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Ask a company director if they have any patents or trade marks, how they protect them, and how important they are to driving their company’s value, they should be able to tell you.
But ask the same director the same questions about copyright, and most will probably find it far more difficult to answer. The exceptions will probably be those involved in creative industries where copyright is recognised as fundamental to their business, and jealously guarded.
For those who don’t work in creative industries, copyright probably isn’t something they have ever really considered as having value, or that they can use to protect themselves.
Copyright is often overlooked when companies think about the valuable IP they own because unlike patents and trade marks which have to be registered via a legal process, is an automatic right in most countries.
That means whenever someone creates an original work and ‘records’ that work, they hold the copyright to it, without the need to register it.
Records, in this sense, can mean writing, film, photography, sounds recordings, drawings, paintings, architectural plans and many more. And ‘creation of the mind’ which is recorded attracts copyright protection. It’s not just for authors, film makers, musicians and artists; it covers any written or recorded works which are original and creative.
It can apply to business documents such as brochures, presentations and strategic plans, videos and photos a company uses in its marketing, sketches and drawings, web pages… And (and this is where tech companies need to pay attention) software code and, in some cases, databases.
So long as they are original, and so long as some creative thought went into making them, and so long as they have been recorded in some form, copyright can apply.
However, for companies there is a wrinkle. Because it is the first creator of an original creative work who usually gets the copyright, you will need to make sure freelancers or agencies you use, for example to write copy or develop marketing materials, legally assign copyright to your company.
The situation is different when the person creating the work is an employee of an organisation and is doing so as part of their normal duties, then the copyright owner will be the employer, rather than the employee.
Another point to bear in mind is that copyright protects the expression of an idea and not the idea itself.
So JK Rowling owns the copyright to Harry Potter and his world, and no-one else can use her characters or her world for books, films, toys, games and the like without her permission. But she does not have copyright over, for example, the concept of a school for witches and wizards.
Aside from a few relatively limited exceptions, it is illegal to copy a substantial part or take the essence of a copyright piece of work without permission.
How long copyright last for can vary. In the UK and most other countries, in the case of a literary work, it is 70 years after the end of the year the author dies; once that 70th anniversary passes, copyright lapses from the following New Year’s Day. That’s why you’ll sometimes see articles in the media and online about which famous author’s books have entered the public domain.
Things can be a bit more complicated in the case of films, TV programmes, and recorded music, for example, as there can be multiple ‘creators’. And when an author or creator is anonymous, then usually copyright lasts for 70 years from the date of first creation, use or publication. But for most companies looking to use copyright to defend their IP, this is likely to be irrelevant.
So how is copyright valuable to you?
Obviously, if your company is in the creative industries then copyright is very important to you, both in terms of direct sales and also in terms of licensing. But if you operate in other industries, such as manufacturing, food and drink, of any kind of tech sector where software is important, then copyright is still hugely valuable IP for you.
You may be able to generate income from licensing copyright materials, including brand characters, advertising and even brochures from your archives (as Kellogg does, for example), although that probably won’t be the case for most start-ups and scaleups. Software you license can also be protected by copyright.
Even if you aren’t operating in the creative industries, or generating software code, you can and should stop other people using your copyright material without permission. As more commerce moves online, then unauthorised use of copyright materials is becoming more widespread across ecommerce sites.
So, if you make a consumer tech product, watch out for people selling similar products who may be using your copyright materials – like brochures, guides, photos and even videos – to push their similar products. You can use copyright to stop them doing so.
You can also use copyright to keep confidential materials secret. Process documentation in words or diagrams can be a valuable business asset, along with other employee reference points such as handbooks. Notebooks and their electronic equivalents can also attract copyright as well.
And, as mentioned above, copyright also applies to software code, because in law it counts as a subset of literary works. Copyright protects both the uncompiled ‘source’ code and the compiled versions of software. Many companies rely on this protection when licensing revenue-generative software, and it also protects code that is only used internally and never intentionally shared.
Copyright also protects the design and structure of databases – what is called the ‘schema’ of the database — and protects the creative process of deciding what data to collect and store and in what format.
Depending on its nature, the data itself may or may not be protected by copyright. Unstructured or raw data contained in a compilation of data in a database is not protected by copyright; however, if substantial skill, effort and investment has gone into its collection, it may attract a separate form of IP protection called database rights. But that’s another article altogether!
