Where do you start with copyright law? What are the myths of copyright which could sting you for copyright infringement?
What's right and what's wrong? You can spend hours searching on the internet and not be too sure what you're reading is right. Or Wrong.
Here a starter pack to get you started on what copyright can and can't do ...
The most common copyright myths are:
- #1: Copyright protection of ideas
- #2: No Registration, No Protection
- #3: I paid someone to create a copyright work for me, therefore I own the copyright
- #4: No copyright notice = no copyright protection and no copyright infringement
- #5: Copyright infringement is a criminal offence
- #6: Whoever says they are the owner in a notice is the owner of copyright
- #7: Copyright law around the world is the same
- #8: Copyright in a Name
- #9: Posting a copyright work to yourself
- #10: If it’s on the internet, it’s free to use
- #11: Changing a Work by 10%/20% small part avoids infringement
- #12: You can use other people’s work if you don’t make money out of it
- #13: I bought the book / movie / music / photograph I can do what I like with it
- #14: I didn’t know I was infringing
There's a lot to know.
Let's get started:
Myth #1: Copyright protection of ideas
There's no copyright in ideas.
There's also no copyright in concepts, schemes, systems, procedures, methods, mathematical concepts or algorithms.
Copyright only exists in the tangible expression of ideas – in a fixed and material form.
Therefore, copyright protection does not extend to the ideas themselves, only the form in which they are expressed.
This is known as the 'idea/expression dichotomy'.
One case drew out the distinction between an idea and its expression pretty clearly...
It has been explained like this:
"Copyright Acts are not concerned with the originality of ideas, but with expression of thoughts".
And probably even better, like this:
There can be no copyright in an idea, so that all the respondents had done was to take from the appellants the idea of external latching … or any other idea implicit in their work, the appellants could not complain.
Nor is there infringement if a person arrives by independent work at a substantially similar result to that sought to be protected.
The protection given by the law of copyright is against copying, the basis of the protection being that one man must not be permitted to appropriate the result of another’s labour. That copying has taken place is for the plaintiff to establish and prove as a matter of fact.
And again like this:
… there can be no copyright in an idea or concept; but it is hardly necessary to say that this does not mean that once the idea or concept has been translated into a working drawing, the drawing cannot enjoy copyright, otherwise it would mean that copyright could not attach to any drawing; for every drawing is the child of an idea or concept.
What does that all mean?
Before an idea can be protected, it must be recorded. In writing, on a hard disk, or some other tangible medium.
An idea can't be protected while it only exists in your mind. That's because the idea doesn't exist in a form recognised by copyright. It's not in a recorded form.
But wait... it's only the way you express the idea in the recorded form that's protected. IE: "the expression" of the idea.
So someone can read a story or look at a painting, and then make their own story or painting using the same idea - as long as they don't copy "the expression" of the idea.
You may want to check out the examples in a moment.
The qualified monopoly of copyright
That's the "qualified monopoly" of copyright. Really it's a relatively weak form of copyright protection. It's because you can extract the idea from the story or painting (or other work) from the copyright work, and make your own expression of the idea or concept.
Although that's where you may run into problems. When your copyright work gets too close to someone else's that you've seen or come across.
Own Independent Work
Where it's shown that two similar works were produced independently of one another, there can be no infringement of copyright.
Because there has been no copying.
So to summarise:
- Copyright is the guardian of the fine arts – written, drawn, filmed and performed works.
- Using someone else’s idea or concept does not amount to copyright infringement.
- However, when you reproduce the expression of an idea that has been recorded, it will amount to an infringement where the test for infringement is satisfied.
Example: Descriptions of Inventions
A practical example of this distinction would be a literary work which describes a particular invention. Let’s say the description informs tells you how to make a time-machine.
The words in the description are protected by copyright. Copy the text of the description, and you infringe copyright. Make the time-machine described in the description and you do not infringe copyright. The description does not protect the idea of making a time-machine. Copyright will protect the expression of that idea in the literary work itself.
Example: Documents that describe a Process
Let’s suppose that the double-entry ledger system to record accounting transactions has not been invented. Messari is credited for inventing it in about 1340 in what is now Italy.
Let's say Messari published a paper describing the process to record accounting transactions in that way. It would be an infringement of copyright to photocopy the paper. It would not be an infringement of copyright to implement the process described by the paper.
Example: Social Media Website
Suppose social media has not been invented yet.
Someone publishes a website and bills it as “Social Media Website”.
