COPYRIGHT AND RIGHTS: THE LAW

Published February 20, 2023

One of the biggest problems facing designers, architects, composers, authors or indeed anyone involved in the creation of an original concept or design, is the risk of plagiarism or counterfeiting. The opening of new large commercial markets, such as Asia, has increased marketing possibilities but also exposure of a concept to illegal usage, which will ultimately result in a loss of revenue for the original creators or owners of the items or work. Copyright can provide the owner with numerous economic rights, but in order to reap those benefits, the owner will need to learn how to use his or her copyright in an effective manner. An infringement of copyright is when someone uses the whole or a substantial part of a copyright protected work, without seeking the prior consent of the copyright owner.

This is why it is important to ensure that any intellectual property is protected against theft, plagiarism or counterfeiting by obtaining some sort of proof that copyright protection has been enforced.

Copyright law gives creators of original content the rights to control the ways in which their material may be used. Copyright law originated in the United Kingdom and was derived from a concept of common law; the Statute of Anne 1709. This became statutory with the passing of the Copyright Act 1911. The current act in force today is the Copyright, Designs and Patents Act 1988.

The rights covered are essentially: Broadcast and public performance, copying, adapting, issuing, renting and lending copies to the public. In many cases, the creator will also have the right to be identified as the author and to object to any modifications of the work. Any work created in the course of employment is generally regarded as belonging to the employer. This could be commissioned work, for example. There is a distinction to be drawn between work created during employment which has no connection to that employment and work created "in the course of employment" (which is still connected with the employment even if it has been created at home or outside of working hours).

Works are classed as being of "joint authorship" if created by more than one person. In which case the permission of all the copyright holders is required when exploiting their material to avoid any risk of copyright infringement. It is perfectly possible for more than one copyright to subsist within a work. An example of this would be a collection of short stories by several different authors, printed in the same book. A much more complex example could be what is sometimes referred to as a "porte-manteaux" film in cinematographic terminology, whereby a feature length film is composed of several different short scenarios or films written by different screenplay authors but all linked by an underlying plot.

International conventions give protection in most countries, but are often subject to national laws.

WHAT IS INTELLECTUAL PROPERTY?

The Intellectual Property is define as "creations of the mind", these are divided into two sub categories :

NDUSTRIAL PROPERTY: INVENTIONS (PATENTS), TRADEMARKS, INDUSTRIAL DESIGNS, AND GEOGRAPHIC INDICATIONS OF SOURCE. COPYRIGHT: LITERARY AND ARTISTIC WORKS (SUCH AS NOVELS, POEMS AND PLAYS), FILMS, MUSICAL WORKS, ARTISTIC WORKS (SUCH AS DRAWINGS, PAINTINGS, PHOTOGRAPHS AND SCULPTURES) AND ARCHITECTURAL DESIGNS.

Generally, the main forms of intellectual property protection are a Patent, Registered Design (and in some cases "Unregistered Design"), Trademark and Copyright. We can take a look at how these can be applied to the many variations of original work or content. It will always be more straightforward to entrust the application and enforcement of a copyright to an independent legal entity. One which has already established techniques and contacts in the field of protection of intellectual property. This frees the creative mind to pursue other creative ideas, and not be bogged down in red tape.

FAIR DEALING

This term describes acts that are tolerated to a certain degree, without infringing on copyright. These are;

Private and research study purpose / Performance, copies or lending for educational purposes / Criticism and news reporting / Incidental inclusion / Copies and lending by libraries / Acts for the purposes of royal commissions, statutory enquiries, judicial proceedings and parliamentary purposes / Recording of broadcasts (e.g. TV or radio) for the purpose of listening to or viewing at a more convenient time (this is referred to as "time shifting") / Production of back-up copies of a computer program for personal use / Diffusing a sound recording for a non-profit making organisation such as a club or society (Profit making companies or individuals will require some sort of licensing when diffusing music)

AUTOMATIC COPYRIGHT?

Technically speaking, you have copyright from the moment you record an original piece of work in a tangible medium, an audio recording, or perhaps a video clip or quite simply putting pen to paper. But alas, in the real world, this may not suffice so there are other things that need to be done in order to protect the work in case there is a dispute. The best way to protect any work is to register your creation with a legally recognised entity.

LEGAL LAYOUT

There are many legally recognised organisations capable of validating an original creation. However, each country will have variations that might need to be considered carefully. If the work in question is a book for example, and the author is from a country that has signed the "Berne Convention for the Protection of Literary and Artistic Works", then the work is automatically protected from the moment it is created in a readable format or in one that may be perceived by a device or machine. This however, is not recognised by all countries, notable exceptions would be the United Kingdom or Australia.

In the United States, it is possible to register a song or piece of music with the Library of Congress thus establishing the date of creation of the work.

