The law that governs copyright is the Copyright, Designs and Patents Act 1988. Work that falls under literary, dramatic, musical or artistic works are protected regardless of the quality of the finished work. Literary work covers any work other than a dramatic or musical work, which is written, spoken or sung. Dramatic works include the communication of which is through performance and includes dance and mime. Musical works are those which are contained in sound. Artistic works cover the form of graphic works.
The definition of work is that it must have a degree of substance. For example, single words are not usually regarded as work; compared to an author writing a novel. However, there is a grey area as in the past newspaper headlines have been regarded as work. The general rule is that the owner must demonstrate that effort has been involved in creating the work.
The key requirement for the work to be protected under copyright law is that the work must be original.
A factor of creativity or effort must be involved in the making of the work. It is a fairly easy test to establish.
The second requirement to be protected under the law of copyright is that the work must be recorded. The protection for copyright is automatic upon the fixed form of the work. Importantly, the work does not have to be registered in order to obtain copyright protection.
The general rule is that the copyright is owned by the individual who created the work. However, there are some exceptions to this rule.
The main exception is when the work is created in the normal course of employment.The main assessment to decipher course of employment is whether the work was created under the contractual duties of the employee.
When work is commissioned to a particular author, the owner is the individual who creates the work as it is expressly agreed that it is outside the scope of employment and is in fact being created for the purchaser.
The duration of the copyright depends on the work produced. With literary, dramatic and artistic works the copyright expires 70 years after the end of the year in which the author dies.
With computer generated works, the copyright expires after 50 years after the end of the year in which the work was produced.
With sound recordings and films, the copyright expires at the end of the period of 50 years from the end of the calendar year in which the recording is made, or 50 years from the year it was published.
Under the CDPA 1988, the copyright owner is given exclusive rights including;
1. Making copies of the work
2. Issuing copies of the work to the public
3. To lend or rent the work to the public
4. To perform, show or play the work in public
5. To communicate the work to the public
6. To make an adaptation of the work.
Primary infringement occurs if an individual completes any of the acts detailed above without the owner’s permission. Copying the work is covered if it is reproduced in any material form. It covers the entire work being copied to a substantial amount.
Secondary infringement comprises a number of acts which involve dealing in infringing copies of copyright work. For example, distributing (rather than making) copies to the public. Usually, the party must know that they are infringing copyright to be found guilty.
The accused can raise the following defences;
1. There is no copyright
2. The accused created the work themselves
3. It is a ‘permitted act’
The owner can claim damages for loss arising from the infringement. Injunctions are available to the owner to prevent the other party from distributing or committing further acts of infringement. This can be claimed alongside damages.
