TWO PART SERIES
Everything You Thought You Knew About Copyright Protection—But Didn't! (Part 1)
- Peter Williams
- Average Reading Time: 13 minutes
- Business & Events
- articles, guides, petercw
How much do you really know about Copyright protection? Do you fully understand all the different categories within Intellectual Property, what each one represents and how long protection typically lasts? Join us on this comprehensive explanation of all things copyright and how it applies, what it is and what it is not. This two-part series is designed to help you learn more about copyright protection, as well as your rights and the steps you could potentially take when a possible infringement takes place.
DISCLAIMER
All published articles are intended for an audience aged 18 years and over and have been written by members of the general public. Many will likely not be journalists nor be affiliated with any professional bodies associated with members of the media. The articles will likely be based on the authors' own opinions, views, and experiences...more
One early Wednesday morning, I woke to find three separate emails, to three different email addresses, to publicly available addresses, stating that an image featured on my website had potentially created a copyright infringement, with the instruction that I had to act by a specific date, followed by a threat of legal action should I not comply. Like with these types of emails that typically come to my catch-all email address, I either discard them if they look like a scam or carry out quick searches for those that could potentially be genuine.
In this scenario, given the email’s official-looking appearance, tone and specifics relating to my website, I conducted an internet search to learn more about the company and assess the claim’s merit. The search was alarming; not only were these types of claims valid, but many people over the years have been receiving similar types of messages. Although this practice may be perceived as predatory due to the email’s wording or tone, facilitating copyright infringement in this manner is neither illegal nor necessarily a scam.
As someone who owns trademarks, has published a number of books, and owns copyrighted material, I already had a reasonable understanding of the subject; however, I was not as familiar with image copyright. Through my research, I found that many people struggle to understand copyright, their rights, and the worst-case scenarios that are often cited, which are also unlikely to affect them.
To help inform our readers, the community, and friends, we are creating a two-part series to help break down what copyright is and the steps to take with regard to a potential infringement notification.
Before we start, this article and episode are for entertainment purposes only. If you are facing any legal challenges, you should seek legal counsel in your country familiar with cases such as yours. I am not a specialist in Intellectual Property, nor am I giving advice, as the article and episode are general and do not take into account your personal circumstances.
Now, let’s start looking at the definition of what copyright protection is.
In this scenario, given the email’s official-looking appearance, tone and specifics relating to my website, I conducted an internet search to learn more about the company and assess the claim’s merit. The search was alarming; not only were these types of claims valid, but many people over the years have been receiving similar types of messages. Although this practice may be perceived as predatory due to the email’s wording or tone, facilitating copyright infringement in this manner is neither illegal nor necessarily a scam.
As someone who owns trademarks, has published a number of books, and owns copyrighted material, I already had a reasonable understanding of the subject; however, I was not as familiar with image copyright. Through my research, I found that many people struggle to understand copyright, their rights, and the worst-case scenarios that are often cited, which are also unlikely to affect them.
To help inform our readers, the community, and friends, we are creating a two-part series to help break down what copyright is and the steps to take with regard to a potential infringement notification.
Before we start, this article and episode are for entertainment purposes only. If you are facing any legal challenges, you should seek legal counsel in your country familiar with cases such as yours. I am not a specialist in Intellectual Property, nor am I giving advice, as the article and episode are general and do not take into account your personal circumstances.
Now, let’s start looking at the definition of what copyright protection is.
Copyright protection typically comes under the banner of intellectual property rights, or IP, as it is shortened to. IP is the collective term, description and discipline within the law that relates to the creation of tangible assets, something new or unique, such as books, poems, photographs, movies, lyrics to a song, musical compositions, sound recordings, paintings, drawings building plans, computer software, business reports and communications and many more unique works. IP is then broken down into specific areas that focus on the nature and type of work being protected, of which includes:
For many of the intellectual property areas mentioned, those wishing to obtain legal protection are required to register or submit an application in the country or countries they operate, especially for global brands. Though the laws relating to IP and enforcement will likely be different in every country, there are many shared principles and international standards applied. For some countries, such as the UK, copyright is automatically granted on all published, original, and unique materials, meaning no registration or application is required.
