FAQs: copyright

Many companies are confused by the different types of copyright protection and what kinds of creations and materials it can apply to. As a supplement to our general intellectual property FAQS, our copyright specialists are delving deeper, answering some of the most common copyright-related questions asked by our clients.

General

What is copyright?

Copyright is a IP right under the Copyright, Designs and Patents Act 1988 (CDPA). It protects the form of expression of an idea; it does not protect the idea itself. Copyright rewards the author or creator of original work and protects the use of your work once your idea has been physically expressed. The holder of a copyright has the right to prevent others from copying the work they have created, but it does not provide them with monopoly right – other similar or identical works may exist, but copyright is not breached if they were not copied.

What material can be protected by copyright? 

A variety of IP can be protected by copyright law, including:

• Original literary, dramatic, musical and artistic work (including illustration and photography) 
• Original non-literary written work, such as software and web content 
• Databases, provided the creator can show they own the intellectual creation such that they conducted the research, collated the data and arranged the information 
• Sound and music recordings 
• Film and television recordings 
• Broadcasts 
• The layout of published editions of written, dramatic and musical work 

What can’t be protected by copyright? 

Single words, titles and names aren’t protected by copyright as they don’t amount to literary works.

Similarly, any works which lack originality can’t benefit from copyright. This means work which isn’t deemed to be the product of sufficient skill and labour. Examples of this include pools coupons, calendars, and competition cards.

Generally, it is not possible to copyright ideas.

Can copyright be registered in the UK? 

Yes – you can choose to register your copyright with the UK Copyright Service (the UK©CS). This is a registration facility which enables you to easily evidence your ownership of the work, so if you do take copyright infringement action, it is easier to prove.

However, copyright is an automatic right, so you don’t need to register the right. Instead, you can evidence your copyright by using a © with your name and year of creation on the work, but it isn’t necessary to include this symbol to benefit from copyright protection.

How much does it cost to obtain copyright? 

Since copyright is an automatic right under English law, it doesn’t cost anything unless you wish to register the copyright with the UK©CS.

If you seek to register copyright, the charges are calculated for each piece of work you are seeking to protect. These are:

• £42.50 per work for registration for 5 years 
• £72.50 per work for registration for 10 years 
• £19.50 per work for updates to an existing registration 
• £33.00 per work to extend/renew an existing registration for 5 years or £58.00 for 10 years  

If someone infringes your copyright, you will need to take legal action against the infringing party. If the other party doesn’t cease the infringing activity or disputes that the copyright belongs to you, for example, you will need to initiate proceedings through the Intellectual Property Office (IPO) or the Intellectual Property Enterprise Court (IPEC). This will be a costly process, but it’s necessary to prevent continued infringement of your copyright, particularly if mediation fails to resolve the dispute.

What does ‘subsistence of copyright’ mean? 

Subsistence of copyright means the copyright exists and is valid and enforceable under English law. For copyright to subsist, the work must:

• Be recorded in some way
• Fall into one of the categories of protected work
• Qualify for protection
• The term of copyright must not have expired

What are the exceptions to copyright? 

There are certain circumstances in which copyright doesn’t apply, meaning copying of work without authorisation isn’t unlawful.

Exceptions to copyright include:

• Copying limited extracts of work for non-commercial research or private study, provided you’re genuinely studying. 
• Copying of text and data mining in the analysis of trends and other useful information, provided the person doing the analysis has lawful access to the information and it’s for non-commercial use. 
• Copying for criticism, review, or quotation, or to report on current events. However, this excludes photographs. 
• Copying of work in any medium if done to illustrate a point for educational purposes. 
• Performing, playing, or showing copyright work in an educational establishment for educational purposes. 
• Recording a TV programme or radio broadcast for non-commercial educational purposes in an educational establishment, unless the holder of the copyright has created a licence in respect of the work, in which case a licence would be required to use the work. This can be checked via the Educational Recording Agency (ERA). 
• Making photocopies on behalf of an educational establishment for the purpose of non-commercial instruction, unless the holder of the copyright has created a licence in respect of the work, in which case a licence would be required (this can be checked via the ERA). 
• Copying work if you have a disability which prevents you from accessing material which you have lawful access to or ownership of. 
• Educational establishments and charity organisations which make accessible format-copies of copyright work on behalf of disabled people. 
• The recording of a broadcast in a domestic premise to view/listen to later, provided it’s for private and domestic use. 
• Using a limited amount of copyright material for parody, caricature, or pastiche, to the effect that the use is ‘fair dealing’ (see below). 
• Cultural and heritage organisations digitising work which they hold and displaying it on their website for non-commercial use, provided the work is orphan work (i.e. one or more of the copyright holders is unknown or can’t be found). 

