Monday, June 29, 2009

Copyright - What is It? by Julian Boote

Artists, writers, innovators, and fact creative and business people from all backgrounds; mostly those starting out, but even some with a level of experience in their field behind them, have at some point or another realized they've had misconceptions about what copyright is, how it works, for what types of creative work, and what it can do for them.

So, let's get started, and perhaps with the most obvious questions anyone may have about copyright; what is it, and why does it exist in the first place?

Let's start with the latter question first.

Why copyright exists

Imagine this scenario; you build a cottage, say, to your own design. It's a beautiful, Tudor-style, thatched roof affair, with a small, well-kept garden, and a breath-taking view of rolling, verdant green hills offering spectacular sunsets in the evening. Now imagine someone finds out about your unique, very attractive cottage one day, and moves in while you're out. You come home to suddenly find you can't get back in, and this squatter inside is claiming they own your house, that they built it even, and worse, they've started renting out the back bedroom for a pretty penny. To cap it all, they're now building duplicate cottages matching your design down the road to sell and earn even more money. Now imagine there was no law in existence to give you the opportunity to re-claim ownership of your property and no means to stop the usurper or win restitution from them for their actions.

Transfer this - admittedly crude - analogy to creativity, and that's why copyright exists.

I like how the Irish Patents Office(1) puts it on their website with regards the Nature of Copyright:

"First, persons who create works of the intellect or who invest in their creation and dissemination are entitled as a matter of human right to secure a fair return for their creativity and investment.

Secondly, unless the rights of creators and investors to a fair return are supported, the community as a whole would be impoverished by the fact that, in many cases, these works would not be created or developed."(2)

Our civilization progresses through creativity and innovation. But for creators to create, they need to eat, they need to live, earn money, receive recognition for their work and the stimulus to keep striving when the going gets tough. Copyright exists therefore to make this happen and help the innovators earn revenue from their creations. Copyright exists to promote creativity and help creative people live from their creativity. Copyright exists because it makes creative and business sense for copyright to exist.

If a writer earns money from their work, they can earn the funds to keep writing. If an artist earns money from the licensing and manufacturing of images of artwork, they have income so they can invest their time productively in more projects. Furthermore, copyright exists to encourage innovation and prosperity, for society as a whole as well as for the individual doing the innovating.

Take copyright away and you effectively tie the hands behind creatives' backs. Imagine a world culturally, creatively, industrially and economically deprived because its innovators weren't given the reward for - and the power to protect the use of - their endeavours.

With that in mind, lets put my cottage analogy into proper context now; you're a creative person, aren't you? Imagine every time you created something, someone could come along and copy it, claim it as their own and very likely make money from it, and without fear of consequences because there was no law making their actions punishable. You'd very soon give up creating wouldn't you? What'd be the point of all that hard work when others could reap the credit and the reward?

Fortunately for us, that's not how it is in the real world. Lets read again what the Irish Patents Office says; that it's a "...human right to secure a fair return for their creativity and investment." I say again, nicely put.

So that's why copyright exists.

But just what is copyright?

Copyright is...

If you consider my crude cottage analogy again; it essentially establishes what copyright is... a property right. But a property right that applies, not to land or buildings or vehicles, but to products of the human mind... of our intellect. Creative products, such as literary, dramatic, musical or artistic or filmic work.

And what can one do with this "intellectual property" right?

Well, copyright has some similar but also different entitlements to other forms of property right, specifically allowing the copyright owner (or owners) to:

copy, lend and distribute their work
license others (i.e. grant written permission) to use the copyright owner's work
adapt their work or licence others to do so (e.g. adapt a book into a movie)
sell their created work - their intellectual property - to others, and, importantly...
have powers to stop wrongful infringement of those rights by third parties, i.e. the copying and exploitation of the copyright owner's work without their permission, as well as...
obtain recompense in the form of compensation or damages for infringement where loss of revenue has been discovered.
This applies to a copyright owners work, whether or not it's been published, exhibited or otherwise released to the public for their consumption.
Not only this though...

Moral Rights in copyright

A creator and commissioner of a copyrighted work is also entitled under copyright to other rights relating to their work. Called "Moral Rights", these are:

the right to be identified as the author (or artist, or photographer, or composer, or director etc.), and to stop a work being falsely attributed to them
the right not to have their work subjected to derogatory treatment (alteration, re-arrangement or deletion) by others; "derogatory treatment" being where the resulting work is mutilated, distorted, and can damage the creator/authors reputation
the right to privacy when it comes to certain photographs and films (e.g. a commissioner of private photos has the right not to have them published or exhibited to the public where the photos become copyright works)

Here's some examples of these above three points:

I've asserted my moral right to be identified as the author of this article; a right I have under law to do so(3). Were this a fictional book, and it was adapted into a movie, I'd also have the right to be identified in the movie as the author of the source novel - unless you set aside the right. Conversely, Alan Moore, whose now legendary unhappiness at the treatment of adaptations of his graphic novels and how he feels they've reflected badly on his original work, has prompted him to demand his name be removed from the movies credits, such as Watchmen.

