Do you want to prevent other people from taking advantage of your creative assets without paying you? Understanding and using Copyright law can help you do this.
Let’s start from scratch…
Copyright is the legal right of a creator to prevent other people from copying things that they create. The types of creative work that have copyright under English law are set out in a statute called the Copyright Designs and Patents Act, 1988 (or CDPA).
Why is Copyright important?
- help you protect the value of what you create and stop other people stealing it;
- add to the value of your company
- make it easier to raise investment
- help you create revenue streams from licensing or exploiting your copyrights
What can happen if someone infringes copyright?
Copyright is really only valuable to the extent that you’re willing to enforce your rights against an infringing party. If people are copying and profiting from your work, or trying to lay claim to your work as their own, or selling inferior copies of your products, then it is up to you to take action to stop them.
The test for copyright infringement is whether the whole or a substantial part of the work has been copied – this is a question of fact in each case. Usually, the court focuses on the quality of the parts taken and the degree of originality of those parts, not necessarily the amount. This is known as the ‘qualitative not quantitative test’. Where there’s substantial similarity between the two works, and there is proof of access to the original work, then copying will generally be made out. If the coping is just coincidental though and something similar was created independently, that won’t be infringement.
Sending a cease & desist letter is generally a sensible first step once you become aware of copyright infringement, essentially demanding that the copycat agrees to immediately stop the use of the work and take down the infringing content from any online sites. Usually, those sorts of letters will also demand financial compensation and a contribution to legal costs. These letters are usually an effective means of stopping the unwanted behaviour while avoiding the time, expense and stress of court action.
If you’re on the receiving end of a cease & desist letter for alleged copyright infringement, it might be possible to come to some sort of agreement with the other side – for example negotiating the terms of a licence to enable you to continue using those rights. If there is genuine infringement taking place then it is important to take swift action, otherwise you might ultimately be liable for increased compensation.
Also note that there are ‘fair dealing’ defences that can apply. For example, it’s not copyright infringement for a copyright work to be used for purposes of parody or for reporting news, criticism or review or in a quotation, as long as certain criteria are fulfilled. So it’s always worth considering whether such an exception may be available as a defence. However, generally where something is commercially available and generating revenue, any fair dealing defence is more likely to fail, especially where it causes the owner of that work to lose revenue and conflict and undermines the exploitation of that original work.
Because of the lack of a registration regime for copyright, proof of ownership and copying can be problematic. This makes it particularly important to be proactive in preparing to deal with potential infringements. Practical steps you can take to identify and safeguard copyright works include keeping proper signed records of the creation process, and identifying the author and the date of creation. Doing those things could turn out to be crucial if you ever need to support or defend a copyright claim.