As mentioned earlier, some exceptions only apply if there’s ‘fair dealing’. This requires consideration of whether the use of the copyright work is lawful or whether it infringes copyright. This is a question of fact, degree and impression because you need to consider ‘how would a fair-minded and honest person have dealt with the work?’

Factors which will impact on your answer include:

• What impact your use will have in the market for the original work – for example, whether the owner lose value or profitability because of your use.
• The amount of work you’ve taken or copied because it’s not

Copyright law 

What copyright laws are there in the UK? 

The main law which governs copyrights is the CDPA.

In addition to setting out the rights of the copyright holder, the CDPA sets out requirements for work to be deemed ‘protected work’, what can be done in relation to protected works, and the remedies for an infringement of copyright.

Case law also supplements the CDPA – for example, by detailing what ‘fair dealing’ is when considering whether someone’s use of copyright material without permission is lawful or unlawful.

What rights does the law grant a copyright holder? 

English law grants the creator of protected works an automatic right to control the way their material is used. This means no one else can lawfully copy the work without their permission.

However, as mentioned above, there are certain limited circumstances in which your protected work may lawfully be copied. See more about this above – What are exceptions to copyright? 

Rights and ownership

Can copyright be held by more than one person?

Yes – copyright can be held by two or more authors who’ve contributed to the work in a manner which isn’t distinct from the other creators. This also applies to broadcasts which have been made by two or more people. In such circumstances, every author’s consent is needed when someone wishes to use the copyright material.

If there are two or more authors who’ve contributed to the work in a manner which is distinct or separate, copyright is created separately with respect to each of these distinct parts. For example, if one author wrote the lyrics to a song whilst the other wrote the music, and someone wanted to use the music only, only the consent of the author who wrote the music is needed.

Who owns the copyright in a work?

The author/creator of the work is usually the first owner of copyright. This means the person who created the work will be the copyright holder.

However, an exception to this is if the work is created by an employee, in the course of employment. In this instance, the employer will be the first owner of the work (provided there is no agreement to indicate otherwise).

Similarly, if you commission work to be created for you, the copyright holder will be the person or organisation that creates the work for you. An exception applies if you enter an agreement with that person/organisation that agrees you’ll be the copyright owner once the work has been created. It is important to ensure the contract reflects what has been agreed between the parties regarding ownership.

What are moral rights and how do they apply to copyright?

Moral rights give the author the right to be identified as the author/director of a work (often called paternity rights), to object to derogatory treatment of a work (often called integrity rights), to object to the false attribution of a work and the right to privacy of certain photographs and films.

Moral rights are automatically granted to the creator of work and cannot be claimed by anyone else. They remain even after the creator’s death.

These rights exist to protect the value of certain work other than their economic value and are intended to reflect the emotional or intellectual investment a person may have made in creating the work.

Moral rights are only available for literary, dramatic, musical and artistic works and film, as well as some performances of this work.

All moral rights, except the right to object to attribution of work, last for the duration of the author’s lifetime and for 70 years after death. However, the right to object to attribution of work only lasts for the author’s lifetime and until 20 years after death.

Moral rights can exist alongside copyright. However, unlike copyright, moral rights can’t be assigned – they can only be waived.

What are performers’ rights?

Performers’ rights are the rights of performers, musicians, singers, actors and other similar individuals, to control and exploit their performance. These rights are of particular importance to the entertainment industry.

A performance is a live dramatic or musical performance by one or more individuals which includes dance and mime, readings or recitations of literary work, performances of a variety act and other similar work.

Performers’ rights are different to moral rights and copyright. A key difference is that performers’ rights are important for individuals who don’t own the copyright in the work performed. These rights give the performer, and the person(s) they have an exclusive recording contract with, control over the exploitation of a performance. For example, this can be achieved by requiring these individuals’ consent for use of performance and making it an offence to deal with or use illicit recordings.

