Copyright - or copy wrong?

This article follows up on our hugely popular article on the basics of intellectual property with a slightly more detailed look at copyright. In this article we we examine what copyright is, what it does and how it is surviving in the modern digital era.

As always, it is worth restating that HPLpro is not a legal firm, and this article should not be taken as legal advice. It is important for you and your business to have experienced legal practitioners review your business ideas and intellectual property portfolio to ensure that they adequately meet your needs. Please feel free to request a freelance in-house lawyer from us if required.

Summary

©      Copyright protects creative works;
©      it does not protect ideas;
©      there are exceptions to copyright;
©      some copyright protections are global;
©      copyright expires after a certain time; and
©      technology is changing faster than the law.

As stated in our earlier article, copyright is essentially the protection of rights in creative works – think pictures, music, sculptures, graphics, films, books, and so on. In essence, it gives the holder of those rights the ability to prevent other people copying the work, or using the work in certain ways without permission. Importantly, copyright does not protect ideas – it protects the expression of those ideas, which need to exist in some tangible form. For example, the music created by a band who are jamming will not have copyright protection unless that music is recorded in some form. The same is true of a sculpture, copyright is only available once the sculpture has been created, rather than when it is an idea in the head of the sculptor.

However, it is important to distinguish between the rights in an expression of an idea and the rights in a physical object - copyright does not necessarily also mean that you own the physical object that 'holds' the copyright. For example, the band Gorillaz own the copyright to the song 'Superfast Jellyfish' but that does not equate to automatic ownership of every CD with the song on. The opposite is also true, you can own a CD with 'Superfast Jellyfish' on it without having the rights to commercially exploit that song.

"Hang on," we hear some of you cry, "I just recorded my 7 inch record of Captain Sensible's 'Happy Talk' onto a TDK Cassette tape. Am I going to go to prison?" Perhaps, for the music choice (Captain Sensible should go to prison for that video), but as for copyright, there are exceptions to copyright – which are covered later in this article – which mean that in some territories (such as the UK) you are able to copy the artistic work in certain circumstances – such as making copies for personal use. Interestingly, that change only occurred in the UK in 2014 and essentially reflected what the public were already doing with those copyright works; mixtapes made prior to 2014 in the UK were technically infringing copyright.

Berne baby, Berne

As noted in our previous article, the details of copyright change from country to country – copyright is not international - however, the Berne Convention, which was established in 1886 and has been gently amended over the years, creates certain minimum requirements of protection for the territories that have signed up to it (all 173 of them). The Convention holds that if you created a work which qualifies for protection in one of the contracting states, you get the same minimum level of protection in all of the others - and that protection is not conditional (in other words, it is automatic).

This means that, in respect of the beautiful photograph above, if it were to qualify for copyright protection in the UK, it would, for example, get copyright protection in Nigeria.
 
The Berne Convention also holds that there are two distinct elements to copyright – economic and moral rights – and those rights can be held by different persons or entities. Economic rights are what we normally think of when considering copyright – they grant the owner the ability to exploit the copyright for financial gain and prevent others from doing so – in other words the owner has the right to copy and sell (or license) the work. Moral rights are slightly different – they enable the author of the work to be recognised as the author; and grant the ability to prevent the work being modified in a way that would be prejudicial to the honour or reputation of the author. In many 'western' countries, moral rights are seen as the ugly cousin of economic rights and can even be waived in certain territories, such as the UK. the waiver of moral rights is, however, considered by some to be controversial as, if there is an imbalance in negotiating power, an artist may be unduly 'encouraged' to waive those rights. On the other hand, a company will simply use a different freelancer should the proposed artist object, hence the controversy. Perhaps a reasonable approach to take would be to suggest that, if the artist is merely bringing into existence somebody else's vision, then they should not object to waiving moral rights. Of course, if the work of art is solely the vision of the artist, it would seem unreasonable to expect the artist to waive their moral rights.

Setting aside the controversy for a second, if you are procuring the creation of work - perhaps you are a games company buying in artwork from a freelancer – you may want to consider addressing not only economic rights but moral rights in your freelancer agreements as well.

