COPYRIGHT AND DESIGNS
- Intellectual property defined
Intellectual property is an example of intangible personal property. It is, in its simplest form, a collection of ideas and information in a broadly commercial context that the law recognises as having a value and is, therefore, deserving of protection. Intellectual property as a subject covers trademarks, passing off, copyright, patents and designs. The law protects intellectual property in a negative sense in that it may be used to prevent others from exploiting or infringing the intellectual property rights of the owner. This fact sheet will deal with copyright and designs.
2. What is copyright?
Copyright is the right to prevent others from copying, or reproducing your work. Copyright protects the expression of an idea, not the idea itself. For example, if you have an idea for the plot of a movie, that idea, whilst still in your head or even if communicated orally to others, will not be a copyright work. However, as soon as you commit that movie plot to paper it becomes a work capable of copyright. The material does not have to have novelty or aesthetic value to get copyright protection, but it does have to be the result of independent intellectual skill and effort.
There is no copyright in a name or title.
You cannot register copyright. It arises automatically upon the creation of a work that qualifies for copyright protection. Under the Copyright, Designs and Patents Act 1988, the author will need to show that he is a qualifying person or that the work was first published in a convention country. A convention country is any country that is a signatory to either the Universal Copyright Convention or the Berne Copyrights Convention. In practice, this covers most countries of the world.
Works that qualify for copyright protection are defined as:
- Original literary, dramatic, musical and artistic
- Sound recordings, filmsand
broadcasts (including cable and satellite broadcasts).
- Published editions of
It should be noted that a single work may be protected by a number of copyrights, owned by different people. For example, a song comprises words and music and each of these will have its own copyright protection.
A literary work is defined as “any work, other than a dramatic or musical work, which is written, spoken or sung”. This will include, for example, a computer programme, a table or compilation other than a database, preparatory design material for a computer program, a database, books, magazines, articles and poems. For a work to be protected it does not have to have literary merit.
In respect of computer programs, recent cases have confirmed that it is not the idea which is protected by copyright but only the form in which it is expressed. The form tends to mean the source code or program architecture. However, it appears as though it can also apply to the graphics of a product.
There is no definition of original dramatic works but it does include “a work of dance or mime”. The courts have suggested a dramatic work requires an element of performance accompanied by action. In order to be protected by copyright, a dramatic work must be recorded in some form; mere performance will be protected by performance rights (see later).
This is defined as “a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music”. This includes vocal or instrumental sounds, musical composition, printed or written score. The musical work must be recorded in some form for copyright to subsist.
This is “a graphic work, photograph, sculpture or collage irrespective of artistic quality, a work of architecture being a building or model of a building or a work of artistic craftsmanship”. In practice, what constitutes an artistic work is subjective and there exist a number of areas of dispute. For example, does designer clothing constitute a work of artistic craftsmanship? The answer is that it depends on the functionality and purpose of the specific design.
3. Who owns copyright?
The general rule is that the author is the first owner of copyright in a literary, dramatic, musical or artistic work. In the case of films, the principal director and the film producer are joint authors and first owners of copyright. The main exception is where a work or film is made in the course of employment, in which case the employer owns the copyright. The copyright in sound recordings, broadcasts and published editions generally belongs to the record producer, broadcaster or publisher.
To prove ownership, the author will need to produce original evidence of the creation of the work and proof of authorship. Such evidence usually requires a date reference. It may help copyright owners to deposit copies of the work with a bank or solicitor or send copies to themselves by registered post, leaving the envelope unopened on its return. This could establish that a work existed at the time. Ultimately, it is a matter for the courts to decide.
4. Infringement of copyright
The owner of copyright has the right to prevent others from doing certain specified acts in respect of that work. The copyright owner can control:
- Issuing copies to the
- Showing or performing the work in
- Broadcasting or including the work in a cable
Should such restricted acts take place, they will constitute an infringement if they are done in relation to the whole or a substantial part of the work.
5. Using copyright material
It is important to remember that if you purchase or own the original or a copy of a copyright work, this does not give you permission to use it in any way you like. For example, if you buy a copy of a book, CD, video, computer program and so on, this does not necessarily give you the right to make copies (even for private use), play or show them in public.
Other everyday uses of copyright material, such as photocopying, scanning, downloading from a CD-ROM or on-line database, all involve copying the work so you would normally need to obtain permission to do this. Also use going beyond an agreed licence will require further permission.
For the avoidance of doubt, the fact that a copyrighted work is freely available, for example on the internet, does not mean that you are free to use it. Use of images, photographs, texts, videos etc.
that is available online will still constitute an infringement of the owner’s copyright.
