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Protection and ownership

Copyrightable works

What works are eligible for copyright protection in your jurisdiction?

The Copyright, Designs and Patents Act 1988 provides for the subsistence of copyright in a prescribed category of works – namely:

  • original literary, dramatic, musical or artistic works;
  • sound recordings, films or broadcasts; and
  • typographical arrangements of published editions.

Aside from books and written materials, ‘literary works’ are defined to include:

  • computer programs;
  • preparatory design materials for computer programs;
  • tables and compilations; and
  • databases.

‘Artistic works’ are also defined broadly to include:

  • graphic works (eg, paintings, drawings, diagrams and maps);
  • photographs;
  • sculptures and collages (irrespective of artistic quality);
  • works of architecture; and
  • works of artistic craftsmanship.

In order for copyright to subsist in a literary, dramatic, musical or artistic work, the work must be original. Under English law, originality has classically been conceived as the exercise of sufficient skill, labour or judgement in the creation of a particular work.

Are there any special provisions for the protection of non-artistic works (eg, software and databases)?

‘Literary works’ are defined to include computer programs. Although the program must be recorded in writing or otherwise, this is defined to include writing in code – not necessarily by hand – and will therefore include source code and object code.

The definition of ‘database’ is specified in Section 3A of the Copyright, Designs and Patents Act 1988 as a collection of independent works, data or other materials which:

  • are arranged in a systematic or methodical way; and
  • are individually accessible by electronic or other means.

A work consisting of a database is original if, and only if, by reason of the selection or arrangement of the contents of the database, the database constitutes the author’s own intellectual creation.

The EU Database Directive also provides for a so-called ‘sui generis’ database right which, rather than attracting the standard term of copyright protection, subsists for 15 years. The sui generis right covers databases meeting the same definition outlined in Section 3A of the Copyright, Designs and Patents Act, although the qualifying originality criteria is different. Protection will arise if qualitatively or quantitatively a substantial investment is made in the obtaining, verification or presentation of the contents of the database.

Are any works explicitly excluded from copyright protection?

The English courts have dismissed protection for works where the labour invested is trivial or insignificant. Similarly, the courts have confirmed that single words would be unlikely to benefit from copyright protection. Mere gibberish will also be excluded, on the grounds that it will not be capable of conveying an intelligible meaning.

Related IP rights

Can copyrightable works be protected by other IP rights (eg, trademarks and designs)?

Some works will inevitably fall within one of the recognised categories of copyright work, as well as within the design regime. For example, works of artistic craftsmanship, a category of artistic work, could potentially cover original furniture designs, and graphic works may cover clothing patterns which are also protected under design law. The legislature originally attempted to address the copyright/design interface by limiting the duration of protection afforded to artistic works which have been industrially manufactured. Section 52 of the Copyright, Designs and Patents Act limited copyright protection for these types of artistic work – when more than 50 copies were made – to 25 years. However, after a period of consultation, the government elected to repeal this provision, meaning that in some instances the copyright in expired works has been revived.

Logos with artistic elements will potentially be protected as artistic copyright works, but may, subject to being sufficiently distinctive, also be registrable as trademarks.

Ownership

Eligibility

Who may own copyright in a work?

Under Section 9 of the Copyright, Designs and Patents Act 1988, the author of a work will be adjudged to be the person who creates it (ie, the person who expended the relevant skill, labour and judgement necessary to give rise to the work). This will include:

  • in the case of a sound recording, the producer;
  • in the case of a film, the producer and principal director;
  • in the case of sounds and television broadcasts, the person who made the broadcast;
  • in the case of a typographical arrangement of a published edition, the publisher; and
  • in the case of a literary, dramatic, musical or artistic work which is computer generated, the person by whom the arrangements necessary for the creation of the work were undertaken.

Subject to any agreement to the contrary (ie, a contract or assignment), the author will be the first owner of the copyright in the work in question.

Joint and collective ownership

What rules and restrictions govern the joint or collective ownership of a copyright work?

Section 10 of the Copyright, Designs and Patents Act 1988 outlines the position in relation to joint authors of a work: “A work of joint authorship means a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors.”

Each author must demonstrate that he or she has made a significant and original contribution to the copyright work in question, although that contribution needs only to be intellectual, “not an exercise in penmanship” (Heptulla v Orient Longman, [1989] FSR 598). The collaboration itself must demonstrate some form of cooperation or common design; however, the parties need not be working in close proximity or intend to create a joint work. Finally, the contributions of each party must not be separate and distinct, but must come together to form an integrated whole (Beckingham v Hodgens, [2003] EWCA Civ 143).

Employee and commissioned work

What rules and restrictions govern the ownership of copyright in a work created in the course of employment (including works by employees and commissioned works by independent contractors)?

Subject to any agreement to the contrary, the copyright subsisting in a literary, dramatic, musical or artistic work, or a film, made by an employee in the course of employment will vest in the employer (Section 11(2) of the Copyright, Designs and Patents Act 1988). The courts will seek to look behind the contract of employment to ascertain the true context in which the work was created. For example, in Noah v Shuba ([1991] FSR 14 Ch D), although the work was published by the employer at its expense, the employee had written it in his spare time and not at the instigation or on the direction of his employer.

In the absence of any formal agreement, the copyright in commissioned works will vest in the commissionee. Depending on the circumstances, a court may imply a limited licence in favour of the party that commissioned the work.

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