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Copyright is an intellectual property right which arises without actually having to go through any formalities: protection automatically applies to all works in any form provided they meet certain requirements.
The primary purpose of copyright law is to reward authors for the creation of original works, that is, where the author has expended independent effort to create the work. There are many types of copyrighted works but they broadly fall into the following categories: original literary, dramatic, musical or artistic works which, with the exception of artistic works, are recorded in some way; sound recordings, films or broadcasts; and typographical arrangements of published editions.
Each of these categories can be further broken down. For example literary works include: a novel, a newspaper, magazine, anthology of poetry, a table, a computer program, a database, lyrics, design specifications, reports, marketing plans, letters, etc. Copyright is a property right and provides the owner with the exclusive rights to perform certain acts – know as the restricted acts. It is important to appreciate that copyright law is intended to prevent copying but does not provide a monopoly, so it is possible for others to create a similar works.
Copyright owners have the exclusive right in the UK to: copy the work; issue copies of the work to the public; rent or lend the work to the public; perform, show or play the work in public; to communicate the work to the public; to make an adaptation of the work or do any of the above in relation to an adaptation.
Copyright protects expression rather than ideas: it has to be in a permanent form; it must be original; there must have been a certain amount of effort and skill expended; and there is a minimum threshold, so a work has to be sufficiently significant to be afforded copyright protection. Copyright lasts for a set period, usually the life of the author plus 70 years, although the duration varies according to its form.
To help protect your copyright work, it is advisable to mark it with the © symbol, the name of the copyright owner and the year in which the work was created. Although this is not essential, it will let others know when the term of protection started and it should then be possible to calculate whether it has ended or not. It will also indicate who the owner was at that time in case it is then necessary to approach them should you need to ask permission to use the work.
Authors of literary, dramatic, musical or artistic works and directors of films have moral rights which are the rights to: be identified as the author or director; object if your work is distorted or mutilated; prevent false attribution. Moral rights can be waived by the author or director and it is not an infringement where the author or director has consented to the act in question.
Copyright is like most other property rights in that it can be used as a commodity. It can be sold with our without the moral rights being retained and it can be licensed for use by others but the ownership retained. In general computer programs are protected by copyright as literary works. Databases whether electronic or otherwise may be protected in two ways, by copyright and by database rights.
Exploitation of copyright:
- Confidentiality agreement / Non-disclosure agreement
Some copyright works are likely to be confidential e.g. unpublished manuscripts. When disclosing these types of work to others it is vital that a confidentiality agreement (also known as a non-disclosure agreement or NDA) is signed prior to disclosure to prevent others from generally copying the work.
Confidentiality agreements (or non-disclosure agreements, or NDAs) are contracts relating to mutual or one-way disclosure of information between two or more parties, which usually outlines how such information can be used or stored, and if and when such information may be disclosed to third parties.
Advantages for discloser:
- Low cost protection of your sensitive and confidential information
- Keeps secret potentially valuable works
- Can prevent competitors from financially gaining from you
- Creates right to sue for compensation and for an injunction to prevent further breaches, if it become necessary
Advantages for receiver:
- Provides means to receive information to understand and assess a work
- Can assist you to make an informed decision as to the disclosers proposals
There are various ways to exploit copyright, one of which is by licensing. A license is, in essence, a permission granted by the owner of a right or interest to another person allowing him/her to do something in respect of that right or interest. For copyright works a license allows a person to do certain acts in connection with the work which would otherwise infringe the copyright in the work. Generally fees are involved for the grant of the rights.
It must be noted that physical possession of a work does not itself give any rights under copyright law. So the mere possession of a painting does not mean the copyright in the painting has transferred from the artist. So the owner of a painting would still be unable to make and sell copies of the painting without the artists consent. Hence for copyright to pass to another, an assignment of copyright must be entered into.
Ailsa is an experienced solicitor specialising in Commercial and Intellectual Property law.
To contact Ailsa you can call her direcly or call our new enquiries number 0330 058 4011 ext. 2724
Consultant Solicitor Commercial and
Intellectual Property specialist