Copyright

History of copyright

Early days and the common law

The history of copyright law originated with the introduction of the printing press in the late fifteenth century, although before Gutenberg invented moveable type in about 1439 the need for laws to protect those who earned their livelihoods from writing, printing and publishing remained small. As the number of presses and the ease with which large numbers of copies could be printed grew, the authorities sought to control the publication of books by granting printers a near-monopoly on publishing. To the Tudors, printing was a means of producing seditious literature, and the solution was to require every book published to be licensed by the Stationers’ Company, the printers’ guild. The pattern of the law reacting to the introduction of new technologies was set.

There had long been a common law copyright, which was supplemented by the Stationers’ monopoly. The system survived revolution, civil war, Commonwealth, Protectorate, Restoration and the Glorious Revolution, the Licensing Act of 1662 confirming that monopoly, establishing a register of licensed books to be administered by the Stationers’ Company. The 1662 Act lapsed in 1695, leading to a relaxation of government censorship, but the publishers found themselves exposed to cut-price competition from imports (especially following the creation of a common market between England and Scotland by the Act of Union in 1707, presaging the problems encountered in another common market 250 or more years later) and in 17091 Parliament enacted the Statute of Anne to address their concerns.

The 1709 Act set down the important principles of ownership of copyright and a fixed term of protection of copyright works (at that time, a mere fourteen years which was ‘returned’ for fourteen more if the author was still alive when the initial term expired). It conferred on publishers – not authors – the ‘sole right and liberty of printing books’. By limiting the term of protection and providing that once a copy was sold the copyright owner no longer had control over its use (an early statement of the doctrine of exhaustion), the statute prevented booksellers gaining a monopoly and created a “public domain” for literature. But the Act was not a huge benefit to authors: while it did give them copyright, because an author had to assign it to a bookseller or publisher before he could earn from it the benefit was minimal.

Statute and common law

Copyright existed at common law long before Parliament intervened with the Statute of Anne in 1709 (or 1710) and common law copyright was perpetual, but that statute was held to have pre-empted any further claims in common law, in the great decision in Donaldson v Becket2 which concerned cheap imports from Scotland – exactly what the industry had feared since the beginning of the century (the work in question being James Thomson’s epic and extremely popular poem The Seasons, which later in translation served as the libretto for Haydn’s oratorio of the same title). Unpublished works, on the other hand, continued to enjoy common law copyright until the Copyright Act 1911.

From 1775 onwards, the history of English copyright is one of gradual increase in its scope. First, in Bach v Longman (1777) 2 Cowp 623, the word ‘books’ in the 1709 Act was interpreted to include proted musical scores, which illustrates nicely how important it is to use tecnologically-neutral language. What use would a law protecing books be today?

(artistic works being brought within its protection, then photographs, films, sound recordings, broadcasts and so on, as new technologies developed) and its duration (life plus 50 years being settled on in the 19th century, and extended in the 20th in the interests of harmonisation in the European Community). The Illustrated Story of Copyright by Edward Samuels is an interesting and innovative introduction to the whole subject, albeit from an American perspective, and is available in its entirety online.

Civil law copyright

The UK’s law of copyright is the oldest in the world, and the second-oldest is the French. However, even if you know little French you will be able to spot that droit d’auteur is not precisely the same as what we call copyright, and further investigation will reveal that other countries in Europe, and beyond, are also talking about something other than copyright – Urheberrecht, Auteursrecht, diretto d’autore, derecho de autor, ophavsret, opphavsrett, upphovsrätt, авторское право, prawa autorskie, autorsko pravo (Croatian), 著作権 (chosakuken) (Japanese), 版权 (Chinese).

Whereas the UK’s law was initially designed to protect publishers, on the continent – throughout the civil law countries – the focus is on the rights of authors. The French law was put in place during the Revolution, to fill the gap left after the monarchy and the system of privileges it had created, was abolished, and then, like the curious and illogical habit of using the right hand side of the road, exported to most of the continent by Napoleon who, being left-handed, preferred to keep oncoming traffic on the side of his sword arm. The rights that entrepreneurs get in their work, rights in broadcasts, sound recordings and typographical arrangements (films being a special case) are not droits d’auteur because broadcasting organisations, record companies and publishers are not auteurs, but rather they are referred to as neighbouring rights (droits voisins in French) or related rights. In the UK, they are usually called copyright but where necessary are distinguished by calling them by the other titles.