As stated above, copyright normally arises automatically upon the creation of the artistic work. There is not a register of copyright works in the UK – when you create it, copyright arises immediately and automatically. There is however a register of copyright works in the US and, in general, you cannot sue for copyright infringement in the US unless your copyright is registered at the US Copyright Office. The good news is that you can register the copyright yourself at the US Copyright Office.
 
We mentioned in our previous article that copyright only last for a period of time and then expires. The Berne Convention states that the minimum period is the life of the author and then a period of 50 years following the death of the author. In many countries, that period is extended to 70 years plus the life of the author.

Exceptions to the rule

So what can a non-copyright holder do with an artistic work that is protected by copyright?

Good question. In many territories, there are exceptions to copyright (although these vary greatly from country to country). Common exceptions are for research purposes, personal use, private study, criticism/review, teaching, parody and so on. Most of the exceptions deal with permissible reproduction of the copyright work in ways which do not have a commercial purpose, but that is not always necessarily the case – copyright infringement can take place even if money is not being exchanged.

Another way of using a copyright protected work without infringing it is to obtain a license to do so. That license could either be general (in other words, everybody is offered the same license on the same terms), or specific to you as an individual (such as in the case of music sample clearances as detailed below). These licenses impact upon all of us more often that we may realise, for example, computer software licenses are likely to be the general copyright licenses that most people will encounter in their daily lives. We know you've all clicked 'I agree' without reading the accompanying license at some stage or another. Another common license in the UK is the use of a radio in a public place, such as an office, which is also likely to require a copyright license.

Copyright Notice

You may recognise the copyright symbol - ©.  It is not necessary to use but indicates to the world that you consider the work to be protectable and yours. You may have also seen dates feature after a copyright notice – this gives the viewer the knowledge of when a copyright piece was first created or published. In the years prior to 2000 a particular global treaty required the words 'All Rights Reserved' to be written on the copyright work in order to be able to have protection but that is no longer the case – however, you will see that it is almost always still used in literature and on websites – we still use it at the footer of most of our webpages – such as on our home page -  for example. Old habits die hard, although it is good practice to nevertheless use a copyright notice. An example of a simple notice is: "© Copyright HPLpro Limited 2017. All Rights reserved. "

In Microsoft Word – and probably other word processing software, if you type in a left bracket _(_ then the letter 'c' and the and a right bracket _)_ (without the underscore) the copyright symbol © appears. You can then copy and paste that symbol into other software.

The Law moves slowly...

We have dealt with some of the main elements of copyright in the preceding paragraphs. Now let us look at how the law is interacting with the modern world when it comes to copyright. We made reference to animal selfies in our earlier article which have recently been held by a court in the US to not attract copyright – animal art has been a thing since the 1950's if not before, so it goes to show how slowly the law gets around to considering new developments. Speaking of non-human artistic works, presumably the same applies to AI meaning that, when the AI in your Google piano gets advanced enough to invent its own music, that music would not give rise to copyright protection. Which brings us neatly on to technology.
 
The World Intellectual Property Organisation – which is the body that manages the Berne Convention – is also responsible for the 1996 WIPO Copyright Treaty. This treaty is a special agreement under the Berne Convention that deals with digital elements of copyright protection in relation to computer programmes and databases.

Given that computer programmes and databases existed for decades before the WCT treaty it again goes to show how slow legislation moves in respect of keeping up with the pace of technological change; perhaps necessarily, given the pace of technology, legislation is behind the curve when it comes to the modern digital world. Legislators, lawyers and courts often find themselves trying to shoehorn matters relating to new technology into old laws.