Performers’ rights grant the right holder three basic proprietary rights:

1. Reproduction right
2. Distribution right
3. Rental and lending right

Performers’ rights will therefore be infringed if the performance is recorded (or a copy of the recorded performance is made) for use which isn’t private or domestic. Similarly, performers’ right may be infringed if anyone distributes a copy of the recording, and/or when the recording is rented or lent to the public.

They are also granted the following non-proprietary rights:

1. Right to consent to recording of live performances
2. Right to consent to the use of recordings

Distinguished from moral rights, performers’ rights can be assigned and licensed. They can also be bequeathed to multiple beneficiaries.

What are economic rights?

Economic rights allow you the opportunity to exploit your creative work for financial reward, usually by selling or licensing your work.

You can charge a fee to anyone who:

• Copies your work
• Distributes your work
• Rents or lends your work
• Shows, plays, or performs your work in public
• Communicates your work to the public (including through the internet)
• Makes an adaptation of your work (including a translation of your work)

You can also take action to prevent someone from doing any of the above.

To gain a financial reward from your work, you may charge an initial cost or enter a licensing arrangement under which you receive periodic payment.

Who owns the copyright in sound recordings?

Copyright in a sound recording is separate from copyright in the words used in the recording, and the music used in the recording.

This means that the copyright in the actual sound recording is owned by the record producer. However, the composer of music will be the owner of copyright in the music, while the writer of lyrics will be the copyright owner of the lyrics.

What are orphan works? 

Orphan works mean any copyright protected work for which the author/creator is unknown or untraceable.

If you wish to use an orphan work, you may apply for a licence from the Intellectual Property Office (IPO).

For work to qualify as orphan work, the IPO requires a ‘diligent search’ to be conducted in accordance with its guidance. Once satisfied, the IPO will grant a licence in relation to use of this orphan work.

An orphan works licence:

• Is only relevant to use in the UK
• May be for commercial or non-commercial use
• May be used by multiple licensees
• Can last up to seven years
• Is renewable

If you’re interested in using or accessing orphan work already being licensed, you can check the orphan work register.

Once the criteria of a diligent search have been met, the IPO will issue a non-exclusive licence authorising the use of the orphan work. As well as a licence fee which starts at £20 for one work (and scaling up to £80 for 30 works), there is also a condition to acknowledge the missing copyright owner.

Historically, cultural heritage institutions (like archives, libraries, museums, educational establishments, and public service broadcaster) were able to use orphan works without applying for a licence. However, this changed at the end of the Brexit transition period. By 1 January 2021, cultural heritage organisations were required to:

• Remove orphan works placed online under the exception 
• Seek a licence under the orphan licensing scheme  
• Where works are being used under licence in the UK consider restricting use to UK-based users to avoid copyright infringement in the EEA 

Can you get international copyright protection? How do you protect your copyright overseas?

All countries have copyright protection, but there is no single registration to automatically protect your copyright internationally.

Whilst copyright law differs in each country, around 172 countries have signed the Berne Convention which agrees a minimum set of standards for the protection of copyright in literary and artistic works. This applies to all member states and their nationals.

However, for countries not party to the convention, copyright protection will be dependent on the national laws of that country. You may need to comply with certain formalities for your work to be protected by copyright in a country which isn’t party to the Berne Convention.

Managing copyright

How long does copyright last in the UK?

In the UK, the duration of copyright depends on the type of work protected, whether it has been published and whether there is a co-author, so it is always worth checking the nuances with a solicitor. The table below gives a basic outline.

Type of work	Duration copyright lasts for
Written, dramatic, musical and artistic works	70 years from the end of the calendar year in which the author dies.
Sound recordings	50 years from the end of the calendar year in which it was made, or 70 years from the end of the calendar year in which it was first published.
Films	70 years from the end of the calendar year in which the death of the last to die of the director, screenplay author and composer occurs.
Broadcasts	50 years from the end of the calendar year in which it was first broadcast.
Layout of published editions of written, dramatic, or musical works	25 years from the end of the calendar year in which it was first published.

How long is copyright on images and photos valid for? 

The duration of copyright on images and photos can be complex and depends on when these works were created.