Socialist systems

The approach to copyright in the Socialist countries differed materially from that in the rest of the world, and constituted a third system of copyright, but it is of little if any importance now and even in North Korea copyright law conforms to international norms. In the Soviet Union, for example, the term of protection was generally shorter than in other copyright systems, and the law was restrictive about copyright being inherited. There were extensive “freedoms” - for example, translating was something that could be done without the copyright owner’s consent – and the range of exclusive rights enjoyed by the copyright owner was limited in law as well as being extremely limited in practice. In the west, creative people would strike deals with publishers, record companies, film producers, broadcasters and so on: in the Soviet system, there was effectively only one buyer, the state. Moreover, the government set royalty levels and a state agency collected the royalties on behalf of the copyright owners. Legal theorists argued that the Soviet law did not give authors the right to exploit their own works, only to grant rights to organisations to exploit them.

So the copyright law of the socialist world was different from what we know, though not fundamentally so. What made it so very different was the context in which it operated: widespread censorship, discrimination in favour of socially useful works and nationalised enterprises as the only customers. Shortly after the Russian Revolution, although the old 1911 law remained in force (giving protection for life plus 50 years) the rights of deceased authors were nationalised to enable the revolutionary government to achieve its goal of making the classics of Russian literature available cheaply to the people. In 1957, during the Khruschev Thaw, the term of copyright protection in the Soviet Union was amended for those who had been posthumously rehabilitated: the post mortem element of the period would run not from when they died but from when they were rehabilitated. Copyright does not only reflect technological developments: it reflects culture and politics too.

International conventions

Copyright law is by definition international in its scope. Literature might need to be translated, but art and music speak to people throughout the world and if copyright only operated on the national level it would be of little use.

The Berne Convention for the Protection of Literary and Artistic Works is the senior international convention in this area. Dating originally from 1886, its development was instigated by Victor Hugo. It was revised in Paris in 1896 and in Berlin in 1908, completed in Berne in 1914, revised in Rome in 1928, in Brussels in 1948, in Stockholm in 1967 and in Paris in 1971, and was amended in 1979. The UK signed in 1887. The US did not join until 1989 (the Act was passed in 1988), because of concerns about registration and the mandatory copyright notice to both of which the US was accustomed but which Berne prohibited. It had 164 members in 2008, although now through the TRIPS agreement (with its near-universal membership) its basic requirements apply even more widely than that.

The Convention establishes the principle of national treatment as the key one in international copyright relations, subject to the comparison of terms rule. It prescribes minimum periods of protection and prohibits any formalities such as registration or deposit.

The Universal Copyright Convention, ratified in 1952 and in effect from 1955, was created under the auspices of the United Nations Educational Scientific and Cultural Organisation (UNESCO) but very much the work of the United States, which was not prepared to meet the requirements of the Berne Convention. It simultaneously appealed to developing countries and the Communist states which had their own reasons for disliking Berne. Even so, the Soviet Union did not join until 1973, just before a new version of the Convention would have required it to grant much more extensive exclusive rights to copyright owners.

It was based on the principle of national treatment, just like Berne, but the minimum period of protection was 25 years (the US gave 28 years from publication, which was renewable once, and to comply with the UCC the Soviet Union added 25 years to the lifetime of the author, previously the term of copyright protection) and it avoided mentioning the troubling subject of moral rights. The US did have to accept that it had to do away with copyright formalities, but this was made conditional on copyright owners placing a notice on making their work with a copyright symbol together with the copyright owner's name and the year of first publication (so, the requirement to give notice was waived only if notice were given).

The US also had to remove any requirement for foreign works to be registered, and to abolish the manufacturing clause. This last change provided the incentive needed to convince other countries that there was merit in creating a second international copyright system in parallel with the Berne Convention one.

Sources of Copyright law

The Copyright, Designs and Patents Act 1988

The 1988 Act contains a complete restatement of copyright law, repealing the previous 1956 Act in its entirety (subject to transitional provisions – and even the earlier 1911 Act sometimes still demands consideration). Part I of the Act deals, at length, with copyright (Part II deals with performers’ protection, which is related to but not identical to copyright) and other parts deal with other topics. It has since been considerably amended, most importantly by various EC directives.

Copyright harmonisation in the European Union

The EC has not embarked on a comprehensive programme of copyright harmonisation. The Treaties only allow it to propose harmonising legislation where the needs of the internal market demand it – in other words, where there is an effect on trade between Member States, or on the freedom to provide services. The approach is therefore a piecemeal one. To date, there have been six directives on areas of copyright law, and these are described in brief below: further details are contained in the text, in the appropriate place.

