Explainer: Copyright – what every business needs to know

By Peter Groves

Copyright law underpins a great deal of commercial activity in the digital world, as well as more traditional analogue commerce. Every business needs to be alert to copyright issues, whether they are creators or users of copyright material.

Here are the top ten things to look out for:

1. Copyright is automatic. Create something that the law recognises, and copyright will protect it without the need to register or pay a fee.

2. Copyright protects only against copying. There has to be a connection between the work in which you own copyright and whatever the other party has done. If they created something identical to your work, completely independently, it’s theirs theirs to do what they want with and you can’t stop them.

3. Copyright usually belongs to the creator of the work. Employees are the only exception, so when you hire a freelancer to so some coding for you, or to take some photographs, you must think through the copyright ownership position. It’s not always necessary for you to take ownership, but never allow copyright to remain with the contractor without just by default.

4. Copyright protects material that is written; music; and artistic works; so long as they are original. It also protects films, sound recordings, broadcasts, and the appearance of printed materials – all of which depend on there being a written work, or music, or an artistic work, to begin with, so copyright is often multi-layered.

5. Computer software is written, as far as copyright is concerned. It’s in a form of notation or code, and whether you can read it or not is immaterial. Software copyright is perhaps the most valuable piece of intellectual property real estate there is.

6. Originality means that something is its creator’s own intellectual creation. It’s quite a high standard, meaning that copyright won’t always be there to protect your more mundane work.

7. You can sell people permission to use your copyright work. This is the basis on which computer software is distributed, and now that online distribution has replaced physical copies in so many areas it means that much of life is a licensing transaction. Buy a CD and you become the owner of a piece of property which you can listen to, give away, and resell (but not play in public); pay for a download and all you get is permission to use a piece of code which you probably won’t be able to transfer to anyone else.

8. Copyright is infringed even if the user has no intention to do so. An innocent infringer will not have to pay damages, but they will still be ordered to stop what they are doing. And, as copyright arises automatically, it’s hard to show that you didn’t think there was any copyright to infringe.

9. Private use is still infringing use, unless you have the owner’s permission. The amount of damage may be small, but just because what you do is not commercial does not mean it is automatically allowed. Take care when putting photographs on your website – picture agencies are particularly protective of their copyright.

10. Make sure you create an audit trail so you can prove your ownership of copyright. Automatic protection has its advantages, but it means there’s no register to show you as owner of your work, or when you created it (which will be important if a copyist claims to have made their version earlier). Make a habit of marking all copies of copyright works, and preparatory material, with a copyright notice, whether the copies are for public dissemination or not. The classic form of the notice is © [owner] [year]. And consider sending a copy, printed or in digital form, to someone for safekeeping: your solicitor, perhaps, or even yourself. If you use the Royal Mail, they will conveniently datestamp the envelope – which, of course, must not be opened until the copy is needed as evidence.