Imagine we live in a world where anyone can use your ideas or inventions without permission. Such a scenario would make it easy for people to take credit for your hard work and even profit from it at your expense. This is where copyright protection comes in. Copyright safeguards various original works, from literary to music, art, and inventions. Despite this protection, many creatives and inventors still face copyright infringements.
This article covers:
The concept of copyright and how to protect your work from copyright infringement.
How to enforce your copyright in the UK and your legal rights in case of a violation.
Defenses to copyright infringement.
Challenges and risks in copyright infringement in the UK.
The best practice for copyright owners.
What is copyright?
Copyright is a legal right that protects original works of authorship like books, music, art, films, and even some online content. It gives the creator control over how their work is used, shared, or sold. Under the Copyright, Designs and Patents Act 1988, for your work to be protected by copyright law, it must be original and tangible. This means the work must be a product of your own skill or intellectual creation.
The type of works protected by copyright in the UK include:
Literary works
Music
Art
Films
Sound recordings
Photography
Software
Databases
Typographical arrangements
A good thing about copyright protection in the UK is that it’s automatic. This means that creators don’t need to register their work to obtain copyright protection because it applies immediately after their original work is created.
How to protect and copyright your work
In the event of a copyright infringement, having solid evidence is crucial to supporting your claim and protecting your work. Here are some ways you can protect your work from infringement:
Keep Records: An excellent way to prove you’re the owner of a creation is to show its development process. This involves keeping valuable records like your early drafts, synopsis, sketches, or timestamps to show that you created the work from scratch. While it’s possible to fabricate this evidence, it’s also time-consuming. However, these records serve as reliable evidence to use when there’s a dispute.
Mark Your Work: Although copyright protection in the UK is automatic, marking your work with a copyright notice adds an extra layer of protection. A copyright notice should include your name and the year of creation. Using this method shows your awareness of copyright and that you take infringements of your work seriously.
Registering Your Work (Optional): You can also protect your work through copyright registration. While it’s not mandatory to register your work in the UK, doing so provides additional security and evidence you can use in case of a legal dispute.
What to do about copyright infringement
As a creator in the UK, you’re responsible for enforcing your copyright when an infringement occurs. You can do so through the following steps:
Identifying Infringement: The first step to enforcing your copyright in the UK is identifying the infringement. Copyright infringement encompasses various areas, such as copying, distributing, or adapting a copyrighted work without permission. An infringement may also be identical or incorporate a substantial part of the work.
Cease and Desist Letters: After identifying the infringement, the next step is to send a cease and desist letter. This is a formal letter notifying the infringer of the violation and demanding they stop using your work without permission. It also offers a chance to resolve the matter amicably before resorting to legal proceedings.
Taking Legal Action: If the infringement continues, it might be time to take legal action. This involves filing a claim in court for damages or seeking an injunction to prevent the further use of your work. Sometimes, the court may also order that the infringed copies be destroyed.
Mediation and Settlements: Sometimes, taking legal action might not be the best step, especially if your primary goal is financial compensation. Mediation and negotiation offer a quicker and less costly alternative to resolving the dispute without having to endure the complexities of a legal process.
What damages can be claimed?
There are several remedies available to you when an infringement occurs. These include:
Financial compensation
Copyright holders can claim damages for financial losses suffered due to the infringement. The court usually applies various methods in assessing damages. A common one is the ‘user principle.’ This involves calculating damages based on the amount a willing licensee would likely pay a willing licensor if there’s a negotiation over the copyright in question.
An alternative method is to consider diverse economic factors. Some of these include any depreciation of the copyright caused by the infringement, the royalty the copyright holder should have received, and any profits lost due to the infringement.
Moral rights
Besides financial damages, creators in the UK have moral rights over their work, even if the copyright has been transferred to another person. These include the right to be acknowledged as the author and the right to object to any derogatory treatment of the work. If these rights are violated, creators can seek remedies to address the damage caused to their reputation or integrity.
Injunctions
You can also seek an injunction to prevent the infringer from continuing to use or distribute the work. To obtain an injunction, you need to first apply for an interim injunction. This prevents any further infringement pending the trial of the case. At trial, the court may decide to make a final injunction based on the evidence presented.
Seizure
When an infringing material has been sold or hired out, copyright owners can seize it or authorise someone else to do so on their behalf. However, this requires you to first notify the police and obtain their approval.
Common defences to copyright infringement
If you’re on the receiving end of a copyright notice or a cease and desist letter, there are certain defences you can claim. Here are some of the common ones:
Fair Dealing: The UK Copyright law provides several exceptions to copyright infringement, one of which is the principle of fair dealing. This principle allows the limited use of copyrighted material without permission for purposes such as criticism, review, research, or news reporting.
