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BM Nyman & Co

Publishing Lawyers

BM Nyman & Co

Bernard Nyman
Sole Principal

25 Limes Avenue
London
N12 8QN
UK

info@bmnyman.co.uk

Tel: +44 (0)20 3601 4163
Fax:  +44 (0)20 8445 2852
FAQ

What is Copyright?

It is a property right, and this means that it is capable of being owned, it is capable of being sold and it is capable of being licensed. In short, it is a very valuable commodity.

A distinction can be drawn between copyright as an economic right (since it gives the owner the opportunity to derive financial reward from the ownership of the right) and moral rights (which derive from the same statute as copyright, but which protect an author's sensibilities in relation to his work).

See more about moral rights below.

 

What does Copyright protect?

Copyright does not protect ideas as such.  It protects the expression of ideas in the form of certain specific categories of works, but only once they have been created and recorded in some tangible form.

These are the categories of works that are protected, with some examples:

  • literary works: books, articles, letters, reports; computer software; tables and compilations (Note: these do not have to have any literary merit in order to qualify as literary works).
  • dramatic works: plays, screenplays, TV scripts; choreography.
  • musical works: music (but not song lyrics – these are literary works);
  • artistic works: paintings, drawings, sketches, plans, works of architecture including buildings, works of artistic craftsmanship.
  • films;
  • sound recordings;
  • broadcasts;
  • the typographical layout of published editions of literary, dramatic and musical works.
 

Who is the author of a copyright work?

In general, the author is the person who created the work.

 

Are there exceptions to copyright protection?

There are a number of occasions where the doing of certain acts in relation to copyright works does not infringe the copyright.

Some of the key ones are these:

  • fair dealing for the purposes of criticism or review and for the purpose of reporting current events;
  • fair dealing for the purposes of research and private study;
  • various uses of copyright works in the course of education;
  • various copying which can be done by libraries.
 

What rights does copyright confer?

The copyright in a work confers the exclusive right to do various things which are described as “the acts restricted by the copyright in a work”.

These are as follows:

  • copy the work, which means reproducing the work in any material form, including storing the work in any medium by electronic means;
  • issue copies of the work to the public;
  • rent or lend the work to the public;
  • perform, show or play the work in public;
  • communicate the work to the public, meaning communication by electronic transmission, and including broadcasting and internet;
  • make an adaptation of the work or to do any of the above in relation to an adaptation: an adaptation, in respect of a literary or dramatic work, means a translation of the work, or a version of a dramatic work in which it is converted into a non-dramatic work and vice versa and a version of a work in which the story is conveyed wholly or mainly by means of pictures in a printed form.  In relation to a computer program, translation includes converting a program into or out of a particular computer language, otherwise than incidentally in the course of running the program.
 

What is the significance of authorship?

In general, the author is the first owner of the copyright in a work.

There is, however, one vital exception to this rule, and that is where an employee creates a copyright work in the course of his employment: in that case, the copyright belongs to the employer, unless there is some agreement to the contrary.

This exception only applies to employees though, and does not apply to freelancers. Therefore I advise businesses which traditionally engage a lot of freelancers that they must make sure that the freelancers are engaged under written contracts which provide expressly that the employer owns the copyright in any works created by the freelancer.

 

What is copyright infringement?

Copyright is infringed when someone does any of the acts restricted by copyright in relation to the whole or a substantial part of a copyright work without the permission of the copyright owner.

The question of what is a substantial part of a work depends as much on the quality of the part as the amount.

 

How long does copyright last?

  • Literary, dramatic, musical and artistic works: life of author plus 70 years;
  • Sound recordings: 50 years from making or from release;
  • Films: 70 years from the death of the last to die of the following persons connected with the film: the principal director, the author of the dialogue, the author of the screenplay, and the composer of the music specially created for and used in the film;
  • Broadcasts: 50 years;
  • Published editions: 25 years.
 

What are the remedies for infringement of copyright?