Date the image or photograph was created or published	Duration of copyright
Photographs taken on or after 1 January 1996	Life of the photographer plus 70 years.
Photographs taken on or after 1 August 1989 but before or on 31 December 1995	Life of the photographer plus 70 years.
Photographs taken between 1 June 1957 and 31 July 1989	The length of copyright protection depends on whether they had been published as at 1 August 1989: Photographs published before 1 August 1989 If the photographer died more than 20 years before publication, copyright expires 50 years after first publication. In all other cases, copyright will expire 70 years after the photographer’s death. Photographs which remained unpublished as at 1 August 1989 If the photographer died before 1 January 1969, copyright expires on 31 December 2039. In all other cases, copyright expires 70 years after the photographer’s death.
Photographs made before 1st June 1957	Photographs made in this period were originally protected for 50 years from the end of the calendar year in which they were taken (regardless of whether they were published). However, if the photograph was still in copyright as at 1 July 1995, the period of copyright was extended to the life of the photographer plus 70 years. If copyright protection had already expired, there was still the chance to “revive” the photograph and an eligible photograph would be protected for the photographer’s life plus 70 years.

Can copyright be renewed or extended?

No – it’s not possible to renew or extend copyright. Once copyright expires, it becomes property of the public domain.

Can copyright be sold, assigned, or transferred?

Yes – you can sell your copyright. This requires entering a contract in which you state that you’re transferring/selling/assigning your rights in the created work to another party.

In return for this transfer, you’ll usually receive a monetary sum which reflects the effort, time, resources and costs you’ve invested in creating that work, as well as its value to the buyer.

If you do sell your copyright, you’ll still have moral rights in the work. The only way to lose these rights is to waive your moral rights by entering an agreement that states you waive all interest and rights in the work.

What does licensing copyright mean?

Licensing copyright means you can exploit your copyright for financial reward, by granting to a licensee the right to copy your protected works.

The licence agreement will be a contract which allows the other party to use the copyright in a specific way, to the exclusion of others. For example, to copy a written poem or perform the poem.

Although moral rights cannot be licensed, the licence agreement will grant the licensee certain economic rights. For example, the licensee may be permitted to reproduce, distribute or rent the work.

Since no one, other than you and the licensee may use your copyright, the licensee can increase the profit derived from the granted right. And in return for granting this right, you’ll receive a licence fee. Depending on the nature of the right and its use, you may choose a fixed fee or a fee which is a proportion of the profit made by the licensee.

An implied licence would arise if you verbally agree to allow an individual to use your copyright work for certain purposes in exchange for an agreed fee. However, it’s important you avoid reaching verbal agreements because it can cause uncertainty as to terms. To ensure you have clear terms that address what rights are granted, what rights and actions are specifically prohibited (for example, sub-licensing) and the fee amount, as well as how the agreement will terminate, it’s best to enter a written licence agreement. We can help you with this.

How can you make money from a copyrighted work?

Selling and licensing are two examples of ways in which you can make money from your copyrighted work. However, it is worth noting that, if you decide to sell your copyrighted work, this would mean you lose your right to control how the work is used. To sell your copyright, you need to enter a contract which assigns the rights and title in the copyrighted work to the buyer (or assignee).

Under a licence agreement, you are likely to retain the right to use the copyright work yourself, but the terms would determine this, along with what the licensee can and can’t do.

How do you search for UK copyrights?

Since copyrights don’t need to be registered to be enforceable and valid, there is no public or Government register which contains all existing copyrights. As a result, it is not possible to search for UK copyrights on a single database.

One thing you could do is a broad internet search if you’re worried your work will infringe the copyright of another.

But since copyright specifically protects the work as it is, unless you copied the work, it’s unlikely to infringe on another’s copyright. For example, if you created a piece of music which was the same as another piece created by someone else, but your work was created independently, there would be no infringement of the first creator’s rights.

You also have the option of searching the database of copyright work which is being licensed. You should bear in mind that this will only include copyrighted work which authors want to license. Therefore, it won’t include all copyrighted work.

What is fair dealing in copyright law?

Fair dealing in copyright law is a defence to a claim of infringement of copyright, as it allows people to use copyright material in circumstances which the law states is ‘fair’.

There are certain circumstances in which you can use or reproduce copyrighted work without the author’s permission, which include:

• Research or private study
• Criticism, review, or quotation
• Reporting current events (provided it’s not a photograph)
• Parody, caricature, or pastiche

For this defence to be successful, the court will consider the facts of the case when deciding whether the use can be considered ‘fair’.

