Eight Disastrous Mistakes People Make About Copyright ….and how to avoid them
Copyright lies at the heart of a worldwide system of legal protection broadly known as intellectual property, or IP for short. Being intangible, IP is all too easy to misunderstand. However, if you appreciate its enormous value to your business, you are less likely to overlook it in the day to day running of your business.
This article aims to highlight some of the issues that can make an enormous difference in practice to business owners.
Despite its considerable and growing significance, IP is still regarded as an esoteric field of the law, with much confusion reigning in the public mind about it. So, it is not uncommon to hear people talk of copyrighting an invention, or patenting a trademark (instead of patenting an invention, and trademarking a name).
These misunderstandings are not surprising given the highly technical nature of much IP law, and its interrelated parts of patents, designs, trademarks, and trade secrets.
Of all the IP laws, copyright is the most important for business owners to understand, as it is so wide ranging in its scope and application. It forms the bedrock of wealth creation in the knowledge economy, providing the primary legal protection for the creative industries of art, music, fashion, publishing, film, and software to name but a few. However, it is ridiculously complicated.
Introduction to copyright
If you already have a good understanding of copyright law, then you may want to skip the explanatory material here, and under the next two subheadings, and move straight to the section titled "What's in this article".
I assume most people know enough about copyright to know that it attaches to books, music, films, software, and so on, and that there are restrictions over what you may do with works that are under copyright.
Should you feel the need for more background information about copyright law, there are plenty of good books which introduce the subject more fully.
Also, there is more basic introductory material on this website which you may find helpful.
If you want more introductory material than this article provides why not send us your feedback by visiting this page http://www.ip-brands.com/email_us.aspx?from=feedback so that we may write more basic introductory material on the subject.
What is copyright?
Under the Copyright Designs and Patents Act 1988 (CPDA) copyright protects nine categories of ‘works' including:
- books
- music
- films
- drawings
- computer programs
- photographs
- sound recordings
There is a de minimis test in that something like a name would be too short to attract copyright protection. In Exxon Corp v Exxon Insurance Consultants International [1982] Exxon had not registered a trademark, and tried to prevent another company using the name Exxon by bringing a copyright action. It failed.
Copyright is granted to original works. However, rather than considering aesthetic quality or innovation, the courts are purely concerned about the origin of a work, and in protecting the investment of time and money that may have gone into producing it.
So, an inept drawing will be protected by copyright just the same as a skilled one. The question of artistic merit does not come into whether the work enjoys copyright. Any mundane work will attract protection provided it is your own work (i.e. it is not copied), and is recorded or ‘fixed' in some form.
Another crucial point to remember is that copyright is a right that is independent of the physical property (books, CD, canvas etc). Ownership of the physical object and ownership of copyright are, in fact, frequently in separate hands. So this is something to keep uppermost in your mind - that the present owner of the physical object is not necessarily the copyright owner.
It is this split ownership of the physical object and the copyright in it, which explains why when you buy a CD it often comes with a shrink wrap license giving you permission to use the material on the CD on the terms of the license (which should be visible on the back of the packaging). By opening the shrink wrap packaging or using the material on the CD, you are deemed to be accepting the license terms.
What rights does copyright give its owner?
Copyright is a negative right to stop others:
- Copying, or distributing copies to the public
- Showing, playing, broadcasting or filming
- Adapting or amending material
- Otherwise ‘exploiting’ a work
Only the copyright owner is legally allowed to do or permit others to do any of the above restricted acts. This is how the copyright owner’s commercial interests are protected.
By the time products protected by copyright are brought to market, they represent a complex bundle of different copyright works. For example, a word processing package will incorporate a variety of copyright works, some of which are unlikely to belong to the owner of the word processing package. However, that person will have licences in place to use the works featured in the package.
These copyright works will include:
- Program code
- Documentation supplied with the package
- Any built in dictionary, or help screen files
- Artwork included on packaging or in documentation
- Graphic works or photos used to produce screen images
- Sounds which are produced when the game is run or played
- Film (if there is a set sequence of images produced when the program is run).
Being a property right, copyright can be sold, bought, given away, or left in your will. Therefore, copyright ownership can change hands many times. It is important to remember this when trying to trace the copyright owner for work that needs to be cleared for use.
Finding out who owns the copyright at any particular time can be difficult. The copyright rules only tell you who owns the copyright at the point of creation of the work, and what formalities are required to assign (i.e. transfer) copyright.
Misconceptions about copyright can often have disastrous consequences. Those who are unlucky enough to find themselves embroiled in a copyright dispute invariably realise that the dispute would have been easily avoided if they had a better appreciation of copyright law, and had thought about copyright when first embarking on the project.
Litigation lawyers do very well out of people’s ignorance of copyright law. By reading this e-book, you are well on your way to avoiding the common mistakes that others make, and staying out of the courts. You will become smarter than your competitors, and learn key practical know how about copyright law, and how to prevent problems for your business.
What’s in this eBook?
This eBook is aimed at those who need to know more about copyright law, and who may already have some basic understanding of it. It aims to give valuable insights about common traps people fall into with copyright, and to impart valuable knowledge about copyright law.
To avoid overloading you with information, this eBook purposefully leaves to one side the many quirks and minutiae of copyright law. These may well be highly important to specific sectors or to lawyers, but are certainly not of practical importance for people in their day to day business lives.
If after reading this eBook, you acquire enough understanding of copyright law to avoid the most common pitfalls, and hence protect your business, then this eBook will have succeeded in its aims.
I hope by the time you have finished reading it, you will appreciate what steps you could easily take to secure your copyright.
Ideally, you will also understand when you are out of your depth, and need to consult a lawyer.
Why Azrights?
If you’ve never heard of me or the law firm I work for - Azrights - you might be wondering who I am and why I’m claiming the right to tell you about the mistakes that people make about copyright.
Azrights has worked with numerous clients, and I personally have worked for many more. I qualified as a solicitor in January 1985, after 6 years of study and work.
During the intervening years I have continued to study (a masters degree in IP law), and worked both in industry and in private practice dealing with commercial contracts and IP law for all sizes of business – mostly in the Media and Technology sectors. I first started specialising in copyright law in 1987.
In the years that I have been involved in IP law I’ve noticed that those who are savvy, and follow some of the basic tips I am going to give you in this eBook, have the most successful businesses, and make the most of their copyright.
I’ve also come across those who throw away their copyright too readily, and make far less money than they might have made.
So, now for the mistakes people frequently make….
