What You Should Know About Copyright

By Maria Anassutzi
Copyright (as opposed to patents or registered trademarks) arises automatically without the author having to comply with or observe any formalities. What it is required is that the work has certain requisites. In this case the protection arises automatically as soon as the work is recorded in electronic or paper form.

However, authors of copyrighted work should still identify and safeguard their copyright works. This can be done by (i) identifying all materials that are likely to have copyright protection; (ii) ensuring that proper ownership and licensing arrangements are in force; (iii) ensuring that appropriate copyright assignments and waivers of moral rights were included in the written agreements commissioning the materials and if this was not the case, arranging for separate copyright assignments and waivers to be obtained from the third parties; (iv) keeping proper records. Authors should sign and date their works and, where relevant to the term of copyright, the date of first marketing of articles should be recorded. These records can then be used as the basis for any infringement action. Actions can fail if the claimant cannot prove subsistence of copyright or ownership.

Although not necessary, as a matter of law, to gain protection, it is useful to include on copyrighted materials a notice in accordance with the Universal Copyright Convention, that is [year, "Copyright [name of publication]" copyright owner]. This serves to warn anyone using the work that copyright exists and that action may be taken if the work is copied.

Depending on the type of work involved, additional text can be included with the copyright notice. This might include: (i) text prohibiting the reproduction of any material whether by photocopying or storing in any medium by electronic means or otherwise (this does not affect the legal position but serves as a reminder and might also be useful in preventing any user from arguing that there was an implied licence in its favour permitting copying or storage);warnings stipulating that the doing of any unauthorised act in relation to the work will result in both civil and criminal liability; (ii) warnings that any copying will result in criminal or civil action; (iii) a form of disclaimer to provide protection for the author and the publisher if use is made of opinions or views expressed in written materials.

Increasingly, the onus is upon the rights-holder to enforce his rights and, unless he does so, he may lose the rights, at least against a persistent infringer (this is clearly evident in the field of trademarks, where rights can be lost if not asserted. It is therefore important to put the infringer on notice and to keep a record of doing so. Speed of notice and action may be important if immediate injunctions are required. A delay of, say, a month may be fatal to such an application. This is because in order to succeed the claimant will have to argue irreparable damage caused by the infringement and any delay in bringing proceedings may count against that argument.

An important part of the protection and exploitation process is to ensure that everyone within an organisation is aware of the potential value of copyright works and how to protect them. As suggested above, a system needs to be put in place to ensure that proper reviews and record-keeping arrangements are implemented on an ongoing basis, combined with sensible and appropriate use of copyright notices and warnings. The fact that there is no registration regime for copyright makes it particularly important to be proactive in dealing with potential infringements and putting third parties on notice.

In fact, increasingly, the onus is upon the intellectual property owner to enforce his rights and, unless he does so, he may lose the rights, at least against a persistent infringer (this is clearly evident in the field of trademarks, where rights can be lost if not asserted. Speed of notice and action may be important if immediate injunctions are required. A delay of, say, a month may be fatal to such an application. This is because in order to succeed the claimant will have to argue irreparable damage caused by the infringement and any delay in bringing proceedings may count against that argument.

This article is for general purposes and guidance only and does not constitute legal or professional advice.

Copyright 2010 Anassutzi & Co Limited. All rights reserved. Information may be shared or reproduced only if accompanied by the author's name and bio.

Maria is founder and director of Anassutzi & Co limited a specialist legal and business strategy consultancy having previously held a number of senior positions including being partner and head of IP/IT in London. Maria speaks fluently Greek, Italian and has basic knowledge of the French language.

Maria is a seasoned multi-jurisdictional lawyer with vast experience in general corporate commercial law, specialising in intellectual property, information technology, e-commerce and outsourcing and having extensive in-house legal experience and having worked in City law firms and multinational companies.