Relevant factors identified by the IPO include whether the use of the work negatively impacted on the market of the work and whether it was reasonable and necessary to use the amount of work copied.

What is fair use in copyright law?

In the UK, ‘fair use’ is used interchangeably with ‘fair dealing’. Under English law, there’s no separate concept of fair use.

However, in some jurisdictions like the US, fair use is distinguished from fair dealing because it’s a broader defence to copyright infringement.

The fair use defence will allow reproduction or use of copyright work in circumstances where it is ‘fair to do so’. When considering if this is fair, there is usually legislation specifying a criteria or list of factors which should be considered.

Can copyright be inherited?

Yes – copyright can be inherited.

If you wish to bequeath your copyright to someone after your death, you should ensure you include specific provisions in your will to explain how you want the copyright to be passed on.

You may want to leave all your copyrights to one beneficiary or give specific copyrights to different beneficiaries. Your beneficiaries may be individuals, charities, or institutions like galleries and museums.

You can also bequeath multiple beneficiaries a share of copyright in a protected work. Again, it’s essential to include detailed instructions on who the beneficiaries are and what share they are to be given.

What is the artist’s resale right?

Artist’s resale right is the right granted to authors of original works of art entitling them to receive a royalty each time their work is resold through an art market professional or auction house.

‘Original works of art’ includes paintings, engravings, sculptures and ceramics.

The royalty, which is calculated on the basis of a European Directive (which continues to be relevant post-Brexit), is payable to the author every time each of the works is resold. This right lasts for the same period as the copyright in the work.

The royalty will only become payable when the sale price reaches or exceeds €1,000. Here’s what percentage royalty is paid for different bands of resale prices:

Resale price	Royalty
€1,000 – €50,000*	4%
€50,000.01 – €200,000	3%
€200,000.01 – €350,000	1%
€350,000.01 – €500,000	0.5%
In excess of €500,000	0.25%

*Member states may also choose to apply a rate of 5% for the portion of the sale price referred to here.

If the minimum sale price set is lower than €3000, member states may also determine the rate applicable to the portion of the sale price up to €3000. This rate may not be lower than 4 %.

The total amount of the royalty may not exceed €12,500.

Some sales are exempt from this right. For example, if the work being resold was bought directly from the artist less than three years prior and is being resold for €10,000 or less, a royalty won’t be payable. Similarly, if the sale is between private individuals, who haven’t used an art market professional or auction, then no royalty is payable. Moreover, sales to public or non-profit making museums also won’t attract royalty payments.

Copyright protection and infringement

Why do you need copyright protection?

You need copyright protection so you can claim against anyone who copies or uses work that you’ve created, without your permission. When you create work, you’ll have invested your own effort, time, and skill into the work. If someone copies or uses this without your permission, this can undermine the value you gain from the work.

When do you need a specialist copyright lawyer for legal advice?

You’ll need a copyright lawyer only in specific circumstances such as when you’re selling your copyright, licensing your copyright, or you believe someone has infringed your copyright.

In the former two circumstances, a specialist intellectual property lawyer can help draft the required documents. Legal advice will ensure that you include all the important terms which protect your interests and the interests of the other party.

With regards to copyright infringement, a specialist copyright lawyer can guide you through mediation and litigation to stop the infringement and to obtain a remedy for the infringement.

What is copyright infringement? What are acts of primary infringement?

Copyright infringement is when someone uses or copies a substantial amount of your protected work without your permission.

Acts of primary infringement include:

• Copying the work
• Issuing copies of the work to the public
• Renting or lending the work
• Performing, showing or playing the work in public
• Communicating the work to the public
• Making an adaptation of the work or doing any of the above in relation to an adaptation

The meaning of ‘substantial’ varies from case to case. Most importantly, the meaning of substantial extends beyond just the amount of work copied because it requires consideration of the importance of the copied extract.

What are acts of secondary infringement?

Secondary infringement refers to activities done in relation to copyright infringement. These include:

• Importing infringing copies
• Possessing or dealing with infringing copies
• Providing means for making infringing copies
• Transmitting a copyright work over a telecommunications system
• Permitting premises to be used for an infringing performance
• Providing apparatus to be brought onto the premises
• Supplying a sound recording or film of an infringing performance

However, for a person to have committed a secondary infringement, they must have had some (actual or imputed) knowledge of the primary infringement.

