Copyright

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Contents

Introduction

The law of copyright protects the work of creative individuals. In the UK, and the rest of the EC, it lasts for 70 years from the end of the year in which the creator dies. Computer programs are often protected by copyright, and so (less often) are databases.

Copyright law also protects neighbouring rights - the rights of businesses which exploit the creative works of others, including publishers, record companies, and broadcasters, though for a shorter period (50 years). Importantly, the scope of copyright includes computer programs. The ownership of copyright gives the exclusive right to do certain things to the copyright material, enabling the owner to exploit the material. These rights are sometimes called economic rights, to distinguish them from moral rights.

Moral rights are notionally inalienable rights given to creators of copyright works to protect their reputation. They exist alongside the traditional economic rights.

Crown copyright subsists in works made by Her Majesty or an officer or servant of the Crown in the course of their duties. Crown copyright belongs to Her Majesty. Crown copyright lasts for 125 years from when the work is made, or for 50 years after publication if this expires earlier. The copyright legislation also creates Parliamentary copyright.

The Copyright Bargain

Copyright law is based on the idea that protection for fruits of creative endeavour encourages further creativity. However, in addition to creative individuals, English copyright law since the first Copyright Act in 1709 has always protected the entrepreneurs - initially, printers, and more recently record companies, broadcasters and cable operators - who commercialise the creations of writers, artists and others.

In civil law systems, where the law of copyright is modelled on the French system, copyright is regarded as an especially sacrosanct form of property, an author’s work amounting to an extension of his or her personality. This has led to an emphasis on what have become known as moral rights, which have now (via the Berne Convention) become part of our law. In those systems, the rights created by the commercialisation of copyright works – rights in sound recordings, broadcasts and the like – are referred to as neighbouring or related rights, to distinguish them from authors’ rights (droit d’auteur, urheberrecht).

Subject matter

Copyright is a property right which comes into existence automatically and which protects:

- original literary, dramatic, musical and artistic works:

- sound recordings, films and broadcasts (derivative works which are protected by “neighbouring rights” and which normally belong to entrepreneurs);

- the typographical arrangement of published editions (another type of “neighbouring right”)

(Copyright, Designs and Patents Act 1988, Section 1(1)).

Original literary, dramatic and musical works (Section 3)

Literary works and dramatic works include not only books, pamphlets, plays and articles but virtually anything else which is written, spoken or sung. University of London Press v London Tutorial Press (1916). A single word is not substantial enough to constitute an original literary work: Exxon Corp v Exxon insurance Brokers (1982).

Computer programs and preparatory design material for them are types of literary works, and so are tables and compilations such as railway timetables, football fixture lists (Ladbroke (Football) v Wm Hill (1964)) and trade directories, though since the originality in a compilation lies in the selection and arrangement of the material which it includes (and which may or may not be protected in its own right) the scope of protection is narrow. Databases - electronic or otherwise - are a special case by virtue of the Copyright and Rights in Databases Regulations 1998 (SI no 3023), which requires that to attract copyright protection a database be its author’s own intellectual creation.

Dramatic works include works of dance or mime.

Musical works do not include any accompanying words or action. Operas therefore combine musical, dramatic and literary works. There is no requirement that the work is published: even private correspondence is protected. But it must be recorded in writing or otherwise for copyright to come into existence (Section 3(2)) although the author’s consent is not required for this purpose. If someone other than the author makes the recording they may own rights in the recording independent of the author’s rights in the work.

Original artistic works (Section 4)

Artistic works include graphic works (paintings, drawings, diagrams, maps, charts and plans; engravings, etchings, lithographs, woodcuts and similar works) photographs, sculptures and collages. Protection applies irrespective of artistic quality, which sounds strange but is designed to avoid judges have to act as arbiters of artistic value. The Act does not elaborate on the meanings of the various categories of graphic works, but the Court of Appeal has held that make-up, however distinctive, is not a painting: see Merchandising Corp of America v Harpbond (1983) - the Adam Ant case.

Design drawings for typefaces and industrial designs are included although what constitutes an infringement of them is limited: see infringement of copyright in designs.

Works of architecture - either buildings or models of buildings - are artistic works too. Architects’ drawings are within the definition of graphic works. The rubric "irrespective of artistic quality" does not apply to buildings and models of buildings, which must therefore have some such quality whereas the drawings which preceded them do not.

