Copyright law: the basics

This guide is based on UK law. It was last updated in August 2008.

The skill, creative effort, time and money invested in producing material may be wasted if it is open to other parties to use or exploit that material without paying the creator.

Copyright gives the author of certain types of material rights to control the use or commercial exploitation of the work that he or she has created. This includes rights to authorise or prohibit the copying, issuing of copies, renting or lending, performing, showing, playing, broadcasting or adaptation of the copyright material.

What is protected by copyright?

The sorts of material (referred to in copyright legislation as 'works') which benefit from copyright protection are set out by statute, and are broken down into the following categories:

• Original literary, dramatic, musical or artistic works, including computer programs and some databases;
• Sound recordings, films or broadcasts; and
• Typographical arrangements of published editions.

Literary, dramatic, musical and artistic works will only be original if they are the result of independent creative effort. They will not be original if they have been copied. The key to protection is independent creation. Even if two works are almost identical they will still be original if they have been created by their respective authors independently of each other.

Sound recordings, films and published editions do not have to be original but they will not attract copyright if they have been copied from existing sound recordings, films and published editions.

Broadcasts also do not have to be original, but no copyright will arise if they infringe copyright in another broadcast.

Ideas are not protected by copyright. Copyright will only protect the textual or literary expression of ideas rather than the ideas themselves. Names, titles and internet domain names also do not attract copyright. These can however be protected in other ways, for example by a registered trade mark or a common law action to prevent passing-off. Logos may be protected under copyright as artistic works.

Is material on the internet protected by copyright?

Material sent over the internet or stored on web servers is generally protected in the same way as material in other media. It is a fallacy that once material is posted on the internet it somehow enters the public domain.  Anyone placing copyright material on the internet, or distributing or downloading material that others have placed on the internet, must therefore ensure that they have the permission of the copyright owner unless the use of the material falls within an exception. A copyright notice on a website will often set out what you can and can't do with the material on that site.

It should be noted that copyright material may have been put on the internet in other countries without infringing copyright there, but could still be illegal to use without permission in the UK, particularly if the website is aimed at users based in the UK.

Do I need to take formal steps to register my copyright?

Not in the UK. Provided that the work in question is one that qualifies for copyright protection, copyright will arise automatically as soon as the work is created without any need for registration.

A copyright owner may mark copyright material when it is published with the international copyright symbol © followed by the name of the copyright owner and year of publication. This is not essential in the UK , but may assist a copyright owner in the event of infringement proceedings. It will also be necessary if a copyright owner wishes to enforce his or her copyright in certain foreign countries.

When is someone infringing my copyright?

Copyright allows the owner, and the owner alone, to copy, issue copies, rent or lend, perform, show, play, communicate or adapt the copyright work.

Copyright is infringed by a third party who performs any of the actions listed above without the permission of the copyright owner, unless the act carried out falls within an exception.

In addition a person 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.

The main exceptions are:

• Minor infringements – copyright is only infringed if the unauthorised use involves the whole or a 'substantial part' of the copyright work. However even small parts of a copyright work may count as a substantial part. What is or is not a substantial part is assessed on the basis of quality rather than quantity. The question is therefore whether the level of skill and effort invested in producing the relevant part of the work is substantial rather than whether the relevant part constitutes a substantial portion of the whole work.
• Temporary copies – there is no copyright infringement where a person makes a temporary copy of a copyright work as an integral and essential part of a technological process, the sole purpose of which is to enable transmission of the work in a network or a lawful use of the work and which has no independent economic significance (e.g. where work is cached in a computer). This exception does not apply to computer programs or databases.
• Fair dealing – there is no copyright infringement when the use is fair and is for one of a list of specified purposes  (for example where it is for the purposes of review and criticism, non-commercial research or private study).
• Incidental inclusion – there is no copyright infringement if copyright work is incidentally included in an artistic work, sound recording, film or broadcast (so-called 'passing shot' use). However if music is deliberately included in a work (e.g. playing on a radio included in a scene in a film) its inclusion cannot be said to be incidental. 
• Educational use – there is no copyright infringement if a protected work is used for the purposes of instruction and examination. This principle applies even in the case where the whole work is played, performed, recorded or photocopied. However such instruction/examination must (among other conditions) not be for commercial purposes, reprography must not be used, and the rights of the author must be given sufficient acknowledgement.
• Libraries, archives and public administration – various exceptions apply to libraries and archives provided they are recognised by statutory instrument. There is also no copyright infringement where copyright work is used for administrative purposes, for example as part of judicial proceedings.
• Works permanently situated in public places – for example, there will be no copyright infringement where sculptures, works of artistic craftsmanship, buildings etc. are photographed.
• Public interest – in certain circumstances it is a defence in a copyright claim to show that the publication or use of the copyright material is in the public interest, for example where the material is injurious to public life, public health and safety or the administration of justice.
• Copying for the visually impaired – copying for the purpose of making copies accessible by the visually impaired is not copyright infringement, subject to conditions.

