Copyright: UK Law, Types of Works Protected, and Criteria for Protection

Introduction:

Copyright law is an integral part of intellectual property law that provides creators with exclusive rights over their original works. This offers creators the opportunity to control the distribution and use of their work – an incentive for creativity and innovation. Copyright law protects a wide range of works, including original literary, dramatic, musical, and artistic works and entrepreneurial works. This article aims to discuss copyright law in the UK and the types of work protected under it.

Types of Works Protected Under Copyright Law:

In the UK, copyright law under section 1(1) of the Copyright, Designs and Patents Act (1988) (‘CDPA’) provides protection for various works such as:

• Literary works like novels, poems, and textbooks;
• Dramatic works such as plays, scripts, and screenplays;
• Musical works like songs and instrumental pieces;
• Artistic works such as paintings, sculptures, and photographs;
• Sound recordings;
• Films and broadcasts; and
• Typographical arrangements like the layout of a book.

What is Copyright Protection?

Copyright protection arises automatically upon creation of an original work. The author or creator has exclusive rights over the work to prevent others from copying or reproducing it.

However, there are exceptions under which ‘copying’ or use may be permissible, including for example, ‘fair dealing’.

Fair dealing allows for non-commercial research and private study, criticism, review, and reporting of current events. Parody, educational use, and public interest are other exceptions to copyright law – these will be discussed in a separate forthcoming article and are highly relevant in the present digital age particularly with vast amount of content that is generated daily and globally on social media platforms. In general, if what is ‘copied’ or the part that is taken is not substantial, then there may not be an ‘infringement’ of copyright.

Idea v Expression dichotomy:

Copyright law protects the expression of an idea rather than the idea itself. For example, there may be copyright in a computer program, but what is protected is the source code and the object code, and not the underlying ideas or functionality.

It is important to note that there may be multiple aspects of a project that include copyright, such as music works, sound recordings, artistic works, graphic works, photographs, sculptures, and collages. In this example, each copyrighted work may be eligible for a different term of protection, and there may well be different authors and/or owners of each type of work, and licenses may be granted for each type of work beteeen different parties and even in separate territories.

Term of Protection:

The duration of copyright protection in the UK depends on the type of copyrighted material. For LDMA works, copyright protection lasts for 70 years from the end of the calendar year in which the last remaining author of the work dies. Similarly, for sound recordings, the term of protection is 70 years from the end of the calendar year in which the recording was made or released. For broadcasts, the term of protection is 50 years from the end of the calendar year in which the broadcast was made.

Registration:

In the UK, there is no official registration system for copyright. Copyright arises automatically, provided the criteria for protection under UK law are met. There is no need to fill in any forms or pay any fees to obtain copyright protection. Once a copyrightable work that qualifies for copyright protection has been created, copyright exists.

However, it is recommended to keep all original designs or proof relating to the work. A good idea can be to date and sign all of the initial preparations to prove when the copyright came into being.

Criteria for Protection:

(i) Originality

In the UK, copyright protection subsists in authorial LDMA works that meet the originality requirement. A derivative work, such as an adaptation, that infringes existing copyright work (assuming the copyright work is still within the term of protection) may itself count as being original.

The UK approach to originality is largely based on skill, labour or judgment. Generally, there is a low bar for ‘originality’ which lies in the expression of ideas as opposed to the idea itself – the infamous ‘idea expression dichotomy’. For example, a derivative work such as an adaptation that infringes existing copyright work may itself be ‘original’. If the originality requirement is met, the derivative work may have separate copyright protection.

The UK approach to originality is based on skill, labour or judgment, or the ‘sweat off the brow’ test which in some cases may need to be substantial – so the question to ask is how much effort has actually gone into the work and does this make it original? Traditionally, there are two main requirements that can determine whether a work is original:

• the work originates with the author and is not copied, and
• the author has exercised the requisite labour, skill or judgment in producing the work.

In the EU, originality is substantially based on the author’s own ‘intellectual creation’. It is worth pointing out that in the EU, although there is no ‘EU copyright’ per se, there is a piecemeal-harmonisation supported by the Directives including the Information Society Directive 2001/29/EC, the Database Directive 96/9/EEC, the Software Directive 91/250 (codified and replaced by 2009/24/EC) as well as CJEU case law which can be relied on.

In the Infopaq v Danske Dagblades Forening C-5/08 case, an 11-word extract was said to be original if through choice, sequence and combination of words the author had expressed creativity in an original manner to achieve a result that reflected an intellectual creation.

(ii) Fixation:

Copyright does not subsist in a literary, dramatic or musical work ‘unless and until’ it is ‘recorded in writing or otherwise’ – as per section 3 CDPA. At that point, the words are deemed to be ‘made’ – section 3(2) CDPA. Although copyright arises automatically and there are no formalities in registration, there is a fixation requirement such that the work needs to be reduced to some sort of ‘tangible medium of expression’.

In simpler terms, a work may be said to be fixated on a medium of expression when it can be perceived, reproduced or communicated. For example, the lyrics of a song can be written down in a document and that would be sufficient.

In the UK, there is no copyright register and, given that copyright arises automatically, there can sometimes be uncertainty as to who created the copyright work, who owns the copyright work, and when it was created. Therefore it is essential to keep any documents relating to copyright including as well as any assignment documents or agreements.

It is also recommended that all original designs or proofs relating to original work are kept and dated. This may include, for example, preparatory drawings, draft designs and layouts etc. You could ensure that you date and sign all of the initial preparations in order to be able to prove when the copyright was created. Although there is no requirement to mark anything which has copyright, it is advisable to mark it with the © symbol as well as the name of the copyright owner and the year of publication.

This can act as a deterrent that puts third parties on notice of the copyright work and indicates the term of protection as well as who to contact, which may be useful particularly for potential licensees that may be interested in licensing the copyright work for their own commercial interests.

