Copyright: Frequently Asked Questions A film, a jingle, a prop, a poster. At the heart of the legal protection for all these things is copyright which protects many types of creative work. This guide sets out the basics so that you can take the proper steps and precautions in protecting your work. This copyright guide is part of a series on a wide range of intellectual property issues, such as branding and designs, which will help you understand the importance of protecting your intellectual property and using it as part of your business strategy. Designers should read this in conjunction with our Briffa Bites Registered Designs and designprotect booklets, available from Briffa, Business Design Centre, Upper Street, London N1OQH or www.briffa.com
THE BASICS
1.
What is Copyright? Copyright gives those who invest the skill and effort to create original work, the right to prevent others copying them.
2. How do you get it? Getting copyright protection is easy. All original works of an author, set down in material form, have immediate copyright protection.
“Original” doesn’t
mean that the work is new, fresh and innovative, but simply that it originated from the author, that is, it is not copied from somebody else. There is no copyright in ideas or concepts, but rather in the expression of these ideas.
For example, a general theme for a TV programme has no
copyright, but once it is made or written down, the recording of the TV show itself, the images of fictional characters, the script and the music will all benefit from protection by copyright. It is important that what is created is put into material form. So if someone creates a new song but doesn’t write it down or record a performance of it, they have no copyright protection. Material form does not have to be writing
on paper, but can include saving it onto a disk or hard drive and recording it on a tape or CD. 3. What does © mean?
So if you can obtain copyright protection just by writing something on paper why does the following, for example © Jo Smyth 1970, appear on books, drawings etc? The use of the copyright symbol does not create copyright protection but it is important to put it on creative works, for three reasons: •
It shows who the author is, when the work was created and that the author is asserting their copyright
•
It puts others on notice that they are not entitled to copy the work without the author’s permission
•
It is a statement that all legal formalities have been complied with to allow copyright to exist in the work
Remember that copyright protection not only exists in drawings and music, but also sculpture, fashion garments, three dimensional work and works generated by computer programs. A building and a model of a building can also be the subject of copyright. It is often said, that to get copyright protection, you should post a copy of your work to yourself in a sealed envelope.
This does not give you copyright
protection, but rather it helps in proving the date the work was created. There is no system for creative works to be registered in a central database. If you can show that your work was created before someone else’s, this can obviously be highly significant when you are trying to show that they could have copied you. The best advice, is simply to always keep your rough drafts, sketches, scribbles and notes which lead to the final work that you completed, as all of these will be subject of copyright. Put the copyright symbol on these, as they have their own copyright and they help to show the date of creation of the final work.
4.
What sort of things can you claim copyright in?
What works will qualify for copyright? Almost all of the elements of an advertising campaign will be protected by copyright. From the initial storyboards (protected by artistic and literary copyright), through to the finished
campaign featuring posters, filmed advertisements broadcast on the television or radio with stage directions, scripts and stage directions. The following are the main areas: •
Literary works, such as books, advertising copy and corporate literature. This also includes computer programmes or anything expressed in writing. However, there is no copyright in a single word standing on its own
•
Dramatic works, the most typical of these being plays, but it can include any dance and mime choreography and stage directions wherever these forms are applied
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Musical works, this applies to any musical composition, including short jingles. However, it does not include words or actions that may accompany it
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Artistic works, original works of art with aesthetic elements will gain protection, including graphics for posters
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Broadcasts, sound recordings (that is the actual CDs, LPs, minidisks, tapes) films, cable programmes, typographical arrangements (that is the type setting on a book, the way it looks on the page)
5.
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Photographs
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Sculptures, collages, architectural works
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Computer generated works and databases
How long does it last? Copyright protection lasts for up to 70 years from the date of the death of the author, or in the case of sound recordings, films, broadcasts and cable programmes, for 50 years running from the end of the year in which the work was created.
6.
What rights does the copyright owner have? The owner of the copyright has the right to prevent others from doing any of the following: ·
Copying the work
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Issuing copies of the work (otherwise known as the distribution rights)
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Renting or lending the work
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Performing, showing or playing the work to the public
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Broadcasting the work
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Including the work in a cable programme service
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Making an adaptation of the work
The above list of rights are known as the “restricted acts” as other people are restricted from doing any of the above unless they have the permission of the copyright owner.
By doing a “restricted act” a person is said to infringe
copyright. In the above list, copying includes storing a work on a computer and making a three dimensional object from a two-dimensional drawing. A copyright owner can take an action to prevent others from making a “substantial copy” of the work. What constitutes a substantial copy is a matter for the courts, but one general rule of thumb is that “if it is worth copying, it is worth protecting”.
7.
Can the author of copyright and the owner be different?
