Making the Most of Copyright in the UK
Generally speaking, determining who owns copyright is a straightforward question. The author of a qualifying work (most written materials and images) is the first owner of copyright. If the person is employed, it is the employer that is the first owner of copyright.
This means that unless contractual arrangements with freelancers and independent consultants displace these default rules the consultants or freelancers will own the copyright in works that they create for others, whether they are authors, photographers, computer programmers, graphic artists, or movie producers. It is well established that a court will not intervene to assign copyright contrary to these default rules unless there are special circumstances. One might say that it is a form of insurance to ensure that when freelancers and contractors are engaged that copyright is dealt with in accordance with expectations.
Protection of Copyright Works
There is a common misconception that registration is required for copyright works in the UK. This is not the case. Registration services merely provide an independent service to produce evidence that the copyright was created at the time the owner say it was. If the owner has satisfactory evidence of the creation date (for instance, by publishing it) there is little need to concern oneself with such registration services.
Due to the operation of the law, when a third party unlawfully copies someone’s work, legal rights must be exercised promptly and prior to conduct that may suggest that the owner consents to the unlawful use of the work. A failure to assert copyright therefore may give rise to an inference that the copyright owner waives their rights to the infringement.
Copyright infringement comes with what is known as ‘strict liability’: it is immaterial whether the copier knew that the work was protected by copyright and thus it is irrelevant that the copier intentionally copied the work. The copier will still be liable for infringement.
Furthermore, a copyright work need not be copied in its entirety in order for a claim for copyright infringement to be proved. The Copyrights, Designs and Patents Act 1988 simply requires a ‘substantial part’ of the work to be copied. So a substantial part is assessed by reference to the importance of the part copied rather than the quantity copied. It stands to reason may be quite a small part of the work.
For many businesses, the point of protecting intellectual property rights lies in generating licensing revenues from multiple licensees.
It is important to remember that copyright in a protected work is separate to the physical embodiment of the work. For instance when publishers print books they do so with a view to selling copies of the book. The publisher owns the copyright. When someone purchases a copy of the book, they do not purchase the copyright in the book.
Similarly, computer software is licensed rather than sold on the mass market. The author of the software or photographer retains ownership of copyright and grants a licence (simply a permission) to the many others that are prepared to pay a sum to use the work. In fact the entire open source software community could not exist without 1. asserting copyright and 2. licensing it subject to a particular set of common principles. The nature of intellectual property rights makes licensing the only means to authorise third parties to use a copyright work, while maintaining ownership.
What to Do
When you engage someone to produce written materials or other copyright works, ensure that the contract deals with intellectual property in the letter of engagement or contract, in writing.
Although the fundamentals of copyright are relatively simple, it is able to be used in sophisticated and flexible ways to meet commercial objectives. If your business does have copyright materials that you would like to protect, the sensible advice is to obtain assistance that takes into account your particular circumstances. In an increasingly intellectual property aware business environment, not appreciating the legal landscape can lead to unexpected, unwelcome and expensive surprises.
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