Williams Powell

British and European Patent and Trade Mark Attorneys

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Copyright protects creative works from being copied. Creative works can include artistic works (e.g. drawings or sculptures), literary works (e.g. novels or film scripts), musical works and typographical arrangements, amongst others. Since computer programs have been held to be literary works, these too are protectable under copyright law.

There are a number of important differences between copyright protection and the protection given by other forms of intellectual property such as patents, trade marks and design registrations.

First, copyright is a right which arises automatically when a copyright work is created. In the case of literary, musical, dramatic or artistic works, the work must be original, i.e. not copied itself for copyright to subsist. The work must have also have been reduced to material form (e.g. actually drawn, written down or recorded as the case may be). It is not necessary however to file or register any evidence of the copyright work in order for the copyright to arise; indeed, in the UK there is no official copyright register.

A common misconception is that copyright can be created by posting a copy of the copyright work to oneself by registered post in order that the envelope is date-stamped. Although this may be useful from an evidential standpoint (to demonstrate that the copyright work was not created after the posting date), the procedure does not create any rights which did not subsist already.

That said, we would certainly advise that good records should be kept of the dates of creation of copyright works, and that copies of different versions of work in progress should also be kept. We would also advise that a copyright work be marked with the copyright symbol ©, the date of creation, and the name of the creator of the work. Again, this does create any rights, but may make it easier to obtain damages in the event of a dispute by undermining an argument that the copier did not realise that copyright subsisted in the work.

The second important difference between copyright and other intellectual property rights (with the exception of design right) is that a copyright is infringed only when the copyright work, or a substantial part thereof, is copied (copying means reproducing the work in any material form). Thus, if a third party creates a copyright work independently (without having copied the original), the copyright is not infringed. Copyright is a "weaker" right therefore than that afforded by a patent, which can be infringed even if the third party has made a patented product innocently. Thus, if you have written an original computer program, it is worthwhile checking to see if any patent protection might be available in addition to the protection arising automatically under copyright law.

Although, as noted above, there is no need to register copyright, we can and do advise on copyright infringement, particularly of industrial copyright. The position is often extremely complex, depending on when the work was created and by whom, and that is why it is especially important to keep full records of the creation of copyright works.

Finally, although copyright in a work created by an employee (such as a draftsman) will generally belong to the employer, the copyright in a work created on commission (for example by a consultant) belongs prima facie to the creator. From the standpoint of the commissioning company, it is important therefore that clear agreements are in place to ensure that any copyright which does arise is assigned to the company. We can assist in preparing such agreements.