An individual can call upon the services of a "Notary Public" for a legal and official confirmation of the date on which the original work was created. The important point to bear in mind here is that notaries have the legal capacity to authorise a document and certify its legitimacy, allowing it to be officially recognised in another country. This is probably the most straightforward way of proceeding when you need to protect your work.

YOUR TIME IS UP!

The duration of copyright can vary significantly. Depending on the work, copyright lasts for various lengths of time. As a guideline:

LITERARY OR ARTISTIC WORKS:

Copyright would last for 70 years after the year of a known author's death. However, in the case of an unknown author it expires 70 years from the end of the calendar year in which the work was first made available to the public. If the work was created by two or more authors then the copyright lasts for 70 years after the year of death of the last of the authors to pass away.

PHOTOGRAPHS:

Photographs are protected for 70 years after the death of the photographer. However, if they are subject to the United Kingdom’s Crown copyright then they will be protected for a maximum of 125 years and if subject to U.K Parliamentary copyright; protection will last 50 years from the taking of the photograph.

PATENTS:

In the United Kingdom, a patent is only valid for twenty years and will not protect your invention in other countries. It is therefore necessary to take out a patent (Utility patent in the United States of America) in each country in which you wish to expose the invention. But it is still possible to copyright the basic idea or concept pertaining to the invention itself.

PUBLIC DOMAIN

The public domain refers to works that are no longer protected by copyright (that is, where the copyright has expired) and also to works not protected by copyright law.

It’s interesting to note that in some countries (including the United States and in certain cases the United Kingdom) government works are defined by law as being in the public domain (i.e. not protected by copyright) from the moment that they are created.

Definitions of the public domain will vary on a country-by-country basis depending on how specific national copyright laws define the duration of copyright.

"COPYLEFT"?

Copyleft is a term used to describe a copyright licencing method where the author surrenders some of his or her rights. A copyleft licence will usually allow a work to be freely copied, adapted or distributed, but only if all copies or modified versions are also freely available under the same licence.

"Copyleft" (the word is intended as a humoristic opposite of "copyright") is not a legal term but simply a light-hearted way of describing a more "relaxed" copyright licencing policy. The most well-known example is the GNU General Public License (GPL).

DISPELLING THE MYTHS

There are many misinterpretations of how copyright actually works. Many people seem to believe that if they copy someone else’s work but don’t actually earn any revenue from it, then they are not breaking any laws. Similarly, there seems to be a common belief that it is legally acceptable if one utilises no more than ten percent of an existing literary work. Both are false and can be regarded as infringements unless there has been a specific written instruction accompanying the original works or permission has been granted by the copyright holders.

"POOR MAN'S COPYRIGHT"

It is essential to prove the date of creation of the work. An easy but somewhat unreliable method consists of posting a copy of your work to yourself in a sealed envelope just after completion, and never opening it. The postal service’s date stamp will theoretically prove the date. This can then be opened in the presence of a judge or solicitor for an official confirmation of the date. For this to work, the envelope seal must be intact and not appear to have been tampered with. Losing the envelope before having it verified will result in a loss of proof. However, there are several shortcomings linked to this method, mainly the fact that the envelope containing the copy must always be kept in a safe place and also, it may be difficult to convince a legal representative that the document is authentic as there are many high quality printers available today that would allow the falsification of a post mark.

PROVE IT!

Copyright laws are civil and not criminal. What this means is that any case concerning copyright infringement will require a lower burden of proof. This effectively makes it quite easy to build a case. In a civil case, the plaintiff just has to convince the tribunal or court that their claim is valid (this is straightforward if the plaintiff can present proof of copyright) and that on balance of probability it is likely that the defendant is guilty.

NOTARY PUBLIC

A "Notary Public" can provide a legal and official confirmation of the date on which the original work was created which will allow authors, musicians or brands to protect their investment and all future revenues linked to it. The key point to bear in mind here is that notaries have the legal authority to authorise a document and certify its legitimacy, allowing it to be officially recognised in a tribunal and also in another country. This is probably the most straightforward way of proceeding when you need protection for your products or creations. Protecting the work is an essential final step in the whole creative process...

COPYRIGHT: INTERNATIONAL VALIDITY

With regard to the “international” aspect, here are some important points:

-the original creation has an automatic right, the copyright, by the mere fact of its existence (if the work is original, the author’s copyright is born on the creation, with no formality). -The copyright is recognised by the Berne Convention in 176 countries. If the filing party has this right in one of the signatory countries, he will systematically have it in any of the other countries, so he can assert that right. Especially in the case his work is copied. -Consequently, beyond the theoretical aspect of the copyright, there is practice: filing is used to PROVE the right by means of an unchallengeable registration that enables the author to create a probative link between his creation and the date of creation. This is called proof of anteriority, which is essential for asserting the author’s rights, in particular.