If for some reason, J K Rowlings Harry Potter series of books had been knowingly and deliberately credited as my work and not hers by someone else, both she and I could stop it, due to false attribution.(4)

If during the editing of this book, I'd felt a third party (an editor, a publisher or printer) had done a hatchet job on all my hard work, I could not only let it be known how unhappy I was with this mistreatment, but I'd have the right to stop it too.(5)

Finally, the photo-portraits of my significant other and I which we paid a professional photographer for, hang on the walls where we live... and nowhere else without our say-so.(6)

See how Moral Rights work?

Now I need to mention there are however exceptions to Moral Rights; they can't be asserted when copyrighted works are computer programs or computer-generated work (created without human intervention), or for a typeface design. Also, if the creator/author hasn't asserted their right to be identified as the creator/author if that right applies, the Moral Right hasn't been violated. In addition, if the creator/author works for an employer who does/will own the copyright of the work you produce, you will not have this right either (more on this "Work Made For Hire" later).

Who owns copyright

Now that we know the "what" and "why" of copyright, lets find out the "who"; just who this "copyright owner" I've mentioned is:

The copyright owner is the person or persons who created the work that is copyrighted.

You might well have guessed that already.

Under copyright law then, creatives are usually the first person(s) granted ownership of copyright over the work they've created, as outlined above.(7) So if you're someone who's created a copyrighted work, the rights of ownership to that copyrighted work belong to none other... than you.

Lets be clear about this; no-one else but you, the creator of the copyrighted work, has these rights; not your mum, your partner, not nice Mrs Miggins down the road. (Yes, not even her either.) They're yours and yours alone (unless the created work has been a collaborative effort).(8) Exclusively. Nor will those rights be anyone else's unless and until you as the rights owner (sometimes called "rights holder" too) grants permission of usage - licenses - or gives away/sells - assigns - those rights.

Sounds good doesn't it? Works for me.

Having said that though...

There's ownership and then there's Ownership

People can get the wrong end of the stick when they hear about copyright ownership, so I thought - now that'd I've identified what copyright ownership is - it'd be worth clarifying what it isn't.

Now where you live you have products like DVDs, books and CDs all over, and you own them, right? I mean you paid good money for them, right? Sure you did. So you're their owner.

But does that mean you own the copyright subsisting in those products?

No, of course you don't.

Its the author and/or the publisher/distributor who retains the copyright. There's a difference then to owning a copy of a copyrightable work, and owning the copyright of that work itself. If you're forking out cash for, say a CD, you're buying ownership of that CD copy of that recording artists album, not ownership of the master recordings themselves, nor the right to produce copies of the CD you purchased either.

If more than one author or creator has been involved in producing the work, then joint copyright ownership applies. Song writing partnerships are a classic example, wherein by virtue of having co-written a song, they each become the joint copyright owners.

Then there's being hired to produce some work.

Were you hired? Check your copyright

We have all been employees, and many of us have been hired as freelancers. And in that time I guarantee you, we put something together, wrote or drew something for our employer. Does this mean according to what I've outlined above that copyright became ours?

Not necessarily.

You see, if we prepared this work as part of the duties of our employment, or if it was commissioned from us, if we're part of team employed on a project, or if in fact, we're building something under a "work made for hire" agreement, then in all likelihood the copyright will be our employers, not ours.

So are you in employment right now and creating works the rights to which you assumed were yours? Then take a look at the employment contract you signed with your employer. There are likely to be provisions in there which cover this question of ownership. Or are you yourself commissioning work from others? Then look at the purchase orders you send out or agreements you sign. Are there clauses in the terms and conditions which cover intellectual property rights for people you hire, so that those rights are yours upon payment?

So there we are; that's what copyright is, its purpose, and who gets to use it.

To learn more about copyright, please see our resource box.


(1) Irish Patents Office - "Copyright - A brief history"
(2) Irish Patents Office - "Copyright - A brief history"
(3) The Copyright, Designs & Patents Act 1988, Chapter IV Moral Rights, sections 77-79.
(4) The Copyright, Designs & Patents Act 1988, Chapter IV Moral Rights, section 84
(5) The Copyright, Designs & Patents Act 1988, Chapter IV Moral Rights, sections 80-81
(6) The Copyright, Designs & Patents Act 1988, Chapter IV Moral Rights, section 85
(7) The Copyright, Designs & Patents Act 1988, Chapter I, Subsistence, Ownership and Duration of Copyright, section 11.

(8) If more than one author or creator has been involved in producing the work, then joint copyright ownership applies. Song writing partnerships are a classic example, wherein by virtue of having co-written a song, they each become the joint copyright owners.

About the author Julian Boote.

Julian is the co-founder of duly noted® limited.

Are you worried about effectively proving when you created your intellectual property? Concerned you'd lose all your work in a worst case scenario?

We were too.

Being creative people ourselves, we'd learned over the years the value our work can have, the money it can earn, and the importance of copyright registration as an aid in the protection and validation of our ownership rights. We also learned (the hard way!) the need to back-up our work...just in case.

If you would like to learn a whole lot more about copyright, please visit

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