If a court decides that someone has infringed copyright, then the court can award the following against the infringer:

  • An injunction to stop any further infringement;
  • Damages to compensate for infringement: this is usually assessed as the fee that would have been charged for a licence to do the act that amounted to infringement;
  • Additional damages for a particularly flagrant infringement, where ordinary damages would not be sufficient to compensate;
  • An account of profits made by the infringer as a result of the infringement: this means that the infringer has to give up all his profits from the infringement to the copyright owner -- this is an alternative to damages;
  • Delivery up and destruction of the infringing items.
 

Moral Rights

There are four moral rights that UK copyright law confers:

  1. The right to be identified as the author of a copyright literary, dramatic, musical or artistic work or as director of a copyright film;
  2. The right not to have one's work subjected to "derogatory treatment" -- amounting to a distortion or mutilation of the work or being otherwise prejudicial to the honour or reputation of the author or director;
  3. The right not to have a literary, dramatic, musical or artistic work falsely attributed to oneself as author and not to have a film falsely attributed to oneself as director;
  4. A right of privacy in respect of certain photographs and films that are commissioned for private and domestic purposes, preventing them from being published, exhibited or shown in public or communicated to the public electronically.

 

These rights last for as long as the copyright in the relevant works lasts - with the exception of the false attribution right, which only lasts until 20 years after a person's death.

There is no infringement of any of these rights if the person entitled to the right has consented to the act in question or has waived his or her right.

In practice, in many areas of the entertainment industry (including publishing), persons entitled to moral rights are asked to waive them to make sure that the party exploiting the product of the right-owner's services can do so without fear of a claim for moral rights infringement.

This is particularly so in the case of the film and television industry and electronic publishing, where an author's work may be changed considerably in the course of exploiting it.

For example, compare a feature film with the book on which it was based: a film company (and those providing the finance for making the film) could not take the risk of a moral rights claim by the author of the original book, and so the author must waive his or her moral rights in order to sell the film rights. The same would apply to the director of the film.

These are personal rights which cannot be assigned (i.e. sold) during a person's lifetime, but they can be transferred under a person's will.

 

Databases

The UK law on databases is an unusual and important aspect of copyright - and it changed significantly with effect from the 1st January 1998.

What is a database?

The answer is: a collection of independent works, data or other materials which are arranged in a systematic or methodical way and are individually accessible by electronic or other means.

This includes electronic databases but also paper databases too, such as printed directories or tables in a book. A website could constitute a database.

Before 1998, a database was regarded under UK law as a compilation, and was protected by copyright as a literary work.  This protected the structure and order of the database, quite separately from any copyright that might subsist in all of the individual works included in the database. Now the structure of a database will only be protected where it is original, which is defined as where “by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation”.

It is no longer sufficient that a lot of time and effort and probably money, too, have gone into creating a database. This was intended to bring the UK into line with the rest of Europe, which has always had a stricter test of creativity for a work to qualify for copyright protection.

However, all is not lost for database owners.

Any database that was in existence before the 28th March 1996 and protected by copyright continues to be protected by copyright even if it would not qualify under the new law.

Furthermore, there is a new right called database right, which protects the contents of a database even where the database does not qualify under the new law for copyright.  The database right arises where there has been a substantial investment in obtaining, verifying or presenting the information and preparing the database, and it protects against the extraction or re-utilisation of material from the database, including the systematic and repeated extraction or re-utilisation of insubstantial parts of the database.  The database right lasts for 15 years, but can in effect  be perpetually renewed by making substantial further investment in updating the database.

Any database created between 1st January 1983 and 31st December 1997 has the protection of database right for 15 years from the 1st January 1998, and this is in addition to any copyright protection which the database may still have.

It is particularly interesting that the database right has been introduced to reward investment as distinct from creativity, whereas copyright is generally conferred in order to reward and encourage creativity.

 

Legal Notices

This website is operated by BM Nyman & Co, a law firm based in North London, UK.

BM Nyman & Co is authorised and regulated by the Solicitors Regulation Authority. Its SRA number is 00291697.