You are able to go to the website, enter your own details, interact with others, share posts and documents and videos through the website.
Let's say that you want to create your own social media website.
Copyright will protect against copying the source code that runs the website. It will protect against copying the images, videos and posts made by you and others on the website.
It will not protect against you take the concept of social media website and implementing your own version of it.
Copyright will protect the expression of the source code, but not the method by which the code solves the problem. It is the particular expression of the source code that is protected.
In one case a particular technique for selling double glazing had been given expression in the form of documents used by salesmen in the course of their "pitch".
Only the form in which the technique had been expressed in the documents could be protected, not the technique itself. In that case the sales technique was common in the industry and the defendant had not copied the detailed expression of the technique from the claimant's documents.
There was therefore no infringement even though the claimant's documents had been the inspiration for the defendant's. Although there had been some copying of expression from the claimant's documents, there had been no sufficient skill and labour expended on these parts to make the amount copied a substantial part of the work.
Essence of Infringement - Protection of Ideas
If the expression is not copied, copyright cannot be infringed. Someone can't be liable if they have taken the essential idea from the copyright work, however original, and expressed the idea in their own form, or used the idea for his own purposes. Protection of this kind can only be obtained, if at all, under patent law or the law relating to confidential information.
It is not an infringement of a literary work to take the plot of a story, or take the general idea from an artistic work.
Copyright Myth #2: No Registration, No Protection
It is a requirement of the Berne Convention not require any formal process to obtain copyright protection. There is no registration process to obtain copyright protection.
What's more, the principle of national treatment means that infringers are liable for their infringement in every country in which the work is reproduced.
In the age of the internet, that can be quite a number of countries.
#3: I paid someone to create a copyright work for me, therefore I own the copyright
Paying money for intellectual property protected work doesn't mean you own it. That would mean an automatic transfer the intellectual property rights to the payer. That can happen, but in very limited circumstances, and rarely.
Copyright can only be assigned by an agreement made in writing, which has been signed by the copyright owner.
You engage a contractor or consultant to perform services for you. The services involve creation of deliverables which are protected by intellectual property rights. They perform the work, produce the deliverables and you pay them. All done.
If there is no written contract, or there is a written contract that does not assign the rights to you, the contractor or consultant owns.
Consider the scope of this. A video production company engages a consultant. It could be a web designer, a programmer, a copyrighter or marketer. The web designer produces a brochure produced. A copyrighter to put together some marketing text. A developer produces some code. A market research company.
In all of these cases, the default position is that the commissioned company will own the intellectual property rights.
The customer company pays for the work. They are entitled to use the work for the purpose(s) in mind by the parties at the moment the terms of engagement were agreed.
Usually, the payer will have:
- a non-exclusive licence,
- to use the work,
- for the purposes in mind by both parties at the time the contract was entered.
This has a number of implications:
- To take a simple example, assume the software was for artwork. Pre-contractual discussions were about using the artwork in a brochure. Then after it was delivered, you want to use the artwork on your website. Because this use – purpose - was not in mind between the parties as at the time of the contract, the payer will infringe the copyright of the designer by using it on their own website without their permission.
- To obtain the permission of the artist, it will probably mean having to pay more money to the artist.
- If the payer goes on and publishes the artwork on its website anyway, it will be exposed to a claim for copyright infringement.
What makes the Difference?
When the background - prior to the contract being agreed - shows that the person paying was to own the copyright rights.
Myth #4: No copyright notice = no copyright protection and no copyright infringement
In the UK along with most other countries, copyright applies automatically once the work is created.
The Universal Copyright Convention first gave copyright notices prominence. It says at Article 3:
"… Any Contracting State which … requires [conditions for copyright to apply], shall regard these requirements as satisfied …. With respect … with this convention if from the time of first publication all the copies of the work published with the authority of the author or other copyright proprietor bear the symbol © accompanied by the name of the copyright proprietor and the year of first publication placed in such a manner and location to give reasonable notice of claim to copyright."
The Universal Copyright Convention is about establishing a method to give notice to others that the copyright is asserted.
As well as this, the Universal Copyright Convention plays second fiddle to the Berne Convention. The Berne Convention takes priority. The Berne Convention takes priority.
Under UK copyright law, copyright notices only create a rebuttable presumption that the person named owns the copyright.
Using the © notice is useful because it communicates that there are no implied licences to use the work. Particularly when the copyright is accompanied by the words "All rights reserved".