It can be the case that the author of the copyright may not ultimately be the owner of the copyright. For example, employers will automatically own the copyright of all work that employees create during the course of their employment. While this occurs automatically due to the law, it is normally good practice for employers, in their contracts of employment, to have provisions setting out this legal rule. Also, the author can transfer his copyright by agreement for a set fee or in return for a royalty payment. This will happen for example with a musician, who will assign the copyright in their songs to a music publisher who then seeks recordings and other exploitations of their work. This type of agreement must be in writing to be effective. Alternatively, an owner of copyright may just license someone else to use their work rather than selling it to them outright.
8.
What are moral rights?
Moral rights are a special set of rights, which belong exclusively to authors of literary, dramatic, musical or artistic works, and to the directors of a film. They are designed to protect the artistic sensibilities of such authors. They do not apply to works created during the course of employment. Moral rights cannot
be transferred but they can be waived and authors are usually requested to do so. Moral rights give the author and director: •
The right to be identified as the author (as long as the author or director asserts their rights)
•
The right to prevent or object to the derogatory treatment of their work
There are also moral rights for all individuals, not just authors or directors, which are: •
The right not to have literary, dramatic, musical or artistic works falsely attributed to them
•
The right of privacy in photographs which they commission for private or domestic purposes e.g. wedding photographs
9.
What happens if I put my work on the Internet? The laws of copyright apply equally to works on the Internet as they do in the off-line environment. As a result, it is an infringement of copyright to place a book, graphics or song on the Internet without the owner’s consent. There is always a certain amount of risk involved in placing your work in an environment that facilitates copying. However, by marking your work with proper notices and by regular surveillance of your competitors, the risk of loss due to infringement should be minimal. Various aspects of a website will be protected by copyright. Firstly, there is copyright in the “look and feel” of the website, that is the artistic aspects of the website, or otherwise known as the “front end”.
The copyright in the front
end is an amalgam of the various copyrights in the text, drawings, video clips and music, which makes up the whole website. There will also be copyright in the software, which powers and operates the website, known as the “back end”. It is normally the case, in website commission agreements, that the commissioner will own the front end, however the software which operates the back aspect of it will belong to the software developer, who will license it out to the commissioner. 10.
What do I do if someone steals my work?
If you think your work is being copied you should write to the infringer and request that they stop their activity. You should also seek specialist legal advice if you feel that you have suffered losses as a result and legal proceedings may also be an option.
11
Will there be protection in other countries as well?
Copyright is protected abroad under the international system called the Berne Convention.
Each country, which subscribes to the Berne Convention
(currently just under 150 countries of the world), agrees to treat works coming from other member countries of the Berne Convention system as if they were originating in their home country. Therefore, an English textbook being sold in Germany would be protected in Germany, as if the work had originated in Germany.
ENTRIES TO THE D&AD STUDENT AWARDS Many colleges and universities require that students agree to assign the copyright in work they create on their courses. Most design agencies and studios have similar arrangements with their designers, and it requires a great degree of bargaining power to arrive at an arrangement whereby the designer retains the rights in his or her work. It is important for students, to know whether their universities own the copyright in their work, particularly when submitting work for competitions such as the D&AD Student Awards or when displaying their work publicly at a show or exhibition. Students who wish to submit work originally created for the purposes of their course into the D&AD Student Awards should ensure they have either retained ownership of the copyright in the work or they should obtain written consent to use the work from the copyright owner, likely to be the college or university. Students should discuss this with a course tutor in order to find out who owns the work. This is not to be confused with the copyright provisions to be found in the application form and terms and conditions of entry. These provisions make it a condition of work entered for consideration for a D&AD Student Award must
not infringe the copyright of any other person. They do not directly relate to the copyright in the work entered itself. The terms and conditions for submitting work for the D&AD Student Awards clearly state that the D&AD and the sponsors of the D&AD Student Awards are entitled to use the work submitted in order to promote the awards and to promote the sponsors’ involvement. The students will not be paid for this, but it could prove to be a valuable means for students to get their work noticed. Similarly, these conditions also state that in the event a sponsor wishes to develop or use any student’s work entered into the Awards, D&AD will actively encourage communication between the sponsor and the student to ensure the interests of both parties are protected. If you think a piece of work entered into the Awards has been used or copied without your knowing, you should consult your tutor and then contact D&AD (see point 10 above). WHAT CAN BRIFFA DO FOR ME?
Briffa can provide you with personalised, expert advice and assistance with the protection and maintenance of your work. We can help to devise a strategy for maximising the exposure of your work, while continuing to maintain the integrity of your work in the marketplace. If you require further information please contact any one of the Briffa team. We can: •
Draft commissioning agreements for all ranges of industry, including website development, fashion designers, artists, writers, and musicians
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Advise on all aspects relating to collective rights, that is, obtaining licences from the PRS, MCPS, PAMRA and other licensing agencies
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Enforcing copyright from the first “cease and desist letter” all the way up to full High Court proceedings
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Protect your copyright by conducting copyright audits, review of documents and procedures and employment contracts
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Maximising your copyright by licences and assignments
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Advise on the complex copyright issues involved in a wide range of specialist copyright areas including music, film, publishing, multi-media, interactive television and broadcasting