Solicitors are required to comply with the Code of Conduct issued by the Solicitors Regulation Authority – it can be accessed here

Sole Principal: Bernard M Nyman

Address: BM Nyman & Co, 25 Limes Avenue, London N12 8QN, UK

Tel: +44 (0)20 3601 4163

Fax: +44 (0)20 8445 2852

Mobile: +44 (0)7917 413 154

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VAT Registration Number: GB 726 0557 39

Disclaimer - Important: Please Read Carefully

The material on this website is given for general information purposes only, and nothing on this website constitutes legal or other professional advice. There does not exist a solicitor-client relationship by reason only of your visiting and viewing any of the information contained on this website.

If you require advice on a specific legal problem, transaction or matter, then you should consult an appropriately qualified lawyer.

BM Nyman & Co does not advise on matters other than under UK law.

BM Nyman & Co makes no warranties, representations or undertakings about:

(i) any of the content of this website (including, but not by way of limitation, as to the accuracy, completeness, quality, currency or fitness for any particular purpose of any such content); nor

(ii) any of the content of any other website that is referred to on this website or linked to from this website.

BM Nyman & Co does not endorse, approve or have any control over the content of any 3rd party website, and therefore BM Nyman & Co does not accept any responsibility or liability in respect of the content of any such website nor for the consequences of your visiting any such website and relying on any such content in any way whatsoever.

Copyright notice

The content of this website is protected by copyright. © Copyright BM Nyman & Co 2009. All Rights Reserved.

You may read, print and download material from this website for your private use.

You may not commercialise or otherwise copy material from this website without our prior written permission.

You may link to this website, but in doing so, you must not give the misleading impression that the content on this website is yours or that this website is connected with yours or that BM Nyman & Co approves or endorses the content of your website.

You may not frame this website or any part of it without our prior written permission.

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Online dispute resolution

If you are a client and we have made a contract with you by electronic means, you may be entitled to use an EU online dispute resolution service to assist with any contractual dispute you may have with us. This service can be found at http://ec.europa.eu/odr.
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Privacy Policy

1.      Online privacy practices

Your right to privacy is important to us.

We are keen to strike a fair balance between your personal privacy and ensuring you obtain full value from this website.

We are fully registered under the Data Protection Act 1998 and ensure we comply with all protection the Act affords to you. Further information on the Act is on the website of The Information Commissioner’s Office.

2.      Subscription

In some areas of our website, we ask you to provide information that will enable us to enhance your site visit or reply to you after your visit. This would include where you register to obtain downloads or provide feedback to us through the contact form or when you complete any online survey we may offer from time to time. When you do, so we ask you to give us your name, email address and other personal information that will be needed to supply the services to you. In relation to online newsletters you can ‘unsubscribe’ at any time. We may use your personal data for future email mailings, support, notification of new products or services or new versions, general correspondence regarding the products and services and correspondence which may relate to you. If you would rather not receive future marketing emails from us please inform us by email at This e-mail address is being protected from spambots. You need JavaScript enabled to view it . Such use is strictly in accordance with the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003. Every automated email from us will come with an easy to use unsubscribe instruction and you can be removed from our lists at any time, although this can take up to 30 days to effect. Your details will never be sent to any third party.

The information you provide will be kept confidential and will be used only to support your relationship with us. We will not disclose or sell your information except if we sell this firm or merge with another legal practice.

3.      Trading from our website

We do not currently offer the purchase of any products or services directly from this website. However, if we do so at any future time, you can be assured that security of your information will be given high priority. We would use industry-standard Secure Sockets Layer (SSL) technology to allow for the encryption of:

(a)      potentially sensitive information, such as your name and address; and

(b)      critically-sensitive information like your credit card number.

4.      Cookies

We do not use cookies (defined below) for collecting user information from this website and we will not collect any information about you except that required for system administration of the Web server and otherwise as described above.

Cookies

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5.      Further information on data protection and personal privacy

For further information from us on data protection and privacy contact:

The Data Protection Manager, BM Nyman & Co, 25 Limes Avenue, London N12 8QN

Facsimile: +44 (0)20 8445 2852

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Information on the Data Protection Act 1998 is also on the website of the Information Commissioner’s Office at http://www.ico.gov.uk/