Myth #5: Copyright infringement is a criminal offence
There are criminal offences for copyright infringement. But you need to be infringing copyright on an industrial scale before it's going to capture the interest of the authorities, such the police.
What's an industrial scale?
Well depending on value of the item infringed - 100s, maybe thousands may 10s of thousands, and maybe at a cost of millions to the copyright owner.
Think about it.
The police have higher priorities than to than enforce private rights for copyright owners. But it does happen. But then, if you keep selling infringing goods on eBay or elsewhere, you make yourself an easy target. Better not to do it at all, isn't it?
If a case is successful for criminal copyright infringement, a civil claim will also exist for copyright infringement.
Myth #6: Whoever says they are the owner in a notice is the owner of copyright
Copyright notices usually appear in the form "© [Name] [year]" or even "© [Name] [year]. All rights reserved".
These copyright notices only create a presumption of ownership. It is not conclusive of ownership. The presumption may be rebutted with evidence.
The same rule applies to the author. Simply because someone says that they are the author is not conclusive of the allegation that they are the author.
Also, if an employer, the Crown or international organisation applies its name to the copyright work, is not conclusive of the fact that they are the owner.
Myth #7: Copyright law around the world is the same
For instance, one of the dramatic differences between US law and UK law are allowances made for "fair use".
Fair use is a defence to infringement. In the US, it seems to have quite a wide application.
In the UK, it is far more limited.
Why is this important?
UK Created; US Used
Supposing a work is owned by a company in the UK.
Suppose someone recycles the work. Then they use it in the UK. The recycled work does not qualify for a fair use defence in the UK. The recycled work qualifies for the fair use defence in the US.
Is it copyright infringement or not? Well, in the US it wouldn't be, because a defence is available. In the UK, it would be copyright infringement because a fair use defence is not available.
US Created; UK Used
Let's take another situation. Someone creates a copyright work in the US. Someone else recycles it. It qualifies for a fair use defence in the US. But in the UK, it does not qualify for a fair use defence.
That's the principle of national treatment.
Copyright law is territorial. It means that the laws of the country in which infringement is alleged dictates what copyright law applies to assess infringement.
Copyright owners are only entitled to rely on the national laws of the country in which the alleged infringement has taken place to make out a claim for infringement.
That's not to say necessarily that the legal proceedings for infringement of copyright necessarily need to be commenced in that country. But it is certainly standard practice.
In the first example, that's not to say that a claim could not be brought in the UK.
Myth #8: Copyright in a Name
When it comes to the written word, copyright protects it if it qualifies as a literary work.
There are minimum requirements for the number of words to qualify as a literary work.
The literary work must be (1) original, which is a low threshold barrier, (2) be long enough. They do not communicate adequate information or instruction or enjoyment (in the copyright sense) to the reader. Trivial or banal statements also do not attract protection.
The European Court of Justice ruled that literary works presuppose that they are intellectual creations of the author. It is only through the choice, sequence and combination of words that the author expresses creativity in an original manner and achieve a result which is an intellectual creation. In one case, 11 words were protected by copyright as a literary work.
But that is pretty short. But still too long to protect a name.
Written works which are short do not convey any instruction, description. Singular words usually do not convey meaning so as to satisfy the requirements of originality in copyright law.
Names and single words are better protected as trade marks, whether registered or unregistered. Unregistered trade marks require trading activity to be protected.
If however you dress a name up as an artistic work (within the meaning of copyright law), you might get it protected as a trade mark, and under copyright (but only as an artistic work).
You see? Trade marks and copyright primarily protect different things:
- trade marks protect business names and trading names (and service names, product names, and a whole lot of other sorts of names), and
- copyright protects creative works - the result of the arts (writing, drawing, dance, film, photography, etc).
They protect different things, but the protection can overlap.
Myth #9: Posting a copyright work to yourself
This is really about proving that a copyright work was created at the time you say it was.
Previously, a copyright owner saw a solicitor who recorded the receipt and kept it on a file for safekeeping. If called upon, the solicitor was available to prepare a witness statement or affidavit to give evidence that the material was received when the copyright owner said it was.
Proof of Copyright Ownership
There are any number of ways to record production of copyright works. Creating a thread of the development process, recording the different versions of the work over the course of days and months is one way, which costs nothing.
Another way is to use BitBucket or GitHub. It's an independent repository and stores all sorts of documents. This including text, Word documents, spreadsheets and images.
Copyright Myth #10: If it's on the internet, it's free to use
Publishing work to a public space (such as the internet) and a copyright work being in the public domain are two different things.