- Patents grant inventors the exclusive rights and legal protection from others using their inventions without their expressed permission or consent. The patent allows them to make, use and sell their inventions for a limited time. The lifespan of a patent varies by country; however, in the UK, it typically lasts for 20 years from the date the patent was filed. A few examples of patents include those granted for the telephone, lightbulb and aeroplane.
- Trademarks grant companies and individuals legal protection for the brand names and logos they use, helping them distinguish their products and services from others in the marketplace. This protection also fosters brand recognition and helps to meet consumer expectations regarding quality and legitimacy. The lifespan of trademarks varies by country; however, in the UK, it typically lasts 10 years from the date of registration. A few examples of recognisable trademarks include Coca-Cola, McDonald’s and Apple.
- Copyright grants the author or copyright owner legal protection for original works such as books, movies, pictures, songs and software. The Copyright owner holds the exclusive rights to copy, distribute, and create new works derived from copyrighted works they own, as well as grant exclusive and non-exclusive licenses for others to use their copyrighted material. The lifespan of copyright protection varies by country; however, in the UK, it typically lasts for the life span of the copyright owner or date from when it was first published and for 70 years thereafter. A few examples of copyrighted material include the Star Wars movies, Taylor Swift’s Songs and the Microsoft Windows operating system.
- Trade Secrets grant legal protection for formulas, recipes, customer databases and anything that creates a competitive edge for the holder of the trade secret. The lifespan of trade secrets varies by country; however, in the UK, it can typically be indefinite as long as the trade secret remains confidential and is of commercial value. A few examples of trade secrets include Kentucky Fried Chicken’s recipe, the recipe for McDonald’s special sauce and the recipe for Coca-Cola.
For many of the intellectual property areas mentioned, those wishing to obtain legal protection are required to register or submit an application in the country or countries they operate, especially for global brands. Though the laws relating to IP and enforcement will likely be different in every country, there are many shared principles and international standards applied. For some countries, such as the UK, copyright is automatically granted on all published, original, and unique materials, meaning no registration or application is required.
The definition and enforcement will vary by country; however, as a principle, copyright material should:
So, ultimately, copyright protection relates to the expression of an idea, not the idea itself. For instance, if you designed a unique electric car, the concept of an electric car itself is not protected, but any drawings and designs you create are.
Copyright is often open to interpretation, and in some industries and sectors can be challenging to enforce. For example, in the fashion industry, a designer creating a new skirt would likely be unable to copyright-protect the skirt. The skirt design has been around for many years, and many designers and fashion houses have adopted its design and concept. However, the question remains: what makes this design unique or original? If the designer uses a distinctive pattern, creates variations on the skirt that have never been seen before, or applies an innovative effect or process, they would likely be able to copyright those aspects of their design.
- Have originality – the copyright material should be original, meaning not a direct copy from something else, and must have a spark or show some degree of creativity, like with a unique interpretation, applied in an original way, etc. The definition means it can be somewhat subjective, meaning open to interpretation; what might seem original to one person might not be classified in the same way by someone else. Examples of some factors that might not be considered permitted for copyright include titles, names, short phrases and slogans.
- Be in a tangible form – meaning cannot be an idea or a concept, instead, something that exists like a picture, a manuscript, a song, a sample of a song, a drawing, etc.
- Be published or made publicly available – though copyright material exists for exclusive use within organisations or by individuals, in order for an infringement to occur, the material would need to have been published or made publicly available. In cases where two individuals or groups are claiming copyright for the same image, the metadata (the file information, such as date created, owner, etc.), as well as when the picture was first published, would be considered as part of the claim for ownership.
So, ultimately, copyright protection relates to the expression of an idea, not the idea itself. For instance, if you designed a unique electric car, the concept of an electric car itself is not protected, but any drawings and designs you create are.