The Software directive (Directive 2009/24/EC, which repeled the original directive 91/250/EEC)

The EC has its software copyright directive to overcome problem that the Bundesgerichtshof (German federal supreme court) had held such works to be insufficiently creative to be protected: Inkasso-programm (GRUR 1991, 449, 452.).

The directive is implemented in the UK by the Copyright (Computer Programs) Regulations 1992 (SI 1992 No 3233). The provisions of that directive are dealt with in the following chapters where the sections of the Act are described. Implementation is not, as we shall see, complete: the European Commission produced a report on implementation throughout the Community in 2000, in which it highlighted the deficiencies in implementation in the UK and other Member States.

Rental and lending, and neighbouring rights (Directive 92/100/EEC, replaced by and consolidated in Directive 2006/115/EC)

The EC’s second copyright directive dealt with two types of acts that copyright owners had to be empowered to control, and also the whole field of protecting neighbouring rights – the rights that are called ‘copyright’ in the UK but which are treated rather differently in the droit d’auteur countries, as noted above. The restricted acts dealt with by the directive are the rental and lending of copyright works, the first of which had been covered in the UK legislation but only for certain limited classes of copyright works (basically, those most at risk from being rented out and copied overnight: sound recordings, computer programs and films). The second act, lending of copyright works, is dealt with in the UK in part by the public lending right, which rewards authors for the lending of their works by public libraries.

The directive is implemented in the UK by the Copyright and Related Rights Regulations 1996 (SI 1996 No 2967).

Cable and satellite (Council Directive 93/83/EEC )

The problems in the cable and satellite field were first to ensure that cable operators could readily get the permissions they need to retransmit material broadcast by terrestrial or satellite means, so the solution in the directive is a licensing one, and second that satellite operators should be subject to rules about their activities (in particular, about getting permission to include material in their broadcasts) which would be the same throughout the EC so that no copyright-free ‘haven’ for their activities could be set up. These are the issues addressed in this directive.

The directive is also implemented in the UK by the Copyright and Related Rights Regulations 1996 (SI 1996 No 2967).

Duration (Directive 93/98/EC, codified in Directive 2006/116/EC, replaced by Directive 2011/77/EU)

Copyright lasted for different lengths of time in different countries, with the result that material protected by copyright in one country might be out of copyright next-door. The directive stipulates what period of protection must be given to original works, films and neighbouring rights.

The directive is implemented in the UK by the Duration of Copyright and Rights in Performances Regulations 1995 (SI 1995 No 3297) and in part by the Copyright and Related Rights Regulations 1996 (SI 1996 No 2967).

The 2011 Directive changes the rules for the duration of copyright in a song, where the music and words were specifically written to go together: it will last for 70 years after the death of the last to die of the songwriting team. The new Directive also requires Member States to extend the protection of copyright in sound recordings from 50 to 70 years.

Database (Directive 96/9/EC )

Copyright protection for databases was diverse between Member States principally because of differences in the level of originality required before copyright would arise. The Directive harmonises the originality test.

The new originality test is set at a higher level than that which previously pertained in the UK.: it is the ‘author’s own intellectual creation’ test taken from Dutch and German law. For a database, this is a high level or originality to attain – too high in most cases – and the Directive therefore also introduced a special form of protection, known in the UK as ‘database right’ but referred to by the directive, opaquely, as a ‘sui generis’ right.

The directive is implemented in the UK by the Copyright and Rights in Databases Regulations 1997 (SI 1997 No 3032).

The Information Society Directive (Directive 2001/29/EC) and the 2003 Regulations

The Copyright and Related Rights Regulations 2003 (SI 2003 No 2498) are designed to bring copyright law up to date – or at least relatively up to date, given how much faster the technology moves than the law – to meet the challenges posed by the information society.

The copyright world has changed fundamentally since 1988, and distribution of copyright works is now often (perhaps one might even say usually) in the form of bytes rather than atoms3. The international copyright community recognised this in 1996, when, under the auspices of the World Intellectual Property Organisation, two new treaties (one on authors’ rights, the other on neighbouring rights) were adopted. The European Parliament and Council finally signed off on a directive on the harmonisation of certain aspects of copyright and related rights in the information society on 22 May 2001. This was hardly quick work, even by the relaxed standards of the European Community - the US had the Digital Millennium Copyright Act (DMCA) in place years ago to do the same job - although in its defence this was highly contentious legislation.

