Whether you’re starting out in business, or creating new products and services for your existing business, you’ll want to make sure you’re doing things right, that your actions will set you up for success.
Unless you’re purely testing the market in a way where none of what you create needs to endure or be relied upon longer term, it pays to be mindful of the longer term implications of your early actions when implementing new ideas. If you’re thinking big and aiming to create a business to one day sell, you definitely need to pay attention to what I’m highlighting here.
Setting yourself up for success involves being aware of how assets are created under the legal system, and the pitfalls to avoid. You should aim to implement your ideas in the right way because it’s the very early decisions and actions you take before you would even consult a lawyer, that have the greatest risk from a business perspective.
Copyright is essential to understand if you want to create assets that will grow in value as your business becomes more established. It crops up in many different ways.
Aim to understand the essentials, and avoid attracting liabilities, such as by using other people’s content. Here I explain just some of the copyright basics. I’m focusing on some key concepts that are not generally well understood. However, you need to know more than this.
What Copyright Covers
There is quite a lot of confusion generally with intellectual property terms like copyright, trademarks, and patents. You need to have some understanding of these terms as they are a type of “property” that it’s possible to own, just like land. They impact every business nowadays in the digital economy.
Copyright like other intellectual property rights is intangible. That means it is a property right that’s attached to something else. So, for example, you buy a book. You will own it, but you do not own the copyright in that book. The copyright belongs to someone else - the author or the publisher.
So, copyright ownership will often be separate from the physical object. The same principle applies for intangible objects, such as a logo or website.
Clarity about the fact that copyright is separate from the physical or intangible product you may be using or having created for you is key to understanding it:
The creator of a copyright work is the one who owns the copyright in that work, and that copyright lasts for their lifetime plus 70 years.
That’s a long time. Just like any property right, copyright may be sold, left in your will to your heirs, mortgaged or licensed to others to use.
The owner of copyright is the person who can grant permissions (a licence) to other people to use their copyright work. They can control who uses it and for what purpose just as an owner of land can decide whether to rent out their property or to give others permission to use the land for particular purposes.
The types of copyright works which are potentially relevant to individuals and businesses alike include:
So to conclude this section, remember that the copyright in the objects is separate to the object itself.
What Copyright Isn’t.
Not everything is protected by copyright though. For example, copyright only comes into being when a work is fixed in some sort of tangible form, such as when it’s written down.
What copyright isn’t includes:
Copyright only protects the way an idea is expressed rather than the idea itself. This is often referred to as the idea/expression dichotomy.
So, the fact that copyright doesn’t exist in ideas has a number of ramifications.
For example, let’s take a copyright work like a food recipe, The words of a recipe are what copyright protects rather than the ideas contained in the recipe. That means if someone sets your recipe out in their book or copies and distributes it they would be infringing your copyright.
As for the ideas embodied in your recipe, those ideas are not protected by copyright. So, it is not infringement of copyright to cook whatever your recipe covers using every idea from the recipe. So, if it’s a recipe for making rabbit pie, anyone can make rabbit pie to the recipe, sell the pies commercially or vary the recipe and cook their own version of rabbit pie.
They can even publish their own recipe of rabbit pie drawing on inspiration from your ideas.
There is no copyright infringement involved as long as the recipe they write isn’t a word for word copy of your recipe with just one or two minor changes say.
So, they should express their ideas in a different way and not slavishly borrow from you.
Unfortunately, this neat categorisation has become murky due to the way some cases have been decided by the courts.
When Does Drawing Inspiration Become Copying?
Sometimes people wonder whether they might be infringing on someone else’s copyright if over many years they’ve studied a topic, attended courses, read books, and developed their own way of working. How can they be sure that it is their own “IP” that they’ve developed from all their learnings, and that they’re not infringing on other people’s copyright? Should you be giving credit where it’s legally due?
There is no categorical answer whether someone is crossing the line between drawing inspiration from a copyright work and copying (that is, infringing copyright).
At both ends of the scale, it will be very clear. So there is no copying when someone has simply got ideas and drawn inspiration from the ideas embodied in a copyright work and gone and created something of their own that is not a copy of expression of the original copyright work.
At the other extreme is where there is widespread copying of the original source, word for word copying of the majority of a work.
When it is not clear cut an experienced copyright lawyer may be able to advise you, but ultimately if it’s really borderline whether there is copyright infringement or not, this is ultimately a question of fact.
There is no “ready” formula which says that if x% of a work is copied it will infringe. There have been cases in the UK where the minutest % of copying has amounted to infringement (involving music where the copied element was very distinctive of the entire song). There have been other cases where taking whole sections of a book didn’t amount to copyright infringement as it was deemed to be quite generic material that was copied.
Where a dispute arises the issue is generally negotiated between the lawyers and a compromise reached reflecting the rights and wrongs of the situation. If a matter can’t be resolved then it would go to court and a judge would need to decide the issue.
Ultimately we all stand on the shoulders of giants and there is no completely original thought. So, if you’ve developed your ideas drawing from a combination of sources then it’s more likely than not that it would be your own IP. It’s often a good idea to list your sources in a bibliography at the end of your book.
Copyright is just one of the intellectual property rights to be aware of when implementing ideas. There are in fact many other aspects of copyright that your business should protect itself again. Here I’ve just touched the surface so as not to overload you with information.
Who owns the copyright and how you secure copyright ownership is the other really important practical point to grasp about copyright and to remember to address throughout your business life. I cover this fully, in the mini-course which discusses everything you need to know about copyright ownership, how it arises, what to do to own copyright, how to manage this risk. You’d be doing yourself a favour to get hold of it.
Alternatively, if you want to discover other aspects of copyright as well as other intellectual property risks then Legally Branded Academy is the online course for you. It includes copyright ownership and much more. Find out more about it. If you buy before the price doubles in mid-2019 you’ll get access to the revised course at half the price.
By signing up for Legally Branded Newsletter, You will gain insights every week on intellectual property. Paying attention to IP is the way to discover what steps to take to preserve the value of your assets, to grow your profit margins, create new income streams, protect your market share, and prevent competitors from copying your ideas.