merely because it was paid by means of a single payment at the time the transfer was made.

5.4 Where a work is created by an employee, what are the rules regarding ownership? What measures can an employer take to secure its rights to intellectual property created under an employment relationship?

Where a work is created by an employee in the course of their employment, the employer is the first owner of the copyright in the work. The employee remains the author of the work (for purposes such as determining the duration of copyright) – this is in contrast to the 'work made for hire' provisions of US copyright law, where the employer is considered the author of a work created by an employee (additionally, the work made for hire extend to works created by non-employees when they are specially commissioned as part of a collective work, such as a film).

5.5 Where a work is created by a contractor, what are the rules regarding ownership? What measures can a hiring party take to secure its rights to intellectual property created under a contracting relationship?

Where a work is created by a contractor (ie, a person who is not an employee), they will be the first owner any copyright works created by them in the course of their engagement. In order to ensure that such works are owned by it, the hiring party will need to:

• include a valid assignment of copyright clause in the contract engaging the contractor; or
• sign a separate assignment of copyright agreement.

6 Registration

6.1 Is there a copyright registration system in your jurisdiction? If so, is registration mandatory?

There is no requirement to register copyright in the United Kingdom.

6.2 What are the advantages of registration?

N/A.

6.3 What legal presumptions, rights and entitlements are conferred by copyright registration?

N/A.

6.4 What are the formal, procedural and substantive requirements for registration?

N/A.

6.5 What fees does the governing body charge for registration? Do these vary depending on the type of work?

N/A.

6.6 Can copyright registration be refused? If so, on what grounds and what is the impact of refusal?

N/A.

6.7 If copyright registration is refused, can the applicant appeal? If so, how?

N/A.

6.8 Can the reviewing body's decision be appealed? If so, how?

N/A.

7 Enforcement and remedies

7.1 What constitutes copyright infringement in your jurisdiction?

Copyright in the United Kingdom is infringed when any of the acts restricted by copyright (ie, the legal rights set out in question 3.1) are done without the permission of the owner. Furthermore, irrespective of whether the use is direct or indirect (eg, used from another infringing use), infringement occurs when:

• either the whole or a substantial part of a work is used (except in the case of typographical arrangements); or
• a person authorises such use without the permission of the owner.

The question of whether a substantial part of a work has been taken is determined by the quality of what is taken, not the quantity of what is taken.

It is also irrelevant whether:

• the infringer knew that their use was infringing; or
• the use was conscious or unconscious.

7.2 Is secondary liability for copyright infringement recognised in your jurisdiction? If so, how is it incurred? Are safe harbours afforded to intermediaries or others? If so, what are the requirements for such safe harbours to apply?

In the United Kingdom, secondary infringement of copyright occurs when, without the owner's permission, any of the following occur:

• importing infringing copies;
• possessing or dealing with infringing copies;
• providing the means for making infringing copies;
• permitting the use of premises for infringing performance; or
• providing apparatus for infringing performance.

Additionally, the secondary infringer must have either:

• actually known that the copies were infringing; or
• had reason to believe that the copies were infringing (this could involve being directly or indirectly informed that the copies were infringing).

7.3 Is criminal enforcement of copyright law possible in your jurisdiction?

Yes, it is a criminal offence to make for sale, hire or import an infringing copy of a work without the permission of the owner, while knowing or having a reasonable belief that it is an infringing copy.

The criminal law relating to consumer protection from unfair trading, fraud, counterfeiting and money laundering may also cover dealings with copyright works.

7.4 What is the statute of limitations for copyright infringement?

The limitation period is six years from the act of infringement. The following points should be noted:

• Each act of infringement counts as a separate cause of action. Thus, in cases of continuing infringement, acts that took place within the six-year limitation period may be actionable, while those taking place longer ago will not be actionable.
• In cases of deliberate concealment, the period may be extended to run from the time when the rights holder knew or could reasonably have known of the infringement.

7.5 Who has standing to bring copyright claims?

Copyright claims may be brought by the following parties:

• the first owner of the copyright in a work;
• an assignee of the legal title in a work (ie, where the first or subsequent owner transfers their rights to another person under a legally binding assignment of copyright);
• an exclusive licensee of the copyright in a work (however, an exclusive licensee may not bring a claim against the owner of the copyright); or
• an equitable owner of copyright (ie, where legal and equitable title have been separated, such as in the case of a trust or where the transfer of legal title has failed through lack of formality). An equitable owner may sue and gain interim relief, but cannot gain final judgment unless the legal owner is joined to the proceedings.

7.6 What is the procedure for pursuing claims for copyright infringement, including usual timeframes for resolution? Are there any streamlined administrative procedures for handling disputes?

