Wednesday, 10 September 2014

Copyright Basics

Jane Lambert

Almost everybody has a copyright in something. It is most likely to be a letter but it could be also an app, article, blog, dance routine, drawing, essay, musical composition, painting, photo, poem, recording of a song, unpublished first novel or amateur video.  The person who made such work is known as "the author" and he or she has the right to prevent others from copying that work, publishing, renting, lending, communicating it to, or performing it in, public, translating or otherwise adapting it for a very long time. In the case of some of those categories of works for the rest of the author's life plus 70 years. If others want to copy, publish or perform his or her work the author can  charge a licence fee or royalty for the right to do so.

But there's another side to copyright and that is that many of the things that entertain such as films, games, magazines and music or use at work such as data sets, directories, software, terms and conditions of business are also copyright work and the owners of the copyrights in those works have the right to stop us from downloading, copying and, in the case of software, just using those works without their permission for which they usually want money. And to a consumer or a small businessman such restrictions just seem petty, and complying with them even daft, when so many people are making recordings, posting photos or videos to their social media pages without paying anyone anything and apparently getting away with it. There is often real resentment when a group of copyright owners take down a website which has been a source of free music or videos or sue or even prosecute the people behind them. However there is a reason for these laws and that is that arts, broadcasting, entertainment and much of the information and communication technology industries  rely on copyright for their very existence. Since their output excites us, inspires us, comforts us and generally makes our lives worth living, we have an interest as well as a legal duty to comply with those laws.

Copyright is an intellectual property right that comes into being automatically. It subsists automatically as soon as you create the work even before the ink is dry so long as you are a citizen or resident of the United Kingdom or of some other country which has agreed with the British government to protect the works of British authors in its own territories. Since our country is party to the Berne and Universal Copyright Conventions and the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS") under which each party promises to protect the artistic and literary works of each other's nationals and residents that is more or less everybody. You don't have to register your work with the Intellectual Property Office or some other office or organization. You can if you wish insert insert the copyright symbol , "©", the letter "C" in brackets, or the word "copyright" together with your name and the year in which the work was created but it isn't necessary for the subsistence of copyright in the UK.

In addition to copyright the author of certain types of work in which copyright subsists get the right to be identified as the author, the right to object to derogatory treatment of their work, the right not to be identified as the author of someone else's work and a right to privacy in photos and films. There are known as "moral rights" and protect the reputation of the author and the integrity of his or her work. They subsist quite independently of copyright and can sometimes be retained after the copyright has been assigned.

The rights of the copyright owner that I mentioned above are not absolute. They are subject to a whole slew of statutory exceptions which allow you to quote from, refer to, or make some other use of, a copyright work.  There are many licences such as those drafted by "Creative Commons" under which authors license their work or very generous terms. Many authors or publishers (but by no means all) actively encourage you to share their work.

But there are also associations of copyright authors known as "collecting societies" who police their members' works and charge licence fees or royalties for the right to use them. One of the best known collecting societies is the Performing Rights Society which represents composers, songwriters and publishers. You often see their stickers in bars and restaurants to show that the owner has a licence to play their members' music. They have teamed up with the Mechanical Copyright Protection Society to protect the rights of the recording industry. In addition there are organizations like FAST (Federation against Software Theft) and FACT (Federation against Copyright Theft) which pursue and sometimes even prosecute those known as "pirates" who infringe (violate) the rights of copyright owners on a big scale.

Copyright is usually enforced by copyright owners through proceedings in the civil courts - the Chancery Division of the High Court of Justice and certain county courts in England and Wales. The usual remedies are injunctions (orders of the court to stop or refrain from doing something), handing over to the copyright owner all unlicensed copies, paying damages (compensation) or surrendering ill-gotten gains (an account of profits) providing information under oath and paying all or contributing substantially to the other side's legal fees ("costs"). However, some copyright infringements are also crimes for which the maximum penalty is 10 years imprisonment, an unlimited fine or both.

Copyright is a complex area of the law and I shall be talking about it in more detail in my seminar "Making Sure you make Money from your Brands and Ideas and not other People" at Grantham College on 26 Sept at 14:00. Entrance is by ticket only. You can book your place on-line or by calling my clerk George on 020 7404 5252. I look forward to seeing you there.

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