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 Outline
Basic principles of copyright
❑ Copyright works
❑ Owners and authors
❑ Duration of copyright
❑ The acts restricted by copyright
❑ Infringement
❑ Exceptions to infringement and the permitted acts
❑ Secondary infringement and criminal offences
❑ Remedies for infringement
❑ Copy protection and electronic rights management information
❑ Moral rights
❑ Dealing with copyright

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 Basic principles of copyright

❑ Copyright works

Copyright is declared to subsist (that is, ‘exist’) in the following works by virtue of section 1 of
the Copyright, Designs and Patents Act 1988:
(a) original literary, dramatic, musical or artistic works;
(b) sound recordings, films or broadcasts; and
(c) the typographical arrangement of published editions;
provided that the requirements for qualification are met: for example, that the author of an original literary work is a British
citizen or has certain other nationality or residential qualifications,
or that the work was first published in the UK. Literary works include computer programs,
preparatory design material for computer programs and databases.
The first category of works is expressed as being ‘original’. This does not mean that the work
must be unique or special in any way. It is sufficient that the work is the result of the skill or judgment on the part of the creator
of the work and that it has not been copied from another work.
In other words, it has originated from its creator. For one of these original works, the test is qualified and for copyright
databases, they are required to be the author’s own intellectual creation,
Databases may also be protected by a right known as the database right which can be
described as a right related to copyright. The database right was introduced as a means of protecting databases that are the
result of a substantial investment even though they might not
otherwise meet the requirements for copyright protection.

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 Basic principles of copyright

❑ Owners and authors

The owner of the copyright in a work is then given the exclusive right to do certain specified
restricted acts in relation to the work, described below. The basic rule is that the first owner of a
copyright is the author of the work (the person creating it). A major exception applies in the case
of a work made by an employee in the course of his employment. Where this is so, the employer
will be the first owner of the copyright, unless otherwise agreed (section 11). There are other
exceptions to the basic rule, such as in the case of Crown copyright and copyright belonging to
certain international organizations such as the United Nations. The Copyright, Designs and
Patents Act 1988 usually refers to the creator of a work as the ‘author’ of the work, thus a person
writing a piece of music is the author of the music and a photographer is the author of his photographs. For sound recordings and
computer-generated works, the author is the person who
makes the arrangements necessary for the making or creation of the work (section 9), so the
author of a report produced automatically by a computer will normally be the person who loads
and operates the software in order to create the work. In many cases, ownership, as distinct from
authorship, will reside initially with an employer

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 Basic principles of copyright

❑ Duration of copyright

Regardless of who the present owner of a copyright is, the identity of the author is important because the duration of copyright in
original literary, dramatic, musical or artistic works (not
being computer-generated) is determined by the life of the author, irrespective of ownership. The copyright in such works lasts for 70
years from the end of the calendar year during which the author dies.
If the work in question is one of joint authorship (a collaborative work in which the contribution of each author is not distinct from that of
the other authors), as many computer programs and other computer works are, the 70-year period starts to run from the end of the
calendar year during which the last surviving author dies. This generosity in terms of duration
of copyright might seem disproportionate in a fast-moving technology but can be justified on
the basis that, generally, copyright does not give a true monopoly, just a right to prevent others copying the work or doing certain other
acts in relation to it.
For other works, except films where the 70-year period is used, the duration is set at 50 years
from the end of the calendar year during which the work was created, made available to the public or released, as appropriate. For
sound recordings the situation is fairly complex and the copyright lasts for:
■ 50 years from the end of the calendar year during which the sound recording was made;
■ if published during that period, 50 years from the end of the calendar year when it was first
published; or■ if not so published but it is made available to the public by playing it in public or communicating it to the public (this
includes making it available online on a website) during that 50
year period, the copyright lasts for 50 years from the end of the calendar year when it was
made available to the public.

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 Basic principles of copyright

THE ACTS RESTRICTED BY COPYRIGHT

Copyright functions by granting specific rights to the owner of the work: only the copyright
owner is allowed to perform, or authorize others to perform, certain types of activity in relation
to the copyright work. These activities are referred to as the acts restricted by copyright, and are
set out in section 16 of the Copyright, Designs and Patents Act 1988. The following are the acts
restricted by the copyright and only the owner can do or authorize others:
A. to copy the work;
B. to issue copies of the work to the public;
C. to rent or lend the work to the public;
D. to perform, show or play the work in public;
E. to communicate the work to the public;
F. to make an adaptation of the work or do any of the above in relation to an adaptation.

