|
Intellectual property rights (IPRs) are used to protect something
a person has created using their skill and innovation.
Rights within Intellectual Property
Intellectual property can be a complex legal area and there are
a number of rights that fall within it. They are divided into patents,
trade marks, design law and copyright.
Patents
Patents give the owner of the patent an exclusive right to use
an invention.
Trade marks
A trade mark is a mark identifying a product or service. If registered
it is a statutory right and the name of that product cannot be used
by anyone else.
Design law
This law is used to protect certain aesthetic and non-aesthetic
aspects of the appearance of articles using a combination of the
registered design system, the design right and aspects of copyright
law.
Copyright is an exclusive right to control an original literary,
dramatic, musical or artistic work, sound recording, film, broadcast,
cable programme or the typographical arrangement of a published
edition. Copyright holders are able to produce copies and adaptations
of the works listed. Moral rights are rights retained by authors
regardless of who owns the economic rights.
Copyright
It is extremely important for people working in the media to
understand copyright as it determines how work can be used for
broadcast or in an article, and establishes the right of a TV
company, writer or newspaper to exploit their own work, while
at the same time making it impossible for others to gain advantages
from it.
The English law of copyright is based on The
Copyright Designs and Patents Acts 1988. This law prevents
work being copied without permission and gives the copyright owner
certain exclusive rights to their works.
There are nine separate categories of copyright works and they
are divided into the following groups:
Authorial, primary or LDMA works:
- Literary works
- Dramatic works
- Musical works
- Artistic works
Entrepreneurial, secondary or derivative works:
- Sound recordings
- Films
- Broadcasts
- Cable programmes
- Typogrphical arrangement of published editions (the typography
right).
The
Copyright Designs and Patents Act requires that the authorial,
primary or LDMA works (literary, dramatic, musical and artistic
works) are original. However, although there is no such requirement
for entrepreneurial, secondary or derivative works, no copyright
will be exist if these works are simply reproduced.
There are many situations that can arise where you need to know
who owns the rights of a particular piece of work in order to
obtain the necessary clearances to use it. For example, if somebody
wrote a screenplay and managed to get a broadcaster interested,
and they then took it on board, you need to know who would own
the rights to the screenplay, or at least how to find out. Wherever
you work within the media it may be necessary to know how to obtain
the necessary permissions.
Copyright can only really be enforced by you, if you are the
copyright owner. There is no regulatory body as far as your own
personal right is concerned, but offences exist and are taken
very seriously. The Trading Standards do visit markets and car
boot sales and seize infringing copies of copyright material and
the punishment for infringement now is either an unlimited fine
or a maximum of ten years imprisonment. It is a criminal offence
to deal in infringing copies of CDs or DVDs for example.
If you as an individual, or your company, thinks that your work
is being infringed, it is classed as a civil situation and it
is up to you what action you take. In the design area, taking
toy fairs for example, there are people who you can pay to go
to a trade fare for you and look out for infringing copies.
Copyright lasts 70 years after the end of the year in which the
author died, and generally 50 years for derivative works like
recordings.
There are laws to prevent work being copied. The Patent Act covers
patents, The Trademarks Act exists to provide protection for trademarks,
The
Copyright, Designs and Patents Act is applicable to copyright
works and unregistered designs, and the Registered Designs Act covers
registered designs (amended in 2001).
These are the laws that create intellectual property. They state
the rights of the intellectual property owners with regard to what
they can do with the intellectual property. These are the laws that
define what you cannot do with intellectual property that does not
belong to you. This essentially is how infringement is prevented
and other relevant parties need a license or permission.
Quasi rights are also known as quasi intellectual property and
they are related to intellectual property. In the same way they
have a commercial value.
Moral rights
Moral rights have existed in some form for a considerable time,
but are new to the Copyright Act in UK Law. The first of the moral
rights is the right to be identified as the author of a piece
of work and this is a right that you must assert. It means that
you have assigned your copyright to somebody else, for example
if you are an author you could sign your copyright over to your
publisher. It means that although they own the copyright, you
have a moral right to still be identified as the author.
Defences and remedies
The defences to copyright are that it wasn't a copyright work
and if what you are doing falls within the category of fair dealing.
If you accuse somebody of infringing the copyright then they may
say that the work isn't original and that you should not have
copyright in it in the first place. They could also say that the
circumstances in which it is being used by you gives them a defence
for what they are doing.
The remedies if your copyright has been infringed, are damages,
and the court has the power to order `delivery up' of infringing
goods and the right to order that the goods be destroyed. Injunctions
are also a remedy to infringement of copyright. An injunction
is an order to stop what you are doing. If you go to the courts
and satisfy them that each side will be able to compensate the
other if you are wrong, an interim injunction may be issued. This
would happen before the court case is heard to stop any infringement
immediately.
Performance Rights
If you work in the media it is important to have a good understanding
of issues involved in performance rights. Whether producing an
original publication, programme, or using material that already
exists, you are required to clear any rights belonging to third
party contributors. You will at some point probably need to employ
actors, directors, performers, designers, musicians or writers
and if you do not gain the necessary permissions you can infringe
copyright, moral rights or performer's rights.
It is important at the outset of any media project to determine
whether you are going to clear copyright by applying for a licence
or whether you wish to acquire it outright. You must also decide
at the beginning of a project in which forms of media you are
going to exploit your work. It does make a difference if you are
using television, print or all forms of media, including the web.
It can be expensive to obtain rights clearance but it is a legal
requirement.
Licence agreements will usually set out the payment requirements
of contributors and the way fees are determined can vary. Organisations
such as the Producer's
Alliance for Cinema and Television (PACT) have negotiated
an agreement with The
Writers' Guild of Great Britain Agreement (WGGB) which sets
out minimum payments and terms of exploitation regarding contributors
so that individuals do not have to negotiate individually. Several
agreements like this exist in the television, film and music industries
and Equity,
the actors' union, has agreements with the BBC,
ITV and PACT
with regard to performers' rights.
If an agreement is made with a producer under collective bargaining
agreements this should also establish any rights or consents needed.
Music clearance
Usually some form of music is included in a programme either
under the titles or credits, as a theme tune, or to emphasise
drama or highlight actions. Musicians may also feature in the
programme and perform on screen. The types of music you can use
generally fall into three categories: specially composed music,
commercial music or library music.
The Mechanical
Copyright Protection Society will more than likely be the
first port of call when trying to obtain music rights whether
dealing with a composer, arranger, publisher, record company,
lyricist, orchestra or group, conductor, singer or single musician.
The composer, one he has written his music down on a tangible
form, is the first copyright holder and copyright exists for 50
years after the composer's death. However, the arranger may still
hold copyright on an arrangement even after a work has come into
the public domain.
If a song or piece of music exists on a soundtrack, there is
a copyright in the recording itself and all existing music needs
to licenced for your production or project. If you are recording
a live band or orchestra, there is copyright in a live performance.
The Mechanical
Copyright Protection Society (MCPS) is a society that represents
a large number of composers, writers and music publishers and
licences recordings on behalf of the copyright owners. They also
collect royalty payments for members and MCPS auditors will investigate
the use of any recorded music by television producers, record
companies or for other purposes.
The Mechanical Copyright is the right of a copyright owner of
a musical work or recording to make, or give permission for other
people to make recordings of it. The Copyright,
Designs and Patents Act 1988 covers the infringement of copyright
on musical works.
|