Question: I often copy material when carrying out research for my business. Am I allowed to do this?
It is likely that most research carried out by businesses will be for commercial purposes. Therefore, it is important to note that any copying for research or private study, which is carried out for a commercial purpose, will require prior permission from the copyright owner and a licence to permit certain copying.
There are several organisations that act collectively for groups of copyright owners. They collect the royalties for copyright owners by issuing licences for commercial use of the protected work. Some of the more prominent agencies are the Performing Rights Society and Phonographic Performance Limited for use of recorded music and The Copyright Licensing Agency or the Newspaper Licensing Agency for use of printed matter (see Links below). For a more comprehensive list of collecting agencies contact the government Intellectual Property website (see Links below) and search “Organisations representing copyright owners”. Once a licence is granted, it should be checked to see whether it allows any use of the work or whether it only gives permission for some uses of a work.
6. Permitted acts
Currently, there are statutory permissions or exceptions to the exclusive rights of a copyright owner. Broadly, these are as follows:
- Copying copyright work for the purpose of an individual’s own research or private
- Reproduction of acopyrightwork for the purpose of criticism and/or
- Incidental inclusion of acopyrightwork in an artistic work, sound recording, film, broadcast or cable
- Literary, artistic, dramatic and musical works may be copied or performed by a person giving or receiving
- Anthologies for educational
- Playing, showing or performing in an educational establishment, recordings by educational establishments or reprographic copying by educational
- Copying by libraries and
- Copying for the purposes of judicial
Many of the above exceptions were relied upon when limited copying was being done for commercial purposes on the basis that the copying in question amounted to “fair dealing”; a recognised exception under the 1988 Act. The Copyright and Related Rights Regulations 2003 came into force on 31 October 2003 amending the 1988 Act.
From the above date, any copying that is done for a commercial purpose, even as part of private study or from library archives, no longer enjoy the above exceptions. Only very limited copying for purely personal and non-commercial reasons continue to be exempt.
The same regulations altered the licence requirement provisions for establishments such as cafes, bars, restaurants and bistros that play music for ambience. Again, from 31 October 2003 such establishments are required to be licensed by both Phonographic Performance Limited and the Performance Rights Society (see Links below).
From 1 June 2014, additional exemptions have been introduced, and the following things can, in certain circumstances, be done, without infringing copyright:
- Caricature, parody or pastiche, if fair and
- Quotations, if fair and
- Research, private study, education, teaching, archiving and preservation, if fair and proportionate (the scope of previously permitted acts is extended).
- Creating accessible formats for disabled
Great care should always be taken when relying on an exception or permitted act, as clearly if the relevant act does not, in fact, fall within the appropriate exemption, then an infringement takes place.
7. Duration of copyright
Copyright in a literary, dramatic, musical or artistic work lasts until 70 years after the death of the author. The duration of copyright in a film is 70 years after the death of the last to survive of the principal director, the authors of the screenplay and dialogue and the composer of any music specially created for the film. Sound recordings, broadcasts and cable programmes are protected for 50 years and published editions are protected for 25 years.
Until recently, the Copyright, Designs and Patents Act 1988 contained an exemption which limited the term of copyright protection for industrially manufactured artistic works to 25 years. Generally speaking, this meant that when more than 50 copies of these artistic works were made, the protection period was limited to 25 years. The government repealed this exemption and as from 28 July 2016 all types of artistic works has copyright protection for 70 years after the death of the author. The transitional provisions introduced by the government ended on 28 January 2017 and businesses are no longer entitled to trade in replicas or unauthorised copies that were made under this exemption.
The government has issued guidance for affected individuals and businesses that can be found here:
8. Moral rights
Authors also have moral rights under the Copyright, Designs and Patents Act 1988. Moral rights can be divided into four categories:
- The right to be identified as author or director, in a manner likely to bring the identity of the author or director to the attention of a person seeing or hearing the public performance, exhibition, broadcast or cable programme. In the case of a commercial publication or film or sound recording, the right is to be identified on every copy or in some other manner likely to bring the author’s or director’s identity to the notice of a person acquiring a
- The right to object to derogatory treatment of work. “Treatment” means an addition to, deletion from or alteration to or adaptation of the work. Treatment is “derogatory” if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the reputation of the author or director.
- The false attribution of work, meaning the right not to have a literary, dramatic, musical or artistic work falsely attributed to a person as being the author and not to have a film falsely attributed as having been directed by a person other than the
- The right to privacy of certain photographs and films. This restricts the right of the copyright owner in photographs to deal freely with the photograph. The right is to prevent copies of the photo being shown to the public without the permission of the person who commissioned the photo.