Also included are works of artistic craftsmanship, a category of doubtful scope but which clearly includes matters such as pottery and wood carvings. In Hensher v Restawile (1976) the House of Lords failed to settle on a definition of a work of artistic craftsmanship while agreeing that the prototype furniture in suit was definitely not included. In Merlet v Mothercare (1984) a waterproof cape created by the plaintiff purely to protect a baby from the elements was not artistic (though it involved craftsmanship). The plaintiff had not set out to create a work of art.

Sound Recordings and Films (Sections 5 and 6)

Any recording of sounds from which the sounds may be reproduced is capable of protection. The medium on which the recording is made or the methods by which the sounds may be reproduced is immaterial.

Copyright in a sound recording exists completely independently of copyright in whatever the recording is of. So the recording of a piece of music will embody rights belonging to the composer and rights belonging to the record company, and if the piece of music is vocal the author of the lyrics will have a separate right in it too. A recording in any medium from which a moving image may be produced by any means is a film. Video tapes are therefore included, as may be computer programs.

Broadcasts

Broadcasts are only protected if members of the public can lawfully receive them, and they have been transmitted for presentation to the public. The public which can receive the broadcast may be in any country of the world.

If a broadcast is transmitted in encrypted form, members of the public would only be able to receive it lawfully if they had the requisite de-coding equipment. This does not stop it qualifying for copyright protection.

Sound recordings and films do not have to be original but insofar as they are copies of previous sound recordings or films they get no new copyright.

A broadcast is not eligible for protection if it infringes copyright in another broadcast or a cable programme. Internet transmissions are in principle within the scope of the definition. However, they are excluded unless they are simultaneous transmissions of material being broadcast elsewhere.

Conditions for protection

The requirement that a literary, dramatic, musical or artistic work must be original does not go so far as to require novelty. It simply means that the work must be the author’s original work, not copied either from someone else’s or from an earlier work (Interlego v Tyco Industries (1988)). The requisite originality is originality of expression, not of thought, and that must originate from the author. See the University of London Press case. A translation may be an original literary work independently of the work from which it was translated: Byrne v Statist (1914).

If two people independently produce identical works, each work will be protected by copyright.

Copyright does not subsist in a literary, dramatic or musical work until it is recorded in some medium, in writing or otherwise (section 3(2)). The recording may be made by the author or by anyone else, not necessarily with the author’s consent. A reporter may have copyright in the report they write of a speech, independent of the rights of the person who made the speech: Walter v Lane (1900). A record of spoken words, made for reporting or broadcasting purposes, may be freely used subject to conditions set out in section 58.


Duration

Literary, Dramatic, Musical and Artistic Works

Copyright in literary, dramatic, musical and artistic works expires at the end of the seventieth year after the year in which the author died (Section 12(1)). There are, however, some exceptions to this rule.

First, where an artistic work has been commercially exploited with the permission of the copyright owner the term of protection is reduced. This will happen if articles which are copies of the work have been marketed, and copyright will expire 25 years after first marketing.

Secondly, typeface design (though a type of artistic work in the UK) is outside the system created by the international copyright conventions, being the subject of a convention all of its own (the Vienna Agreement). The maximum term of protection for a typeface in the UK is 25 years after the year in which articles specially designed or adapted for producing material in that typeface were first marketed.

Anonymous works receive protection for 70 years from the end of the year when they were first made available to the public with the authority of the copyright owner. Pseudonymous works are protected in the same way. If during that period of protection it becomes possible to identify the author, the ordinary rules will apply (Section 12(2)). If a work was created before 1 January 1969 and remained unpublished on 1 August 1989, and the identity of the author does not become known before 31 December 2039, copyright will expire on that date provided that it has not been made available to the public before 1 January 2040, or were made available to the public (but not published) before 1 January 1969. See Sch 1 para 12(3)(b) and SI 1995/3297, reg 15.

Where two or more authors create the same work together, and their contributions are not capable of being distinguished, protection will run for 70 years from the end of the year in which the last of the authors dies (Section 12(4)). The rules for Crown copyright are different.

Note: Copyrights always expire at 12 midnight on 31 December. This makes it unnecessary to know exactly when the author died, unless it was at a New Year’s Eve party.

