Copyright Overview

Rights Concerned

The owner of the copyright has the exclusive right to undertake or permit others to undertake acts restricted by copyright law. Copyright is infringed where a person undertakes or authorises another to undertake a restricted action without the consent of the rightful owner.

The restricted acts include copying the work, making the work available to the public, making an adaptation and copying or making available the adaptation. Copying may take place without reproduction being intentional.

Copying the work includes reproducing or storing the work in any medium. Storage in a medium would include scanning or capturing it in an electronic form. Uploading an image onto the Internet or sending it constitutes copying. Printing out copyright material constitutes in copying. The production in 3D of a 2D work involves reproduction.

The right to make it available to the public includes making it available through various means through which it may be accessed. This may include lending, renting or issuing copies to the public, performing, broadcasting or showing the work.

Adapting a work constitutes an infringement. This includes turning work from one format to another, such as adapting a play to a novel or vice versa. Other adaptations from one format to another may constitute infringement.

Copying

A substantial taking of another work may constitute copying. Works which are similar may be produced coincidentally. However, where it is shown that one author had access or another author’s work and there is striking similarities, the court may conclude that there was copying.

Copying may take place at high thematic levels. Ideas, however, are not protectable. There must be substantial taking of a significant part of the work. There must, however, be some element of causal effect from one to the other, even if subconscious.

The extent of copying may not be measured simply in quantity terms. If a key part is taken which is critical to the economic investment of the author, this may constitute a substantial taking. If the claimant’s work is taken by the defendant in order to save time and effort, there is likely to be infringement.

Some Limits

The temporary reproduction for technological purposes in the context of transmitting works between networks for lawful use is not an infringement. The act must have no economic significance.

Placing a literary or artistic work in a place to which the public has access does not constitute making it available to the public. Showing is limited to visual and audio works. It does not create a right to exhibit work.

It is not an infringement to play sound, broadcasting or cable programs in certain residences, prisons and hotels as part of amenities, exclusively or mainly for residents and inmates.

Where websites facilitate unlawful file sharing, they are likely to constitute authorising infringement. The making available of facilities such as computer or photocopying facilities,  does not of itself constitute authorising infringement.

Where a service provider has been notified that his media is being used to facilitate infringement, is so notified and fails to remove the material as soon as practicable, he may be liable for secondary infringement.

The Right

The copyright owner has the exclusive right to undertake certain acts and to restrict others from undertaking the acts. He has the exclusive right to use and exploit the work and make it available to the public. He may license or authorise others to use and exploit the work on the same basis on which he may do so himself.  The copyright owner may make an adaptation of the work.

Copying includes making copies or storing the work in any medium. This includes making a copy of a substantial part The right to make available includes the rights to allow copies on the internet public performance display showing display or play broadcasting, including a cable programme service, issuing copies renting copies lending copies.The right to make an adaptation includes a translation arrangement or alteration.

In order to qualify for Irish copyright, the person must be an Irish citizen, resident or domiciled or a company or partnership under Irish law.  Otherwise, copyright will arise when the work is first made available to the public in the State or there is another qualifying connection with Ireland.

Property Aspects

Copyright can be assigned or licensed. An assignment is an outright transfer. A licence is a consent to use on conditions and is generally subject to payment of a licence fee or royalty similar to a lease.

It may be exclusive or non-exclusive. It entitles the party with the benefit of the licence to use the copyright. An assignment or licence may relate to all or part of the copyright.

An assignment of copyright must be in writing and signed by the assignor.  There is no public system of registration of copyright.

A verbal agreement to assign, which has not been put into writing, may take effect as an equitable assignment. Where, for example, the relevant price has been paid and the terms and conditions of the agreement fulfilled, the copyright owner may be compelled to transfer.

A licence may be implied or may be written.  It need not be in writing. An exclusive right permits the licensee to do the permitted acts to the exclusion of others.

How Arises

Unlike many other intellectual property rights, copyright arises automatically. It is not necessary to register it.

