Step by step copyright analysis

Copyright protects the expression of an idea, not the idea itself. Accordingly, when you’re analyzing copyright, you must first start by identifying whether there is a work in which copyright can exist. This slide sets out the main types of work in which copyright can exist. They can be divided into two types. Literary, dramatic, musical and artistic words known together as LDMA. These are traditional copyright works, which protect the authors, writers, composers and designers of those works. The second type is entrepreneurial works. Films, sound recordings and broadcasts. These offer protection to people who take the time to invest in creativity. Producers, editors, broadcasters and publishers for instance. Copyright will exist in these works automatically without the need to register the work.

Copyright is a multilayered item, and multiple copyright works may exist in one commercial digital product. Think of a song that you might stream from an artist’s website. There will be a whole host of different copyright works. The lyrics of the song will be a literary work and copyright owned by the writer of those lyrics. The underlying musical score will be a musical work owned by the composer. The song you’re listening to with the artist’s voice will be a sound recording owned by the production company. The stream itself may be protected as a broadcast work. The next step is often at the simplest for digital copyright works, to check that copyright subsists in the work.

First, only a work which is original is protected by copyright. But this is a very low bar, and in general terms means that the work itself is not copied from an earlier work. Secondly, the term of copyright must not have expired. The term of copyright for LDMA works is the life of the author plus 70 years. For most digital works, the term of copyright will not be an issue. You need to check who the owner is. The owner of a work is generally the author, but if made by an employee will be owned by their employer. Copyright is a property right which can be bought or sold, called an assignment.

So the right may have been assigned by the author to a new owner. The third step is the key step in relation to digital copyright, infringement. This slide sets out the exclusive rights given to a copyright owner. That is the rights they can take against another person if that person is undertaking one of these acts with respect to their work. The two exclusive rights which most often apply in cyberspace are highlighted on this slide. These are the rights which prevent copying of the underlying work and the right to communicate the work to the public. We will look at the practical effect of these exclusive rights in the next slide.

We can see here some of the very common actions we all do in cyberspace. We probably do at least one of these actions every day. But think about how the technology works for each of these actions. When you download, you make a copy. Even when you stream audio visual materials, there are copies made through caching to facilitate the stream. Technically therefore, the very act of operating in cyberspace means you are likely to be infringing a copyright work. At the outset, in many cases, a copyright owner may have given permission for their work to be copied. In some cases, this permission may even be implied.

For example, if you operate a website, you are inviting people to browse that website even though that may technically involve copying. There are also some key exceptions spelled out in the law, known as Permitted Acts. When an action which may technically be an infringement is nevertheless permitted. However, these are surprisingly narrow in scope. In the EU, as opposed to the US, there is no general right of fair use of copyright materials. Rather, as you see on this slide, you have to show that your use comes within one of the specific exceptions in the law. For example, parody, for memes. And, in addition, that the use itself is then fair.

There was also an exception for transient copies which are incidental to the main technological process. Moreover, there is no general exception for private and domestic use of copyright work as many people often mistakenly think. So let’s put our step analysis into practice. This slide contains two very common types of action in cyberspace, browsing and downloading. When we browse, we technically create copies of the work browsed in our device used to access a website. However, because these copies are transient and incidental to the browsing, this act will be permitted. On the other hand, when we download an image and post on social media, this is also clearly copying, but there is no corresponding permitted act here.

The use has not transient, and there is no general fair use exception. Yet every day, millions of images, text and audio visual materials are copied and posted online. The sheer scale of the Internet, the costs and difficulty of taking civil legal action, and an adverse publicity, make it implausible for rights owners to enforce their copyrights against ordinary law abiding members of the public. This means that rights holders wish to take action against the facilitators, the online platforms who we will consider next. We will now move on to a short quiz to test your understanding of this topic so far.