Over the last few months a number of high profile copyright cases have hit the press, from Meghan Markle being awarded damages against a British tabloid who published excerpts from her personal letters without permission, to Google being fined €500 million for breaching EU copyright rules.
These cases reflect the importance of protecting your copyright and being aware of how copyright rules work, to avoid financial or reputational damage. To help you, this blog gives a refresher on the basics of copyright and how to make sure your creative work is protected.
Be aware that the rules around copyright are different for work made before 1 August 1989. Advice about this is currently outside the scope of this service; if required you can access a specialist lawyer using our Ask a Lawyer service.
Copyright – the basics
What is copyright?
Copyright gives the owner of certain works the exclusive right to use and reproduce them in public. Copyright protects original creative work in various categories (for example, books, plays, shows, paintings, databases and computer coding). For more guidance on what types of work are covered by copyright, see Identifying copyright in business situations.
Do I have to do anything to register copyright over my work?
No, copyright arises automatically and cannot be registered. This means it can be difficult to check who owns the copyright in something, so it is best practice to make sure your copyright ownership is clearly stated on your work.
What can be done to make it clear that I own copyright?
Although not a legal requirement, it’s a good idea to state prominently on your work that you own the copyright in it (along with the year of creation). Marking your work with the international ‘©’ mark is also not a legal requirement, but can help to protect your work in some countries overseas. For more guidance on international copyright protection, see Protecting copyright.
You may wish to send a dated copy of your work to a trusted source (like your solicitor) to prove it existed at a certain point in time, and you can also consider using the WIPO Proof system to create proof of when your work was created.
If you want to licence your copyright to others, you should register your copyright with the organisation that manages the licensing process (eg if you have created a musical work, you can register with PRS for Music).
Using someone else’s copyright
Can I use someone else’s copyright, or can they use mine?
You will usually need permission to use someone else’s copyright, unless certain limited exceptions apply. This might be done by asking someone to assign (sell) or licence their copyright to you.
Assignment (sale of copyright)
An assignment of copyright is effectively a sale of copyright. To buy someone’s copyright you must enter a sale agreement with them (known as a deed of assignment). The original creator may sometimes retain ‘moral rights’ in their work, which cannot be sold but can be waived by the creator. For more guidance on assignment of copyright and moral rights, see Buying someone else’s intellectual property and/or Selling your intellectual property.
Licencing (using someone’s copyright)
You may also consider getting a licence to use someone else’s copyright, or providing someone with a licence to use your copyright. This means that you would have permission (or give someone else permission) to use the copyright, usually in exchange for payment. A licence does not transfer ownership of the copyright. See Getting a licence to use someone else’s intellectual property and Licensing your intellectual property for further guidance.
Copyright in works created by employees and freelancers
Who owns the copyright in works created by employees?
If an employee creates a literary, musical, dramatic or artistic work in the course of their employment, the copyright will belong to the employer.
However, if the work created is not part of the employee’s usual employment duties, an employer will be unlikely to own the copyright unless appropriate clauses are included in their employment agreement. This is the case even if the staff member was using company resources or creating the work during working hours.
To ensure that copyright created by employees is owned by your business where possible, you can use Employment Contract – Senior Employee which includes the relevant protections for your business.
Who owns the copyright in works created by freelancers?
Unless otherwise agreed, a consultant or freelancer will own the copyright in the work they create. Therefore you should agree in advance with the consultant or freelancer that the copyright will be yours wherever possible.
For template consultancy agreements which protect your intellectual property and confidential information when dealing with contractors, you can use Consultancy Agreement (Individual) or Consultancy Agreement (Company).
Monitoring for copyright infringement
How do I monitor for copyright infringement?
Copyright infringement includes piracy (copying and distribution of a copyrighted product), plagiarism (copying of a written work), and/or someone using photos or images without your permission.
As copyright works are not registered in the same way as other intellectual property (eg trade marks, designs or patents), searching for unauthorised copies of your work can be difficult. However, there are a number of ways you can check for copyright infringement, including:
- conducting general searches of major search engines and social media;
- searching the EU Commission’s Counterfeit and Piracy Watch List to find out what the most problematic markets situated outside the EU are;
- using automated tools which alert you when relevant content similar to yours is published online (eg Google Alerts, Mention, IFTTT);
- looking at reporting tools for reporting IP breaches on particular websites or marketplaces (eg on Amazon or Youtube);
- searching for registered trade marks that may resemble your own work;
- using online tools to check for plagiarism; and/or
- considering hiring another business to provide you with more powerful tools to monitor for infringements. This can be costly but may still be worthwhile depending on your circumstances.
See Monitoring for trade mark infringement for further guidance on the above options.
Brexit and copyright
How does Brexit affect my copyright?
The majority of copyright works that you create in the UK are still protected in the EU despite Brexit. The UK and EU are signatories to various international treaties on copyright, such as the Berne Convention for the Protection of Literary and Artistic Works, and these treaties provide mutual protection for nationals of signatory countries. This means that the majority of EU and UK copyright works will be protected in each other’s territories, whether created before or after Brexit.
However, the EU also has its own regulations around cross-border transfers of copyright, which means that some cross-border mechanisms are no longer available for the transfer of copyrighted materials between the UK and EU. Guidance on cross-border copyright transfers between the UK and EU is outside the scope of this service. For access to a specialist lawyer in a few simple steps, you can use our Ask a Lawyer service.
Marion joined Sparqa Legal as a Senior Legal Editor in 2018. She previously worked as a corporate/commercial lawyer for five years at one of New Zealand’s leading law firms, Kensington Swan (now Dentons Kensington Swan), and as an in-house legal consultant for a UK tech company. Marion regularly writes for Sparqa’s blog, contributing across its commercial, IP and health and safety law content.