- Types of "works" that can be copyrighted
- Creators (who are they?)
- What are the creators rights
- What is moral copyright
- What is mechanical copyright
- How long does copyright last (terms of copyright)
This article offers a brief introduction to these concepts.
What is (intellectual) copyright?
In its widest sense "Intellectual copyright" is the whole of copyright. It is automatically invested in the creator at the moment a work is created. Because Intellectual copyright is the power to determine when and how a work is reproduced it can be used to generate income.
Creators of copyrighted "works"
Creators of copyrighted works include ...
- film makers
- database compilers
- multimedia authors
- web site designers
- graphic artists
What "works" can be copyrighted?
- Musical compositions
- Recordings of musical compositions
- Arrangements of musical compositions
- Sound recordings
- Works of literature
- Recordings of works of literature
- Adaptations of works of literature (eg screenplays)s
- Original pictures
- Original photographs
- Original illustrations
- Film, video and animation.
... and many other materials ...
Q Can the idea of Drum 'n' bass music be copyrighted?
A No, but a particular track can be.
Q Can the word "Apple" be copyrighted?
A Only as a trademark (styled logo) associated with a type of business.
Q Can a font be copyrighted?
A Yes, and its license will define how freely you are able to use it.
Q Can the name "Bill Wyman" be copyrighted?
A As a trademark in association with a particular activity, yes.
What are the creators rights?
There are 4 primary categories of rights ...
- The right to prevent piracy
1 Moral rights
Moral rights are not economic in nature. They are inalienable, which means they cannot be sold, assigned or otherwise transferred except upon the death of the creator.
The moral rights are ...
- No matter who owns the copyright, only the true creator can be credited as the author
- No matter who owns the copyright, the true author has control over whether the work must be presented as a whole or in parts
- No matter who owns the copyright, the true author can prevent the work being used for reasons they object to (eg promoting cigarette smoking)
2 Protection against piracy
The right to prevent the unauthorised duplication, distribution, broadcast and performance of a work
3 Mechanical rights
The right to decide how and when a work is duplicated, distributed and sold, and by whom. The copyright owner might do this by entering into a licensing deal with a publisher or record company, and then receiving a royalty payment whenever a CD, book or poster is sold. Here are some examples ...
- Example case study - Record companies A composer can make an agreement (normally via a music publisher) with a a record company to have a recording artist record their composition and then duplicate, distribute and sell CDs. This right is called the phonographic mechanical publishing copyright and in exchange the record company will pay the author a mechanical publishing royalty for each copy sold. If the recording is played on radio or TV the composer will also receive a broadcast royalty. NOTE: This mechanical publishing royalty is separate from the mechanical performance royalty which will be paid to the recording artists.
- Example case study - Book publishing An author can make an agreement with a publisher to create a typeset master of a book and then duplicate, distribute and sell it for an agreed period of time. The publisher will have the mechanical rights to the "mechanical" exploitation of the book and in exchange pay the author a royalty for each copy sold. NOTE: Normally however, the publisher will NOT have the film/screenplay rights which the author will attempt to "option" to a film production company who will pay a one-off non-returnable "buy-out" fee to the rights to make the book into a film within a fixed time limit.
- Example case study - Music publishing An composer can make an agreement with a publisher to create a typeset master of a music manuscript and then duplicate, distribute and sell it for an agreed period of time. The publisher will have the mechanical rights to the "mechanical" exploitation of the manuscript and in exchange pay the author a royalty for each copy sold.
- Example case study - Photography In the case of a photographer it might be the right to decide who can duplicate, distribute and sell posters of a popular image you have taken.
4 Performance rights
The right to decide how and when a work is exhibited, broadcast or performed live, and by whom.
Term of copyright
Copyright does not last forever, it expires after a number of years. Around the world, term of copyright differs from country to country. Here is a rough guide to average terms.
Intellectual (creators) copyright
- In the E.U. countries and the US, the term of protection is the lifetime of the artist plus 70 years.
Mechanical copyright (the copyright in a fixation) is treated separately.
- For printed publications, the mechanical copyright term is publication date plus 25 years.
- For audio/music recordings, the mechanical copyright is the release date plus 50 years.
- Broadcasts are protected for 50 years.
When the term of copyright has expired, a work or a fixation of a work is said to be in "the public domain".
If a music publisher were to produce a new edition of the complete works of Bach whose music has been in the public domain for two centuries or more, that new printed edition would be protected by the 1988 Act for 25 years., and the publisher would not need to pay royalties to Bach's ancestors or whoever the last copyright holders were.
Similarly, a recording of musical (or literary) works, regardless of whether they are themselves copyright or non-copyright works, would endure as copyright material for 50 years.
