This article gives you an overview of copyright, how copyright might be infringed and distills some myths about copyright.
It’s general Copyright 101 information that’s worth a read:
- What is Copyright?
- Who owns Copyright?
- How is Copyright Infringed?
- Copyright myths
- What other IP issues do I need to know about?
What is Copyright?
Copyright is world-wide, ubiquitous, and affects all of us. In our digital age, we are both users & creators and copyright laws help balance the rights and responsibilities of both. According to the World Intellectual Property Organization, WIPO (the leading international copyright organization) “copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works.
Copyright is a legal concept that gives the author or creator of an original work the exclusive right to do certain things with that original work. The copyright holder has the right to choose if anyone else can use, adapt or resell their work and has the right to be credited for that work.
Copyright protection is principally given to works that are literary, dramatic, artistic and musical works, cinematograph film, and television and sound broadcasts.
Only the copyright holder of a work may do these things:
- Make copies of the work and distribute it.
- Create derivative works or alter the work.
- Sell the work in either its original version or in an altered form.
The creator of a work retains copyright to it even if they do not expressly tell you so.
Who owns Copyright?
The general rule is that:
- The author or creator of a work owns the copyright in the work.
- The producer or maker of a film or sound recording usually owns the copyright in that film or sound recording.
- The broadcaster owns the copyright in a broadcast.
- A publisher owns the copyright in a published edition.
However, in some places around the world, there may be important exceptions to the general rule.
- Employment – works made in the course of the creator’s employment is usually owned by the employer.
- Journalists – where work is created by a journalist employed by a newspaper or magazine, the journalist may retain certain rights, while the employer will own all other rights.
- Commissioned photographs and videos – if photographs or video recordings are commissioned for a private or domestic purpose, then the person who commissions the work may acquire copyright in the work, whereas in most other cases of commissioned works, the author owns a copyright.
It is important to note that:
- The ownership of copyright can be transferred or assigned to another person. For example, the photographer for a magazine shoot may sign an agreement that the publisher owns the copyright in the photographs.
- Copyright ownership can usually only be transferred if there is an assignment in writing.
- Anyone or more of the exclusive rights held by the owner of a copyright can be licensed to another person, either on an exclusive or non-exclusive basis.
- The author of a book may grant an exclusive license to a producer to make a film based on the book.
- A software developer may grant its customers a non-exclusive license to use its software.
In each case, the author or software developer would retain ownership of copyright, but just grant the producer or the customer the right to use the work for the purpose specified in the license.
How is Copyright Infringed?
Copyright is typically infringed if a work protected by copyright, or a “substantial part” of it, is used without permission in one of the ways exclusively reserved to the copyright owner. But in some countries, there are special exceptions which allow copyright material to be used without it being an infringement – for example, “fair use” exceptions.
When assessing whether a part of someone else’s work that you wish to use is a “substantial part” you need to consider whether it is an important, essential or distinctive part. The part does not have to be a large part to be “substantial”.
It is the “quality” of the part, not the “quantity” that is important. Even if you change or add to a part of someone else’s work, you can infringe copyright if the part that you use is an important, essential or distinctive part of the original work.
A person who infringes copyright can be sued by the copyright owner and taken to court. A court can order a range of things, including that the infringer pays compensation and pay the copyright owner’s costs. In some cases, a person who infringes copyright can be charged, and can be ordered to pay a fine or, in serious cases, can be imprisoned.
Examples of copyright infringement include:
- Making unauthorized copies of a work protected by copyright.
- Using a song in a video without the permission of the owner of the recording and the songwriter.
- Publishing someone else’s work without their permission, even if you correctly credit them.
Copyright may also be infringed by:
- Authorizing someone else to infringe copyright – for example, by asking or encouraging someone to infringe copyright, or by providing them with the means to do so.
- Importing items containing copyright material for sale or distribution without permission – for example, feature films on DVD.
- Circumventing a mechanism that controls access to digital material.
- Distributing or selling pirated copies of copyright material.
- Recording or filming a live performance without the performers’ consent.
- Permitting a place of public entertainment to be used for infringing performances or screenings.
If it’s on the internet, then it’s in the public domain and I don’t need permission to copy it.
The internet is not exempt from copyright law! In most countries, copyright owners and the relevant authorities are able to apply traditional copyright laws to works on the internet.
A copyright owner enjoys certain exclusive rights, including the right to copy and communicate a work. So it is copyright infringement to place someone else’s work on the internet or to download or copy it from the internet, without the copyright owner’s consent.
If I don’t sell it or make a profit, then it’s not an infringement.
It’s not relevant to copyright infringement whether you make any money from the unauthorized sale or distribution of copyrighted work. It can still be a violation of the copyright owner’s rights and there can still be damages awarded against you, especially if your actions harm the value of the work.
It’s not protected by copyright unless it has a copyright notice.
It is not mandatory to have a copyright notice on a work. However, a copyright notice strengthens the protection, by warning people that the work is copyright protected, and in some countries by allowing the copyright owner to get more and different damages.
If a work looks like something that can be protected by copyright (e.g. a literary, dramatic, artistic or musical work), you should assume it is. You should not use anyone else’s work unless you know the source.
I don’t need permission to use it because I gave the author credit.
Giving credit means you are not a plagiarist. However, merely giving credit is not a defence to copyright infringement – you still need to obtain the permission of the copyright owner to use the work.
I’m only using a small portion or 10% of the original work.
While in some countries there are “fair use” exceptions, copyright is usually infringed if a work, or a “substantial part” of it, is used (without permission) in one of the ways exclusively reserved to the copyright owner.
When assessing whether a part is a “substantial part” you need to consider whether it is an important, essential or distinctive part. The part does not have to be a large part to be “substantial” for the purposes of copyright law.
A “substantial part” may be a very small portion, and less than 10%, of the entire original work. It is the “quality” of the part, not the “quantity” that is important.
What other IP issues do I need to know about?
Other intellectual property rights and legal theories include:
Trademarks – a distinctive word, phrase, letter, number, sound, smell, shape, logo, picture, aspect of packaging or a combination of these which is used by a trader to identify that its goods or services originate from a particular source or to distinguish its goods or services from another trader.
A trademark owner has the right to stop others from using the trademark, or any deceptively similar trademark, on or in connection with goods or services that are identical or closely related to the goods or services of the trademark owner. In many countries, a trademark owner has enforceable rights in a trademark regardless of whether it is registered.
Patents – an exclusive right to commercially exploit an invention (i.e. a device, substance, method or process) which is new, inventive and useful. A patent must be registered before the owner acquires the exclusive patent rights.
Designs – a new and distinctive shape, configuration, pattern and ornamentation which, when applied to a product, give it a unique appearance. The registration of a design gives the owner protection for the visual appearance of the product.
Passing off/fair trading – passing off occurs where someone uses the name, goodwill or identifier of another in a manner that misrepresents to the public that they are or have an association with that other person.
These types of intellectual property rights can sometimes overlap with each other. For example:
- The owner of a corporate logo may own the copyright and trademark rights in that logo.
- The copyright prevents unauthorized copying or communication of the logo and the trademark rights prevent the use of the logo by another trader on goods or services that are identical or closely related to the goods or services of the owner.