Parody and Satire: Parody and satire are also covered under the principle of fair dealing. It allows creators to use portions of copyrighted material for comedic or satirical purposes. However, the creator must ensure that the use does not exceed what’s reasonable and that it doesn’t affect the market for the original work.
Non-Commercial Use: In some cases, you’re allowed to use a copyrighted work for non-commercial purposes such as personal use or private study. However, this defence applies only in very limited situations, and it mustn’t affect the copyright holder's ability to profit from their work.
Challenges and risks in copyright protection
Although UK copyright law offers protection for authors, artists, creators, and businesses, enforcing these rights comes with its own set of challenges.
International infringement
Enforcing your copyright is usually a smooth process, but it becomes challenging when the infringer is located outside the UK. Taking legal action also becomes more complex due to differences in copyright laws between countries. Presently, international treaties such as the Berne Convention provide some level of protection. However, creators may still face difficulties in following through with legal action or obtaining financial compensation in foreign jurisdictions.
Online infringement
The rise in technological advancement and online platforms has further exposed creators to more infringement risks. This is because almost anyone can access your work online from any part of the world. Online copyright infringement, such as unauthorised sharing on social media or websites, makes it difficult for creators to control the distribution of their work. To address this, you can use DMCA (Digital Millennium Copyright Act) takedown requests, which ask platforms to remove infringing content. Other strategies include using digital watermarking to track any unauthorised distribution or use of your work.
Best practices for copyright owners
Protecting your work requires you to be proactive to prevent infringement. By applying these best practices, copyright owners can maintain control over their work and respond effectively to any unauthorised use.
Monitor for Infringement: Creators should regularly monitor their work for infringement, especially online. It’s best to also act quickly whenever you discover any unauthorised use of your work.
Licensing and Permissions: Offering licences or permissions benefits you in two major ways: it allows you to maintain control over how your work is used and creates an additional source of revenue.
Work with Legal Professionals: Consult a solicitor experienced in copyright law to draft licenses, handle disputes, and ensure that your rights are fully protected.
Legal and regulatory considerations
In the UK, copyright protection is governed by the Copyright, Designs, and Patents Act, 1988. This law outlines creators’ rights, how to protect their work from copyright infringement, and the remedies available when an infringement occurs.
International copyright protection
Protecting your copyright abroad is automatic in the same way the UK protection works. The UK is also a member of several international conventions providing copyright protection. These include:
Berne Convention Berne Convention for the Protection of Literary and Artistic Works
Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations
World Intellectual Property Organisation (WIPO) Performances and Phonograms Treaty (WPPT)
WIPO Copyright Treaty (WCT)
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
The most prominent of these laws is the Berne Convention which provides that work will receive automatic protection without formality. However, you might want to take additional steps to protect your work by registering it.
For complex cases or disputes, it’s advisable to consult with a copyright solicitor. These solicitors are skilled in navigating any legal disputes that arise from enforcing your copyright. They also ensure that your rights are properly protected during the process.
FAQs
What is copyright, and how do I protect my work?
Copyright is a legal right that protects original intellectual creations, such as art, music, and literary works, from being used without the creator’s permission. You can protect your work, keep records of its development process, mark your work, or register it with an independent service.
Do I need to register my work for copyright protection in the UK?
No, you don’t necessarily need to register your work for copyright protection. This is because copyright protection in the UK is automatic upon creation.
What should I do if someone uses my work without permission?
Start by identifying the infringement, then send a cease-and-desist letter notifying the infringer of the violation and demanding that they stop using your work without permission. If the infringement persists, you can take legal action in court. However, if you want financial compensation, an intellectual property dispute solicitor can guide on mediation or negotiation, which might be a better option.
How can I enforce my copyright if it is infringed?
To enforce your copyright in the UK, start by sending a cease and desist letter. If the infringement continues, you can go ahead to take legal action. Mediation or negotiation are also alternative methods you can consider to resolve the dispute.
What damages can I claim for copyright infringement?
The copyright infringement damages you can claim include financial compensation, moral rights, an injunction to stop the infringing activity, and seizure of the infringing material.
Conclusion
Copyright is a legal right that protects a creator’s work from unauthorised use. In the UK, the protection from copyright infringement is automatic. However, copyright holders might still need to take additional steps to enforce their rights. These include marking or registering your work, keeping records of the development process, monitoring infringement, offering licences or permissions, and working with legal professionals.
Working with legal professionals helps you navigate the challenges and risks associated with copyright protection. If you need professional help enforcing your copyright, you can contact Lawhive. Our commercial solicitors handle a wide range of related cases, from copyright infringement to copyright litigation. They can also help you register your copyright to provide the added protection you need.