Copyright gives authors of works rights to control the use or commercial exploitation of the works that they have created.

This includes the exclusive right to copy, issue copies, rent or lend, perform, show, play, communicate the work to the public or adapt the work, and the right to stop others from doing any of these things without their consent.

Copyright is a hugely complex area of law which gives territorial rights on a country by country basis which are recognised globally through a series of international treaties. However, even in Europe there is only limited harmonisation and so it is essential to seek advice from local experts as to whether the particular work in question is protected.

What is copyright?

Copyright is an intellectual property right which stops copying. It provides rights holders, such as artists, writers, software engineers, website developers and composers, with a range of rights in respect of their works including a right to royalties and to restrict how their works are reproduced by other people.

Copyright allows the owner to prevent the reproduction of a 'substantial' part of the copyright work; a test which is satisfied on a 'qualitative' basis. 'Reproduction' includes reproduction in any material form and so could be as a result of printing, including copyright works in TV programmes, films or publications, distributing copies of the work on the internet, or making a copy in 2D or 3D of a work.

Who owns copyright?

The 'author' of a work, i.e. the creator of the work, is generally the first copyright owner. Where there are two or more authors who have created a work, they may have joint ownership of the copyright if their contributions are indivisible or co-authorship where separate contributions can be identified.

To qualify for copyright protection, a work has to be 'original' in the sense that the work exhibits the "author's own intellectual creation".

Where works are commissioned or created in the course of employment, the commissioner or the employer is usually the first copyright owner. However, this will depend upon the terms of the contract, and whether the work falls within the scope of the commission or the work is created during the course of employment; both of which will need to be assessed carefully.

What types of works are protected by copyright?

The sorts of work which benefit from copyright protection are broken down into the following categories:

  • Original literary, dramatic, musical or artistic works;
  • Computer programs and software code;
  • Databases (in addition to the separate Database Right)
  • Sound recordings, films or broadcasts; and
  • Typographical arrangements of published editions.

Artistic works include:

  • 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 craftsmanship.

To qualify for copyright protection, a work has to be 'original' in the sense that the work exhibits the "author's own intellectual creation".

What is the duration of copyright protection?

The duration of copyright protection depends on the nature of the protected work itself. In respect of literary, dramatic, musical or artistic works copyright generally lasts for the lifetime of the owner plus 70 years after their death (or 50 years if the work was computer generated).

Copyright in audio-visual works follow slightly different rules. Broadcasts are protected for 50 years from the date the broadcast is made. Sound recordings are protected for 50 years after the end of year of publication. Films are protected for 70 years following the death of the last of the following persons: the principal director; the author of the screenplay; the author of the dialogue or the composer of the original music commissioned for or used in the film.

Copyright in typographical arrangements has the shortest duration, lasting for 25 years from the end of the year in which the edition was first published.

Does copyright need to be registered?

In the UK, provided the work is 'original', copyright will arise automatically as soon as the work is created and fixed in material form without any need for registration. It is important to note that ideas are not protected by copyright; only the expression of those ideas as fixed in a material form are protected.

Given copyright arises automatically, it is good practice to keep records and evidence of any materials or works created and when (an 'audit' trail), which may be needed to establish the subsistence and ownership of copyright in infringement proceedings. A copyright owner is advised to mark copyright material when it is published with the international copyright symbol © followed by the name of the copyright owner and year of publication (e.g. © [OWNER] [YEAR]). While this "copyright notice" is not a necessary requirement in the UK, it may assist a copyright owner in the event of infringement proceedings. It will also be necessary if a copyright owner wishes to enforce their copyright in certain foreign countries.

When is copyright infringed?

Copyright provides the owner with the exclusive right to copy, issue copies, rent or lend, perform, show, play, communicate or adapt the copyright work.

Copyright is infringed by anyone who carries out any of the copyright owner's exclusive rights without the permission of the copyright owner, unless an exception to copyright applies. 

The main exceptions include making temporary copies; fair dealing for the purpose of criticism, review, quotation or news reporting; fair dealing for caricature, parody or pastiche; research and private study; incidental use; educational use; public interest or copying works for the visually impaired. However, the exceptions are incredibly narrow and, contrary to popular belief, there is no "innocent infringer" defence nor is there a defence of making personal copies for private use due to a legal challenge to legislation implementing it.

Infringement can be in relation to the whole or a substantial part of the work. A 'substantial' part of the work has been copied if the infringer has taken the "author's intellectual creation".

'Substantial' is determined by a qualitative test, not a quantitative one, which means that there may be an infringement even if a small, but important, portion of the original work is copied.

In addition an individual or corporate entity may commit a secondary infringement of copyright if, among other things, they import into the UK, possess, sell or distribute an article which they know or have reason to believe is an infringing copy.

How are computer programs dealt with?

Computer programs are regarded as literary works and therefore at a basic level their protection is no different from any other literary work. However, with the development of ever more advanced technology and AI, this area is increasingly contentious.

Can rights in copyright be sold?

Provided the relevant statutory mechanism is followed, copyright is a property right which can be bought or sold, inherited or otherwise transferred, either wholly or in part. Copyright may therefore belong to someone other than the author of the work.

Copyright owners may choose to license others to use protected works while retaining ownership themselves. The terms of any such licence should deal with the following issues such as exclusivity, assignability, the length of the term and the scope of the licence.

A common example where the copyright ownership needs to be established as soon as possible is where a business hires a third party website developer to create a new website or software platform. As the website developer is the author of the work, it will own the copyright in the works unless the copyright position is dealt with differently in the contract. In practice contracts are often silent which often leads to disputes which could be easily avoided by the contract stipulating either a licence or an assignment of copyright at the outset.

What are moral rights?

Moral rights are a collection of personal rights, allied to copyright, given to authors of literary, dramatic, musical, or artistic works and the directors of films. These rights include:

  • the right to be identified as author or director respectively whenever the work is commercially published, exhibited to the public or included in a film or broadcast (the 'paternity right');
  • the right to object to derogatory treatment of their work (the 'right of integrity');
  • the right not to be identified as the creator of a work created by someone else ('false attribution'); and
  • the right not to have copies of works exhibited, broadcast or issued to the public (the 'right of privacy').

Moral rights belong to the author of an original work. They may be waived (i.e. given up), but cannot be assigned or sold to a third party. Importantly, they remain with the creator of the work even if the copyright does not, and are passed to the author's estate on death. In agreeing to waive moral rights, an author would no longer obtain the benefits moral rights provide, so it is highly advisable to seek legal advice before agreeing to waive such rights.

How does Brexit affect copyright?

Copyright is territorial and as stated above, even in the European Union there is limited harmonisation, so the scope of protection for copyright works in the UK and for UK works abroad will remain largely unchanged. To the extent that UK law is derived from EU Directives and Regulations, it is preserved in UK law by the European Union Withdrawal Act and will remain so until the law is changed, if at all, by future UK legislation.

Research by Fiona Timms of Pinsent Masons, the law firm behind Out-Law.