An overview of copyright subsistence

If you’re involved in a dispute over copyright or think that your intellectual property in a work may be being infringed then you’ll want to know your rights relating to the work. This post therefore examines when you are entitled to copyright in a work (when copyright “subsists”) and a further post will examine what action should be taken when copyright is infringed.

The first thing to consider when determining what your rights are relating to copyright is what broad type of copyright exists. There are two possibilities:

1. Literary, dramatic, musical or artistic (“LDMA”) copyright (also referred to as “Classic” copyright); or
2. Entrepreneurial Copyright

The various sub-types of Classic copyright will be examined first, before moving on to look at Entrepreneurial copyright in the next post.

Classic copyright

Analysing what the “sub-type” of copyright in a work is is the first port of call. There are four sub-types – literary, dramatic, musical and artistic works. The first three (literary, dramatic and musical) are protected under s.3(1) Copyright, Designs and Patents Act 1988 whereas artistic work is protected under s.4(1) CDPA 1988.

Literary work is defined as any work that is written, spoken or sung. It can include a table or a compilation (other than a database), a computer program, prepatory design material for a computer program, and databases (although this is subject to a slightly different type of protection).

Dramatic work includes dance or mime – it is a “work of action, with or without words or music, which is capable of performance”). This does not include poetry (even though it can be performed) as it is covered under literary work.

Musical work includes any work consisting of music, exclusive of any words or action that are intended to be sung, spoken or performed. If a work is intended to be sung or spoken then it would fall under “literary work” whereas if it were intended to be performed then it would fall under “artistic work”. Lyrics are therefore literary work and a particular musical choreography would be artistic work. The song itself is covered as both a literary and a musical work.

Artistic work includes graphic works, works of architecture, and works of artistic craftsmanship.

Originality, minimum effort and recording

In order for copyright to subsist in a work it has to be original. The author of the work must therefore have created the work through his or her own skill, judgment and individual effort, and that the work must not be simply copied. However, this does not mean that derivative works either breach copyright or are unprotected under the CPDA if they involve a sufficient degree of skill or labour to be original.

The work must also have required at least minimal effort to be covered by copyright. However, the threshold required for literary works is very low –there is no requirement for artistic merit in a work.

Further, the work must be recorded to be protected by copyright unless it is an artistic work under s.4(1) CPDA 1988. If it is an artistic work then no recording is required but some degree of performance is required for copyright to subsist.

Ownership

A crucial consideration for the subsistence of copyright is, obviously, who owns the copyright to that work. Potentially, there are two owners – the creator of the copyright (under s.9(1) CPDA 1988) or the first owner of the copyright in the work (s.11(1) CPDA 1988). Who owns the copyright depends upon the particular facts in the case. It involves an examination of the relationship between the creator of the work and the company that the creator works for (if that is indeed the case).

The first thing to do is check the creator’s contract of employment for any express terms regarding ownership of the copyright of works created by the employee. Clauses such as this are normal where the employee’s job does or may involve the creation of potentially valuable items.

Secondly, was the work created in the course of employment? If so, under s.11(2) CPDA 1988 the employer is presumed to be the owner of the copyright unless there is express agreement to the contrary (in, for example, the contract of employment). However, if the employer has only commissioned the work then the presumption is that the creator owns it, not the employer commissioning the work. Any commissioning of work should therefore involve an agreement which provides for assignment or licence of the copyright to that work. However, in the absence of any express agreement there is generally implied to be a licence in existence so that the employer can use the work it has commissioned.

Thirdly, the purpose that the work was created for should be looked at.

Fourthly, the extraneous facts of the case should be considered. What, for example, is the job description of the author? Has he or she created similar work previously? If so, how has that been treated in terms of ownership? Are there any minutes of meetings or memos regarding the idea? These can be extremely important in determining the ownership of the particular work.

Duration

How long does copyright subsist for? That depends on the type of work. Normally, copyright subsists for the life of the author plus seventy years (s.12 CPDA 1988). However, particular types of copyright can have less duration. For example, the radio broadcast of a song from a CD is only protected for fifty years from the end of the year it was first broadcast.