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Common copyright myths

Most businesses use and acquire works protected by copyright every day. Intellectual property specialist, Maureen Kelly, clears up five common myths about copyright.

Whether it is software or sound recordings, graphics or broadcasts, published works or private customer lists; copyright protects a wealth of materials in a typical business.

In one respect copyright is self-explanatory. It enables the right holder to prevent others from copying, subject to some exceptions. However, there are a number of common myths about copyright which intellectual property lawyer Maureen Kelly encounters.

"I paid the contractor for the work, so I must own the copyright"

This is by far the most popular myth.

The law provides that the author of a work is the first owner of any copyright. The most important exception to this rule is that where a literary, dramatic, musical or artistic work is made by an employee in the course of his or her employment, the employer is the first owner of any copyright in the work, subject to any agreement to the contrary.

There is rarely any "agreement to the contrary". In fact, if an employment contract addresses the question of the ownership of intellectual property rights at all, it is generally to reiterate or supplement the rights of the employer. Consequently, the employer is likely to own the copyright in works made by its employees in the course of their employment.

These provisions have spawned a perception that where a non-employee, such as a contractor, is engaged by a company to produce a work, the company will automatically own the copyright in that work. This is quite wrong, as the provisions of are limited to employees.

You may engage people to work for your company who are not employees with a whole variety of titles: contractor, consultant and so forth. Regardless of the title, the principle remains the same: if the person who produced the work is not an employee of your company, your company does not own copyright in that work unless the author has signed an agreement assigning the copyright to your company. Your company will have an implied licence to use the copyright but the scope of such a licence is frequently the subject of dispute.

This issue arises most frequently in relation to software which is protected by copyright and where the use of contractors is prevalent. Do not wait until a prospective purchaser of your business is conducting due diligence on it to discover that you do not own the copyright in the works that you have commissioned. Ensure that all non-employees sign an agreement in relation to the assignment of copyright to your company, ideally before they start work.

"I need to do something to copyright a work"

The Copyright, Designs and Patents Act 1988 sets out the requirements for a work to be protected by copyright. If your work meets those criteria it will be protected without the need for any action on your part. There is no such thing as a copyright register in England and Wales, Scotland or Northern Ireland and it is therefore not possible to register copyright in those jurisdictions. The position is different in some other countries around the world.

The use of the © symbol, the name of the company and the date does not have any effect on the question of whether copyright protects the work. However, it is a good practice to mark works created by, or on behalf of your company, in this way as evidence as to who created the work and when in the event of a dispute.

"I can use copyright to protect my idea"

The now rather dated practice of writing out your idea on a piece of paper, sealing it in an envelope and then posting to yourself to retain the sealed envelope, complete with postmark, may provide useful evidence as to when you wrote that document. Anyone subsequently copying the written document or a substantial part of it would infringe the copyright in the document. However the exercise would not enable you to prevent others from using the idea if and when the idea became available in the public domain.

Ideas alone do not qualify for copyright protection. Rather, copyright protects the form of expression of ideas as original literary, dramatic, musical or artistic works, sound recordings, films, broadcasts, cable programmes or the typographical arrangement of published editions.

"It is in the public domain, so I can copy it"

There is a common perception that where an author has made his work available to the public, anyone can copy it. This perception is particularly strong where the work is made available on the internet. It may well be true to say that the internet would simply never have developed if coders had observed this rule and abstained from copying the work of others. However the fact that a work is in the public domain, be it in a bookshop, on the internet or elsewhere, does not prevent it from qualifying for copyright protection.

"A work that has been copied cannot qualify for copyright protection"

This misconception is based on the view that it is not fair that an author who has infringed another's copyright should then obtain the benefit of copyright; it should be open season to copy the infringer's work.

The law is clear that, even though one work infringes another's copyright, provided the copied work meets the criteria it will qualify for copyright protection. In particular, the author must have expended sufficient independent skill and labour to justify copyright protection for his or her result.

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This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.

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