Neighbouring rights

Copyright in sound recordings and films lasts for fifty years from the end of the year in which the work was made. If the work is released to the public before the end of that period the period of protection is 50 years from the end of the year of release. The expression “release” includes broadcasting and inclusion in a cable programme, and public performance of a film (Section 13). Copyright in a broadcast or cable programme expires at the end of 50 years from the end of the year in which it was made (Section 14).

Copyright in a typographical arrangement (a different matter from typeface design) expires at the end of the 25th year after the year in which the edition incorporating the arrangement was first published (Section 15). The 1988 Act makes special provision for computer generated literary, dramatic, musical and artistic works. These are works where there is no identifiable human author. Where this is the case, copyright expires at the end of 50 years after the year in which the work was made.

Exclusive rights and infringements

See Exclusive rights

The owner of copyright in a work has the exclusive right to do a number of restricted acts (Section 16). The right extends to authorising others to do the acts. The advent of digital technology and the use of the Internet to communicate material, much of it protected by copyright, poses significant difficulties for copyright laws, in particular with new types of infringements becoming problems, and the EC directive on certain aspects of copyright in the information society (which has to be implemented in the Member States by December 2002) makes important changes to the restricted acts. See also moral rights. The copyright owner has the exclusive right to do, or permit others to do, certain acts. To distinguish these from the moral rights, they are sometimes called economic rights. They are:

- Copying the work

- Issuing copies to the public

- Rental and lending right

- Performing, showing or playing in public

- Communicating the work to the public

- Adapting the work:

- Translations

- Strip cartoons

- Doing restricted act to an adaptation

Not all of these restricted acts are applicable to all categories of copyright work (for example, an artistic work could not be performed in public, and a musical work could not be shown). However, copying a work is covered by the copyright in works of every description (Section 17).

Copying see Reproduction

For literary, dramatic, musical or artistic works, copying means reproducing the work in a material form. It may be handwritten, typed, printed, photocopied, or recorded, or stored in any medium by electronic means (Section 17(2)).

Copying an artistic work also includes making a copy in three dimensions of a two dimensional work, or vice versa (section 17(3)), but if the original is a design document (something which depends on the intention of the author when the artistic work was created) copyright is only infringed if the three-dimensional object is itself and artistic work.

Making a photograph of the whole or any substantial part of an image forming part of a film, broadcast or cable programme amounts to copying it (Section 17(4)).

The typographical arrangement of a published edition is copied if a facsimile copy is made of it (Section 17(5)). This makes the rights given to publishers rather “thin”.

Copies which are transient or incidental to some other use of a work (especially computer programs, but now including all manner of works that are disseminated by computer) are still copies (Section 17(6)).

Publishing see Publishing

Copyright in every description of work also covers issuing copies of a work to the public (Section 18(1). This refers to putting into circulation copies not previously put into circulation (In the UK or elsewhere). It does not refer to any subsequent distribution, sale, hiring, loan or importation into the UK if those copies.

This does not, however, apply where the work is a computer program. In that case, it refers to putting into circulation copies of the program which have not previously been put into circulation in the EC by or with the consent of the copyright owner. It does not include any subsequent distribution, sale, hiring or loan of those copies or their subsequent importation into the UK. It does, however, include the rental of copies to the public (Section 18(3), inserted by Copyright (Computer Programs) Regulations 1992). In the digital age, this right seems not to extend to immaterial distribution of copies. Copyright owners are concerned to be able to control public access to their works or their communication to the public, and both these aspects of copyright are addressed by the Information Society directive.

Rental and lending see Rental and lending

Renting copies of sound recordings and films is a form of issuing copies to the public. in these cases the principle of exhaustion does not apply (if it did the right would be pointless), and the right to control rental continues for the full period of copyright (Section 18(2)). See also the EC directive on rental and lending of copyright works (Directive 92/100/EEC).

Performance, etc see Performing, showing and playing in public

Copyright in any work except a typographical arrangement is infringed by unauthorised performing, showing or playing a work in public. Public performances exclude performances in domestic situations, but include virtually everything else (Section 19). See also Turner v Performing Right Society (1943) where the Court of Appeal held that performances of sound recordings at a place of work for the employees of the defendants was a public performance.

Communication to the public see Communication to the public

Similarly, the restricted act of communicating a work to the public applies to every description of work except a typographical arrangement (Section 20).

