There is often a misconception that, because under English law we do not have a way to register a copyright for a work, then there is little protection, but that’s really not the case.
Whilst we do not have an official copyright register in England, a work can in fact have automatic protection in accordance with the Copyright Designs and Patents Act 1988.
How does it work?
- The work must fall within one of the categories of works which include:
- The work must be made by a qualifying person or in a qualifying country; and
- The term of copyright must not have already expired
- Original literary, dramatic, musical or artistic works
- Original non-literary written work, such as software, web content and databases
- Sound recordings, films or broadcasts
- The layout of published additions
In general terms, the copyright is usually owned by the author or creator. However, there are exceptions which include works by employees and commissioned works.
As a general rule, the copyright in works created by employees in the course of their work is owned by their employer, where there is no agreement to the contrary between them.
For commissioned works, the position is reversed and the copyright is usually owned by the creator who was commissioned to create the work. It is therefore essential to deal with this issue at the outset by agreement and assignment before the work is commenced if you wish to own the copyright in any work you have commissioned.
What action can I take?
Taking the example of a website, if you believe you can show that you are the website author/creator, then the copyright for that website should belong to you.
We are often approached by clients asking to advise them when they have found websites that are essentially copies of their own. Sometimes, it may be that it is simply innocent similarities given the nature of the businesses being the same. However, in extreme cases we have found complete ‘cut and paste’ jobs, whereby the infringer had copied significant parts of our client’s website to the extent that they contained the same spelling mistakes. In one particular case, the infringer had even retained a URL link to our client’s website!
In simple terms, we would recommend the following initial steps:
- Evidence – Locate and retain copies of both your own website and the infringing website together with dates and times of when they were obtained.
- Assess – Is it an innocent similarity as your websites are for similar purposes or is there more to it? Is there something unique about your website design and layout that they have copied? Is there any link between you and the infringer (such as a former employer of yours now working for them)? Could you have suffered financial loss – has a customer notified you of the other website? You should consider taking legal advice at this stage as to whether in legal terms there is a potential infringement of your website.
- Cease and Desist - Once you have decided to take action against the website infringer a ‘cease and desist’ letter should be carefully drafted and sent pointing out the issues and the infringement and inviting them to immediately remove the infringing material. You could also request that they provide you with various undertakings with timescales for removal and to undertake that they will not do it again. It may also be appropriate to seek payment of damages for any financial loss.
The above is of course a simple overview and the key here is to act promptly as soon as the issue is spotted. If you fail to do that, you may later struggle to take action against the infringer.
Copyright is a complex area of law and the above is no more than a general overview to enable you to consider your first steps. We of course highly recommend that you seek prompt legal advice before approaching a potential copyright infringer direct.
If any of the issues raised in this article are affecting you, or if you seek advice on any of the above, Berwins are here to help. To get in touch, simply email Natasha Guest at firstname.lastname@example.org or call 01423 543141.