Published by Frederick Noble on 25th June 2012
We often receive enquiries about how to apply for copyright protection, and many people are surprised to learn that in fact they do not need to apply at all. Copyright subsists automatically in literary, dramatic, musical and artistic works, films, sound recordings, and the typographical arrangement of published editions. Literary works are taken to include computer programs, databases, and other compilations.
Although there is no formal registration process in the UK, there are some steps which may be taken to ensure that you are able to protect your work against copyists, and increase the likelihood of successful action against an infringer. Firstly, it is useful to assert that the work is copyright, stating the owner of the copyright and the date.
© Albright Patents LLP 2012
By making the above statement, it will be practically impossible for anyone copying this article to argue that they were not aware that copyright existed in the work, making the defence of “innocent infringement” unavailable. Note that it is important to include the date. Since copyright only subsists for a limited time, it might be possible that a person would reasonably believe that the copyright in an undated work had expired.
As well as asserting copyright in your work, it is sensible to keep good records of when works were created and updated. If you can provide objective evidence of how and when the works were created, then this will make successful enforcement more likely in the future. Some unofficial copyright registration services exist, and claim to assist with providing this evidence. However, it is difficult to advise the use of such services, since obtaining a registration will only really prove that you had access to a copy of the work on a particular date. Sending a copy of the work to yourself by recorded delivery and not opening the envelope is likely to produce exactly the same level of evidence. Even better would be a complete and dated record of drafts and source material.
It may also be sensible to consider how you can prove that an infringer has actually copied. Copyright protects only against copying so, if an alleged infringer can argue that they created their work independently and without reference to yours, then they will not be liable. Clearly an exact reproduction of a substantial portion of text would be prima facie evidence of copying, but where changes have been made it may be more difficult to prove that copying has taken place. For certain types of work, it may be possible to set ‘traps’ for a possible future infringer. In a computer program, for example, making deliberate misspellings of some words within the source code would not affect the operation of the program or necessarily be apparent to a user. However, if a similar program appeared in which the spelling errors were the same, it would be more difficult for the accused infringer to convincingly argue that they had not copied.
In the United States, copyright subsists automatically as in the United Kingdom. However, unlike the UK, the US government does provide an official registration service. Registering a work with the copyright office of the Library of Congress affords certain advantages if copyright needs to be enforced in the United States. It is also likely that a Library of Congress registration would provide the same, if not better, evidence of ownership than an unofficial registration service in any jurisdiction.
If you would like further advice on protecting your work, or are interested in registering your copyright in the US, please call or email. Initial basic advice is always free-of-charge.