Copyright law exists to protect creative works and their value. If an original work has been thought up and fixed in any format (i.e. photographed, filmed, recorded, saved to disk, written down etc in some physical form), then it can be owned and that ownership can be defended.
Copyright law enables creators to achieve value from the use of their creations and to help users to gain access to those creations. A creator (copyright-owner) is entitled to be paid each time a creation (work) is presented (performed), reproduced (copied) or adapted (arranged).
All of us come into contact with the practical implementation of copyright law every day of our lives, from the clothes we wear, which may have protected designs, to the books we read and what we hear on the radio.
The fundamentals of the 1988 Act (discussed later) define the rights of copyright owners in terms of certain restricted acts which only the owner may do or authorise for the term of copyright. These are to ...
- Copy the work.
- Issue copies to the public.
- Rent or lend the work to the public.
- Perform, show or play the work in public.
- Broadcast the work or include it in a cable programme service.
- Adapt the work or do any of the above in relation to an adaptation.
The ramifications of copying have taken a completely new direction with the arrival of the Internet and digital files such as mp3s. The ability to copy and distribute digital information, whether text, sound or image began to create a culture which spread the belief that intellectual property of all kinds was freely available. No-one can have missed the focus of the media on this very contemporary issue.
Formats & fixations
Formats and fixations are all manner of physical products such as manuscript, print, craft object, recordings (CDs etc), as well as typographical arrangement or layout whether text, music or illustration. Some examples of fixations you may not have thought of are public records, holiday snaps, and knitting patterns.
With the entry on the world scene of the internet, there are also transient media such as streamed audio and video and webcasts. No doubt when we achieve telekinetic functions, copyright law will need to evolve to encompass those acts as well!
Producers of fixations
Producers of physical formats ("fixations") might be ...
- Sound recording (record) companies
- Film/video companies
- Mobile phone ring tone companies
- Producers of computer discs
The law also vests copyright of the work of an employee in the employer unless otherwise agreed. When an institution claims the copyright of works created by those employed by the institution, they are in effect acting as publishers or producers. As such, they should also undertake the responsibilities of a publisher or producer which would include a commitment to exploit the work.
Assigning (licensing) copyright
A copyright holder may permanently or temporarily assign their copyrights to another individual. This is nearly always a commercial negotiation except after death when copyrights ownership will move to the copyright holders beneficiaries.
It is important to say that the form the agreement takes depends entirely on the result of the negotiation process and that although there are well recognised contractual practice's, an agreement or "deal" can take any form.
Here are a few example situations ...
In the world of television production it is common for a composer to be employed on the basis that the copyright to the music the right will be owned by the production company. This process is often referred to as a buy out and may be a point of bitter negotiation. The composers moral rights are retained. Music written for commercials is almost always a buy-out.
Assigning book copyrights
An author may assign a copyright to a book publisher for the following reasons ...
- To receive an advance on projected future royalties
- To generate royalties through the mechanical duplication and retail
- To benefit from their marketing and promotional skills
- To protect the copyright from piracy
Assigning music publishing copyrights
A composer may assign a copyright to a music publisher for the following reasons ...
- To receive an advance on projected future royalties
- To benefit from their marketing and promotional skills. They will attempt to get as many record companies, artists, film makers, tv production companies, phone ring tone sellers etc to use the copyright and thus generate mechanical royalty income
- To collect royalties through their subsidiaries worldwide
- To protect the copyright from piracy
Assigning image copyrights
A photographer or artists may agree a contract with a picture library whereby they receive an initial payment to cover their costs and then a royalty every time their images are used.
A composer may agree a contract with a music library whereby they receive an initial payment to cover their costs and then a royalty every time their music is used.
Ignorance, Avoidance & Infringement
Infringement takes place when use is made of a copyright work without authorisation direct from the copyright owner, or from the agency mandated on the copyright owner’s behalf to grant a licence. This can easily take place out of ignorance or avoidance.
For example you buy a CD and make a copy so you can have one at home and one in the car. This action, although technically an infringement, in practice, would be overlooked.
However, you then make a couple of copies for some friends. Either you did not know you could not make copies for others (ignorance) or you thought the copyright owners would not get to know about it (avoidance). You then decide to make some more copies and charge for the service so that your friends acquire the CD for less than the retail price and you are not out of pocket. That is clear infringement.
Although the copyright owners are unlikely to go to the expense of taking you to court, the law provides that an injunction can be put on your activities and unauthorised goods seized as well as fining you and sending you to jail.
Copyright law in the UK
As soon as a new work comes into being, a copyright is vested in it. That right has been enshrined in an Act of Parliament: the Copyright, Designs and Patents Act 1988.
Since 1988, European Union Directives have led to the implementation of European law into UK law through various Statutory Instruments which have amended or extended the scope of the Act. Much of this has been in response to new technologies and there is more to come ...