Copyright or Copy Wrong?

Copyright allows creators (be they, authors, lyricists, artists, directors, etc) of intellectual property to make a living. The person who creates an original creative work should be the one to receive the economic rewards through accreditation and/or remuneration - through payment or royalties. This way, the creator will be recognised as the original rights or copyright owner; to whom rights will be reserved. These rights allow him/her to decide whether and how copying, distributing and other uses of their works take place.

The Copyright, Designs and Patents Act 1988

This Act introduced an automatic and immediate copyright in original literary, dramatic, musical or artistic works (S.1(1) CDPA 1988). However, this does not exist until and unless the work has been recorded - though not necessarily by the author. For example, if a person recorded a band playing their music at a pub, then the copyright for this could vest in the band. It is important, then, to note that copyright does not protect ideas or creations themselves, but safeguards the expression of it.

General concepts cannot be copyrighted, for example, the general idea of a battle in outer space; the idea needs to be sufficiently well developed (Fraser v Thames TV [1983]). Also, character names appear not to have the ability to be copyrighted, although they would be able to be registered as trademarks to be distinguishable as a separate brand - for example, 'James Bond'.

A copyrighted work under CDPA 1988 can be relatively easy to prove within the scope of the Act. This means that there are no strict standards of novelty to be met, as there are with patent laws and trademarks. Due to the fact that the copyright automatically arises, there is no official form of registration of copyrights in the UK, as there are in places such as the USA.

So, how can a person copyright their works for free?

Musicians and their musical works would be a good example. If a musical artists was willing to pay for their copyright, then they could sign up to the Musicians' Union. However, not all musicians have the financial luxury of splashing out on these sorts of membership whilst trying to make their 'big break'. Therefore, musicians could write and record their music, seal it inside an envelope containing their name, the date the music was written and published. They would also need to send this package to themselves in the post and leave it unopened (as I have used this method in the past when I played music, it is likely that examples involving music will be used a lot!) This way, if there was ever a legal dispute, the musician could demonstrate their free copyright through this method and leave it to the trial judge to open the package for him/herself.

How long will a copyright last?

In September 2011, the EU Parliament implemented the EU Copyright Term Directive 2011 (Directive 2011/77/EU) - this extends the copyrights for music performers and sound recordings to 70 years. Those who compose already had, by this point, owned copyright over their music until 70 years after their death! Sir Paul McCartney and Sir Cliff Richard were among the artists who had campaigned and lobbied at the European Commission for this to be implemented for sound recordings.

Copyright also applied to the internet in the same way that it does with other mediums of media. If a person wants to distribute works on the internet that belongs to another person, that they are granted the copyright owner's consent, unless any of the exceptions below apply:

- It is for non-commercial research and private study;

- Receives criticism or is a report of an event;

- Teaching in educational establishments;

- Helping visually impaired persons;

- Time-shifting (eg. a recording of a broadcast, made on domestic premises for domestic use for it to be viewed/listened to at a more convenient time.

It is not an infringement of copyright to create a work located in and which is available to the public domain. It may appear obvious, but copyright is also not infringed when the material is used within legal proceedings.

Economic Rights & Royalties

Intellectual property rights underpin the economic factor of creating a work, so that money can be made. Royalties are usage-based payments made by one party (usually the licensee) to another (the licensor) for ongoing use of their asset (their intellectual property right, eg. the copyright). These 'permissions'  usually come about through a written contract and the royalties tend to be a particular percentage of gross or net sales derived from the music CD, for example.

A royalty interest is the right of the creator of the work to collect a stream of future payments, as a percentage ownership of future productions/revenues from the license agreement that had been made.

The granting of an 'exclusive right' or 'licence' means that the copyright owner can grant a particular person limited rights to their creation. Let us take J.K. Rowling and her Harry Potter novels for example. This diagram shows how one book can bring in revenue in many different ways through the assignment of rights, becoming assets to the companies involved. Though rights can be assigned to these companies for a temporary amount of time (please see more about licensing and creative commons in my next blog post).

Copyright Infringement

Breaching primary infringements (breaches of reproduction, rental rights, communication rights, etc) are strict liability offences - this means that there is no elements of mens rea to be proved (here comes the Latin phrases...) The mens rea refers to the defendant's state of mind at the time of the act, so in an ordinary offence, intent or recklessness would need to be proven, but here this is different. This means that purely innocent breaches may be actionable - beware of what you 'use' or 'take' from the internet and anywhere else for that matter!

With regard to primary infringements, the court can offer relief in the form of criminal and civil remedies sufficient to deter such issues as film piracy and the copying of MP3 files. Possible defences include permitted acts, fair use/dealing, research and private study. The Chancery Division of the court will usually grant injunctions or use equitable remedies such as 'specific performance'. The High Court may be able to grant a warrant to check the copyright infringer's premises for other pirated goods, if they see it appropriate to do so.

Secondary infringements (such as selling, importing, using equipment to produce infringing items, etc) require the proof of actual or constructive knowledge from the defendant that they knew or ought to have known that they were committing an infringing act (an objective test).

Image courtesy of Giulia Forsythe at Flickr

"The absolute transformation of everything that we ever thought about music will take place within 10 years, and nothing is going to be able to stop it. I see absolutely no point in pretending that it's not going to happen. I'm fully confident that copyright, for instance, will no longer exist in 10 years." - David Bowie (2002)