How do you Protect your Copyright
Copyright of a musical work begins automatically once a piece of music is created and documented or recorded. In the UK, this is detailed in the Copyright, Designs and Patents Act 1988. Copyright in a sound recording is separate from any copyright in the words and music contained in the recording. The first owner of the copyright in a sound recording is usually the record producer. The composer of the music in a sound recording will be the author of the musical work and will usually own the copyright in that music. The lyrics of a song are protected separately by copyright as a literary work and will usually be owned by the person who wrote them. Sound recordings do not have to be original works but they will not be new copyright works if they have been merely copied from existing sound recordings.
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Works protected
In the context of music, the following categories of works are protected under UK copyright law:
Original literary or musical works (section 1(1)(a), Copyright, Designs and Patents Act 1988 (CDPA)) which are recorded in some way (section 3(2), CDPA).
Sound recordings and films (section 1(1)(b), CDPA).
Literary works
A literary work is defined as any work, other than a dramatic or musical work, which is written, spoken or sung, and therefore includes song lyrics. These would be protected as a literary work, while the accompanying music would be protected as a musical work.
Musical works
A musical work means a work consisting of music, exclusive of any words or actions intended to be sung, spoken or performed with the music (section 3(1), CDPA). The question of what constitutes "music" for the purpose of section 3(1) of the CDPA was considered by the Court of Appeal in Sawkins v Hyperion Records Ltd [2005] EWCA Civ 565.
Sound recordings
A sound recording is defined as a recording of: Sounds, from which the sounds may be reproduced; or All or part of a literary, dramatic or musical work, from which sounds reproducing that work or part may be produced. (Section 5A(1), CDPA.) Sound recordings are protected regardless of the medium on which the recording is made or the method by which the sounds are reproduced or produced (section 5A(1), CDPA). However, copyright does not subsist in a sound recording which is, or to the extent that it is, a copy taken from a previous sound recording (section 5A(2), CDPA).
Films
A film is defined as a recording on any medium from which a moving image may be produced, whatever the means of doing so (section 5B(1), CDPA). Film soundtracks are protected by copyright as part of the film when accompanying the film and by sound recording copyright in all other circumstances (section 5B(2), CDPA).
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Ownership of copyright
The general rule is that the first owner of copyright will be the author (section 11(1), CDPA).
Author: The author is the person who creates the work (section 9(1) CDPA). The persons taken to be the author include: The producer of a sound recording (section 9(2)(aa), CDPA), meaning the person who made the arrangements necessary for making the sound recording (section 178, CDPA). The producer and principal director of a film (section 9(2)(ab), CDPA). The "producer" of a film is the person who made the arrangements necessary for making the film (section 178, CDPA).
Joint authorship: Where more than one person has created a work, the work may be classed as a work of joint authorship if the contribution of each author is not distinct from that of the other authors (section 10(1), CDPA). If it is distinct, two or more separate works will exist (see Fisher v Brooker and another [2006] EWHC 3239 (Ch)). In general, each joint author has the same rights as a sole author. However, one joint author may sue any of his other joint authors who does any of the acts restricted by copyright (including reproduction) without his consent (section 173(2),CDPA).
Duration of copyright
The basic position under the CDPA, as it applies to works made on or after 1 August 1989, is summarised in the table below. Copyright protection generally runs from the date of creation or recording of the copyright work until the expiry date set out below. For literary and musical works, the expiry date is determined by the calendar year in which the author of these works dies. For films, the expiry date is determined by the year in which the last of the following persons (the specified persons) dies:
Principal director.
Author of the screen play.
Author of the dialogue.
Composer of music specially created for and used in the film.
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What rights does copyright protection give?
There are two different classes of infringing act − acts of primary infringement and acts of secondary infringement. Acts of primary infringement are "strict liability" offences, meaning that no knowledge or intention is required to be shown on the part of the defendant to establish liability. For acts of secondary infringement, the defendant is required to have had certain specified knowledge, or reasonable grounds for having such knowledge, at the time of the offence. The Digital Economy Act 2010 sought to introduce a new regime for tackling online copyright infringement. However, the initial obligations code of practice required to underpin these obligations has yet to be agreed and it is now unclear whether it will ever be agreed. See Practice note, Anti file-sharing measures under the Digital Economy Act 2010.
Acts of primary infringement
If a person does any of the following acts in the UK (known as the restricted acts) without the consent or licence of the copyright owner, he is committing a primary act of copyright infringement: Copying a copyright work. Issuing copies of the copyright work to the public. Renting or lending the work to the public. Performing, showing or playing a copyright work in public. Communicating the work to the public. Making an adaptation of a copyright work or doing any of the acts listed above in relation to an adaptation. (Section 16(1),(2), CDPA.)
Collective rights management
In July 2012, the European Commission adopted a proposal for a Directive on collective rights management and multi-territorial licensing of rights in musical works for online uses (see Legal update, European Commission adopts proposal for Directive on collective rights management and cross-border online music licensing). The aim of the Directive is to harmonise the regulation of collective management organisations and to create a level playing field for the transparent and effective management of copyright across borders.
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