Technology Solicitors &
Internet Lawyers
IP Briefing Note - Intellectual Property Law & Copyright
Copyright is a key area of intellectual property law - it grants a right to prevent others from doing what the
copyright owner has the exclusive right to do. IP is intangible property
- that is to say that it is not physical property that can be touched. Intellectual property is a legal expression to cover such areas as copyright, design right, patents,
trade marks, service marks goodwill and registered designs and is an area of
ever-increasing importance to businesses of all sizes. In Britain's
economy in the 21st century, arguably the most important areas
of IP are copyright and trademarks since
the advent of the Internet.
What is Copyright?
Quite literally,
copyright is the exclusive right for the author or creator of a piece of
work to copy or use that work. It arises every time an original piece
of work is created. It gives the copyright holder the right to prevent
other people using the work or to let other people use it on terms that
the copyright owner is happy with. Laws governing this intellectual property right vary in different countries - in the UK copyright lasts
for the life of the author plus 70 years in most cases - after that anyone
can use the work without having to get anyone's consent. The detailed
laws are more complex, so do not consider using the material created by
someone else, even 70 years after the end of the year the author/creator
died, without getting expert advice.
Acquiring Copyright Protection
So,
what do you have to do you acquire copyright and protect yourself from
being ripped off? Nothing. The most common misconception is that you
have to take positive action to acquire copyright in the UK. In fact, you have copyright in
the your creations at the moment the work is done. The problem is proving
that it was your creation and not done by someone else earlier. However,
it is important to note that copyright in material created during the course
of your employment will automatically belong to your employer.
Protection of Copyright Material
The
following simple steps are all you need to do to prove when you created
the IP work in question:
- put
a copy or photograph of the work (possibly in digital format on disk or
on CD-Rom) in an envelope;
- address
it to yourself;
- mark
the envelope so you can identify its contents without opening it when it
gets back to you;
- send
the envelope by "Special Delivery" mail;
- when
it arrives by post, do not open it;
- store
it somewhere safe from both theft and damage.
Proving Ownership of IP
Remember
that the envelope will not help prove your case if it has been opened as
anyone could have put anything in at any time. You have to decide how
valuable your work could be and whether it is worth the further expense
of either having your own fireproof safe or paying someone else to keep
it for you (e.g. your bank).
You
have to put the question of copyright protection and other intellectual property rights in a practical context
- there is no point in going to all the expense and trouble if it is unlikely
that the work would have any value to someone else. It is also important
to remember that protection will not give you copyright if you
have copied someone else's material, however unwittingly, it is still copyright
infringement - there is no innocence defence to copyright infringement.
Contrary
to popular belief, you do not need to register copyright and indeed there
is no official public register but you can always register with the privately
operated "UK Copyright Service" for a small fee: www.copyrightservice.co.uk (email: information@copyrightservice.co.uk).
Clarifying Copyright Issues
Although
as a general rule copyright is retained by the author or creator of the
piece of work, what happens where the work is created by an employee in
the course of his/her job or a client commissions the work? In both cases,
the issue of copyright ownership may become clouded.
Copyright in Material
produced by Employees
In
the case of an employee, certain terms are implied into the contract of
employment but to avoid disputes later, it is vital that a contract of
employment clearly sets out that copyright in all works produced by them
will belong to the employer - this leaves the employer free to commit to
contracts with clients which may run beyond the period for which the employee
is employed and without it there would be contractual chaos. An example
would be where an employee of a computer software company prepares a program
for a client of the employer - clearly it would put the employer in an
impossible position with the client if the employee left (or threatened
to leave) and to take the copyright with him/her.
In
the case of work commissioned by a client, usually the creator will retain
copyright but trade practices may dictate that it is passed to the client. In
order to avoid expensive disputes, the terms agreed with the client should
expressly deal with this point.
If
the terms state that copyright passes to the client, the client will then
have the unrestricted right to reproduce the work. Copyright can be seen
as a multi-layered cake that can be cut up and the pieces shared out. In
other words, the copyright holder can retain copyright but allow (or "licence")
someone else to use the whole or part of the copyright. The whole cake
can be licensed or specific parts (i.e. rights) can be licensed - the parts
may be defined by reference to time, purpose and territory.
For example,
a freelance graphic designer was asked to produce artwork for posters and
fly sheets for a low-budget theatre production at a small theatre. He was
asked to do the work on a reduced-fee basis to keep costs low. He was
prepared to do so but was concerned that if the play transferred to the West End they would have had a real bargain that he felt was
unfair to him. He was able to agree (putting the agreement in a short
contract letter) that his client could only use the artwork for the productions
whilst running at the smaller venue so that the client would have to negotiate
for its use elsewhere. This meant that the designer could be given a more
reasonable reward for his efforts if the play was successful. In fact,
it was and transferred to the West End and the designer made money as a
result.
Whilst copyright may be a complex and highly specialised area of law, it is not
necessarily expensive to get advice on simple ways to protect you and the
cost of not doing so can be far greater.
Visit our detailed copyright law review
and our database right review. Also see How
SMEs Protect Computer Software using Intellectual Property Rights. Also
see our Copyright FAQs Series.
NEED TO KNOW MORE?
For further information
on intellectual property (IP) law and the exclusive rights granted by copyright law, contact Julian Danobeitia. Should you prefer to telephone, call us on +44 (0)207 278 1817.
Kaltons Solicitors, Suite 302, Spitfire Studios, 63-71 Collier Street, London, N1 9BE. Telephone +44 (0)20 7278 1817; Fax: +44 (0)207 278 1835.
Copyright © Kaltons Intellectual Property Solicitors 2000 2004. All rights reserved.
