What is copyright

Copyright protects the creativity and physical expression of ideas and is an automatic unregistered right. It crystallises when an idea is made into a permanent tangible form.

As a result of this, ideas do not need to be registered in order to be protected by copyright. In order for copyright to come to fruition the works must fall into one of the following eight categories:

literary works dramatic works musical works artistic works films sound recordings broadcasts or published editions.

It is necessary to protect these copyrights if they are to be made available in the public domain in recognition of the initiative, creativity and investment of the creator.

Practitioners often try and categorise copyright. For example copyright can be distinguished into two categories, classic and entrepreneurial. Classic copyright encompass original literacy, dramatic, musical and artistic works and can be located in sections 1, 3 and 4 of the CDPA. Entrepreneurial copyrights are films, sound recordings, published editions, broadcasts and cablecasts which can be located in sections 13 to 15 of the CDPA.

It is necessary to distinguish between the types of copyrights because the rules relating to duration, ownership, subsistence and infringement differ significantly. The duration of copyright is the normal length of the author’s life and then for a period of 70 years after their death, this is subject to some exceptions.

Qualification for copyright protection in the UK requires originality and fixation. When assessing originality it is necessary to take into consideration whether the author of the works expended skill, judgement, labour and effort when creating or making the works. It was held in the European Court of Justice’s case Infopaq (case C-5/08) that the ‘subject matter is original in the sense that it is of the authors own intellectual creation’.

Fixation merely requires that the work is in a permanent form such as writing or otherwise. If both are satisfied copyright shall manifest.

There are two types of infringement namely primary infringement and secondary infringement. The difference between the primary and secondary infringement is that primary infringement, contrary to section 16 CDPA which protects the authors exclusive rights, does not require an element of guilt or fault. Whereas, secondary infringement requires some form of state of mind on the part of an infringer, thus some fault or knowledge, under sections 22 – 27 CDPA.


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