Qualification:

In order to qualify for copyright protection under UK law, the work must have the necessary connection to the UK or ‘qualification’ which can be met in one of three ways:

1. Qualification via authorship

Qualification via authorship is fulfilled if at the relevant or ‘material time’, the author of the work was a qualifying person i.e., a British Citizen; an individual domiciled or resident in, or a body incorporated under the law of, a country to which the CDPA has been extended – section 154(1)(b) CDPA; or a citizen or subject of, and an individual domiciled or resident in, or a body incorporated under a law of, a country to which the CDPA has been applied – section 159(1).

2. Qualification via country of first publication

If copyright protection is not enabled via the above, then if the work is published through copies issued to the public in the UK or in another country to which the CDPA extends or applies – s.155(1), qualification may be achieved via the country of first publication.

3. Qualification via place of transmission for broadcasts

If the work in question is a broadcast, then this may qualify for protection if it is made or sent from a place in the UK, or a country to which the CDPA extends or applies.

Qualifying types of copyright work:

Whether a work ‘qualifies’ for copyright protection also depends on the type of work it is.

For example, according to section 3(1) CDPA, literary works is defined as “…any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes (a) a table or compilation (other than a database), (b) a computer program (c) preparatory design material for a computer program and (d) a database”.

Similarly, with regard to dramatic works, there is no explicit definition except that the work includes a work of dance or mime – section 3(1) CDPA – however, this may include scripts for film or play, and choreographic works. In Norowzian v Arks (No. 2) [2000] EMLR 67, it was held that dramatic work must be a “work of action” with or without words or music that is “capable of being performed” before an audience.

Typically, matters relating to qualification are rare given most countries are members of the Berne Convention – the most significant convention that applies to international copyright protection with 176 contracting parties.

Berne Convention:

The Berne Convention, adopted in 1886, focuses on safeguarding the intellectual property of creators and preserving their rights. This international agreement empowers authors including individuals like writers, musicians, artists, and poets to manage the utilisation of their creations, including who can access them and the conditions under which they can be used.

The types of work protectable under the expression of literary and artistic works are provided for in Article 2(1) Berne Convention.

It may be worthwhile noting, as a means for comparison, that the US only joined the Berne Convention in 1989 while Canada joined in 1928 and the UK joined in 1887.

While the UK does not have a copyright registration system per se, other countries such as the US do. However, since the US is a party to the Berne convention, then there is no current requirement that can be enforced on copyright owners to register their copyrighted material.

The Berne Convention essentially provides three conditions:

1. National treatment:

A work originating in one contracting state is given the same protection in each of the other contracting states that would otherwise be granted to the works of its own nationals.

This effectively means that a contracting state cannot discriminate between works originating from nationals in it own state as compared with those works originating from nationals in other contacting states – there are some exceptions or differences, however, in particular those relating to the term of protection.

2. Automatic protection:

Protection should not be conditional upon compliance with any formality. The US position is to be noted wherein registration is a pre-requisite to judicial enforcement of copyright of works originating in the US. There is still some benefit for registering non-US works in the US. Although this is available at a cost, it may provide statutory damages and attorney fees if in the case of infringement proceedings in the US which is obviously favourable for copyright owners exploiting their works in the US.

3. Independence of protection:

Protection is independent of the existence of protection in the country of origin. If one state provides a longer term of protection than the minimum, then protection may be limited to that of the country of origin. As a general rule, the Berne Convention sets out the minimum term as life of the author plus 50 years.

Enforcement:

Copyright infringement is a serious offense and can lead to legal action where the copycat may be liable for damages or other remedies. Infringement occurs when a work is reproduced, distributed, or displayed without the owner’s consent.

Copyright law makes it a criminal offence to copy the work; rent, lend or issues copies of the work to the public; perform, broadcast or show the work in public; or adapt the work.

There are some exceptions to or defenses to acts which would be considered as copyright infringement, including for example, use for private or research study purposes, criticism and news reporting, or caricature, parody or pastiche. The intended audience and exhaustion of rights also needs to be considered – again this is s complex issue that will be discussed in a forthcoming article.

In general, in the event of an alleged copyright infringement dispute, the claimant needs to show that the work has been copied.

In assessing copying, the court will look at similarities between the copyrighted work and the alleged infringement.

If the works are objectively and sufficiently similar, and if for example, in a particular case the defendant had access to the copyright work, then the courts may judge that copying has taken place.

The importance of originality is considered given the fact that these parts that are taken must also be original.

The burden of proof is then with the defendant to show the work has not been copied, which naturally will depend on the evidence presented.

Therefore, proving infringement can be a difficult task since it requires to show substantial evidence and infringement proceedings relating to copyright is a subject of litigation through the judicial system.

UK Copyright Service:

Registration of copyright can help to create evidence particularly in the event of dispute, as the the date and subject-matter of creation considered in a case can more easily be referred to.

The UK Copyright Service provides a possible route to register copyright after creating an account, information relating to the work is securely stored in a database.

A certificate of registration is also obtainable. The fastest way to register is via the online service in which the charges for this service are also listed.

Conclusion:

In conclusion, copyright law in the UK provides creators with exclusive rights over their original works, allowing them to control how their works are used and distributed.

The types of works protected under copyright law are diverse and include literary, dramatic, musical, and artistic works, among others.

Copyright arises automatically upon creation and is protected for a specific duration depending on the type of work.

While there are some exceptions to copyright protection, it is important to understand the criteria for protection, including originality and fixation, to ensure that works are protected under UK law.

C is for copyright, and the care to be taken by authors or creators; they should be mindful of the above-mentioned criteria, and take appropriate steps to ensure their works are properly protected.

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