Moral rights continue to subsist as long as copyright subsists in a work. However, breach of moral rights gives rise to a breach of statutory duty, not a breach of copyright.
9. Performance rights
This area of law seeks to protect live performances where there is, typically, no fixed form of the work in question. Recently, performer’s rights have been brought closer in line with copyright protection. Performer’s rights are now classified as “non-property rights”.
Performer’s rights are protected under the Copyright, Designs and Patents Act 1988. The Act defines those performances that give rise to performer’s rights and recording rights as being dramatic performance (including dance and mime), musical performance, readings and recitations of literary works and variety act performances or similar presentations. This definition is broad enough to include circus and comedy acts. To qualify, the performance must be a live performance and must take place in a qualifying country. Where these preconditions are met, then the Act automatically grants certain rights to the performer.
Performing artists are granted rights lasting 50 years in relation to broadcasting and recording of their live performances; copying, distribution, renting and lending of recordings of their performances; and broadcasting and public performance of sound recordings. The rights are related to copyright and similar considerations to those outlined above apply to those using material protected by performers’ rights and to performers wishing to enforce their rights.
The law governing the protection of designs is aimed at enabling the designer to protect the way their article looks and to stop anyone else from manufacturing either the same or a similar looking article. Design protection has two forms:
To obtain a registered design it is necessary to make an application to the Patent Office (now known as The United Kingdom Intellectual Property Office (UK-IPO)) (see Links). An application for registration involves drawings and/or photographs of the article, together with a model of the product. Registration will normally take about 6 months to complete. Once the design is registered, it will last for 5 years. It may then be extended on 4 other occasions (each renewal lasting 5 years), up to a maximum period of 25 years on payment of a renewal fee.
In order to register a design the article must:
- Come within the definition of “design”. (The appearance of the whole or part of a product resulting from the features of the lines, contours,colours, shape, texture, or materials of the product or its ornamentation).
- Have individual
- Not come within any of the exceptions to registration
From 1 October 2014, the Intellectual Property Act 2014 (IPA 2014) has introduced criminal penalties for infringing registered designs. The offence will require the perpetrator to know, or reasonably believe, they are infringing a registered design.
This right is similar to copyright because it arises automatically and cannot be registered. An unregistered design right will exist where:
- There is an original shape or configuration of an article. Two-dimensional shapes such as textiles or wallpaper are, therefore,
- The design is notcommon place
(designs that are well known, mundane or routine are excluded).
An unregistered design lasts for 10 years from the date of first marketing the article in the UK, subject to a maximum of 15 years from creation of the design. Similar to copyright, as the right cannot be registered, it is sensible to keep full details of when the design was first recorded in a material form.
From 1 October 2014, the IPA 2014 has changed the position when it comes to the ownership of an unregistered design. It has reversed the previous position, so now the legal owner will automatically be the person who created it i.e. the designer, and not the person who commissioned it. However, this can be changed by a contractual agreement to the contrary.
Since 1 January 2003 it has also been possible to obtain European wide protection for your designs, both registered and unregistered, by way of a Community Design. As you would expect, a registered Community Design provides more extensive protection than an unregistered one. Application for registration can be made either through the UK-IPO or directly with the Office for the Harmonisation in the Internal Market based in Spain (see Links below). Both websites offer detailed and extensive (downloadable) information on Community Designs that is beyond the scope of this fact sheet.
Where intellectual property rights are infringed the following remedies are typically available:
- Injunction (a restraining order to immediately stop the infringing act).
- Damages (a monetary claim for financial compensation).
- Account of profits (this allows the injured party to claim the profits made by the party who is in breach).
- Delivery up and destruction (the right to both seize goods and have handed over the infringing material or goods).
- Criminal penalties (both copyright and trademark infringement can be a criminaloffence, enforcement being carried out by the Trading Standards Office).
The Copyright Licensing Agency Limited Saffron House,
6-10 Kirby Street, London
Tel: 020 7400 3100
Fax: 020 7400 3101
The Newspaper Licensing Agency Limited 7 – 9 Church Road
Wellington Gate Tunbridge Wells TN1 1NL
Tel: 01892 525 273
Fax: 01892 525 275
The Performing Rights Society www.prsformusic.com
Phonographic Performance Limited www.ppluk.com
The address of the IPO is:
Intellectual Property Office Concept House
Cardiff Road Newport
South Wales NP9 1RH
Tel: 0300 300 2000
Fax: 01633 813600
For European design protection contact:
Office for Harmonization in the Internal Market (Trade Marks and Designs) Avenida de Europa, 4
E-03008 Alicante Spain
Tel: + 34 96 513 9100
Fax: + 34 96 513 1344