Surely you have heard the term ‘copyright’ before. Even if you have not, you probably have used or enjoyed creations that were protected by copyright law. So, what exactly is copyright law and why is it important, especially now, in the digital era?
The World Intellectual Property Organization (WIPO) defines copyright as:
'a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings'.
From a UK law perspective copyright according to the Copyright, Designs and Patents Act 1988 can be described as a 'property right which subsists in accordance with this Part in the following descriptions of work (a)original literary, dramatic, musical or artistic works, (b)sound recordings, films or broadcasts, and (c)the typographical arrangement of published editions.'
This definition includes a significant aspect of copyright law, which is the term of originality. Simply put, for a creation to be eligible for copyright protection, it must first reach the originality threshold. In the UK legal system, the originality requirement is satisfied when the work has ‘originated from the author’, in the sense that it must not be a duplication of another work, though it is not required for the work to be a novel one. As it was stated in the University of London Press Ltd v London Tutorial Press Ltd case, 'the originality which is required relates to the expression of the thought. The CDPA 1988 does not require that the expression must be in an original or novel form, but that the work must not be copied from another work – that it should originate from the author.' So, the test of 'labor, skill and judgement' is used in the UK to examine whether the originality threshold for a creation has been reached. It should be noted that the ECJ's (European Court of Justice) Infopaq International A/S v Danske Dagblades Forening case introduced the additional factor of the 'author's own intellectual creation' to be used as a barometer of copyright originality.
Emphasis must be added to the fact that the expression of the idea is what is protected under copyright law and not the idea itself. This means that many individuals might come up with the same ideas, however ideas are free to everyone and only the expression of the idea can be protected by copyright law. For example, many artists might explore similar ideas for a novel or an artistic creation, but the court will examine the expression of these ideas in order to find potential similarities with previous creations when looking to decide whether copyright infringement has occurred.
The originality concept is intertwined with the authorship concept. Therefore, when the originality requirement is fulfilled the individual can be deemed as the author of the work. In the UK according to Section 9(1) of the Copyright, Designs and Patents Act 1988 ''author', in relation to a work, means the person who creates it.' But, there is an exception to this rule. According to Section 11(1) of the CDPA 1988 'the author of a work is the first owner of any copyright in it, subject to the following provisions. Where a literary, dramatic, musical or artistic work, or a film, is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary'.
The significance of copyright law lies at the fact that the individual who is identified as the author of the work and possibly as the copyright owner enjoys certain rights that enable him/her to exploit his/her creation in different ways in order to benefit from it, while simultaneously being protected from individuals who try use his/her work without permission.
These rights are divided into the economic rights and the moral rights of the author.
The economic rights are
· to copy the work (see section 17)
· to issue copies of the work to the public (see section 18)
· to rent or lend the work to the public (see section 18A)
· to perform, show or play the work in public (see section 19)
· to communicate the work to the public (see section 20)
· to make an adaptation of the work or do any of the above in relation to an adaptation (see section 21)
The moral rights are
· (section 77) right to be identified as author or director
· (section 80) right to object to derogatory treatment of work
. (section 84) false attribution of work
· (section 85) right to privacy of certain photographs and films
To better understand how copyright functions, it should be mentioned that there are certain justifications behind the existence of copyright law. The main theories relating to the formation of copyright law are the personhood theory, the reward theory and the public interest theory. According to the personhood theory, which is based on the writings of Hegel, the creation is viewed as an extension of the personality of the creator and thus it must be protected. The reward theory is based on the writings of Locke, where it is suggested that the creator must be compensated in some way for the effort, skill and labour he has put into the creation of his/her work. The public interest theory argues that not only the creator of the work is the one that ought to have rights over his/her work but also that the public should be able to enjoy the work, thus certain uses of the work should be permitted to the public.
All the above are relevant in order to help a creator or a copyright owner to identify his/her rights and consequently protect himself/herself from possible violations of his/her works. So, this leads us to think about the concept of copyright law infringement. Infringement of copyright happens when an individual has used a work that is protected by copyright law, without acquiring first permission from the copyright owner. According to Section 16 of the CDPA 1988 ‘Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright. References in this Part to the doing of an act restricted by the copyright in a work are to the doing of it (a)in relation to the work as a whole or any substantial part of it, and (b)either directly or indirectly.’
It must be highlighted, though, that there are certain exceptions and limitations that allow individuals to use a work protected by copyright without acquiring the permission of the copyright owner beforehand, that do not lead to copyright infringement occurring. So, in the case where an individual is accused of copyright violation the fair dealing defences are available, and if it can be proven that the infringing action can fall under these provisions the individual will not be held accountable for copyright infringement.
This article aimed at highlighting the basics of UK copyright law, so individuals can understand their rights, and subsequently become acquainted to a certain degree to the concept of copyright law and to its purpose. In our digital era copyright law is becoming an increasingly important legal field to creators as well as users, who enjoy copyright protected works online and may consequently become susceptible to copyright law violation without realising it. Thus, a familiarity with it and the law revolving around it can be useful to anyone!
Bibliography
Copyright, Designs and Patents Act 1988
Agreement on Trade – Related Aspects of Intellectual Property Rights 1994 (TRIPS)
Berne Convention for the Protection of Literary and Artistic Works 1886
Infopaq International A/S v Danske Dagblades Forening (ECJ case C5/2008)
University of London Press Ltd v London Tutorial Press Ltd [1916] 2 Ch 601 [608]
Bently L., Sherman B., Gangjee D., Johnson P., Intellectual Property Law (Oxford University Press 2018)
Fisher W., ‘Theories of Intellectual Property’ in S.R. Munzer (ed.), New Essays in the Legal and Political
Theory of Property (Cambridge University Press 2001)
WIPO, ‘Copyright. What is Copyright?’, 1 <https://www.wipo.int/copyright/en/> accessed 7 September 2020