The basics of Copyright law

Copyright laws are meant to protect and foster creativity, not to stifle innovation. 

Copyright infringement involves much more than illegally downloading music and licensed software from unauthorized sites. Today many of us are digital creators displaying our artistic talent on a multitude of platforms. Therefore, an in-depth understanding of what is copyright, what constitutes an infringement, and what exceptions and limitations are permitted in the use of copyrighted materials is essential for all content creators in order to protect their original work from improper use and avoid unnecessarily tripping into potential copyright violations in their artistic journey.

Let’s start with the basics.

Just what is copyright?

Copyright is one major component of intellectual property sitting alongside trademarks and patent law. Trademarks concern the protection of trade brands and trade names. Patents are concerned with protecting inventions.

Intellectual property is the genus of which copyright, trade mark and patents are species. Much of what we call Intellectual property is intangible property rights. They are most often tangible assets. Whereas copyright laws come into protection of works of authorship which are mostly tangible expressions of creativity.

Works require some form of tangibility to qualify for copyright protection. As soon work is fixed in some tangible medium it automatically becomes eligible for copyright protection, provided it has original content and has at least a minimum amount of creativity. This legal position is the same in both UK and US copyright regimes. Moreover, a work does not need to be published or made available in the public domain for it to acquire copyright status.

Idea/expression dichotomy

Here we look at whether ideas can be copyrighted.

Copyright protects the expressive element of a work. It does not protect the underlying idea. So ideas, no matter how novel they could be, are not entitled to be protected by copyright law. It is a long-standing principle in copyright law that ideas themselves do not give rise to copyrightable interests. Copyright is available only for expressions of ideas. And this is for a reason. Ideas are generally in the public domain and no one can be heard to say he or she owns an idea, so nobody else can claim a right to hold such an idea.

Moreover, an expression of an idea needs to be openly made and fixed in some material form to obtain legal protection.

Let me give you an example.

An improvised performance unless recorded does not qualify for copyright protection even though it is an open expression of an idea. It must be in some tangible form like a video/audio recording to be protected by copyright law.

What are the 3 elements of copyright?

There are 3 main elements a work must possess in order to be eligible for copyright protection. The claimant in a copyright case has the burden to prove that his work satisfies all 3 characteristics.  

1. Originality

1. Creativity

1. Fixation

These are the grounds you can make use of to make a case against a copyright’s validity. To obtain copyright status, a work must be the creator's own unique or authentic creation. Usually, when the original work concerned has no creative element or at least a modicum of creativity, it does not qualify to be conferred a copyright status. The work must be able to show the author’s intellectual creation. It must be in a tangible form too.

What types of works are protected by copyright?

• Original literary, musical, dramatic work

• Computer programs and software

• Sound recordings

• Motion pictures

• Databases

• Phonographic recordings

• Typographical arrangements

• Graphic works

• Audio-visual works

• Architectural creations such as models for construction

• Artistic crafts such as sculptural works

• Pantomimes and choreography

 What copyright doesn’t protect?

Did you know that logos are not protected by copyright law,  but instead protected by trademark law? What other works  are not protected by copyright? 

Here are a few examples of copyright violations.

What is copyright infringement?

Copyright is a bundle of property rights exclusively conferred on the creator or owner of a work. It gives the owner the exclusive right to control, protect and commercially exploit the work he has created. This bundle of rights includes the right to reproduce, the right to make derivative works, the right to disseminate copies, the right to display and perform publicly, and the right to the digital transmission of such work. It also includes the right to prevent others from misusing his work without his consent. When a person other than the owner without the prior authorization or direct licensing by the owner produces copies, sells, or transmits the work or part of it then he is said to have infringed the owner’s copyrights. It is wholly irrelevant whether infringement is done for a monetary gain or not. A profit motive does not make any claim for copyright infringement any stronger. The fact of violating the copyright makes itself a strong case against the infringer.

 

What uses of copyrighted materials are permitted?

As a general rule, users need permission before they use copyrighted work. We all are aware of direct licensing, which is the most certain way to avoid any copyright infringement claim. When you purchase a book, you get a direct license. There, you are given a set of general licensing terms to explain what you can do with the copy you bought. And if you need to deal with the copy in ways not generally permitted, you have to request the copyright owner for permission.

Additionally, a few other exceptions come to our rescue when we intend to use copyrighted materials without a license. This means the law permits us to use copyright content subject to some generally stipulated limitations.

Fair use is the most famous.

The doctrine of fair use allows journalists to use copyrighted material in their reporting and commentaries. It is a balancing factor in the copyright regime which aims at a reconciliation between the interests of content creators and the larger public interest of freedom and access to information. However, the extent of fair use largely depends on the nature of the original work and the intended secondary use. Fair use is generally permitted if the secondary use is for educational purposes and not intended for profit motives. But there is no hard and fast rule which decides the scope of the doctrine’s use. Some guidance can be found in decided judgments. Fair use must be evaluated on a case-by-case basis by giving due consideration to the facts and circumstances of each case.

Let me make it clearer with an example.

Let’s say you are writing an article for your e-commerce website on new features, designs, and specifications anticipated in the next version of the iPhone. And while you do your research, you come across someone’s article on the same topic. Here you can use and extract a limited amount of the original content as long as you do not damage its copyright value. Fair use is permissible only if you modify the original work in some significant way so as to alter its original character and purpose. However, the reproduction of a substantial part of the copyrighted work will prevent you from pleading fair use.

Fair use is what lays the groundwork for defense in many copyright claims. In the absence of proof to support fair use, the defendants are faced with the burden to challenge a copyright's validity.

 First sale doctrine

You’ve been to second-hand bookstores right. This is the first sale doctrine at work. But first-sales doctrine is rather a narrow exception compared to fair use. The purchaser can re-sell and dispose of copies of the original work that he bought. However, the doctrine does not give any rights as to the underlying work. If you want to publish, reproduce or adapt some part of the original work, you will need the prior authorization of the owner.

Registration makes copyright enforcement much easier.

Registration is not a prerequisite to claiming copyright status. But registration benefits creators and owners since it serves as proof of their copyrighted work and gives rise to certain legal presumptions. A public record of copyright acts as a warning to discourage others from misusing your work. When clear documentation exists to back up your copyright claim in court, you won’t have to establish by evidence that the infringer deliberately misused your work or that he did it for commercial gain. Therefore, should a copyright claim arise, it’s better to be equipped with the necessary paper evidence to support your copyright. It is generally recommended to register your work within a few months of its creation.

 

Copyright law basics summed up

Copyright protection is automatic. Therefore creators are entitled to automatic protection without having to register their work. In many jurisdictions that have ratified Berne Convention, registration remains a voluntary process. Despite the fact that ideas, concepts, and facts are not eligible for protection, many types of creative content such as literary, dramatic, artistic work, and works of authorship are entitled to be protected. These copyrighted materials can be used within the scope of a few limitations such as fair use and the first-sale doctrine. Plagiarism should not be confused with copyright infringement as the former is not legally enforceable. However, where a creator’s copyright is infringed, it is always recommended to have a registered copyright as it makes the litigation process much easier.