If a person is using copyright material it is also generally necessary to include an acknowledgement of the name of the copyright work and its author.

How are computer programs dealt with?

Following the coming into force of the Copyright (Computer Programs) Regulations, which implemented the EC Directive on the Protection of Computer Programs, in 1993, computer programs are protected on the same basis as literary works. Therefore provided the program is original its author will have the exclusive right to copy the program, issue copies to the public, demonstrate the program to the public, and adapt or translate the program.

Converting a copyright program into or between computer languages and codes will normally constitute an 'adaptation' of the work. Similarly, storing a copyright work in a computer amounts to 'copying' the work, and running a computer program or displaying work on a VDU will usually involve copying. Any such use will therefore require the consent of the copyright owner unless it falls within an exception.

Certain specific exceptions apply in relation to computer programs, including:

• Making back-ups of computer programs which are necessary for the purposes of lawful use of the program.
• Copying the program in the course of decompiling it.
• Observing, studying or testing the functionality of a program in the course of lawful loading, displaying, running, transmitting or storing of the program.
• Copying or adapting the program, provided the person copying or adapting is the lawful user and the copying or adapting is necessary and is not prohibited by any term or condition of an agreement regulating the circumstances of lawful use.

In assessing whether an alleged infringement involves the whole or a substantial part of a computer program, courts will consider the content of, and the elements which make up, the program. The courts have held that substantiality is to be judged by looking at the skill, labour and expertise that went into the specific bits of code which are alleged to have been infringed. It is not a question of whether the system would work without that piece of code, or the amount of use the system makes of the code.

As a result, there can be copyright infringement even if the actual code copied amounts to a very small percentage of the total software code in the program.

How long does copyright protection last?

The duration of copyright protection depends on the nature of the protected work. The position can be summarised as follows:

• For literary, dramatic, musical or artistic works, copyright expires 70 years after the end of the calendar year in which the author dies.
• For films, copyright expires 70 years after the end of the calendar year in which the death occurs of the last to survive of the principal director, the authors of the screenplay and dialogue, and the composer of any music specially created for the film.
• For sound recordings, copyright expires 50 years after the end of the year in which it was made or, if published in this time, 50 years from the end of the year of publication. If the work is not published during that 50 year period, but it is played in public or communicated to the public during that period, the period of copyright protection is 50 years from the first of these to happen. Note that the European Commission has proposed an extension to the term of copyright protection for sound recordings, to 95 years. The proposal will need to be backed by the European Parliament and then a majority of national governments in the European Union in order to go ahead.
• For broadcasts  copyright expires 50 years after the end of the calendar year in which the  broadcast was made.
• For typographical arrangements, copyright expires 25 years after the end of the calendar year in which the edition was first published.

Can I sell my rights in copyright?

Copyright is a property right which, like rights in physical property, can be bought or sold, inherited or otherwise transferred, either wholly or in part. Copyright may therefore subsequently belong to someone other than the author of the protected 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:

• the exclusivity of the licence: is an exclusive licence to be granted to one licensee (which would also exclude the copyright owner from using the work in that manner) or is a non-exclusive licence to be granted to a number of licensees? Is the copyright owner to retain rights to use the copyright work (which would mean that an exclusive licence would not be appropriate to grant)?
• the term of the licence: is the licence intended to last forever (often described as 'perpetual'), or do the copyright owner and licensee intend for it to last for a specifed period of time?
• the assignability of the licence, or the the licensee's ability to sub-licence his or her rights: can the licensee transfer his or her permission to carry out the restricted acts to third parties, or grant licences of his or her permission to third parties?
• the scope of the licence: is the licensee entitled to carry out all of the restricted acts, or does the copyright owner wish to retain some of those rights? ? Will the licence be limited to a particular territory, market or purpose?

For more information refer to: www.ipo.gov.uk

Contacts

John Mackenzie
Biography
email John
+44 (0) 131 225 0019

Kim Walker
Biography
email Kim
+44 (0) 207 490 6453