Copyright – The Swiss Army Knife of Intellectual Property Rights

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Photo Credit: Eberhard Grossgasteiger

Copyright – Not just for ‘creative types’

Whilst copyright protects creative works; it is the wide definition given to such works that should be of interest to startups. Even mundane website content including images, videos and text for example are all potentially protectable by copyright providing of course the originality requirement can be met.  Couple this with the fact that copyright does not have to be registered and has a long period of protection; startups are looking at a very attractive intellectual property right that will help to protect key parts of their fledgling businesses.

The focus of my article today is to stress the versatility of copyright so that startups don’t just see it as an intellectual property right for creative ‘types’. Moreover, because copyright crystallises over work as soon as it has been created (registration with the UK IPO is not required; more information here) this enables startups to focus their efforts on time and resource intensive registrable rights such as trade marks and patents if applicable to their businesses.  Further information on patents and trade marks here.

“Even mundane website content including images, videos and text for example are all potentially protectable by copyright providing of course the originality requirement can be met.”

What is Copyright?

Copyright is a property right which protects original works such as novels, plays, music, paintings, sculptures, movies, film scripts and computer programs.  Copyright grants authors a number of exclusive rights:

(a) economic rights, which allow them to control the exploitation of their work, and

(b) moral rights, which include the right to prevent the mutilation or false attribution of their work.

There is a clear distinction to be made between the intangible right in the work and the property right in the physical embodiment of the work. The owner of a painting, for example, is not automatically entitled to make and sell a copy of it.  It is also important to be aware of the differences between the systems of copyright in the countries applying common law and the continental European Author’s Rights system. The main difference lies in the importance that is attributed to the relationship between the author and his or her work. In the Author’s Rights system, a series of inalienable moral rights are accorded to the author, while the common law approach of the copyright system focuses more on the economic value of the work. In recent years, the dividing line between the two systems has become increasingly blurred.

Is it possible to use copyright to protect an idea?

Copyright law does not protect ideas or concepts.  This principle is universal. It is enshrined in international treaties and national acts:

Article 9(2) of the TRIPS Agreement states that: “Copyright protection shall extend to expressions and not to ideas, procedures, and methods of operation or mathematical concepts as such.”

Article 1(1) of Directive 2009/24/EC on the legal protection of computer programs states that “ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Directive.”

The US Copyright Act provides: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle or discovery …”.

The same principle applies to facts, procedures, processes and systems, methods of operation, concepts, principles and discoveries.  For example, two people may write a book about a little wizard fighting against a dark magician, but nobody is allowed to copy the Harry Potter books without the authorisation of the rights holder, because they represent a specific expression of that idea. Similarly, while it is permissible to take a picture of the same event or the same person, it is not possible to copy a specific picture if it is protected by copyright.

“Copyright law does not protect ideas or concepts.  This principle is universal.”

However, the dividing line between “idea” and “expression” can still be difficult to determine. For example, the well-known musical West Side Story is based on the story of Shakespeare’s Romeo and Juliet. Two lovers belong to rival families (the Montagues and the Capulets) or gangs (the Sharks and the Jets). Romeo kills Tybalt and Tony kills Bernardo, Maria’s brother, in both cases to avenge their best friend, who has been killed by a member of the rival family or gang. The works have similar endings. Idea or expression?

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Photo Credit: Giammarco Boscaro

What does copyright actually protect?

Exhaustive lists of works covered by copyright are usually not to be found in legislation. Copyright protects any production of the human mind, including literary, dramatic, musical, artistic, photographic, phonographic and cinematographic works.  A literary work is a work expressed in words (in all existing languages, including Braille), regardless of any consideration of its merit. The title of a literary work may also be protected in itself.  A dramatic work is typically intended to be performed on a stage. This category also includes mimes, ballet choreography and television shows.  A musical work is a combination of sounds, rhythms  and harmonies, with or without words. It includes radio station jingles, telephone ringtones and musical samples.

Artistic works are works that appeal to the eye. The use of the word “artistic” does not imply any aesthetic judgement. This category of works may include engravings, lithographs, drawings, logos (including logos used as trade marks), clothing designs, sculptures, photographs, collages, works of architecture, pottery, embroidery, fabrics, table linen, tapestries, dinnerware, floral compositions, designs of web pages, fine art jewellery and glassware.  Cinematographic works do not need much of an explanation. It is, however, worth mentioning that films are made as a result of several contributions, including the screenplay, soundtrack, costumes, music and sets, all of which are separately protected by copyright. As a result, the holder of the rights to a film will not be allowed to use the individual contributions in a different context.  Characters may also be protected independently from the underlying work in which they appear. The courts in various countries have granted protection to “Asterix and Obelix” and “Tintin”, for example.

Does copyright have to be registered?

Copyright protection exists from the moment a work is created. Registration is not necessary in order for copyright to exist.  However, an optional registration process is available in some countries. Registration can be useful as it can help prove that the work existed at a certain date in the event of infringement.  The “©” symbol is used to show that the work benefits from copyright protection. Whilst not mandatory, its use is a highly visible way to emphasise that that work is protected by copyright and that all rights are reserved.

“Copyright protection exists from the moment a work is created. Registration is not necessary in order for copyright to exist. “

Is copyright protection worldwide?

Copyright is by definition territorial. In other words, protection is granted on a country-by-country basis.

Despite considerable harmonisation of copyright and related rights at EU level, there are still some differences in copyright protection at national level. However, certain standards of copyright and related rights protection apply in all the EU Member States under legislation implementing international instruments such as, for example, the Berne Convention for the Protection of Literary and Artistic Works.

