What is Copyright?

Copyright is a proprietary right which subsists (that is, exists automatically, without the need for registration) to protect a range of original materials (including artistic, literary, musical and dramatic works) from unauthorised copying. Within the heading of “literary works” fall the sub-groups of computer programs, marketing plans and event databases.

Copyright protects the expression of ideas, although not the ideas themselves.

A grant of copyright endows the author with various exclusive rights, including prohibition or authorisation of subsequent copying of the work, the ability to adapt the work or make the work available to the public. Moral rights granted to the original author may also prevent mutilation or deformation of the work where to do so would amount to derogatory treatment. The original author is also given the moral right of being identified, throughout their lifetime, as the author of the work.

In the absence of an agreement to the contrary, an employer will generally become the rightful owner of any copyright in works created by an employee. Care must be taken, however, in respect of works commissioned from third parties. In these cases the contractor will be the first owner the copyright in spite of the commissioner having financed the work. It is likely that the commissioning party will then only acquire the copyright if there is a specific agreement to this effect.

Companies should ensure that everyone within the organisation appreciates the potential value of copyright and the steps needed to protect it. Steps which could be taken include identifying all materials that are likely to have copyright protection; ensuring that the company is the owner of all the work; keeping proper records of these steps by ensuring that authors always sign and date their work; and maintaining a proactive stance in dealing with potential infringements by putting third parties on notice.

Copyright Protection in Guernsey

The Copyright (Bailiwick of Guernsey) Ordinance, 2005 (the “Copyright Ordinance”) came into force on 1 January 2006. The Copyright Ordinance draws heavily on current
UK and EU legislation, and it is expected that judicial decisions in these jurisdictions will be highly persuasive in Guernsey.

Copyright will only exist in respect of an “original” work. Originality in this sense does not require the work to be unique or novel, but that it emanates from the creator’s own effort and labour.

Registration is not required in order to obtain copyright protection: as soon as an original qualifying work exists in a tangible form, subject to certain qualifications relating to the residence of the author and the country in which the work was first published, copyright arises.

Copyright prohibits any unauthorised person from copying the protected works. Generally copyright will be infringed by any unauthorised reproduction of the protected works in any material form. It may be an infringement to copy only a part of a protected work if that part equates to a “substantial” part. Whether or not copying amounts to a “substantial” part is a question of fact which will be assessed by reference to the original, rather than the second, work.

If unoriginal elements of a protected work are copied this is unlikely to amount to a substantial element. In the event, however, that large portions of the work are reproduced, the development of which required a significant contribution of skill and labour by the original author, this may equate to copying of a substantial part.

Another party may be guilty of secondary infringement if it imports, possesses, deals with or provides means for making, infringing copies.

Once in existence the copyright will normally last for the duration of the author’s lifetime plus an additional 70 years.

Where works are created outside a contract of employment, the author of a work will generally be the first owner of any copyright in that work.

Where a copyright work is created in the course of an employee’s employment, the employer will generally be the first owner of any copyright in that work. However, unless specifically agreed otherwise, the employee may retain certain moral rights, including the right to be identified as the author and the right to object to derogatory treatment of the work. For that reason, businesses should ensure that their employment contracts contain provisions that provide that all rights in works created during the course of employment belong to the employer.

Where a work is commissioned from a third party, the first owner of the copyright in that work will be that third party. In order to secure copyright ownership the commissioning party should expressly provide for this by written contract. This is a common trap for the unwary and we recommend that businesses always negotiate for full copyright over any commissioned works.