Copyright law protects the creators of original work. If you create something original – from a song or photo to an article or design – copyright prevents others from copying, republishing it or distributing it without your permission.
Most small businesses encounter copyright law when they want to use something that was originally created by someone else. Using creative works such as a logo, photo, image or text without permission can infringe copyright law. All businesses need to understand how to legally use copyrighted material. If you break copyright law – even by accident – you can face large fines and even imprisonment.
What is copyright law?
Knowing what copyright law covers is essential for any business looking to use materials created by other people or businesses. Understanding how it works means you can ensure the work you commission – such as a company logo or website – becomes your copyright. It can also help you police how your staff use copyrighted materials, such as downloading and reusing photos from other websites.
The current copyright legislation in the UK is the Copyright, Designs and Patents Act 1988. It sets out the rights of someone who creates an original work, such as a logo or photo. For the creator, the Act sets out what you can do with your work, and how you can prevent others from using the work without permission.
Crucially for small businesses, copyright law allows works to be rented, sold, transferred or used – but it is down to the owner to decide how. A photographer may allow a small business to use photos he has taken of its products in promotional material as part of a contract and can prevent others from using the same images elsewhere. Alternatively, you could buy images from a stock library which allows you to use a purchased image for specific purposes. In both examples, while your business can use the photo, the photographer still owns the copyright unless specifically transferred to you.
Copyright also covers new works created using existing copyrighted materials. For example, image-editing a copyrighted photo and changing it for use in a marketing brochure may still infringe the copyright of the original, unedited image.
What does copyright law protect?
Copyright is an automatic intellectual property right, so you don’t need to apply for protection for your creative work. As soon as you create something, such as a company logo or a take a photo, you are automatically assigned copyright.
Copyright can apply to a whole range of original work including:
Literary works – This covers books, newsletters, articles, song lyrics, manuscripts, manuals, leaflets, web content, computer programs and video games.
Artistic work – This covers paintings, sculptures, photographs, music and songs.
Performance work – This covers plays, dance, films, television, video footage, sound recordings and radio broadcasts.
Publications – This covers magazines and periodicals.
You’re granted both moral and economic rights as the copyright owner. Moral rights include the right to be identified as the creator or author of the work, and also to object to edits or distortions of the work. Economic rights give control over how the work can be copied, distributed, rented, adapted or broadcast.
Who owns copyright?
In most cases, the person or company that created the work exclusively owns the copyright. They are referred to as the ‘first owner of copyright’ under the 1988 Copyright, Designs and Patents Act.
There are exceptions, however. If work is produced as part of employment – such as by a member of your staff while performing duties as part of their job – then the copyright owner is usually the employer rather than the individual who created the work. Graphic design companies, photography studios and copywriting agencies would own the copyright of the work their staff created, for example.
Just like any other asset, copyright may be transferred or sold by the copyright owner to another party.
Freelance or commissioned work will usually belong to the author of the work. However, many freelancers are willing to transfer copyright as part of a contract. This is essential if a freelance designer is creating a brand identity or marketing materials. As a business, you’ll need to ensure that all copyright is transferred to you and that the author waivers their moral rights to the work as well.
How long does copyright last?
In the UK, most creative output is protected for the life of the author plus 70 years. The 70-year period runs from the end of the calendar year in which the last remaining author of the work dies. This means that many materials today – from articles and images to photos and songs – are currently copyrighted and will remain so for decades.
When copyright expires, the work falls into the public domain. That means that it is deemed public property and can be used by anyone. People and businesses are free to modify, use and even sell work that is in the public domain.
How to check if something is copyrighted
A crucial question for any business using creative material is whether it is copyrighted. Not knowing isn’t a defence – your business can still infringe copyright law even if it used copyrighted material unknowingly. There is no copyright registration system in the UK, making it difficult for businesses to look up details of any copyright owner. It’s possible to search the US Copyright Register but that is limited.
The best bet is to either source material from the original creator – such as a freelance photographer who is working for your business on commission – or to buy materials from reputable sources such as a stock image library. When considering using content online, look for a copyright icon or examine the metadata of digital images as this may include details of the photographer, for example.
The onus is on the owner of the copyrighted work to enforce their rights – but that doesn’t mean you should risk using copyrighted work without permission and hope to get away with it. Tools such as Google Image Search make it easier for copyright holders to search for unauthorised usage of their work and issue an invoice or even legal proceedings.
What happens if you break copyright law?
Any individual or business that infringes copyright can face legal action. Infringement is usually treated as civil offence but can, in certain circumstances, be deemed a criminal offence, with damages awarded by a court. Depending on the severity of the infringement, the result can be a fine or even imprisonment.
If found guilty of copyright infringement in a magistrate’s court, your business could be fined up to £50,000 and you could face a jail term of up to six months. If the case reaches a Crown Court, fines can be unlimited and the maximum sentence up to ten years’ imprisonment. The scale of the infringement has an impact. A small reuse of a photo or watching a pirated video online isn’t likely to lead to a jail sentence. However, the wholesale copying and distributing of pirated TV shows may result in a jail term.
If the reuse results in financial loss for the content creator – such as lost income from licensing the work – then you could also face claims for compensation. Your business may also be investigated by Copywatch, which ensures copyright compliance on behalf of the Copyright Licensing Agency.
In some cases, you can arrive at a compromise before legal action reaches the courts. Authors and creators may be happy for you to pay a retrospective fee for the use of their work and give them credit on the work.
What is fair usage?
Not all copyright infringement results in a penalty. In the UK, there is the defence of fair usage – which is also known as fair practice, free use or fair dealing. This allows you to legally use copyrighted work without having permission in a few exceptional cases and this covers most copyrighted materials apart from printed music.
Fair use exceptions include using copyrighted material for research, teaching and private study, as well as for criticism, review or quotation. You can also use copyrighted material when reporting on current events in the media – aside from photos – and you can also use copyright material in parody.
However, fair use isn’t well-defined and is a difficult defence to rely on. Tests would include whether the author suffered a financial or reputational loss as a result of the use – even if it was fair – so the best bet is to ensure you obtain permission first.
Tips to avoid breaching copyright law
By ensuring you have good working practices your business can reduce the risk of breaking copyright law:
Education – Ensure staff are aware of copyright law and its implications.
Processes – Put processes in place internally to ensure copyright permissions have been obtained before using external work.
Contracts – Ensure contracts with freelancers and agencies assign copyright to your business for materials they create for you.
Create your own work – Make sure work you create is original and you’re free to use it as you wish.
Buy from reputable sources – Buy materials that properly license your use such as images from stock libraries, fonts from typeface foundries and software from the manufacturer. Ensure the licence you buy is suitable for the usage you plan for the material.