Adaptations see Adaptations

Copyright in a literary, dramatic or musical work covers making an adaptation of that work (Section 21). This can include converting a non-dramatic work (eg a novel) into a dramatic work (eg a play) or vice versa; translating a work; or turning it into a strip cartoon. An arrangement or transcription of a musical work would be considered an adaptation. If the work in question is a computer program, making an adaptation means making an arrangement or altered version of the program or a translation of it.

Authorising see Authorising an infringement

Copyright in a work is infringed if anyone does, or authorises another person to do, any of the acts listed above to the work without the authorisation of the copyright owner (Section 16(2)).

On what constitutes authorisation, see Moorhouse v University of New South Wales (1976), High Court, Australia, where it was held that the University was liable to the owner of copyright in a work photocopied on a self-service machine made available by the University. The notices which the University claimed dissuaded users from infringing copyright merely drew attention to the existence of the exemption for fair dealing for research or private study (and then failed to mention the overriding requirement that such copying be fair dealing): the fact that a copy of the relevant statute was also made available was of no assistance, since it would have been unintelligible to a layperson.

See also CBS Songs v Amstrad (1988), where the House of Lords held that Amstrad did not “authorise” the commission of an infringement merely by selling twin-deck tape recorders.

The whole or a substantial part see Substantial Part

An infringing act does not have to be done to the whole copyright work; it suffices if it affects a substantial part of it. What constitutes a substantial part is measured quantitatively and qualitatively (Section 16(3)), though the two tests do not necessarily carry the same weight. As Lord Reid put it in the Ladbroke case: “The question whether [the defendant] has copied a substantial part depends much more on the quality than the quantity of what he has taken.”

There is no copyright in the ideas underlying the work, so the taking has to be of the author’s expression (though the boundary is becoming difficult to define: see Plix Products v Frank M Winstone (1986), Supreme Court, New Zealand, and Independent Television Publications v Time Out (1984)).

A large part of a work will be a substantial part, but so will a small part if its content is important. In Ravenscroft v Herbert (1980) the defendant, in writing a work of fiction, drew too heavily on material in the plaintiff’s historical account of the Hofburg spear. In Elanco Products v Mandops (1980) the defendants adopted with little alteration the plaintiffs’ instructions for the use of their weedkiller, and this was held to infringe.

Infringement only takes place where there is actual copying. This will have to be proved by the plaintiff. In Francis, Day & Hunter v Bron (1963) the defendant composer admitted that he may have heard the plaintiffs’ music but that he was not conscious of having done so and it had not been in his mind when he wrote the allegedly infringing piece.

Criminal offences see Criminal Offences

In addition to the civil remedies provided to the copyright owner, the law has since the early 1980s (when video and software piracy first became serious problems) created some criminal offences, aimed broadly at dealings in infringing copies.

Technical protection measures see Technical Protection Measures

Increasingly, copyright owners rely on more than just the right to take legal action against infringers. Various technical means exist to control who may use certain materials, on what terms, and the ability to make copies. Digital technology has made the problem of unauthorised use and copying much greater, but at the same time it offers the means to combat these activities.

Permitted acts

Certain acts that would otherwise be restricted by copyright are permitted. The idea is that they so not conflict with the exploitation by the author of the copyright work. The following acts are permitted:

Fair dealing for research and study

Fair dealing with a literary, dramatic, musical or artistic work for non-commercial research or private study (Section 29(1)). An act is fair dealing if it does not prejudice the exercise by the copyright owner of their rights. In other words, provided making a copy does not substitute for buying a book (which means it must be of a relatively small extract) it will not infringe copyright. Multiple copying is not permitted under this provision (Section 29(3)). In practice, licences issued by the Copyright Licensing Agency have to a large extend displaced copying under this provision, the scope of which has always been uncertain.

Copyright in the typographical arrangement of a published edition is not infringed by such fair dealing (Section 21(2)). This closes a loophole which existed under the old Copyright Act 1956.

Decompilation of a computer program

If the work is a computer program, it is not fair dealing to convert it into a higher level language or to copy it incidentally while converting it (Section 29(4), added by the Copyright (Computer Programs) Regulations 1992). These acts are however permitted by Section 50B (also added by the Regulations) which lays down conditions before the acts are permitted:

it must be necessary to decompile the program to obtain the information needed to write an independent program which will interoperate with another program; and

the information must not be used for any other purpose.