The Directive requires all Member States to deal in their legislation with three areas:

  • Restricted acts, namely the reproduction right (already covered in the 1988 Act), the right to control communication to the public of a copyright work and the making available to the public of matter protected by related rights, and the distribution right (again, already in the 1988 Act);

  • Permitted acts, allowing certain temporary reproductions to be made and optionally permitting other acts to be carried out, provided they comply with a three-stage test;

  • Technological protection measures and rights management information, which require to be brought within the legal framework of copyright law.

Article 8 of the Directive requires sanctions, both civil and criminal, to be effective, proportionate and dissuasive, requirements that are not readily translated into detailed legal provisions but which give rise to a raft of changes to the relevant parts of the Act.

There are also myriad small adjustments to be made, and it is these that give the implementing regulations most of their bulk. The legislation that implemented the software directive had to be changed, as did the rental and lending directive and the copyright term directive.

Resale right (Directive 2001/84/EC )

Some countries in the European Community – France in particular, where it is called droit de suite – protected the right of artists to a share of the proceeds of subsequent sales of their works. The European Commission identified this as an area requiring harmonisation, and the 2001 Directive was the eventual result. It was opposed tooth and nail in the UK, by the auction houses and the government on their behalf, and the Artist’s Resale Right Regulations 2006 (SI 2006 No. 346) which implement the directive take full advantage of the concessions available in it. In the UK, deceased artists’ estates do not benefit, and the extension of the law to them is now deferred until 2014.

Enforcement (Directive 2004/48/EC)

The Directive, which is not limited to copyright, requires all Member States to apply effective, dissuasive and proportionate remedies and penalties against those engaged in counterfeiting and piracy. It means that all Member States will have a similar set of measures, procedures and remedies available for rights holders to defend their intellectual property rights if they are infringed.

Orphan works (Directive 2012/28/EU)

Directive 2012/28/EU sets out common rules on the digitisation and online display of so-called orphan works. Orphan works are works like books, newspaper and magazine articles and films that are still protected by copyright but whose authors or other rightholders are not known or cannot be located or contacted to obtain copyright permissions. Orphan works are part of the collections held by European libraries that might remain untouched without common rules to make their digitisation and online display legally possible.

Rights management

The Commission Recommendation on collective cross-border management of copyright and related rights for legitimate online music services puts forward measures for improving the EU-wide licensing of copyright for online services. Improvements are necessary because new Internet-based services such as webcasting or on on-demand music downloads need a license that covers their activities throughout the EU. The absence of EU-wide copyright licences has been one factor that has made it difficult for new Internet-based music services to develop their full potential.

The future

Copyright law will continue to change as technology throws new challenges at it. The 1988 Act already looks middle-aged – its predecessor survived for 32 years, and the one before for 45 – but thanks to myriad amendments since it came into force, the legislative equivalent of cosmetic surgery, it looks younger than its years.

There is a great deal of debate in the copyright arena, and much innovation too. Recent years have seen the popularisation of Open Source licensing of computer software, and the Creative Commons approach to licensing of other works. The ways in which copyright is being used are changing, just as the environment in which copyright operates is changing. The European Union, as it now is (since 1 December 2009), has taken the lead in ensuring that Member States move forward in step – albeit several paces behind the technology that creates the challenges. This work cannot purport to over all the discussions that are taking place on the future of copyright: the best it can do is to describe new laws as they come into operation, if new editions can be produced quickly enough. Other areas of intellectual property law do not move at the same rate. The reader will have to look to other sources – including those associated with this work – for up-to-date news of what is happening in the copyright world.

Copyright and other intellectual property rights

Copyright compared with other rights

Copyright’s ambitions are quite limited. It only seeks to give people the right to prevent others from copying their work. To ensure it does not overreach, the law insists that a creative work be original before it will enjoy protection, which may be a belt to supplement the braces inherent in the use of the word ‘work’. Originality is not a demanding standard: it merely requires that what someone claims as their work has not been copied from elsewhere, whether that is from something they did earlier, or someone else’s work.

Note, however, that a higher standard of originality is required for databases and computer programs, as a result of the relevant directives. They have to be their authors’ own intellectual creation. You should also note that these words from the software directive have not been transposed into UK law, while the corresponding words from the database directive have been. There are other respects in which the software directive has not been properly implemented.

Copyright works must also be fixed in some permanent form for protection to apply.

