A basic, fundamental question people often ask me is What exactly is Copyright?
Of course, people have heard the term and have a basic understanding, but often there are gaps in their knowledge, or confusion around particular facets of the subject.
Sometimes I’m asked for examples of copyright, or why it’s important to have copyright, and how to avoid copyright problems and so on.
Copyright is a large subject and has many different facets to it.
My aim in this blog is to answer 3 essential questions about what copyright is by giving you
These are three essential, need to know pieces of information about copyright. As copyright is a large subject you’re bound to have plenty of questions. Do feel free to ask them in the comments below.
Examples of what copyright protects.
Copyright is a type of intellectual property right. Intellectual property is a collective, catch all term that encompasses various legal rights. It’s the system of laws that protect creations of the mind, and other intangibles. Strategic use of intellectual property makes a big difference to a business’ fortunes. IP is an important consideration in any venture, whether starting, growing or exiting a business, a blog, a charity, or introducing any new offering. It’s therefore, information that every entrepreneur would do well to learn about, and if you’ve not already read earlier blogs explaining what IP is then I suggest you do so after reading this one.
Within IP, copyright is an important right, one of the core 3 IP rights that impacts every business.
Copyright is very wide-ranging in scope. Some examples of what it protects include
So copyright is highly relevant in today’s digital environment because most of the ways that businesses operate involve creating many different copyright assets.
Microsoft is an example of a business whose fortunes are largely based on its copyrights, and there are many industries such as publishing and music that are dependent on copyright. If you’re from a copyright dependent industry you should find out a lot more about copyright than I cover in this blog.
What’s required for copyright to arise
A work must be “fixed in a tangible form” to qualify for copyright protection. I go into this in detail in previous blogs, how copyright does not protect ideas but the expression of ideas. So, be sure to look back and find those blogs.
The essential point to note is that at least in countries like the UK and former Commonwealth countries like the USA – what are known as the common law countries – it is not necessary for a work to display a high degree of originality in order to qualify for copyright protection.
One really important point I want to draw to your attention is that names are not on the list of copyright examples I’ve provided. That’s because names are not as a rule protected by copyright under the law. They are covered by trademark laws.
The second question I’m going to cover today is why you might want to have copyright.
Here it’s important to note that copyright is a property right.
What that means is that it’s possible to own the rights (copyright) to the example works I’ve outlined.
A copyright work is therefore an asset. If you use some of the examples of copyright I’ve outlined in your business then it is necessary to decide whether you want to own the copyright in them. If you don’t own the copyright in an asset you use in your business, it means you are licensing that work. A prime example of copyright we all tend to licence in our businesses is software such as Microsoft software.
Think of copyright as you might think of a plot of land, even though the examples of copyright may be intangible, they are nevertheless assets.
The copyright owner is the person who has the right to exploit the rights in their asset just as the landowner can exploit the rights in their land. So, Microsoft as the owner of a copyright in its software decides who may use its software and on what terms. If we copy and use its software without an appropriate licence (permission) then we are said to be infringing on the copyright owner’s rights.
Similarly, if you own a copyright to something, you may grant permission to other people over some or all of your copyright, just as you can do this with physical property. You could rent out the entire plot, or you might give rights to someone to use your fields as pasture land or whatever.
However, unlike land, where you are limited by the physical nature of the property to use by one person at a time, copyright, being intangible, enables you to grant many different people licences over the same property.
With physical property, you’re limited as to the number of leases and licences you can grant to use your land. With copyright, you can grant limitless licences to others.
For example, if you’re the owner of copyright in a book you’ve written, it means that as and when someone is interested to exploit particular rights in your book, such as the right to use one of the characters in your book to print on their T-shirts, they will have to ask your permission as the copyright owner. You could give the same permission to hundreds of people in return for royalties. Many different rights exist in a book, ranging from audio rights, or translation rights into other languages, or book club rights, or the right to turn the book into a film and so on. This means that a successful author has many sources of revenues from their book.
An author like JK Rowling will derive more revenues from licencing than from book sales. I will discuss licensing more in future blogs, but at this point, I wanted to convey something about it so you can see why copyright ownership is an important consideration.
Whenever you’re turning your idea into a business, transforming your ideas into a commercial proposition, some of the first tasks you’ll likely get help with or have created for you, will be copyright works. copyright should be an uppermost consideration. So, you need to make sure the works you’re having created will belong to you, and if they don't belong to you, then make sure you negotiate all the necessary permissions you will need for your intended purpose before you commit to using someone’s services.
A common mistake people make is to assume they will own the rights anyway just because they’re paying for a work to be created for them, but that’s not the case. It’s just one of those myths that mislead people.
Copyright ownership rules
In every jurisdiction be it UK, USA, Australia, or wherever, there are rules which determine who owns the copyright in a work.
The default rules which determine who is the owner of copyright in common law countries invariably say that unless you have a written contract with the person who creates a copyrighted work for you, such as a design, or an app, ownership of copyright automatically belongs to the creator, rather than to you, the person who commissioned and paid for it. The only exception is where the work is undertaken for you by your employee during the normal scope of their duties.
So, if you engage someone to do work for you, such as to build a website, before you engage their services, and give them your best ideas, make sure your written agreement with them covers copyright ownership.