What civil remedies are available for copyright infringement?

The court can grant you a variety of remedies if you successfully claim against someone for copyright infringement. These include:

• An injunction prohibiting further infringement
• Damages for losses incurred by the infringement
• An account of profit, i.e. a requirement that anyone who made profit through infringing your copyright transfer that profit to you
• The right to seize the infringing articles (work)
• Delivery up of the infringing articles by the infringer

What criminal remedies are available for copyright infringement?

There are some copyright infringements which are considered a criminal offence.

A few examples of activities considered as a criminal offence include acts where someone:

• Sells or hires an article which is infringing work, and he or she knows or has reason to believe it is infringing work.
• Imports into the UK infringing work for use which isn’t for his or her private and domestic use, and had known or has reason to believe it is infringing work.
• Possesses infringing work in the course of business and knows or has reason to believe it is infringing work.

If a person is convicted in the magistrates’ court, the infringer may face up a prison sentence of up to six months, and/or a fine of up to £50,000.

If convicted in the crown court, the infringer may face up to 10 years in prison and/or an unlimited fine.

What happens if you break copyright law by infringing someone else’s copyright?

If you infringe someone else’s copyright, you should take steps to immediately stop infringing that copyright. Typically, you will be notified in a copyright infringement letter that another person or business believes you have infringed.

Whilst this may resolve the matter, the person may decide to pursue legal action to recover losses they’ve suffered by your infringing activity. If this is the case, it’s extremely important to seek legal advice  to assist you through the legal dispute.

In some cases, the person may agree to settle the matter through mediation. This will save legal costs on both sides. However, if the matter progresses to the Intellectual Property Enterprise Court, you’ll need legal representation to defend yourself.

What happens if someone infringes your copyright?

You should take action to stop the person from infringing your copyright. One way to do this is to ask a solicitor to send a formal letter informing the person that you have copyright in the work which has been infringed. This can lead to the other person agreeing to stop infringing your copyright. Indeed, you may decide to license or sell your copyright to the person to exploit your own protected work.

However, you may instead decide to take legal action for the copyright infringement. This will involve initiating legal proceedings either through the IPO or through the Intellectual Property Enterprise Court.

Who can use copyright work without permission? How do you check whether their use is permitted?

No one can use copyright work without permission, unless you fall within one of the exceptions or where there is a defence of fair dealing.

Most copyright work includes a copyright and disclaimer statement. This usually states who owns the copyright and may also include details of what permission the public has in relation to use of the copyright material. If you want to know whether your intended use is permitted, you should locate the copyright and disclaimer statement, and identify whether the use is allowed.

If you are unsure, it’s better to contact the copyright holder or seek legal advice because if you proceed to use the copyright work without permission unlawfully, the right holder can bring legal action against you.

How do you get permission to use copyright material?

If you have found some copyright material which you want to use, it is important that you contact the copyright holder and ask for permission to use the material.

It isn’t uncommon for the copyright holder to request payment for granting you permission. Since your use of the material may detrimentally impact the profitability of the copyright material, the payment usually compensates the copyright holder whilst also allowing them to profit from their work.

How do you use a copyright disclaimer?

A copyright disclaimer (also known as a ‘copyright notice and disclaimer’) consists of:

• A copyright notice which sets out the copyright position of the material: for example, what people can use the material for, who owns the copyright, and confirms the content is legally copyrighted (if this is the case).
• A disclaimer against information or claims made within the content so you are not liable for reliance on the claims contained.

If you wish to include a copyright disclaimer on a website, you can include a special ‘copyright and disclaimer’ page or place the statements at the bottom of the website.

For other types of work, the statements should be placed anywhere they are visible. For example, place the notice on the inside page of a book, a booklet or insert of a DVD case, or the corner of an image.

When can you use the copyright symbol?

You can use the copyright symbol if you’ve created protected work. This is particularly important if you have made it available to the public. Your copyright symbol might be accompanied by the date the work was first published and include the current year (e.g. 2019 – 2021) and your details, so people can identify you and contact you if they would like your permission to use your copyright material. You should remember to update your copyright notice annually to reflect the then current year.