Works are in the public domain may be used without concern for infringement.
Works fall into the public domain when:
- it was once protected by copyright, and the period of copyright expires
- it was never protected by copyright in the first instance, because it did not qualify
- those works where permission to use has been granted by the copyright owner, by surrendering their rights to the public domain
- it is part of a protected work and falls on the unprotectable side of the idea-expression line.
Not being able to locate or identify the copyright owner does not entitle someone to use the work. The identity of an author is unknown if it is not possible for a person to ascertain his identity by reasonable inquiry.
The reasonable inquiry must be conducted to identify who the author of the work is. And the inquiries should be documented. Once the identity is known, it cannot again become “unknown”. Where it is a work of joint authorship, identification of one of the authors is considered to be identification of all of the authors.
Even if it is not protectable by copyright, it could be protected by another type of intellectual property right. It depends what it is, and how it is used.
Myth #11: Changing a Work by 10% / 20% small part avoids infringement
What copyright protects
Copyright protects the skill, labour and judgment invested by the author in creating a copyright work.
Changing a small part of the work may work, but only if the parts changed are trivial and insignificant to the overall work of the author of the original work.
Copyright protects the work of the author to reduce an idea to a material form. It does not protect the idea or the information contained in the work.
The test for Infringement
Let’s walk through the process for assessing a claim of copyright infringement.
In essence, to prove a case the claimant must show on the balance of probabilities each of:
- copyright in the infringed work subsists and remains in force;
- it owns the ownership of the copyright infringed work, and
- the defendant copied the subject matter of the copyright.
Once these three elements are made out (copyright exists, ownership and copying), the process moves on to whether the copying amounts to a "substantial part" of the work which is alleged to have been infringed.
Exclusive Rights of Copyright
Infringement of copyright in the UK means that the defendant has exercised one of the exclusive rights of copyright. These are described in UK legislation as follows: "[…] (a) to copy the work; (b) issue copies of the work to the public; (c) to perform, show or play the work in public; (d) to communicate the work to the public; (e) […]".
These are known as the "acts restricted by copyright" – exclusive rights owned by the copyright owner.
Test for Infringement of Copyright
Then comes the test for infringement:
"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".
And then clarification of what that means:
“[…] 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; and it is immaterial whether any intervening acts themselves infringe copyright.”.
Infringement takes place when the whole of the work or a substantial part of the work is copied.
Where a work is copied there are 4 possible explanations:
- the defendant’s work was copied from the claimant’s, directly or indirectly;
- the claimant’s work from the defendant;
- both came from a common source; or
- it was by chance or coincidence.
It is only the first that can lead to an infringement. This requires access to the copyright work. Without access to the work, there can be no copying, and no infringement.
What is a Substantial Part?
The interest that copyright protects is the skill, labour and judgment of the creator of the work.
The allegedly infringing works must in some real sense represent the claimant’s work – the skill, labour or judgment of the author.
What’s the legal test though, to work it out?
To assess the parts that need to be compared:
- identify the features of the copyright work have been copied;
- assess whether those features amount to a substantial part of the copyright work.
It’s the similarities between the two works that matter. Not the differences.
At this point there you know the material that needs to be compared for the assessment of a substantial part.
Courts have time and time again declined to define a specific test to decide what amounts to a substantial part.
The reason is that creating a formulaic approach creates problems for future cases. Ultimately the decision falls to a matter of impression.
The factors to take into account when assessing whether a substantial part has been taken include:
- The quality or importance of the features copied are more important than the quantity copied. It is these parts that make the original work original in the first place.
- The quantity of the material copied is far less important than the importance of the part copied.
- More novel and prominent features of the original are likely to amount to a substantial part. If a feature is commonplace, it is less likely to be so.
- Where the features of the original work are common, the more copying would be required to make a substantial part.
- The more abstract the concept or idea expressed in the work, the more is likely to be copied.
- Where the detail of the original is copied, the less is required to make a substantial part.
If that amounts to a substantial part, then the relevant skill, labour and judgment has been copied. It is an infringement.
Then, let’s suppose that there is infringement. Do any available defences apply?
The most common defences to infringement of copyright available in the UK are:
- Temporary copies: for the purposes of transmission does not apply
- Research and private study: fair dealing
- Criticism, review and news reporting: does not apply in the circumstances
- Licence implied by general law: The defendant needs to show that implied licence was granted, like terms which are implied into contracts. Licences will only be implied where it is necessary to give business efficacy to the contract. Just because it may be reasonable to imply a licence is not enough.