Copyright is often open to interpretation, and in some industries and sectors can be challenging to enforce. For example, in the fashion industry, a designer creating a new skirt would likely be unable to copyright-protect the skirt. The skirt design has been around for many years, and many designers and fashion houses have adopted its design and concept. However, the question remains: what makes this design unique or original? If the designer uses a distinctive pattern, creates variations on the skirt that have never been seen before, or applies an innovative effect or process, they would likely be able to copyright those aspects of their design.
Intellectual property and copyright protection are essential not only for the creators or owners of original works and materials, those permitted to use them, but also for the consumer. Often, the company or individual spends time, effort, and money thinking about and ultimately creating something tangible. A unique work that has value and is in demand within the marketplace. IP is an asset, no different from a house or car, one that has value and, like any asset, can be sold or leased, through licenses and even passed down to future generations through inheritance.
So, you create something unique and want it to be sold, you want control to ensure that you are happy with how it is being used in situations where you are recognised and financially rewarded each time it is used. If someone comes along, decides to use your work, does not credit you or even falsely claims that they created something you own the copyright for, and financially benefits from it, it is unfair.
The same can also be said for the consumer, if they purchase a product or service based on a brand, they pay the asking price as they have certain expectations such as the quality or standards associated with the production of the product or service, if the item they purchased was counterfeit and they paid the full retail price of the genuine product, they have not only be misled about also scammed out of their money.
Simply put, copyright protection is about fairness, protecting the copyright owner and the end consumer. Though similar, cheaper alternatives may exist; they should not be confused with or marketed in a way that implies they are something they are not.
So, you create something unique and want it to be sold, you want control to ensure that you are happy with how it is being used in situations where you are recognised and financially rewarded each time it is used. If someone comes along, decides to use your work, does not credit you or even falsely claims that they created something you own the copyright for, and financially benefits from it, it is unfair.
The same can also be said for the consumer, if they purchase a product or service based on a brand, they pay the asking price as they have certain expectations such as the quality or standards associated with the production of the product or service, if the item they purchased was counterfeit and they paid the full retail price of the genuine product, they have not only be misled about also scammed out of their money.
Simply put, copyright protection is about fairness, protecting the copyright owner and the end consumer. Though similar, cheaper alternatives may exist; they should not be confused with or marketed in a way that implies they are something they are not.
Let us now explore three examples of copyright protection and the potential legitimacy of any possible claims of the owner of the content.
- Example 1 – Three cords – there are three guitar chords for beginners, which are G major, C major, and D major. These cords are used universally and would not be considered unique. Say these unoriginal cords were sampled in two different songs, the cords themselves would likely not be considered copyright protected material; however, if used with specific lyrics, unique effects applied, such as tempo or speed or played in conjunction with other musical notes and compositions, then the unoriginal cords, form part of a more complex and original composition that might be considered copyright protected.
- Example 2 – Popular landmark – two individuals take pictures of the Taj Mahal, a popular landmark in India, from the same position and perspective. The angle and perspective are similar, and the pictures are captured from a popular position, all of which would likely mean that the photographs are not unique. Although there may be many similarities between the pictures, using the image, whether knowingly or unknowingly, could be an infringement, due to the metadata and where it was downloaded from; however, the picture is not necessarily unique or original. So, what could make the picture unique and copyright-protected? What might make it unique is the people captured in the picture, filters applied, the lens used, and unique angles or perspectives, such as aerial view or exposure. If, for instance, the owner were to claim an infringement and take someone to court, the judge would be required to rule on the originality of the work. Though within their rights, if the image is not deemed original, it might be difficult to enforce or at least claim compensation.