There is no specific pre-action protocol for copyright infringement claims, so potential claimants should follow the standard pre-action protocol as set out in the Civil Procedure Rules.

These rules set out actions including:

• writing a 'letter before action' to the alleged infringer setting out:
• • concise details of the claim;
  • the factual background;
  • a disclosure of documents request; and
  • the resolution sought – for example, ceasing the allegedly infringing activity or surrendering infringing copies – and the financial compensation sought;
• considering issues of proportionality in bringing the claim;
• considering options for alternative dispute resolution; and
• considering options for settlement.

The United Kingdom has a specialist IP Enterprise Court to hear small and medium-sized copyright claims:

• The Small Track is for claims up to a value of £10,000 and has a simplified procedure and a highly restricted costs regime.
• The Multi-Track covers claims with a value of up to £500,000 and has a streamlined procedure and a general costs limit of £50,000.

Larger claims are heard in the Chancery Division of the High Court. The timelines for resolution vary according to the complexity and value of the claim from a few months stretching into years.

7.7 What fees and costs are usually incurred in infringement actions?

Costs will include:

• legal advice and drafting;
• court costs;
• legal representation; and
• costs of experts.

7.8 What typical defences are available to a defendant in copyright litigation?

Defences may be split into the following broad areas:

• denying that copyright extends to the work allegedly infringed (eg, denying that the work is original or contending that copyright does not apply for some other reason);
• questioning the claimant's ownership of copyright in the work (eg, claiming that the work is in the public domain or the chain of title to the claimant is defective);
• denying that the defendant has had or could have had access to the claimant's work (ie, claiming that the works have separate sources and any similarity between them is coincidental);
• denying that the infringing activity has taken place (ie, arguing that the allegedly infringing work is not a substantial copy of the claimant's work); or
• relying on the fair dealing provisions or another form of exemption.

7.9 What civil and criminal remedies are available against copyright infringement in your jurisdiction? Are customs enforcement measures available to halt the import or export of infringing works?

Civil remedies include:

• interim injunctions;
• damages based on loss to the claimants;
• account of defendant's profit as a result of the infringement;
• a final injunction;
• an order for the delivery up of infringing copies;
• tracing orders; and
• award of legal costs.

Criminal remedies include:

• an unlimited fine;
• imprisonment for up to 10 years; and
• a confiscation order.

Custom enforcement measures are available.

7.10 Are damages available for copyright infringement? Are statutory damages available, and if so, in what ranges? What factors will the court consider in determining the quantum of damages?

Damages are available. There is no statutory damages regime in the United Kingdom.

7.11 What is the procedure for appealing a decision in copyright litigation?

There are two methods of appealing a decision. A litigant can:

• ask the trial judge for permission to appeal at the conclusion of the trial; or
• make an application to the relevant appeal court for permission to appeal.

7.12 Do any special enforcement regimes apply to specific types of works (eg, digital and online content) in your jurisdiction?

There are no specific enforcement regimes in the United Kingdom.

7.13 What measures can copyright owners take to help prevent infringement of their rights in your jurisdiction?

Prevention of infringement largely involves adopting prudent professional and commercial practices, such as the following:

• Ensure that record keeping is accurate and up to date, covering not just the identity of the works themselves but also who has access to them.
• When signing licences, ensure that:
• • the licence is competently drafted; and
  • the licensee has a sound commercial background.

Such measures will not only ensure that infringement is less likely but also make it easier to stop any infringement that does occur.

8 Licensing

8.1 What types of copyright licences are available in your jurisdiction?

The use of copyright licences is wide ranging and widespread in the United Kingdom. There are three broad types of express licences:

• exclusive licences, where the licensee has exclusive control of the rights licensed and the licensor is excluded from exercising any of the rights licensed;
• non-exclusive licences, where the licensor can exercise the rights licensed or issue additional licences; and
• sole licences, where the licensor can exercise the rights licensed in addition to the licensee, but cannot issue additional licences.

The rights licensed can be granted in very flexible ways. The flexibility includes:

• the rights licensed;
• the duration of the licence; and
• the territories covered by the licence.

8.2 What terms do licences typically include (both express and/or implied licences)?

Copyright licences vary widely in:

• length;
• complexity; and
• subject matter.

Agreements can be drafted in favour of the licensor, the licensee or neutrally.