What rights does copyright confer?

Economic Exploitation Rights

It is important to note that Copyright does confer moral rights; that is to say, the right to be named as the author of a work or, on the contrary, to remain anonymous.  However this section will deal with the more commonly used economic exploitation rights. The first of these is the right of reproduction which relates to the act of making a copy of the work, or a substantial part of it, on the same or a different platform. One example would be the reproduction of a book on an electronic platform.  The right of adaptation involves the transformation of a work, for example a translation or an adaptation of a novel into a screenplay.  The right of communication to the public covers public performance (public recitation, public representation of a dramatic work, public projection of a movie etc.), broadcasting, cable retransmission and, more recently, the act of making a work available on the internet.  The public display right is the right to show or exhibit a copy of a protected work publicly. Under US law, to “display” a work means “to show a copy of it, either directly or by means of a film, slide, television image,  or any other device or process”. For example, if a poster reproducing a photograph were to be shown in a film, the makers of the film would need to obtain the consent of the holder of the copyright in the photograph. A more limited “display right” is provided for in the Canadian Copyright Act, which confers the right to authorise the presentation at a public exhibition, for a purpose other than sale or hire, of an artistic work.  The right of distribution includes rental and lending rights. Copyrighted works are frequently rented. This is the case for software (including games), films and musical recordings and also for paintings and other artistic works.

The resale right is a right granted to the author of an artistic work to receive a portion of the resale price of the work. This right, which is meant to allow artists or their heirs to profit from the resale of their work, was first introduced in France. The resale right is intended to ensure that authors of graphic and plastic works of art share in the economic success of their original works.  It helps to redress the balance between the economic situation of authors of graphic and plastic works of art and that of other creators who benefit from successive exploitations of their works. The subject of the resale right is the physical work, namely the medium in which the protected work is incorporated.

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Photo Credit: Eddy Klaus

“The “©” symbol is used to show that the work benefits from copyright protection. Whilst not mandatory, its use is a highly visible way to emphasise that that work is protected by copyright and that all rights are reserved.”

Who is the author? 

In the Author’s Rights systems, the author is the physical person who created the work. The same is generally also true in the copyright system, but there are certain cases where a legal person, that is to say, a company, is considered to be the author of the work. For example, under US law the employer is deemed to be not only the owner of the copyright in works created by his employees in the course of their employment but also the author.

What if there is more than one person who created the work? Are they co-authors?

As a general principle, only a contribution to the originality of the work will be recognised as conferring the status of co-author. For example, a journalist who merely repeats verbatim an interview or a speech does not qualify as a co-author. However, if on the basis of an interview he writes a story which includes an important part of the interview, the resulting work will be considered as a work of joint authorship. Finally, if the journalist writes a book on the basis of the interview, without incorporating a substantial part of the words of the interviewee, he will be considered the sole author of the work. A person who merely provides ideas or whose participation is limited to revising a work will not be considered a co-author.

Who owns copyright?

Works created in the course of employment raise certain issues. Under common law, the rights to a work made by an employee are deemed, unless there is an agreement to the contrary, to belong to the employer. Under US laws, the same principle has been extended to a work specifically commissioned by a party. The parties must, however, sign an agreement to that effect. This position contrasts with the one adopted by civil law countries, whereby the employee retains the rights to a work that he has created in the course of this employment.

How long does copyright protection last?  What happens once copyright protection has expired?

The term of protection afforded by copyright varies from country to country. It also depends on the type of subject matter. As a basic rule, copyright is valid for a period of 70 years after the author’s death.  After the expiration of the term, the work falls within the public domain and can be used freely, without the consent of the author or the right-holder.

What amounts to copyright infringement?  Are there any defences to Infringement?

Infringement occurs when a substantial part of the copyright protected work is used or to put it another way, when a third party exercises one of the rights of the author or owner without their consent (see above).  In terms of defences, it is important to note that ignorance of the fact that a certain act constitutes an infringement and the absence of intention to infringe do not constitute a defence in an action for copyright infringement.  However third parties can invoke other defences such as, it is not the same expression, but merely the same idea, it was non-creative material and that the work has already entered the public domain.

“As a basic rule, copyright is valid for a period of 70 years after the author’s death.  After the expiration of the term, the work falls within the public domain and can be used freely, without the consent of the author or the right-holder.”

What are the remedies for copyright infringement?

There are a number of different remedies and procedures available for enforcing copyright.  Provisional or precautionary measures include stopping further infringement, seizing infringing goods and seizing the movable and immovable property of the alleged infringer.  Measures to preserve evidence can also be taken.  In terms of final relief, the court may order the destruction of the infringing material and award damages, including the confiscation of profits, and court costs and legal fees.

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Photo Credit: AB

Steve Jobs on the power of the Internet to help startups compete

“The smallest company in the world can look as large as the largest company on the web.”

So how is this relevant to our current discussions on copyright? I would suggest that startups that understand how copyright truly works will realise that even ‘bread and butter’ content on their websites can be protected against unauthorised use; or to put it another way, copyright enables startups to hold more larger companies (or for that matter fellow startups) to account for using their online content without consent. Copyright in my view can help to bring about a more level commercial playing field even in relation to non-core business such as website content.

Where to go from here

Copyright arguably just like a Swiss Army knife is versatile, lasts for a long time and is used by a variety of audiences.  So if you are a startup that is about to launch or recently has launched a website, then please be reassured that a surprising amount of its content may well be protectable by copyright. After all, copyright is more than just the judicious placement of the “©” symbol on your website as a Swiss army knife is more than just a knife.

How will you use copyright to protect your website content?

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