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 Basic principles of copyright

INFRINGEMENT

A person infringes the copyright in a work if he does one of these restricted acts, or authorizes
another to do one of the acts, in relation to a substantial part of the work without the permission of the copyright owner
and such a person may be sued by the copyright owner (or an exclusive licensee of the owner or even a non-exclusive
licensee who has been granted a right of action
by the owner) for the infringement. The infringing act may be direct (for example, making a
photocopy or a disk to disk copy) or indirect (for example, making a clay model of a sculpture from a photograph of the
sculpture
Essentially, to prove copyright infringement by
copying, all the following four questions must be answered in the affirmative.
■ Is the claimant’s work protected by copyright?
■ Has the claimant the entitlement to sue, for example, as the owner of the copyright or a
licensee with entitlement to sue?
■ If so, has the defendant copied from the claimant’s work?
■ If so, does that part of the claimant’s work copied represent a substantial part of the claimant’s
work?

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 Basic principles of copyright

EXCEPTIONS TO INFRINGEMENT AND THE PERMITTED ACTS

There are some defenses to copyright infringement at common law, such as public interest and where the copyright owner has acquiesced in
the infringement.
For example, it might be in the public interest to copy information concerning a computer virus for circulation to the appropriate authorities and
organizations. The same would apply to copying material, such as e-mail correspondence between two organizations engaged in illegal
price-fixing, to send to the Competition Commission.
Acquiescence would apply where the copyright owner impliedly consented to an infringement he later complained about. Another defense is
estoppel, Take the following examples:
■
. Alan lends his paper copy of a novel to his friend Barry to read – this does not infringe copyright as lending a book to a friend is not a
restricted act.
■ Alan copies out a few paragraphs from the novel using his word processor. This does not
infringe as a few paragraphs are unlikely to be considered to be a substantial part of the novel.
■ Alan is a student who copies a few pages from a journal article for the purposes of his own
private study. Although a few pages from an article may constitute a substantial part of the
article, Alan can rely on the permitted act of fair dealing for research or private study. (Note:
if the article is in the library of the college attended by Alan, he may be permitted to copy the
whole article under a licensing scheme if the college has taken a license from a collecting
society such as the Copyright Licensing Agency.)
■ Alan decides to record an entire television programmed broadcast at a time when he is at college so he can watch it later at his convenience.
He uses his own equipment at his home to do
so. This does not infringe as it is covered by the permitted act of ‘time-shifting’.
In respect of the last permitted act ‘time-shifting’, this only applies where the recording is made
on domestic premises for private and domestic use.
This case also confirms that liability for infringement applies even if the person responsible for
copying was not aware the work being copied was protected by copyright.
CDs for customers.

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 Basic principles of copyright

EXCEPTIONS TO INFRINGEMENT AND THE PERMITTED ACTS

There are some important permitted acts for computer programs introduced by the
Copyright (Computer Programs) Regulations 1992 which implemented the Directive on the
legal protection of computer programs. These permitted acts allow a lawful user of a computer
program to:
.■ ‘decompile’ a computer program under certain circumstances in order to create a new independent program that will operate with
the program decompiled or another program;
■ make back-up copies of computer programs if necessary for lawful use of the program;
■ observe, study and test the functioning of a computer program in order to determine the program's underlying ideas and
principles (confirming that copyright does not protect ideas)
whilst carrying out certain acts the lawful user is entitled to do;
■ copy or adapt the computer program if necessary for lawful use providing the act is not prohibited by the agreement regulating
the lawful use. This could apply, in particular, to copying or making adaptations for the purposes of error correction.
There is also a permitted act covering databases. This allows a person having a right to use a database (or part of a database) to
access and use the contents of that database or part thereof.

