‘Academic’ Intelligence: An Overview of Copyright, Part One

Since the emergence of YouTube and other similar websites, the topic of copyright protection and its infringement has become quite popular with both the media and the public.

Today’s entry will, by no means, opt to provide the reader with a critical evaluation of the current English copyright law; rather, it will simply present a concise account of the requirements that need to be satisfied for copyright to be valid as well as the ways of establishing its legal owner and duration.

Prior to delving into the above, however, it must be noted that copyright is an unregistered intellectual property right. The significance of this is twofold:

Firstly, as it is an unregistered right, proving ownership in a copyright infringement claim can be quite arduous for the claimant as he cannot simply point to a register to prove his ownership.

Secondly, as it is a property right, copyright can be wholly transferred to third parties who can than use it as their own. Alternatively, it can be wholly or partially licensed to third parties (for a price) so that they can use it to extent allowed by the terms of the licence (i.e. a license to make a movie based on a book means that a lesser right has been ‘carved out’ of the copyright in the book).

In order to establish subsistence of copyright under English law, one must follow the criteria set out by the Copyright Designs and Patents Act 1988 (‘CPDA’), namely:

There must a ‘fixated’ and ‘original’ ‘work’ which needs to ‘qualify in the UK’.

‘Work’

The subject matter in question must coincide with one of the following ‘works’:

• Musical works- s. 1 (1) (a) and s. 3 CPDA

• Artistic works- s. 1 (1) (a) and s.4 CPDA ( including graphic works, photographs, sculptures, collages, works or architecture and artistic craftsmanship)

• Sound recordings, film and broadcast- ss. 5A, 5B, 6 CPDA

• The typographical arrangement of published editions- s. 1 (1) (c) and s.8 CPDA

Discussing the above in any further detail would be irrelevant for the purposes of today’s article; suffice it to say that if the object does not fall in one of the above, copyright in it cannot subsist.

‘Fixated’

This requirement only applies to literary, dramatic or musical works (ibid. ‘Work’). As per s. 3 (2) CPDA, if the work has not been recorded ‘in writing or otherwise’, copyright it in cannot subsist.

‘Original’

The threshold for the originality criteria is very low: it does NOT require an inventive step or creative spark (as with patents, for instance). As per s. 1 (1) (a) CPDA, the work in question simply needs to come from the author and must not be copied from someone or somewhere else.

‘Qualify in the UK’

In order for copyright to subsist, a work must be created by a UK citizen or resident or must have been first published in the UK.

Having met the above requirements, it is of utmost importance to establish who the owner of the copyright is (i.e. who has the legal title).  The author of a work (the person who creates the work, s. 9 (1) CPDA) is generally the first owner of it.

However, where a literary, dramatic, musical or artistic work is made by an employee in the course of employment, the employer is the first owner of the copyright, subject to any agreement to the contrary (s. 11(2) CPDA).

Finally, it must be noted that copyright is not eternal and has a fixed duration. The general rule is that the term of copyright is the author’s  (Note: NOT the owner’s) life plus 70 years (s. 12 (2) CPDA and s. 13B (2) CPDA (as to films) ).

There are, however, three exceptions, namely:

• Typographical layout of a published edition (s. 15 CPDA)

The term of the copyright is 25 years from the end of the calendar year in which the edition was first published.

• Sound recordings (s. 13A CPDA) and broadcasts (s. 14 CPDA)

The term of the copyright is 50 years from the end of the calendar year of creation.

• Artistic works which have been exploited by an industrial process (s. 52 CPDA)

When exploited by an industrial process, the term of the copyright is reduced to 25 years  from the end of the calendar year in which the work is first exploited.

In the light of the above, proving subsistence in copyright can be quite challenging at times; even if the claimant manages to satisfy the requirements set out by the CPDA, as discussed above, he can still be challenged in a number of other ways.

Next week’s article will opt to familiarise readers with copyright infringement claims and the various ways in which those can be dealt with and looked at.