Patents and registered designs give monopoly rights, but copyright (although some people, for example the Pirate Party, denounce the copyright monopoly) does not. Protection against copying only allows someone else to create something very similar, even identical, without infringing the first creator’s copyright. A photograph of a landscape, for example, will be a photographer’s original work even though thousands of others have photographed the same scene, from the same place. (It’s worth pointing out, though, that the image will have limited commercial value if there are that many identical images in existence, so it is unlikely to lead to a copyright dispute.)

There is no register of copyright, nor is it necessary to apply to anyone to get protection. It is automatic, arising without formality as the Berne Convention requires, which is consistent with it giving protection only against copying. The monopoly rights are registered, so anyone interested can find out about existing patents, registered designs and trade marks and avoid infringing them: they don’t need to know about existing copyright, because only if they are copying will they infringe, and they should know about it. However, it is not always easy to tell whether what you are doing will infringe copyright (if it were there would be no cases for you to read), and in the digital age, when we all engage with copyright much more than ever before, a large number of urban myths have grown up around the subject. It seems to be commonly believed, for example, that nothing on the Internet is protected, and questions about subsistence of copyright and licensing (including implied licensing) are frequently elided.

Although there is no copyright register in the UK, there is one in the USA although since 1978 (when the US finally joined the Berne Union) it has not been mandatory. There are benefits for US authors if they register, and other countries have voluntary registration systems which help with proving ownership. In the UK some enterprising businesses have set up copyright registers, too, but the evidential value of an entry on a private register is unproven.

While it is not so important to know whether copyright subsists in something, because you will usually know whether you are copying or not, it is often important to be able to identify the copyright owner so you know whose permission to seek before using a work. The problem is that often this information is not readily available, a particularly acute problem for users of photographs. Such works are known as ‘orphan works’ and one part of a solution to the problem, which is being implemented at the time of writing, is to create a register identifying owners. See Error: Reference source not found.

While patent, trade mark and design infringements can only be committed in the course of a business, copyright can be (and frequently is) infringed in a domestic setting, for private purposes. When copyright is infringed in the course of a business, criminal offences might also be committed. And while what amounts to an infringement of a patent, trade mark or design is fairly narrow, a wide range of acts can infringe copyright, which actually ought to be viewed as a bundle of rights. Other rights are sometimes said to be unitary, whereas the owner of copyright can control a range of activities: see Error: Reference source not found. Moreover, copyright infringement can be indirect or unconscious, and can consist of authorising someone else to do the infringing act: but one thing that is not restricted by copyright is the use of the protected work. The purchaser of a legitimate copy can do whatever they like with it so long as they do not do one of the acts restricted by copyright (and even then they might well have permission, or a licence, to do that act, or it might be permitted under the law).

The distinction between copying and using breaks down in the digital world, especially where executable code – computer software – is concerned. Using software necessarily means making a copy of certain parts of the program (your computer copies files from the hard disk to random-access memory where they can be processed more efficiently), so the act of running a computer program is a copyright event. This technical process underpins the way in which software is distributed – by licence, rather than by outright sale, like a compact disc. The Internet is also a voracious copying machine, reproducing web pages on servers all over the world as you download them to your computer to read, and also making cache and mirror copies to make the process run more efficiently. You will even find a similar technical process at work when you play a CD: the player ‘buffers’ the music it is playing, holding a small amount in memory so it can respond to shocks that would otherwise result in interruptions to the listener’s enjoyment. Digital technology makes copyright so much more complicated than it ever was in the analogue world.

There are also notable similarities between different rights. Copyright and trade marks are often involved together in counterfeiting or piracy (both of which are expressions not used in the legislation, which therefore remain imprecise and journalistic, even polemical, and which should therefore be avoided in legal work). Where infringements meet certain legal criteria, in particular being in the course of a business, criminal provisions in both copyright and trade mark laws may be engaged.

Copyright, moral rights and related rights

We already saw that what UK law calls ‘copyright’ is rather different from what lawyers in civil law countries would consider proper to the equivalent law in their country. This stems from the fact that their systems focus on authors’ rights, which from the outset were not the primary concern of British copyright law: they recognise ‘related rights’ or ‘neighbouring rights’, owned by record companies, publishers, film producers, broadcasters and the like – the businesses that turn authors’ creations into commercial products, whereas we call it all ‘copyright’, and this book deals with them along with ordinary copyright – which I will refer to, where it is important to make the distinction, as ‘authors’ rights’. (Performers’ rights are different and need a chapter of their own.)

