Copyright: An introduction

Copyright tends to be one of the more overlooked assets when it comes to business output. Instead, the emphasis tends to be on rights which can be registered such as trade marks, industrial designs and patents which, most of the time, come at significant cost. Whilst the value of these Intellectual Property Rights cannot be denied, copyright affords protection with very little effort and cost. So why is it often overlooked? From experience, it comes from a lack of understanding about what copyright is, how it is created and how ownership or a right to use is ensured. There is also generally less hype amongst legal professionals when it comes to copyright as it’s harder to commercialise – in a number of jurisdictions, because there is no need to register copyright, profit is generally limited to the handling of disputes and licensing rather than forging a path for protection.   

What is copyright?

Copyright is the exclusive right, given to the author of an original work, to use that work (i.e. copy, distribute, adapt, display and perform) and/or allow others to do so. Types of original works which can be protected include: literary works such as books, articles, and computer software; artistic and dramatic works such as musical compositions, plays, drawings, paintings, films, broadcasts and sculptures and the typographical arrangement of publications. These works do not need to be creative, complex or have aesthetic value; they just need to be original (i.e., not copied).

Who is an author?

In general, an author is the individual who creates the work. That said, usually where there is a “work for hire” relationship, the work created in the course of that relationship is owned by the person or entity doing the “hiring”.  This means that, as an employer, you will generally own the work created in the course of someone’s employment.

How does copyright come about?

Copyright is an automatic right which arises when an original piece of work is created (subject to the necessary criteria being met). Unlike most other Intellectual Property Rights, it is generally not necessary to register copyright to obtain protection. In most countries like the UK, Australia and Hong Kong, there is no official for register of copyright works.

What are the limitations?

Copyright does not protect ideas, only the way in which those ideas are expressed. For example, if your company’s promotional literature, website or product packaging has been copied, you may have a claim for copyright infringement. On the other hand, if someone decides to copy your business model and set up in competition, there’s probably very little that you can do, from a copyright perspective - copyright balances the need to protect an author’s investment in an original work with the need for innovation and fair competition. 

Also, copyright protection is not infinite - It generally only lasts for the life of the author plus 70 years.

What does copyright mean for businesses and individuals?

Copyright protection means that the work that you and/or your workforce produce can attract copyright. As a result, assets such as your website, brochures, articles, newsletters, product packaging and marketing materials will be protected against copying (provided that the eligibility criteria for protection are met).

Moral Rights

Moral rights are rights which apply to copyright works in certain jurisdictions.

Moral rights include the right of attribution, the right to have a work published anonymously or pseudonymously and the right to preserve the integrity of the work.  Authors that retain moral rights in an original work can, therefore, object to the alteration, distortion, and/or mutilation of their work if they believe that it would be prejudicial to their honour or reputation. 

Moral rights can only be waived, they cannot be assigned. So, if you’re purchasing or obtaining a right to use a copyright work, ensure that the associated moral rights are waived so to guarantee freedom of use.  

What should businesses do when it comes to copyright?

• Ensure that “work for hire” agreements (i.e. contracts of employment and consultancy agreements) assign all copyright and waive all moral rights in the work that is created.

• Check to see whether you are based in a jurisdiction which recommends or requires copyright registration, like the US.

• If copyright registrations are required or recommended, ensure that you make the necessary filings.

• Educate your workforce on copyright principles (i.e. what is it, what does it mean and how is it infringed). By doing so, your workforce is less likely to infringe a third party’s copyright and is more likely to identify third-party infringement, helping to protect company assets. 

• Get into the habit of dating your work and using the copyright symbol (©).  As well as demonstrating that you own the copyright in that work, it also helps to deter potential infringers by signalling that you know your rights and are more likely to enforce them.

• Keep detailed records of company output so that you can identify when an original work is created, by whom and how that work evolves over time.

Top tip: You can only protect what you own. Engage an IP professional to ensure that copyright vests with either yourself or your company.

Disclaimer: Re-think Legal is a boutique legal consultancy providing businesses with legal support, not legal advice. The information contained in this blog is simplified and must not be taken as a definitive statement of either the law or practice of any given jurisdiction and does not constitute legal advice.