If you don’t negotiate terms about copyright in the agreement with the developer you effectively accept that the developer shall own all the rights in your website.
Find out what the copyright rules say in your country, and how they impact your plans.
In an increasingly global marketplace, where it’s quite common to engage the services of freelancers based in other parts of the world, you can and should agree which country’s laws will govern your contracts with others before you engage them. For example, it’s common to use English law as the governing law.
The nature of copyright being a property right means you should pay close attention to the fine details at the start of a project.
It’s not enough to deal with it verbally. If the person you engage says you own the rights that’s not enough. There are formalities to follow. Copyright being property just like a house is property, it means you can only transfer the rights in writing. For example, if I tell you that you can regard my house as yours, you’re not going to own it unless I go through the formalities laid down under the law to transfer the land over to you. The same applies to copyright or other intellectual property rights. They have formalities to observe.
Copyright laws were introduced more than 100 years ago to address the problems of the print industry. Works that were in hard copy and in analogue form were difficult and expensive to reproduce so copyright laws enabled artists and authors to restrict the circulation of their works and gain a higher price for them.
The problem we have in today’s digital economy is that it is all too easy and cheap to reproduce books, sound recordings, photographs and films, in high quality. So, the internet has led to a huge increase in piracy of copyright content. The copyright industries are all facing unique challenges due to the ease with which their works can be copied.
And at the same time, because it’s all too easy to copy other people’s work, the internet also makes it really easy to be found out if you’re copying someone’s copyright works.
So, that’s the third point I want to cover today, how to avoid some common copyright problems and that is to understand that content online is not in the public domain.
There is a popular belief that content that is on the web is in the public domain, but it’s not. So, if you use images, sounds or other content that is not licensed to you, you’re at risk.
There are tools and software that organisations like Getty images use to track down unlicensed use of their images. Such organisations will demand damages if they find their images on your website. It doesn’t absolve you of responsibility to say that it was your web designer who put the image there. So, we all need to be vigilant about copyright if we’re to avoid liability for copyright infringement.
If you don’t have a process to ensure that the images and other content you use in your business are properly licensed to you, you could attract unexpected problems such as arose for Mr Sano’s business.
He was the designer who was commissioned to design the logo for the Tokyo Olympics. Unluckily for him, another designer claimed he had copied the logo he produced for the Tokyo Olympics. Mr Sano strongly denied the allegations of copying but then a story emerged about how his team had in the past copied materials from the internet in a beer promotion campaign for Suntory. This led to the Tokyo Olympics Committee losing confidence in him, and they decided to abandon the logo.
We don’t know how Mr Sano found himself in this disastrous PR situation. He clearly hadn’t covered off copyright law properly in his business.
It is not uncommon even for professionals such as web designers to not realise they can’t just use images found online, let alone others you may employ in your business. So, it’s important to train them.
It can and does happen that web designers cause problems for business owners and a case involving DARE provides an example of what can go wrong.
Drug Abuse Resistance Education (DARE)
DARE engaged a designer to create its website. Unbeknown to them, the designer found images on a government website depicting various drugs and assumed they were available to be used. DARE took the designer at their word, that the image could be used.
Unfortunately, it later transpired that the photographs were in fact owned by a professional photographer. Having discovered the unauthorised use of his work, the photographer took legal action, and DARE was faced with an award of £10,000 in damages, plus interest.
While the penalty in terms of monetary cost in damages differs from country to country, the principle is the same. Using unlicensed images can have adverse consequences for the site owner.
So, it’s up to you to give anyone you engage specific and clear instructions about where to source images for your site. It’s your website, you are the one who will face problems if there are unlicensed images on it or misuse of licence terms.
Nowadays with the increasing use of sites like People Per Hour or Upwork, to find web designers, often located in distant places, it’s very likely the designer might not be properly aware of the copyright laws that apply in your country. And it may not be so easy to recover your losses from them either.
The DARE case demonstrates that you shouldn’t assume your web designer will know what materials and images they may or may not use. Do your own verifications.
So, we’ve covered a lot of ground today.
I’ve explained what copyright protects, why copyright ownership matters and therefore why it’s important to focus on copyright before engaging someone to do work for you.
I’ve also advised not to leave copyright discussions till later on, once the work has been commissioned. That’s due to the copyright default rules which say that the contractor will own a copyright in the absence of a specific agreement to the contrary.
Make sure you find out what the laws in your country say about copyright ownership
And the third learning was this: The internet has made it all too easy to infringe on others copyright and to be found out if you do. As the owner of a website or business, you need to protect yourself because you will be liable if your web designer just grabs images off the internet and uses them on your site, for example.
Given the importance of copyright, it’s worth having a process in your business to cover off the risks you run. A really easy way to do this is to buy my Legally Branded Academy course. It has everything you’ll need - guidance, checklists and templates to address these copyright risks. It covers other important IP issues to bear in mind in your business too, and it’s suitable wherever you’re located. That’s because it’s a business course.
Shireen Smith will be doing a livecast to discuss how to protect a brand through trademark registration on 21 December 2018, and monthly livecasts thereafter, if you want to join sign up here.
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.