Guide to Copyright Law - What is protected?

Copyright law is one of the key areas of intellectual property protection. In the United Kingdom, protection applies automatically once the work is created, so there is nothing further that needs to be done by an owner in order to obtain all the benefits of protection. In this article we step through each different types of work that are protected, and explain the extent of the monopoly granted.

What is copyright?

Section 1(1) of the Copyright, Designs and Patents Act 1988 (‘the Act’), states copyright as a property right which exists in various types of works, including literary, dramatic, musical, artistic works, sound recordings, films or broadcasts and the typographical layout of published editions. The Act then grants the owner a series of exclusive rights, which prevent any other using their work without their permission.

There is no registration system for copyright in the UK. Copyright vests automatically in a work qualifying for protection by falling into one of the categories described below.

Types of copyright works

1. Literary Works

A literary work is defined by s3(1) of the Act as ‘any work written, spoken or sung, other than a dramatic or musical work’. The purpose behind this definition relates to the expression of ideas and information through words, whether they be ‘written, spoken or sung’. Therefore, provided that a work can be expressed in words of some form, and satisfies the other elements for copyright protection, it will be considered a literary work.

The most obvious common type of literary work are things such as books, poems, and instructions of some sort, but the definition extends to things such as tables (for instance, timetables), compilations, computer programs, databases, ordinary business letters, and examination papers. The fact that every product of writing, speech or song is likely to be a literary work means that this list is not exhaustive. Provided the work created is original, the copyright in such work will be protected.

However, for a literary work to be afforded copyright protection, it must consist of more than just one word or a small number of words. It is useful to bear in mind that copyright saw its genesis as the palladium of the fine arts. A small number of words cannot amount to a copyright work as it fails to satisfy the threshold test of originality. In the case of Exxon Corporation v Exxon Insurance Consultants International Limited (1982), the Court of Appeal held that the word ‘Exxon’ was not a literary work and could not be protected by copyright.

2. Dramatic works

The Act does not provide a definition of a dramatic work as such, but states that it includes work of dance or mime.

In the case of Norowzian v Arks Limited (No 2) [2000], the court stated that dramatic work should be given its natural and ordinary meaning, which is a work of action, with or without words or music. Therefore, for a dramatic work to have copyright protection, it must be capable of being performed. Where no performance takes place and there is no work of action, it will not be a dramatic work. Therefore, reciting a poem, even if it be in costume, will be a literary work as there has been no performance or work of action.

3. Musical works

Musical work is defined by the Act as ‘a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music’.

For the purposes of the Act, musical works consists of more than just a melody, or musical notes written on a score sheet. It includes all material which is capable of having an effect on the human ear, such as harmonies and orchestration.

However, for the purposes of a musical work there is no requirement that it be recorded in writing or notation. Although, if music is to be afforded copyright protection, it must satisfy the requirement of fixation which is defined by s.3(2) of Act which states that ‘copyright does not subsist in a … musical work unless and until it is recorded, in writing or otherwise’.

4. Artistic works

Section 4(1) of the Act defines artistic work as ‘(a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality, (b) a work of architecture being a building or a model for a building, or (c) a work of artistic craftsmanship’. In the case of Interlego v Tyco Industries (1988), Lord Oliver stated that in respect to artistic copyright, it is that which is ‘visually significant’ which is relevant.

Under s4(1)(a) and (b), artistic works are not required to have any artistic quality and will be protected nonetheless. However, under s.4(1)(c) which concerns artistic craftsmanship, this is required to be of a certain quality and in these situations, the courts may be required to make an artistic judgment. In the case of Merlet v Mothercare plc (1986) the court developed a two part test for artistic craftsmanship, firstly did the creation of the artistic work involve craftsmanship and secondly, the artistic work must have aesthetic appeal and did an artist create it?

Later, in the case of Vermaat and Powell v Boncrest Limited (2001) the court defined a craftsman as ‘a person who made something in a skilful way and who took justified pride in his workmanship’ and an artist as someone ‘who produced something with aesthetic appeal’. However, it was not necessary for both parts of the craftsman and the artist to come from the same person to satisfy s4(1)(c).

5. Sound recordings

Section 5(1)(a) of the Act relates to a recording of a sound which can be reproduced and which is not already subject to some form of copyright, for example the sound of a dog barking, or birds singing and can relate to any other sounds.

In contrast, s.5(1)(b) relates to a recording of the whole or part of an literary, musical or dramatic work which has been reproduced. Copyright usually already exists in such works and it is irrelevant what the format of the recording is.