- Example 3 – An AI Podcast tune – a user decides to use a popular AI platform to create a song for their podcast. The catchy tune, which sampled part of Beethoven’s Fifth Symphony, and the user is unsure of what that means. We know that Beethoven died in March 1827 in the early 19th century, which means that the copyright protection for his symphony would have ended, under current standards, in 1897; however, the question relates to where the symphony was sampled from. If it were taken from a recording of a symphony that created a unique composition or style, it might be copyright-protected. If, however, it is a traditional, standard recording, the sample use might be permitted.
Though the rules will be different in each country, often it comes down to the laws within the countries you operate and as to what they permit you to do and use. In the UK, there are some exceptions where copyright material can be used without the expressed consent of the copyright owner. The list below highlights some of the circumstances in which copyright-protected protected can be used without explicated consent from the copyright owner: –
Though the exceptions highlight some of the potential scenarios and situations where copyright protection might not apply, much of it is subjective and would require analysis and understanding of the possible use and impact, if any.
Copyright, what it means and when it applies, is relatively straightforward; however, much is open to interpretation, as well as the understanding and evaluation by the individuals, groups, or organisations involved. The term that ultimately should be used and associated with copyright protection is ‘Fairness’. With questions like, was a picture taken and used unfairly? Has someone lost potential revenue? Have consumers been misled? And so on.
Ultimately, fairness for all involved, for example, a photograph of a famous landmark, captured millions of times, with many pictures being virtually identical. Those who took the photo, being realistic and accepting that they have captured a nice picture, where the image could have been downloaded from endless sources claiming copyright ownership, and one which is unlikely to be considered original from a copyright perspective, just a nice picture, unless that picture shows some form of originality or was edited or enhanced in a specific and unique way.
In part 2, we will explore copyright infringement, understanding your rights and how to protect yourself.
- For non-commercial research and private study – meaning it is permitted for people who are studying (enrolled in a course) or in education to use some copyright material without consent; however, they are required to reference and acknowledge the source.
- Text and Data mining for non-commercial research may be permitted for use in automated analytical techniques to identify patterns, trends, and other helpful information.
- Criticism, review and reporting current events – the use of copyright material might be permitted for use or in fair dealing when used in criticism, review, and for reporting current events, the only exception being the use of photographs in reporting current events. When material is used, they are required to reference and acknowledge the source.
- Teaching (non-commercial) – copyright material can be used to illustrate a point, as proof, perspective, playing or showing material for educational purposes, as well as the recording and playing of TV programs or radio broadcasts; however, not for financial gain or commercial benefits, such as for paid online courses
- Helping people with accessibility needs or disabilities – utilising copyrighted material to help people with specific needs, such as using material to create braille, audio descriptions, subtitles for films or broadcasts and in developing material for people with accessibility needs.
- Parody, caricature and pastiche – the use of copyright material in a situation in which a comedian uses a few lines of a film or song for a parody sketch, small fragments to create a caricature or illustration and pastiche, using material to pay tribute or homage to an artist or collection of work
- Fair dealing – the legal term used to establish if a copyright infringement has occurred, and looks to establish if the potential infringement and use of the material has affected the market for the original work and whether the amount of the material used is reasonable and appropriate.
Though the exceptions highlight some of the potential scenarios and situations where copyright protection might not apply, much of it is subjective and would require analysis and understanding of the possible use and impact, if any.
Copyright, what it means and when it applies, is relatively straightforward; however, much is open to interpretation, as well as the understanding and evaluation by the individuals, groups, or organisations involved. The term that ultimately should be used and associated with copyright protection is ‘Fairness’. With questions like, was a picture taken and used unfairly? Has someone lost potential revenue? Have consumers been misled? And so on.
Ultimately, fairness for all involved, for example, a photograph of a famous landmark, captured millions of times, with many pictures being virtually identical. Those who took the photo, being realistic and accepting that they have captured a nice picture, where the image could have been downloaded from endless sources claiming copyright ownership, and one which is unlikely to be considered original from a copyright perspective, just a nice picture, unless that picture shows some form of originality or was edited or enhanced in a specific and unique way.
In part 2, we will explore copyright infringement, understanding your rights and how to protect yourself.
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