What would the authors of the Berne Convention make of a live broadcast of a band on Google Hangouts, where the band are all in different countries (some of which being non-WCT and non-Berne countries) – where the drummer is Biff-Biff the monkey, the bassist is Ceolopithia, a character in World of Warcraft (being played by a real human), an MIT Artificial Intelligence, Robot X1, is playing the guitar, Beardy Man is on vocals and samples from various bands from the 1980s are being mixed in by Dr Dre . The performance is being watched, recorded and broadcast on a multitude of different devices – including on a big screen at Time Square in New York (with the crowd recording that broadcast on their phones). Additionally, the score for the music is being automatically ascribed by a Google AI app (we may have just invented that) on at least a million Samsung phones.   Finally, there is no contract between the band as they have never met and are just jamming. What would the law make of that? Either way, we want that album. What would the band be called, we wonder…

…but The Internet moves so quickly

Never one to hang around, The Internet is trying to come up with its own solutions to the above conundrums, primarily taking the approach that everyone can use everything.  In particular, the Creative Commons licenses enable users to copy, edit, alter, update and generally fiddle with the creative works which the creators have licensed – for free - for that purpose, all within the bounds of copyright laws. The Creative Commons ethos is, "when we share, everyone wins." Interestingly, a key factor of the CC license is that of accreditation -  you can use the author's work provided that you also state where the work originally came from.

Of course, The Internet also has a habit of ignoring rules and laws altogether.

In many ways, The Internet has collided head on with copyright, particularly in relation to films, music and software. The fallacy that a person can sit behind their computer screen and nobody can 'see' what they are doing is like that of a child with a box on their head thinking that nobody can see them.

The reality is more one of cost – whilst online copyright infringement can usually be traced, it is unlikely to be punished, simply due to the disproportionate cost involved; pursuing a person who has downloaded a Dizzee Rascal album in breach of copyright will cost more than the price of the album itself. Additionally, legal systems would not be able to cope with the large numbers of claims that would arise. Finally, depending upon the territory, the copyright holder will also likely need to show a loss to base their claim on. If the Dizzee Rascal downloader bought a copy of the album when challenged there would likely be no basis for a claim. The complaining party also has to have the right to bring the case, as Osama Fahmy found when he brought a US copyright claim against Jay-Z for the use of some of his uncles' music in the 1999 song, 'Big Pimpin’.'

There is no question that with the march of the online world the approach to copyright of a significant proportion of the population has changed, its importance has perhaps diminished in the eyes of some. Nevertheless, it is perhaps unfair to solely blame The Internet; piracy, the glamourous name given to unauthorised reproduction of copyright works, had been around for decades prior to The Internet. Many readers of this article may recall making mixtapes and perhaps going on to sell them at school. The financial element is important here; whilst the law perhaps does not reflect it, in practice, copyright holders seem to be targeting those persons and entities who are making money out of copyright infringement or who are enabling others to commit copyright infringement rather than pursuing the bedroom Dizzee Rascal downloaders. Further, plagiarism (the practice of copying someone's work and passing it of as your own -  synonymous with copyright theft) has been around for centuries; it is arguably a little easier to commit plagiary with the advent of The Internet but also a little harder to get away with.

Frankly, it is getting physically easier to copy stuff; we can even print plastic copies of virtually anything in our own homes. Additionally, the line between what is and what is not copyright infringement is becoming increasingly blurred given the increasing sophistication of technology and it is all happening at a pace which outstrips the law, cases and legislation.  The use of samples in music has been a phenomenon for many decades but could technically be an infringement of copyright, notwithstanding the result of the 'Big Pimpin'' case highlighted above. In fact, there have been numerous cases since the 1990s (way too many to list in this article) , particularly in the US, on this subject. This all means that advice from lawyers is therefore becoming an increasingly valuable commodity when it comes to copyright and copyright infringement and avoiding court cases.

Does that mean however, that an artist should talk to their lawyer prior to letting their creative juices flow? Whilst that is something for each individual and entity to decide for themselves, it would be prudent to keep your freelance HPLpro lawyer close to hand when your company starts producing copyright works, just in case. Lawyers can be creative too don't you know.

Feel free to comment on how copyright operates in your specific country.

We hope you found the above useful; let us know if you have any other request for articles. Stay tuned for other articles on IP, contracts and other interesting legal things!
 
The HPLpro team