Copyright – How does it apply online?
Copyright breaches can be expensive headaches for individuals and business alike. It can be very easy to infringe copyright and can often be unconscious or innocent. Whether a business is advertising online or an individual is posting on social media, it is important to be aware of Copyright and the impact it may have if someone breaches it.
Copyright is largely governed in the UK by the UK Copyright Designs and Patents Act 1988, together with various EU directives. The new EU Directive on Copyright in the Digital Single Market is a directive designed to limit how copyrighted content is shared on online platforms. The long awaited Directive was approved by the Council of the European Union in April 2019 and whilst there remains uncertainty over Britain’s Exit from the EU, businesses and individuals alike need to be aware of the scope of copyright protection.
Copyright can subsist in different types of work including:
• artistic works (such as paintings and photographs)
• literary works (which includes databases and computer programmes)
• music
• dramatic works
• films, broadcastings, sound recordings and typographical arrangements
Copyright is an unregistered right (you do not have to apply to have protection, like you do with a patent or registered trademark), therefore it arises automatically on creation of the work, assuming it passes the “originality test”.
There are other factors that need to be considered when assessing if copyright subsists in a work, including whether the work was made by a qualifying person or published in a qualifying country and, in respect of literary, dramatic and musical work, whether the work had been recorded.
Copyright protects against the reproduction, adaption, translation, distribution, broadcasting, showing or public communication of work without the owner’s consent. Once it can be established that Copyright subsists in a work, the author has the right to pursue remedies for any unauthorised use of that Copyright, except where it can be proved that the infringer’s use of the Copyright work falls under an exemption or where the Copyright has been exhausted (e.g the owner's right to control copies of their work will be exhausted on its first sale by the copyright owner or with their consent). Copyright only lasts for a certain period of time, depending on what type of work it is, so use of the work is only unauthorised if it was used within a certain timeframe.
Remedies for breach of contract include damages, injunctions and an order to “deliver up” infringing work/materials.
The implementation of the European Union Directive on Copyright in the Digital Single Market sees a number of reforms, aimed at addressing the changes that have occurred as a result of increased use of internet and social media platforms in reproducing and using Copyright works.
Perhaps the most controversial element of the Directive, Article 13, will now require online platforms and service providers to implement "effective and proportionate" measures to prevent users from infringing copyright works.
The theory behind Article 13 is that it will make sites like Youtube and Facebook liable for infringing acts on their sites and will mean that revenue made will be directed from these platforms to creators of the work, such as artists, journalists and authors.
It is argued by those in favour of the reforms that it will allow artists and authors to be properly compensated for the use of their copyright work. Others argue however that this is restricting freedom of speech.
But to what extent will these platforms be required to monitor their users’ uploads and how are they expected to identify and then remove the infringing works? Critics have suggested that the increasing liability of social media platforms will encourage automatic screening of uploads which could result in mistakes or abuse, preventing non-infringing works from being uploaded. This may affect the way in which these platforms are used positively and limit creativity and freedom of speech.
Whilst it remains to be seen exactly how the new Directive will be incorporated into law in the UK and what the effects will be, it is clear that authorities are conscious of the need to address Copyright Infringement on online platforms, given how easy it has become to simply borrow material.
If you have any concerns in respect of a copyright dispute, or any other type of Intellectual Property disputes, the Thompson Smith and Puxon Dispute Resolution team can help. For more information the team can be contacted on 01205 574431 or by email at info@tsplegal.com.