Typical terms will include the following:

• grant of the licence;
• fees and royalties;
• moral rights;
• terms dealing with the licensee's use of the work licensed, such as:
• • development;
  • publicity;
  • credit;
  • marketing; and
  • merchandising;
• the obligations of the licensee;
• the obligations of the licensor;
• sublicensing and subcontracting;
• duration and termination;
• liability and indemnity;
• further assurance; and
• boilerplate clauses, such as:
• • waiver;
  • entire agreement;
  • variation;
  • severance;
  • third-party rights;
  • force majeure;
  • notices;
  • governing law; and
  • jurisdiction

8.3 Does your jurisdiction have collective management regimes for copyrights or other subject matter? If so, how does collective administration generally operate and who are the key players?

The United Kingdom has collective management organisations covering many areas of the creative industries, including music, books, scripts and artworks.

Key players include the following:

• the Authors Licensing and Collecting Society;
• PRS for Music – comprising the Performing Right Society and the Mechanical-Copyright Protection Society; and
• the Design & Artists Copyright Society.

8.4 Are compulsory licences recognised in your jurisdiction, including with respect to digital/online intermediaries? If so, what types are available and what are their key features?

Compulsory licences are used in strictly limited situations in the United Kingdom. There use has been further reduced since Brexit, as a result of which the cable retransmission right mandated by the EU Cable and Satellite Directive no longer has effect in UK law. As a result, when broadcasting from the United Kingdom into the European Economic Area, the country of origin principle no longer applies and broadcasters will need to clear copyright for every jurisdiction that receives the broadcast. However, the UK government has agreed to accept the country of origin principle when broadcasting into the United Kingdom.

8.5 Is there a formal system for establishing collective management tariffs? If so, please describe the framework for negotiating and establishing tariffs.

The Copyright Tribunal is mandated to establish these tariffs when no negotiated agreement can be reached.

8.6 Can or must copyright licences be officially recorded in your jurisdiction?

There is no mechanism for recording copyright licences in the United Kingdom.

8.7 Are there any specific requirements for the validity of a copyright licence in your jurisdiction? Are there any special provisions governing sub-licensing?

An exclusive licence of copyright must be signed in writing by the copyright owner. Otherwise, there are no specific requirements for copyright licences.

9 Protection of foreign copyright

9.1 Are foreign copyrighted works protected in your jurisdiction? If so, how and under what conditions (eg, rule of the shorter term)?

Foreign works are protected in the United Kingdom under the principle of reciprocity, as first established in the Berne Convention for the Protection of Literary and Artistic Works and later in the World Intellectual Property Organization Performances and Phonograms Treaty. In other words, the works of jurisdictions which adequately recognise copyright in UK works will receive the same protection in the United Kingdom as UK works.

In jurisdictions where copyright protection for UK works fails to be adequate, copyright protection of works from those jurisdictions can be curtailed in the United Kingdom.

9.2 What key concerns and considerations should be borne in mind by foreign copyright holders in seeking to protect their works in your jurisdiction?

Copyright protection in the United Kingdom is extensive and well regulated. There is a well-populated legal services industry that can offer specialist and industry-specific advice, drafting and representation for copyright owners. Foreign copyright holders should:

• bear in mind the importance of sound record keeping;
• ensure that agreements are drafted to include the UK jurisdiction; and
• monitor activity in the United Kingdom to ensure that any questionable use is picked up at an early stage of infringement.

10 Trends and predictions

10.1 How would you describe the current copyright landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

There are two significant areas of development, one UK specific and one affecting copyright worldwide.

In the United Kingdom, the impact of Brexit is still working its way through the copyright landscape and affecting areas such as cable retransmission rights, but also copyright fundamentals such as the meaning and test for originality. Arguably, recent decisions in the European Union have left the United Kingdom as an outlier. Jurisprudence and legislation in the European Union could, and probably will, continue to take the United Kingdom away from the principles of harmonisation of copyright that subsisted during the United Kingdom's membership of the European Union. The effects of this and the reactions to it from the UK government and courts remain to be seen.

The second area, which is common to jurisdictions worldwide, is the development of AI. Whether commercial text or data mining will receive an exemption from copyright infringement in the United Kingdom, the consequences and effects on copyright owners remain to be seen. Historically, the United Kingdom has been quick to allow the exploitation of copyright in areas of new technology, but much slower to put in place adequate mechanisms and controls to protect and reward authors and rights holders. Governments of all political persuasions have preferred to rely on the free market to provide solutions.

10.2 Have there been any recent legislative amendments or decisions involving copyright and generative AI, data or databases? If so, please summarise the current state of the law.

See question 10.1.

10.3 Have there been any recent developments involving intermediary safe harbour and liability in your jurisdiction?

No.

11 Tips and traps

11.1 What are your top tips for protecting copyrighted works in your jurisdiction and what potential sticking points would you highlight?

It is important to maintain sound record keeping and utilise competent drafting in order to ensure that copyright protection is effective in the United Kingdom.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.