Fair dealing for criticism or review, reporting current events

Fair dealing with a work (of any type) for criticism or review (section 36(1)). A sufficient acknowledgement must be given. The criticism or review may be of a different work, or of a performance (so a review can quote the lyrics of a song performed in a concert in a review of the concert).

Fair dealing with a work for reporting current events does not infringe. This applies to any works except photographs (section 30(2)). Again a sufficient acknowledgement must be given, except where the current events are reported by sound recording, film, broadcast or cable programme. In Newspaper Licensing Agency v Marks & Spencer plc (High Court, Chancery Division, 19 January 1999, reversed on appeal on other grounds) it was held that the defendant had gone beyond fair dealing for these purposes by copying material including reviews and lifestyle articles from newspapers: however, it seems that the fact that a newspaper has reported a particular matter may itself be a current event that can be reported within the exception.

Incidental inclusion

Incidental inclusion of copyright material in an artistic work, sound recording, film, broadcast or cable program is not an infringement. Nor is it an infringement to issue copies of the work which includes the copyright work to the public, playing, showing or broadcasting it or including it in a cable programme.

Temporary copies

Temporary copies that are a consequence of a technological process, such as those made in the course of viewing or downloading material from the Internet, do not infringe the copyright owner’s rights.

Education

A variety of acts done for educational purposes is permitted. These include:

copying in the course of instruction (section 32);

including copyright works in anthologies intended for educational use (section 33);

performances before audiences of pupils and teachers (section 34(1)); and

recording a broadcast or cable programme for educational purposes (section 35). The permitted act in this case extends to any work included in the broadcast or programme. If there is a licensing scheme for such purposes this provision does not apply.

Many acts connected with giving people with impaired vision access to copyright material are permitted without having to obtain the copyright owner’s specific consent, as a result of a private member’s bill that became law in 2002.

Design documents

It is not an infringement of copyright in a design document (for example, an engineering drawing) to make the three-dimensional object depicted in the design, unless that object is itself an artistic work such as a sculpture. (Section 51.) Where an artistic work is exploited industrially (defined as meaning applied to 50 or more articles or to goods made in lengths) articles to the design may be made freely after 25 years, the same period of protection as would be obtained by registering the design under the Registered Designs Act. (Section 53.)

Other permitted acts cover certain activities of libraries and archives and public administration.


Licensing and licensing schemes

The CDPA’s provisions on licensing copyright works through licensing schemes are among the Act’s most complicated provisions. Putting in place the machinery for blanket licensing was one of the purposes of the Act.

The Act applies to licensing schemes. These are arrangements whereby the operator of the scheme grants licences on standard terms (section 116(1)). “Licensing bodies” are organisations which grant licences on behalf of more than one copyright owner. The Copyright Tribunal is given jurisdiction over disputes arising in the operation of certain licensing schemes. These are:

Schemes for licensing the use of literary, dramatic, musical or artistic works or films, which are operated by licensing bodies;

Any schemes for licensing copyright in sound recordings, broadcasts, cable programmes and typographical arrangements;

Any schemes for licensing the rental or lending of sound recordings, films or computer programs.


Ownership

Basic rule

The author is usually the first owner of copyright in a work. The author is the person who creates the work. There are provisions for joint authors and for anonymous and pseudonymous authors.

Employees

Employed authors do not own copyright in works they create in the course of their employment. The employer owns these rights. Note that the former special rules for journalists were abolished in the 1988 Act.

Commissions

Where a work is commissioned, no special rules apply, although it is worth noting that there was a special rule for certain categories of commissioned work under the Copyright Act 1911 and these rules will still apply to such works created before the Copyright Act 1956 came into operation. The result is that the copyright remains with the person who created the work, and if the commissioner wishes to take legal title to the copyright they must have an assignment (see Commissioned works). This causes problems since people who have paid for something expect it to belong to them entirely. Note that equity will sometimes give beneficial ownership to the commissioner and the law will, where it is necessary to give business efficacy to the agreement, imply a licence.

Agreements to assign

Although an assignment has to comply with the formalities set out in the Act, the same is not true of an agreement to assign. The courts are prepared to uphold an oral agreement to assign copyright (although of course its existence might be difficult to prove).


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