Workbook on Digital Private Papers > Legal issues > Intellectual Property Rights
Intellectual Property Rights
Introduction to copyright
What is copyright?
Copyright in its broadest sense is a right protecting against unauthorised use of a work. Copyright starts at the point of creation and no formal registration of a copyright is required in the UK. The 1988 Copyright, Designs and Patent Act (CDPA) is the key piece of legislation dealing with copyright matters in the UK. This Act has been subject to a number of significant amendments to harmonise it with European law and international conventions. A key amendment took place in 2003 which brought the Act in line with the EU directive on Copyright and Related Rights in the Information society (EU Copyright Directive) 2001.
The 1988 CDPA can be viewed at the Office of Public Sector Information's website. It should be noted that the text given here is that as passed in and does not include the key EU amendment. For an unofficial consolidated, although not necessarily up to date, text see the Jenkins Index to the Copyright Designs and Patents Act 1988.
What does copyright protect?
Copyright is a negative right which restricts how people, other than the person(s) owning the copyright, can use a copyrighted work. Copyright holders hold exclusive rights in their work and have the authority to restrict or authorise:
- Copying the work.
- Providing copies of the work to the public.
- Renting or lending the work to the public.
- Performing, showing or playing the work in public.
- Broadcasting the work.
- Making an adaptation of the work.
Copyright covers a wide range of work including literary, sound recordings and typographical arrangement of published editions. 'Literary works' are defined as any work, other than a dramatic or musical work, which is written, spoken or sung. Indeed, literary extends to what we may think of as mundane and ordinary. For example, a memo sent by a politician's chief of staff would fall under 'original literary work'. 'Original' in this context means that the work must have been created by the author and not copied from elsewhere. Some degree of skill, labour and judgement must also have been involved in its creation.
Financial assets v moral rights
Historically many IPR laws were devised to protect inventions and processes in the industrial world; for this reason intellectual property rights are also sometimes referred to as 'industrial and intellectual property rights'. Copyright is of greatest importance to those who survive on income generated by their creative works, for example writers and musicians. However, for many in the academic world, moral rights (the right to be attributed as the author) are more important. It is likely that in many archive collections it is the 'moral right of authorship' rather than the need to protect a (potential) financial asset which will be most significant to the rightsholder. For this reason the cataloguer must be at pains to attribute authorship carefully. This will be crucial when creating IPR metadata. Perhaps equally important to the 'moral right' of authorship is the right not to be falsely attributed as an author of a work.
Who owns copyright?
Copyright is automatically vested in the creator of a work, unless that work was completed in the course of employment and falls into the creator's job description. Copyright is personal property; it may be bought, sold, leased, or passed on by the owner by way of a will. In most cases the copyright owner is the author or the author's legal heirs, unless copyright has been explicitly bequeathed or assigned elsewhere. Although copyright may be sold on, the 'moral rights' of authorship will continue to reside with the author and his heirs.
Public Records and Crown copyright
It should be noted that Crown copyright subsists in all copyright works produced by officers of the Crown during the course of their duties, in accordance with section 163 of the CDPA 1988. Records created by a politician while in ministerial office and acting in that capacity will be categorised as Public Records and be subject to Crown copyright. It is possible that a personal archive may contain Crown copyright material; the relationship between a politician's 'personal archives' and their ministerial 'public records' must therefore be explored and explained by the cataloguing archivist.
Guidance on Crown copyright is available from the Office of Public Sector Information.
What could happen if copyright were infringed?
An infringement of copyright could result in a civil action by the injured party. The civil courts largely enforce intellectual property laws. There is no need for any prior assertion of rights; copyright infringement can be halted by an injunction and damages may be awarded to recompense the rights owner. The damages awarded in a case against an academic library are likely to be small but the costs could be very substantial, especially as the loser is likely to be liable for the winner's costs as well as his own. For example, in 2006 Michael Baigent and Richard Leigh claimed that the novelist Dan Brown (author of The Da Vinci Code) had infringed their copyright in their work (The Holy Blood and The Holy Grail). The claimants lost their case and were ordered to pay legal costs of around £1.3m.
Although civil action is more typical, breach of copyright can also result in criminal prosecution if the activity is on a commercial scale. Penalties include imprisonment for up to two years, as well as fines and forfeiture of the material in breach and of the equipment used in its production.
