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GENERAL OVERVIEW OF COPYRIGHT

Article by Eleni Papacharalambous (Papacharalambous & Angelides Law)

Copyright is a statutory right that exists with respect to certain types of broadly creative works. The most relevant Act, concerning copyright is The Copyright, Design and Patents Act (CDPA) 1988. Section.1 (1) & Section. 2(1) of the CDPA 1988 provide that a copyright is a property right that gives the owner exclusive rights to do certain acts with respect to the work.

The main idea is to prevent others from taking advantage of a person’s creative efforts and to protect the product of a person’s skills, labour and artistry. That means that the protection given is on the form in which the person expresses him or herself but not on the idea that lies behind it. The right appears automatically as soon as the work is created and subsists for the prescribed period. There is no need for registration of the work.

The law of copyright is based 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. Copyright law does not protect a mere idea so the work must be recorded. It is the form in which the idea is expressed which must be original. Originality is the result of the author’s own skill, effort and capital.

There are three types of work that are protected by the CDPA 1988. If a work does not fall into one of these three categories, it will not be protected. Section 3 of the CDPA 1988 sets forth descriptions of work for literary, dramatic and musical works. A literary work includes: (1) a computer program, (2 preparatory design material for a computer programme, (3) a table or compilation other than a database, (4) a database.

The duration of copyright is set in Sections 12,13,14 & 15 CDPA 1988.

The owner of the copyright can part with it. This can happen via assignment or licensing. An assignment is a transfer of ownership and a licence is merely an arrangement between the parties for the use of copyrighted material for a certain period of time. Assignment is a property right and a licence is a contractual right.

The CDPA 1988 sets forth a list of acts that are restricted by copyright. A copyright owner is granted the exclusive right to do the following acts in the UK:

  1. To copy the work;
  2. To issue copies of the work to the public;
  3. To rent or lend the work in public;
  4. To perform,show or play the work in public;
  5. To broadcast the work or include it in cable programme service;
  6. To make an adaptation of the work or do any of the above in relation to an adaptation;

Copyright in a work is infringed by a person who, without the licence of the copyright owner does, or authorises to do, any of the acts restricted by the copyright. In the context of the Internet, a restricted act may include the storing of any work in any electronic medium. The delivery of content over the Internet by definition involves both reproduction of the original content and its distribution to others.

The CDPA 1988 provides for a number of specific situations in which reproduction of a copyrighted work will not be an infringement. If the reproduction falls within one of the permitted acts contained in sections 28-76 CDPA 1988, or the public interest exception provided by s. 171 CDPA 1988, then no infringement has occurred.

In the context of the Internet, the following are potentially copyright infringements:

  1. Web casting;
  2. Downloading a web page or software into a computer’s memory;
  3. Web linking;
  4. Automatic web page caching;
  5. Reproducing material downloaded from a website;
  6. Printing of a web page.

The CDPA 1988 distinguishes between two types of infringement: primary infringement & secondary infringement. A primary infringement happens when a person engages in a restricted act without the copyright holder’s permission. Infringement occurs whether or not the person had knowledge of the copyright.

A secondary infringement happens when a person commits a restricted act knowing or having reason to believe that this act is infringing the owner’s copyright. An infringement takes place when a restricted act is done on the whole or a substantial part of the copyright without the consent of the copyright owner. The question if a defendant has copied a substantial part depends much more on the quality than the quantity of what he has taken.

An owner of copyright has the exclusive right in the UK to ‘communicate the work to the public’, under section 20 CDPA 1988. The act of communication to the public becomes one of the acts restricted by copyright in 1) literary, dramatic, musical or artistic work; 2) sound recording or films; or 3) a broadcast (section 20 CDPA 1988). It contains two mutually exclusive types of communication: broadcasting of a work and the making available right to the public on an interactive basis. The difference between broadcast and making available is that making available requires, first, that fixation takes place (initial upload). If transmission is interactive, then it cannot be broadcast. The making available right is in effect the right to place a copyright work on a website or other electronic destination in such a way that members of the public may access the work when they choose.

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