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What is copyright?

a written work (which can be anything from a paragraph of advertising copy to a complete novel or instruction manual)
a drawing or painting
a photograph
a piece of text or artwork for a web site
a compilation of data or other information
a logo (which might also be protectable as a trade mark)
a computer program (in some cases it is also possible to get patent protection for computer-related works)
a film or broadcast
a sculpture
a piece of music
a theatrical performance.

These things are often referred to as "copyright works".

Many businesses have copyright, both in their internal literature and in the documents they distribute to customers, partners and suppliers. They also have copyright in their web site content and marketing material. Often these rights can go unrecognised, leading to missed opportunities or at worst, expensive disputes over for example copyright ownership.

The basics about copyright

In order to benefit from copyright, the work you've created must be recorded in some way, for example on paper or film or in an electronic file or (in the case of a sculpture, for example) in the form of a 3D object.

The work must also be original. In other words, if you've copied it directly from someone else's work you will not be entitled to any copyright of your own. That said, if you adapt an existing work, or compile a collection of other people's works, then you will often generate separate copyright of your own in the adaptation or compilation.

Copyright gives you the right to stop others from copying, adapting, performing or broadcasting your work, and from using or distributing unauthorised ("pirate") copies. In order to take action against a potential infringer, however, you will need to prove that they've copied your work rather than independently creating one of their own.

Copyright lasts for a significant amount of time, the exact length of protection depending on the type of work involved. For a written work, for example, copyright lasts for 70 years after the author's death.

"Ideas" vs "expression"

So, if you wrote a novel or a play you would have copyright in it and could stop others from copying the whole work or any substantial part of it, and from selling those copies. In the case of a play you could demand royalties from anyone who wanted to perform it. You couldn't however use your copyright to stop someone using the ideas behind the novel or play, for example the characters or the plot. To stop this, you might need to rely on other forms of intellectual property right such as trade mark rights or so-called "moral rights" – we can advise what your options might be in such situations.

Similar comments apply to computer programs. Copyright could be used to stop people from copying your program code directly, but not to stop them from independently creating their own software which performed the same function.

Safeguarding your copyright

We recommend that every time you create a copyright work, such as a document, you record on it the date of creation and the name of its author. This will be of use if you later need to establish (for instance, in court) who created the work and when.

You should also mark your copyright works with the copyright symbol ©, which helps to warn others against copying. You could for example state "© XXX Ltd 2006" at the bottom of a document you've written. Since copyright is an automatic right, anyone is entitled to use the © symbol if they've created an original copyright work.

Be careful too to keep good records, including electronic ones, of your copyright works. You may need them later as proof that the copyright is yours. Remember that – in the UK at least – there is no official register of copyright works and their owners: your own records will be all you have to rely on. Also bear in mind that copyright lasts for a long time, and it could be several years before you need to take action against an infringer.

Ownership of copyright

This is something to be wary of.

Copyright belongs first and foremost to the person who created the work, in other words, its "author". There are separate provisions for ownership of works such as photographs, films and broadcasts, and for computer-generated works.

If the author is an employee, then typically his employer will own the copyright instead.

Beware however if you've had things produced for you by other people. For example, you may have commissioned a graphic designer to produce a new logo for you or to re-vamp your web site. You may have had artwork or other advertising material prepared by external marketing consultants. Other contractors may have prepared documentation for your business to use or distribute. In these cases, take care that your contract with the third party makes absolutely clear who owns the copyright in the work that they've done. Clearly, it would be easier for you if you owned the copyright, because you'd then be free to exploit it as you wished, but this needs to be spelled out; it isn't automatic just because you've paid someone to do the work for you.

It's also important to note that copyright exists independently of the medium on which a work is recorded. So if, say, you've bought or inherited a painting, you only own the copyright in it if that has also been specifically transferred to you.

Exploiting your copyright

Copyright is an automatic right. You don't need to apply to a patent office in order to have the right, and you don't have to pay for it. But it is still an item of property, and a business asset, just like a patent or a trade mark registration. It can therefore be bought and sold, inherited, licensed for example in return for a royalty, or even mortgaged.

Unless you're in the entertainment industry, copyright is a form of right that tends to be overlooked. Yet as one of your business assets, it can be used to help build exclusivity for your products and services, and as leverage in negotiations with others.

Tricks of the trade

In order to sue someone for infringing your copyright, you'll need to be able to prove that they really did copy your work rather than independently creating the same or a similar thing.

You might therefore like to consider incorporating some small items of false data in your copyright works, which if detected in a third party's subsequent work would provide a strong indication that they had copied yours. For example, a map manufacturer might include a non-existent landmark or incorrect street name to catch out unwary copiers. A software writer might incorporate some unnecessary code which would show up in a slavish copy but be unlikely to appear in a genuinely independent creation.

It's also worth knowing that Trading Standards officers and HM Customs officials can help you to police your copyright against infringers. If you have reason to believe that a consignment of pirate copies is about to enter the UK, Customs officials have the power to seize those copies for the copyright owner. Further down the supply chain, Trading Standards officers and even the police are able – with appropriate search warrants – to seize pirate copies from for instance market stalls, shops and warehouses. You can read more about piracy and IP crime on the UK Patent Office's "IP Crime" web page.

Where we come in

We can advise on whether you have any copyright protection, and on issues to do with the ownership, duration, exploitation and enforcement of such rights. We can also advise whether other forms of intellectual property protection – for example design or trade mark registration, or patents – might be appropriate for your business.

If you need to take action against infringers of your copyright, or if you find yourself accused of infringing someone else's, we can put you in touch with specialist IP solicitors and barristers who have experience in the handling of copyright disputes. IP solicitors can also help you prepare the necessary legal agreements if you want to license or franchise your copyright to another party or if you commission someone else to create copyright works for you.