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 Basic principles of copyright

SECONDARY INFRINGEMENT AND CRIMINAL OFFENCES

There are additional ways of infringing copyright, known as secondary infringements, which
typically apply where someone is dealing in infringing copies (such as selling unauthorized
copies of software) and there are also some criminal offences which now carry a maximum
penalty of a term of imprisonment not exceeding 10 years and/or a fine. Some of the criminal
offences are very similar to the equivalent form of secondary infringement. For example, a trader
who is selling unauthorized copies of copyright software, knowing or having reason to believe
that they are infringing copies, is liable under civil law for secondary infringement and also commits a criminal offence under copyright
law.
Distributing an article which is an infringing copy of a work of copyright to such an extent as
to prejudicially affect the owner of the copyright is a secondary infringement of copyright and a
criminal offence. the maximum penalty being a modest fine. The reason the penalties have been increased
is a reflection of the damage done to copyright owners by counterfeiting operations and, more
lately, the involvement of organized crime in such activities. As copyright is a form of property, it can fairly be said that deliberately
infringing copyright is tantamount to theft. Interestingly, for
a conviction for theft the prosecution has to prove, inter alia, dishonesty. The threshold for copyright offences is lower, being that the
accused knew or had reason to believe that the copy he was
dealing with was an infringing copy, that is, that its making infringed copyright

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 Basic principles of copyright

REMEDIES FOR INFRINGEMENT

There are additional ways of infringing copyright, known as secondary infringements, which
typically apply where someone is dealing in infringing copies (such as selling unauthorized
copies of software) and there are also some criminal offences which now carry a maximum
penalty of a term of imprisonment not exceeding 10 years and/or a fine. Some of the criminal
offences are very similar to the equivalent form of secondary infringement. For example, a trader
who is selling unauthorized copies of copyright software, knowing or having reason to believe
that they are infringing copies, is liable under civil law for secondary infringement and also commits a criminal offence under copyright
law.
Distributing an article which is an infringing copy of a work of copyright to such an extent as
to prejudicially affect the owner of the copyright is a secondary infringement of copyright and a
criminal offence. the maximum penalty being a modest fine. The reason the penalties have been increased
is a reflection of the damage done to copyright owners by counterfeiting operations and, more
lately, the involvement of organized crime in such activities. As copyright is a form of property, it can fairly be said that deliberately
infringing copyright is tantamount to theft. Interestingly, for
a conviction for theft the prosecution has to prove, inter alia, dishonesty. The threshold for copyright offences is lower, being that the
accused knew or had reason to believe that the copy he was
dealing with was an infringing copy, that is, that its making infringed copyright

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 Basic principles of copyright

REMEDIES FOR INFRINGEMENT

Recently, claimants seem more prepared to ask for additional damages. In relation to computer software, such damages may be
relevant in the case of blatant infringement, for example,
by deliberately using someone else’s specialized computer software to gain a competitive edge
over that other person. Another example is where a person deliberately makes use of another
person’s database of highly sensitive information. It has been confirmed that additional damages
may only be awarded alongside ordinary damages and not an account of profits. A claimant has
to elect between damages and an account of profits and cannot ask for both.
In addition to the remedies mentioned above, the claimant may apply to the court for an order for the infringing copies to be delivered
up to him or for those copies to be destroyed.

COPY PROTECTION AND ELECTRONIC RIGHTS MANAGEMENT INFORMATION

Before implementing the Directive on copyright and related rights in the information society, the Copyright, Designs and Patents Act 1988
contained remedies against persons who where
instrumental in overcoming copy-protection for computer programs, for example, by selling devices designed or adapted to overcome
copy-protection or publishing relevant information to enable individuals to overcome copy-protection.
The Directive provided a whole raft of provisions to deal with this issue in relation to all forms of copyright works and the database right, and
rights related to copyright.
There were exceptions, especially in relation to computer programs which continued to be dealt with under the Directive on the legal
protection of computer programs.
The Copyright and Related Rights Regulations 2003 implemented the Directive on copyright
and related rights in the information society with effect from 31 October 2003 and provide two
forms of protection against overcoming technological measures aimed at protecting works from unauthorized use.

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 Basic principles of copyright

COPY PROTECTION AND ELECTRONIC RIGHTS MANAGEMENT INFORMATION

One set applies to works other than computer programs whilst the other set
of provisions applies otherwise.
Another feature of the Directive implemented by the Regulations was the protection of electronic rights management information.
This includes information identifying the author and owner and the uses to which the work might lawfully be put to.
The perceived danger was that a person might make a copy of a work and, after removing such information, make it widely available for
others to access, for example, by placing it on or linking to it, from a webpage.
Third parties accessing it might think they could copy or distribute it as they wished with the result that the economic interests of the owner
and the moral rights of the author could be seriously
prejudiced.