It can be enforced by court action or the threat of court action. Copyright is protected by law when the work falls within the definition applicable to one of the relevant protected categories.

It is required that literary, dramatic, and musical work or database must be published,  recorded or fixed in some way. Before publication, it may not be protected. Copyright generally arises automatically on creation or publication. Copyright in literary,   dramatic and musical work does not exist until fixed in some way, such as writing or recording.

What is Protected

Copyright protects artistic, literary, dramatic and musical works. These terms have a wider meaning in copyright law than their everyday meaning.

Copyright protection extends beyond creative and artistic works in the commonly understood sense.  Copyright also protects commercial exploitation rights works such as recordings, films, broadcasts, cable programs, computer programmes and databases.

Copyright does not protect ideas as such. It protects the expression of ideas. Basically, copyright protects against copying. If two authors independently produce the same work, there would be no copyright infringement. To a large extent, copying has its everyday meaning in the context of copyright law.

Copying may be verbatim (or its equivalent) or it may be at a higher, less than literal level. The gist of copying is that the work of the original author is illegitimately taken and replicated. The copied work is not the work of its author, but that of the copied author.

There may be a question of degree and judgment as to whether copyright has been infringed in a particular case. In many cases, the copying will be self-evident.

Copyright law requires that the protected work is original in that it is the result of the author’s skill and labour. It is not necessary that the work has any merit. A compilation of lists may, for example, be protected by copyright. The work concerned should be the product of the copyright holder’s own efforts.

Literary Work

A literary work is one that is capable of being produced in a written form.  Writing includes traditional writing but also any code, notation or similar graphic representation The medium in which the writing is recorded does not matter. Literary, in this sense, refers to writing rather than artistic merit. A literary work may be written, spoken or sung.

A literary work includes a computer program. A computer program is protected as a literary work because it can be produced in written or coded form. A computer program of itself cannot be patented by itself.  If a computer program is used as part of the process of production of a product, it may be capable of being the subject of a patent.

Literary works include books and newspapers. It may also include letters and e-mails of sufficient length and substance.

Words by themselves would not be enough to constitute a literary work. The production in writing of a conversation is unlikely to be sufficient. The prompted recordings of children in “Give up yer oul sins” were not copyright. There should be some element of originality. A literary work may be .written, spoken or sung.

Dramatic Musical & Artistic

A dramatic work includes dances, mimes, plays and theatrical performances. It must be presented in a dramatic context.

Musical work consists of music but not words or actions to be sung or performed. The words may be protected as literary works.

Artistic works include paintings, drawings, photographs, architecture, artistic craftmanship,  lithographs,  woodcuts, prints and collages.

Enterpremeurial Rights

So-called entrepreneurial rights include sound recordings, films, broadcasts and cable programmes. Sound recordings include any fixation of sound, irrespective of the medium.  This may be digital, audiotape, CD etc. Film involves fixation of moving images in any medium, e.g. DVD videotape computer.

Broadcast covers most transmissions by wireless means for direct presentation to members of the public of sound,  data or a combination of them. Cable programs are carried over services which consist wholly or mainly of sending sound, image or data by means of a telecommunications system. The rights are enjoyed by the person who originates the relevant production.

Databases

Databases are protected by special database copyright. This is separate to any copyright in the content. The database is a collection of material which is arranged systematically and methodically, accessible by whatever means.  It excludes computer programs used in the making of a database.

A database may be a compilation such as a directory or could be held in electronic form. The data must be arranged systematically or methodically so as to be accessible. A database is protected where the selection and arrangement of content is the original intellectual creation of the author. The person who created the database is entitled to the database copyright.

Where substantial intellectual effort has been put into a database, it will qualify for copyright. This may involve substantial investment in obtaining and verifying the contents. The investment may involve human, financial and technical resources.  It must be substantial in terms of quality, quantity or combination.

