Copyright: When, Where, How

Copyright is one of the oldest intellectual property rights. However, there is a popular misconception that copyright must somehow be registered in order to be protected. That is not the case. As soon as one has created a copyright work, copyright exists automatically. This article briefly explains the sorts of works which copyright protects, who owns copyright and the extent of the protection afforded to copyright works.

Copyright subsists in any literary, dramatic or artistic work which is recorded. Copyright protects the recording itself. Until a work is recorded, there is no protection. Although historically the work would be recorded on paper, today protection is given equally to works that are recorded by electromagnetic means such as on tapes and disc. Copyright extends to other works such as music, films, computer programs, and even an architect’s plans recording the design of a building.

There is a further qualification that copyright works have to be “original”. However, the level of originality is not high. Suppose you attend a lecture and take some notes. So will the person next to you. However, you will each have created separate works protected by separate copyrights, since each of you will decide which aspects of the lecture are those which are important to record and which aspects are not. In this sense, each of the works will be “original”. Of course, if you have merely recorded every word of the lecture, it would be the lecturer rather than yourself who retained the copyright.

As well as being original, one further requirement of copyright is that the individual creating the work comes from a qualifying country. Copyright is founded through international conventions such as the Berne Convention and the Universal Copyright Convention. These conventions work by requiring the countries that abide by the conventions to treat citizens and non-citizens in an equivalent manner. So, in the same way as a French citizen can obtain copyright under French law in France, so an Englishman can. This is because the United Kingdom and France are members of these conventions. The UK is likewise required by the conventions to give French individuals copyright to their works in England in the same manner as English law gives English citizens copyright.

However, not all countries in the world belong to these conventions. There are some countries, notably Arab states such as Ethiopia and Somalia which do not belong to the appropriate convention. This means that, for example, an Ethiopian citizen will not receive the benefit of copyright in the United Kingdom in the same way as a United Kingdom citizen will not receive the benefit of copyright in Ethiopia (because there is no copyright in Ethiopia).

Copyright exists as soon as the work is created. It lasts for 70 years until the end of the seventieth year after the year in which the author dies. Therefore, copyright always expires on the 31st December in a certain year.

The owner of copyright will be the person who creates the work. Where two or more people collaborate to create a work and the contributions of each are not distinct, then the copyright will be held jointly. It will not expire until the end of the seventieth year after the date of the death of the last author. Where copyright is created in the course of a business, then the employer will own the copyright rather than the employee, although the duration will still be governed by the lifetime of the employee who created the copyright!

It will be seen from the reference to employees that someone who is not an employee such as a consultant will own the copyright rather than the business that is engaging the consultant. The majority of copyright disputes arise in circumstances where a business engages a third party consultant to create a work which is protected by copyright and omits to reserve sufficient rights for the business in respect of the copyright in that work. The one thing that a business should always remember about copyright is that when a consultant (as opposed to an employee) is engaged to produce a copyright work a clear, preferably written, agreement should be entered into reserving either copyright ownership for the business or sufficient rights for the business to exploit that copyright work. Remember this and you will save money by avoiding litigation in the future!

Dai Davis, Partner, Brooke North LLP

Dai is a Technology Lawyer with Leeds law firm Brooke North. He can be contacted at daidavis@iee.org or by telephone on: 0113 283 2182 or 07785 771 721 (mobile).