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.
The focus of this guide is the copyright protection of works in the UK.
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', rather than purely quantitative, 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.
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'. For a time it was unclear whether the test of originality to be applied was that of the author having expended 'skill and labour' or whether the work must exhibit "the author's own intellectual creation" - the latter test having been developed by the EU courts. The Court of Appeal has clarified that the correct test is that the work must be the author's own intellectual creation. What is required is that "the author was able to express their creative abilities in the production of the work by making free and creative choices so as to stamp the work created with their personal touch". This test is not satisfied where the content of the work is dictated by technical considerations, rules or other constraints which leave no room for creative freedom.
This so-called 'European' test is considered more demanding than the skill and labour test it replaced, although the originality bar is still low and will in most cases be satisfied.
Ideas are not protected by copyright; only the expression of those ideas as fixed in a material form are protected.
Where works are commissioned or created in the course of employment, the contractor or the employer is usually the first copyright owner, even though the party commissioning the work has paid for it. 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. In the case of a contractor commissioned to create a copyright work, it is essential to ensure that copyright is assigned to the commissioning party otherwise this could seriously limit their future ability to use or make modifications to the work.
A common example where copyright ownership needs to be established as soon as possible is where a business hires a third party developer to create a new website or software platform. As the developer is the author of the work, it will own the copyright unless the copyright position is dealt with differently in the contract. In practice, contracts are often silent - which leads to disputes which could have been easily avoided by the contract stipulating either a licence or an assignment of copyright to the business at the outset.
The sorts of work which benefit from copyright protection are broken down into the following categories:
Artistic works include:
Usually, a work need have no artistic qualities to be protected by copyright. Works of artistic craftsmanship are an exception, and a judicial ruling is awaited which will clarify whether an aesthetic element is necessary for works in this category to be protected by copyright or whether originality is the only criterion to be satisfied by works in all categories, as is the case in the EU. If the latter, the door would be opened to functional items being protected by copyright. This would be a good result for designers, who could rely on this lengthy and free IP right in preference to design rights which provide a lesser term of protection and are subject to a registration process.
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 audiovisual 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 from the end of the year in which the recording is made or, if published during that period, for 70 years from the end of the year of publication. Films are protected for 70 years following the death of the last of the following: 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.
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.
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; fair dealing for research and private study; incidental use; educational use; public interest or copying works for the visually impaired. However, the exceptions are 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.
The scope of the 'text and data mining' exception has come under intense scrutiny in the context of the use of works protected by copyright as training data by developers of artificial intelligence tools. It was generally acknowledged that this exception would not be available in respect of any AI commercially exploited - which would cover most AI solutions - and a contentious proposal to expand the exception to enable developers to rely on it even where AI would be commercialised was dropped after significant opposition by the creative industries.
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.
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.
Contention also surrounds the copyright protection of 'computer generated works'. These are defined as works that are generated by computer where there is no human author. The suggestion is that these works cannot satisfy the 'author's own intellectual creation' originality test. However, these works are protected by copyright for 50 years from the end of the calendar year in which they are made, and proposals to reform this position were rejected. The UK is one of only a handful of countries which gives copyright protection to computer generated works.
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 issues such as exclusivity, assignability, the length of the term and the scope of the licence.
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:
Additionally, a person who for private and domestic purposes commissions the taking of a photograph or making of a film has the right not to have copies 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.
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 remains largely unaffected by Brexit.
To the extent that UK law is derived from EU Directives and Regulations, it is preserved in UK law post-Brexit as 'assimilated law' and will remain so until the law is changed by future UK legislation or by judicial interpretation. Divergence over time between copyright law in the UK and EU is a possibility given the greater freedom UK judges now have under the Retained EU Law (Revocation and Reform) Act 2023 to depart from assimilated law in their decision making.
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