Copyright protection: A guide for small business owners

By Harper James

13 Nov 2023

Lindsay Gledhill Harper James.png.jpg

In today’s information rich world, businesses are under more and more pressure to create inspiring products and marketing content that make them stand out from the crowd. Creativity and novelty are valued commodities in an ever-competitive marketplace and need to be protected and exploited without fear of copying.

In this guide, Harper James Intellectual Property Partner and copyright law expert, Lindsay Gledhill explains what copyright is, how to protect it and what to do if your copyright is infringed. 

What is copyright?

Copyright seeks to protect the form of expression of ideas. It protects original works that have been recorded in any format, provided that certain requirements are met. It does not need to be registered; it automatically applies as soon as the original content is recorded. Not to be confused with trade marks, copyright does not usually protect a single word, short phrase, letter or number, unless it is unusual and novel enough, having been created by the author’s own skill, judgment and individual effort. However, the content does not need to have any particulate literary or artistic merit as long as it is original. Copyright also differs from trade marks or design rights in that it is the act of creation that is the important factor - more than one identical or similar works may exist provided that they were both created independently, without copying. 

How long does copyright protection last?

For literary, dramatic, musical and artistic works, this is a period of seventy years’ following the year of the author’s death. For sound recordings it is fifty years’ from the year of creation or seventy years’ from the date that it is broadcast to the public. Other periods apply to different types of works such as typographical creations or film recordings. There are also rules for the duration of works of unknown authorship. Where the work has been created jointly, the general rule is that copyright lasts for seventy years’ from the year in which the last surviving author dies.

What types of works are protected by copyright?

Some examples of the types of works that can be protected by copyright include: 

  • Original literary, dramatic, musical or artistic recorded works - magazines and magazine articles, newspapers, marketing text, business reports, photographs, pictures, design specifications, service manuals, graphic works, architectural models, maps, plans, engineering and design drawings, reports, brochures, packaging designs, logos…etc. 
  • Sound recordings, films or broadcasts - advertisements, songs, jingles…etc.
  • The typographical arrangements of published editions.

A single advert may embody several different types of copyright for example, a sound recording, a musical work and a literary work. 

Copyright ownership

Small business owners should ensure that they own the copyright in works that are created in the course of the business. This is particularly important where works have been commissioned by third party contractors or created by employees. The general rule is that the author of the work will be the first owner.

So you need to identify who created the work. This rule does not apply where an employee created the work during the course of the employment as the employer will be deemed to be the author unless there is an agreement stating otherwise.

Employment contracts usually contain a catch-all provision to ensure that all works created by the employee for the business are covered. Even if there is no employment contract in place, the court can deem that there is an employment relationship so it is always safer to set out the position regarding copyright and other intellectual property rights clearly and expressly.

As a contractor will be deemed to be the first owner of the copyright they create, you must ensure that there is a contract in place licensing or assigning any copyright to your business. You should also make sure the contract covers you in case the contractor was not in fact the original owner but copied the work from someone else. If these protections were not included initially, you can draw up assignments or licences afterwards, if the contractor can still be reached. 

Where company directors, who are not employees, create works and there is no contract dealing with the matter, the issue may depend on the specific facts of the case, such as when, where and how the work was created. The director may own the copyright but be deemed to hold it on trust for the company. It is best to avoid any ownership disputes by dealing with the issue contractually. 

Safeguards

A company or business should educate all its employees and staff on its copyright policy and ensure that all original work is kept confidential until broadcast or published. The copyright notice “Copyright © [Name of owner] [Date of publication]” should be clearly displayed on all original works. You should keep records of who created any works and when they were first made available to the public. This can provide evidence in an infringement action or evidence in defence if someone claims that you copied their work but in fact it was created before theirs.

What to do if your copyright is infringed

Even with the above precautions, in a world where information can be instantly broadcast online at the touch of a button, copyright infringement can be difficult to prevent. Copyright infringement occurs if a third party copies the whole or a substantial part of a copyright work or authorises someone else to do so and makes it available to the public.

If your business has any particularly valuable content, you should regularly monitor the marketplace and any competitor’s websites and social media platforms to check for any substantial copying. If you discover an infringement, you will need to act quickly to get the offending content taken out of the public eye. A lawyer can send a “cease and desist” letter threatening court action if the situation is not remedied. The courts may also grant an injunction against any further publication of the work and order the infringing party to pay damages. 

Conclusion 

It is important to speak to a copyright lawyer as soon as you are aware of a potential dispute. Court actions are costly and time consuming and too much damage may already have been done by the time an infringement is discovered. The infringer may also have a defence based on certain permitted acts such as education, parody or research. It is far safer to educate yourself and your employees on copyright protection at the outset and to invest in proper, legally drafted contracts and policies to protect your valuable creations. 

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