Extraction and reutilisation of the database content may be restricted by the copyright. The following is permitted

• fair dealing for lawful private research and study;
• fair dealing for  educational purposes;
• acts done in the course of a public administration

A licence to use may be granted, but it would not generally permit repeated and systematic extraction. The database right endures for 15 years. If there is a substantial change, the period may re-commenced.

Term / Duration

The period of protection of ordinary copyright is the lifetime of the author plus 70 years. Formerly the relevant period was 50 years. Some older works receive greater protection when the extended period of protection was introduced under EU Directive.

The copyright in a sound recording shall expire—

• years after the sound recording is made, or
• where it is first lawfully made available to the public during the period specified in paragraph (a), 50 years after the date of such making available.

The copyright in a broadcast shall expire 50 years after the broadcast is first lawfully transmitted. The copyright in a repeat broadcast shall expire at the same time as the copyright in the original broadcast, and no copyright shall subsist in a repeat broadcast which is transmitted after the expiration of the copyright in the original broadcast.

The copyright in a cable programme shall expire 50 years after the cable programme is first lawfully included in a cable programme service. The copyright in a repeat cable programme shall expire at the same time as the copyright in the original cable programme, and no copyright shall subsist in a repeat cable programme which is included in a cable programme service after the expiration of the copyright in the original cable programme.

Copyright in a literary, dramatic, musical or artistic work or original database expires 70 years after the death of the author. In the case of a film, the 70 years run from the date of death of the later of the following; director; screenplay authors’ dialogue authors and the author of the music specifically composed.  Copyright in a sound recording expires 50 years after the date on which it was made available to the public.

Owner

The owner of the copyright is generally the following.

• Literary, artistic dramatic or musical work; the author;
• Broadcast; the maker;
• Sound recording, the producer;
• Film; the producer and principal director;
• Cable programme; the  person providing same;
• Typographical arrangement; the publisher;
• Computer-generated work;  creators;
• Database; makers of the database and
• Photographs; the photographer

In relation to work created in the course of employment, this will generally belong to the employer unless otherwise agreed. Where works are commissioned, the copyright generally vests in the creator. The contract may licence or assign the copyright.

In some cases, there will be joint authorship where the contribution of each author cannot be separately distinguished. Different types of copyright can subsist in a single work.  For example, in a film that made the copyright in the script, screenplay, music and other aspects.

Scope of Domestic Copyright

The Irish copyright act protects copyright where there is a connection with Ireland or where copyright granted under the laws of another country are recognised.

Requirements apply to the connection of the author with Ireland, the country state or territory in which the work was first made available. In order to qualify for copyright protection, the author must be an Irish citizen or person domiciled (long-term home or ordinarily resident in a state recognised by Ireland for that purpose.

In the case of a corporate body, it must be incorporated under the law of such a territory. The relevant conditions must generally be satisfied when the work is first made available to the public.

The government has power to make regulations extending recognition to countries other than those recognised by conventions to which Ireland is a party. It may place restrictions and conditions and recognition.

International

The Berne Convention for the protection of literary and artistic works 1886 provides for basic principles of copyright law. The Berne Convention, concluded in 1886, was revised at Paris in 1896 and at Berlin in 1908, completed at Berne in 1914, revised at Rome in 1928, at Brussels in 1948, at Stockholm in 1967 and at Paris in 1971, and was amended in 1979.

The Convention is open to all States. Instruments of ratification or accession must be deposited with the Director General of WIPO.

Almost all countries worldwide are parties to the Berne Convention. There are approximately 180 members at present. A handful of countries are not signatories but are subject to most of the same obligations under the TRIPS agreement. These countries include Angola, Cambodia, Iraq, Iran, Ethiopia, Sierra Leone, Taiwan and Uganda. In some such cases, the territories concerned do not have a full international status but are party to TRIPS agreement as observers.

Collection Societies

So-called Collecting Societies license copyright material. They grant licences and collect royalties and behalf of particular sectors.

Collecting societies must register with the  Register of copyright licensing bodies in the Patent Office.  Details of the classes and levels of charges levied must be made available to the public.