6. Film

For the purposes of the Act, it is the material that is recorded, not the subject matter of the film that is protected by copyright. Any soundtrack used in the film is treated as being part of the film and consequently, neither the film nor the soundtrack is required to be original to be protected by copyright. However, a film may also be protected by copyright as a dramatic work.

7. Broadcasts

Section 6 of the Act provides a somewhat broad definition of ‘broadcast’. Anything which falls within the definition of a ‘broadcast’ will be afforded copyright protection. Internet transmissions however are excluded from this definition, but this is subject to three exceptions which include:

i) Where there is a simultaneous webcast and broadcast, both will be protected by copyright as a broadcast;

ii) Where a webcast is concurrent with a live event, the webcast will be protected by copyright as a broadcast; and

iii) Where a webcast is a transmission of recorded moving images and sounds which form part of a programme service and the webcast effectively has permission to transmit the programme. Such webcasts will be protected by copyright as a broadcast.

8. The typography right

Section 8 of the Act provides copyright protection to the layout of literary, dramatic and musical works, although it is not necessary for any of these works to already be subject to any copyright in themselves to be afforded typography copyright.

Originality

Any literary, dramatic, musical or artistic work must be original within the meaning of the Act to be protected by copyright. This requirement only applies to the types of works listed above, as opposed to the works protected by Part 2 of the Act, which include sound recordings, films, amongst others.

Originality relates to the expression of thought in a material or written form. In order to be original, such works must originate from the author and must not be copied from another work, although the author in creating his work, may draw on knowledge which is common to him and others.

As soon as the work is created and is recorded in a material form, for example on paper, tape, disc, film or other form, copyright will exist in that particular work and it will be protected.

As stated by Lord Bingham in the case of Designers Guild Limited v Russell Williams (Textiles) Limited [2001] FSR 11, HL at paragraph 2:

“The law of copyright rests on a very clear principle: that anyone who by his or her own skill and labour creates an original work of whatever character shall, for a limited period, enjoy an exclusive right to copy that work. No one else may for a season reap what the copyright owner has sown.”

Section 16(1) of the Act prevents the copying of the work either as a whole, or substantially.

The scope of copyright protection

There is no copyright in mere ideas. Copyright only exists in the tangible expression of ideas (i.e. a material form), whether it is literary, dramatic, musical or artistic. Therefore copyright does not protect the ideas themselves, only the form in which they are expressed. This is known as the ‘idea/expression dichotomy’.

Where it can be shown that two similar works were produced independently of one another, there will be no infringement of copyright. The principle behind this is that using someone else’s idea does not amount to an infringement. However, where a person reproduces the expression of an idea that has been recorded, it will amount to an infringement where the test for infringement is satisfied.

In the case of LB (Plastics) Limited v Swish Products Limited [1979] RPC 551, Lords Wilberforce and Salmon made a distinction between an idea and its expression:

Lord Wilberforce stated:

“There can be no copyright in an idea, so that is all the respondents had done was to take from the appellants the idea of external latching … or any other idea implicit in their work, the appellants could not complain. Nor is there infringement if a person arrives by independent work at a substantially similar result to that sought to be protected. The protection given by the law of copyright is against copying, the basis of the protection being that one man must not be permitted to appropriate the result of another’s labour. That copying has taken place is for the plaintiff to establish and prove as a matter of fact.”

Lord Salmon stated:

“… there can be no copyright in an idea or concept; but it is hardly necessary to say that this does not mean that once the idea or concept has been translated into a working drawing, the drawing cannot enjoy copyright, otherwise it would mean that copyright could not attach to any drawing; for every drawing is the child of an idea or concept.”

A practical example of this distinction would be a literary work which describes a particular invention. This description on its own would not entitle the copyright owner to protection for the actual invention referred to as it is merely an idea. However, copyright protection will exist in the expression of that idea in the literary work itself.

Conclusion

Although copyright is a broadly based intellectual property right, it does not protect the ideas conveyed by the work or explained in writing. It will protect the words as they are expressed in literary works or the material that is otherwise recorded and protected in the form of another type of work.

Protection granted by this area of intellectual property is usefully supplemented by other areas of law, such as confidential information and patent law. Where a copyright work explains a business idea, method of doing business, or describes an invention, the inventor will need to other areas of intellectual property law such as patent and designs to obtain protection.

About the Author

Leigh Ellis is a copyright lawyer with Gillhams Solicitors in London. He provides legal advice on intellectual property rights and commercial litigation in the United Kingdom.