It must also satisfy the “officious bystander test”. The reasonable bystander test is whether a disinterested person would think that a licence would be implied. A disinterested person is one that has no interest in the result. Not an uninterested person.
The test is objective and may be implied by (1) conduct of the parties, (2) trade practice or custom, (3) words used by the respective parties.
To decide the extent of an implied licence, a Court is likely to ask, "for what purpose would a reasonable person in the circumstances of the licensee consider that he could use the work?".
Use of a copyright work or a substantial part of it for a commercial purpose or in a commercial context use is never fair dealing.
Myth #12: You can use other people’s work if you don’t make money out of it
Not making a profit or money from infringing other people’s copyright work does not avoid a claim for infringement.
Nor does it equate fair use – or more precisely, make out any of the defences to infringement.
When a copyright work is infringed, a series of legal remedies are claimed. These include:
- an injunction to prevent further infringements of copyright, and
- order for delivery-up and destruction of the infringing articles.
Myth #13: I bought the book / film / music / photograph, I can do what I like with it
Ownership in tangible property is usually transferred by delivery of the object.
Intellectual property rights are intangible property. The intellectual property rights cannot be transferred by delivery.
When a book is purchased the book is paid for and the book is delivered by the bookshop. The intellectual property rights in the book cannot be transferred in this way. In the case of a book, the copyright – and all the exclusive rights that come with it, such as the exclusive right to reproduce copies of the book – remain with the owner.
Why no Transfer?
Intellectual property rights can only be transferred by an assignment (1) made in writing, and (2) which is signed by the intellectual property rights owner or their authorised agent.
When you buy a book online, there is no transfer of the intellectual property rights. There is no assignment or licence given the copyright owner to reproduce the book.
There would need to be a term in the contract of sale of the book which grants a licence.
Assume that nothing was said in the contract of sale about intellectual property rights or copyright for sale in an electronic or digital form. A few things here:
- it will be for the purchaser to prove that it has a licence to reproduce it, including the extent of the licence
- a term to use the work will only be implied where it is necessary to give business efficacy to the contract – not simply because it might be reasonable to do so. This is the "officious bystander" test. It is an objective test.
- Where money has been paid for the article, some licence to use it must be implied. The extent of the licence will depend on factors such as (a) the amount paid, (b) the place and means by which it was purchased (such as an online bookshop), and (c) the reasonable expectations of the purchaser.
An engagement to produce a new copyright work will produce one result. Buying a copy of an existing work from an online bookshop will lead to materially different implied licence.
- When licences are implied, the minimum sort of licence required for the transaction is granted.
- Implied licences cannot conflict with the terms of the express licence
- In the case of a sale of a book, it is likely that the licence will be limited to personal use by the purchaser. Certainly, not commercial use to reproduce them, resell them or give them away, or use as part of a commercial venture or enterprise.
Myth #14: I didn't know I was infringing
Copyright grants the copyright owner a series of exclusive rights. One of those rights is the right to authorise others to make a reproduction of the work.
When it comes to infringement of intellectual property rights, there is no innocence defence. The intention of infringer is not a relevant consideration to determining liability. It does not matter if you did not know what you were doing was wrong.
This has a number of implications:
- You are unaware that it was an infringement of copyright to do what was done is no defence;
- Someone else makes an infringing work. Another publishes it (publication is one of the exclusive rights of copyright). It is an infringement. Both people likely to be (jointly and severally) liable for infringement
- You thought you had licensed the copyright work properly. Even paid money for it. If the person did not have authority to license it to you, it is an infringement.
This is the case with pirated music, DVDs or software.
Although it is infringement, it may affect the remedy available to the claimant
These results come about because infringement of intellectual property rights are torts which attracts strict liability.
Usually, liability in law arises where someone negligently or intentionally commits an act or fails to act. The instances where intention, negligence or recklessness do not form part of the requirements are usually referred to as torts of ‘strict liability’.
The mere doing of the act is adequate to make out the wrongdoing. Negligence (a lack of care, whether deliberate or unintentional) or intention to commit the legal wrong is not relevant.
A person might have used all due care prior acting.
In addition, another of the exclusive rights of copyright is to authorise others to reproduce the copyright work. The authorisation can be:
- implied by conduct, and not just a clear direction to do so
- come from a person who says or pretends to have authority to authorise the copying
- it is enough to sanction or approve of the copying.