MORAL RIGHTS
Moral rights were a relatively new concept in the UK when introduced by sections 77–89 of the
Copyright, Designs and Patents Act 1988. These rights, which have long been recognized in some
European countries, are independent and distinct from ownership of copyright and give the
author of a literary, dramatic, musical or artistic work and the director of a film the right:
■ to be identified as the author (or director) of the work;
■ to object to a derogatory treatment of the work (for example, if someone rewrites a serious
play in the form of a smutty farce without the author’s permission); and
28 Copy protection and electronic rights management information
■ to not have a work falsely attributed to him (this right previously existed under the Copyright
Act 1956).

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 Basic principles of copyright

MORAL RIGHTS

There is also a right to privacy with respect to photographs and films made for private and
domestic purposes.
These moral rights last as long as the copyright in the work, with the exception of the false
attribution right which lasts for 20 years after the death of the person falsely attributed.
As computer programs are considered to be literary works, it is surprising that the first two of
the moral rights mentioned above are stated not to apply to computer programs. Less surprisingly, nor do they apply to computer-generated
works. These exceptions may be justified because
of the commercial nature of most computer programs and other software and because of the
need to prevent ex-employees from attempting to interfere with any future changes to the software they had previously worked on. Problems
could arise if computer programmers, systems
analysts or software developers demanded to be recognized as authors. Much computer software
is the result of teamwork, involving many individuals, both in its original development and creation and in respect of subsequent alterations
and upgrades.
Moral rights will exist in relation to other forms of original works created using a computer,
such as a report or computer-aided design (unless a computer-generated work), and in respect
of many other types of work stored in a computer in digital form, for example, in a database of
artistic works. However, employee-created works are excepted in relation to things done by or
with the license of the copyright owner and the author must positively assert his moral right to
be identified. Furthermore, an author may waive his moral rights.

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 Basic principles of copyright

DEALING WITH COPYRIGHT

It is important to appreciate that copyright is a property right and it can be dealt with as with
other forms of property. It can be sold or licenses may be granted in respect of it. It can even be
used as security for a loan. Often, the owner of a copyright will want to use someone else to
exploit that copyright for him. It might be more attractive financially to use an established publisher to market and sell copies of the work,
because the latter will have the marketing expertise
and distribution facilities necessary to sell the work in large numbers. The usual way is for the
copyright owner to grant a license to the publisher. In terms of copyright, a license is a permission to do one or more of the acts restricted by
copyright and licenses are usually contractual in
nature: that is, the publisher will pay a license fee or royalties in return for the permission. In
many cases, the license will be exclusive, which means that permission will be granted to one
publisher only. In the case of marketing computer programs, the copyright owner might grant
an exclusive license to a software publisher who will then grant non-exclusive user licenses to
‘purchasers’ of copies of the program. The users will need licenses because loading a program
onto a hard disk or into computer memory involves making a copy or adaptation of the program, acts restricted by the copyright. By section
92(1), an exclusive license must be in writing
and signed by or on behalf of the owner of the copyright. No formalities are required for nonexclusive licenses but it is sensible to make a written
record of the agreement.

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DEALING WITH COPYRIGHT

Non-exclusive software licenses are very common and are used where the copyright owner
wishes to retain ownership but wants to allow several or many other persons to use the software.
This is the way a great deal of popular software is made available, such as operating systems software, word processing, database
management and spreadsheet software. Each person acquiring
a copy of the software obtains a non-exclusive license permitting certain uses. Of course, a
license is only required in as much as the use of software is controlled by copyright but the agreement will include additional terms dealing with
other issues such as liability for defects. An
important consideration that applies to software is that simply using it is a restricted act as
making transient copies falls within the meaning of copying

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SUMMARY
■ Copyright is a property right which protects a wide variety of works.
■ The owner has the exclusive right to perform or to authorize the performance of the restricted acts.
■ Copyright law protects original literary works which include: – computer programs; – preparatory design material for computer
programs; and – databases.
■ Copyright computer programs and databases must be the author’s own intellectual creation.
■ Databases may be protected by the database right. 30 Summary INIT_C03.QXP 20/6/07 14:03 Page 30 Basic principles of copyright
Self-test questions 31 3
■ The person creating a work of copyright is known as its author.
■ Employers will usually own the copyright in works created by employees.
■ Copyright for computer programs and databases last for ‘life plus 70 years’.
■ A person infringes copyright by: – performing, or authorizing another to perform, one of the acts restricted by copyright; – in relation
to a substantial part of the work, directly or indirectly; – without the permission of the copyright owner.
■ There are a number of defenses to copyright infringement and numerous permitted acts.
■ Dealing with pirate copies can attract both civil and criminal liability.