From the earliest days of the French copyright law, recognition was given to ‘moral rights’, a bundle of rights enjoyed by authors independent of their ‘economic rights’ or ‘pecuniary rights’ (the rights from which they earned money, including the reproduction right and the publication right). Moral rights are designed to protect the reputation of the author, and in the UK (where protection is very half-hearted) they cover the right to be identified as the author of one’s work and the right to object to derogatory treatment of it. These rights are covered in chapter Error: Reference source not found.

Copyright interacting with other rights

So copyright is less strong, as intellectual property rights go, than patents or registered designs, or, in a different way, trade marks. It’s not very meaningful to say this, though, because you rarely have a choice between using a strong intellectual property right or a weaker one. If you have written a book, you can’t get a patent for it, and although you might be able to register the title as a trade mark (more likely to work if you have a name for a series of books) that won’t stop people copying your work, which will be the main thing you are worrying about.

That said, there are areas where different rights overlap, and to practitioners this can be very exciting: pharmaceuticals can benefit from trade mark protection long after patents have expired (a process known as ‘evergreening’), copyright works (graphics, advertising jingles, and others) and designs may be registered as trade marks, and an invention protected by a patent might be embodied in an article for which a design can be registered (tablet computers being a topical example). Students, too, might be expected to understand the interface where design laws and copyright meet, but section 52 of the Copyright, Designs and Patents Act 1988, which encouraged designers to go for registered designs by ensuring that copyright would not give longer-lasting protection, is being repealed by the Enterprise and Regulatory Reform Act 2013 – in my opinion, a most regrettable change in the law.

Duration

This topic is covered in detail below in Error: Reference source not found, but here it is worth noting that copyright lasts much longer than any other form of intellectual property except trade marks (which are however liable to die much younger) and is measured in a different way. The basic rule throughout the EU is that authors’ rights last for 70 years from the death of the author (post mortem auctoris, or pma) and neighbouring rights mostly for 50 years from when the work was made, or made available to the public in one way or another. But the law on sound recordings is changing, with protection being increased so that old recordings by Sir Cliff Richard (and Elvis Presley, plus early recordings by the likes of The Beatles and Bob Dylan) remain protected. The loudest voices in the copyright area are usually the film studios and record companies, who do not want to see their valuable property fall into the public domain.

As we will see, the rules on duration changed in 1995 as a result of an EC directive, and there were quite complicated transitional provisions which are, thankfully, now almost completely exhausted. Going back before that, the rule is that whether a work is protected and for how long depends on the law in force when it was made, so it is often necessary to refer back to earlier Copyright Acts.

Use of language

Work

The subject matter of copyright (including neighbouring rights): a literary, dramatic, musical, or artistic work, a film, sound recording or broadcast, or the typographical arrangement of a published edition. The first four are created by individuals, the last three are commercial products, and films can be either depending on how you look at them (in civil law copyright they are assimilated to authors’ creations, in the more avaricious common law copyright system they have traditionally been a matter for neighbouring rights). The 1956 Act distinguished between authors’ ‘works’, dealt with in Part I of the Act, and (for neighbouring rights) ‘Part II subject matter’, which made matters a great deal clearer.

Author

Unfortunately, this ordinary English word has a much wider meaning in copyright law. Under the 1988 Act, it simply means anyone who creates a copyright work, and given that the concept of a work is wide so too is the concept of an author. Professor Cornish noted that ‘[t]he draftsman’s perverse logic led him to call all sorts of entrepreneurs “authors”’4.

Subsist

The correct verb for what copyright does in a work. I wish I could explain why.

Public domain

The commons of the creative world: material in which copyright has expired, or which is so old that it predates copyright anyway, or which for some reason never qualified for protection (perhaps because it did not fall within a category of protected work). It is not an expression with a fixed meaning, so it should either be avoided or defined when it is used: and in the copyright context, it must never be confused with the same expression used in relation to confidential information. In that context it means information which is not subject to some restriction – non-confidential information.

Infringement

The wrong against which the owners of the exclusive rights granted by copyright may take action. Take particular note that it is incorrect to talk (or write) of copyright being ‘breached’.

Counterfeiting and Piracy

Two particular forms of infringement. A counterfeit is generally an imitation of a product made up to look as much as possible like the original, which often involves applying identical or similar trade marks. Counterfeiting might involve copyright infringement, but infringement of one or more designs laws is more likely. Piracy is similar, but the term is usually used in connection with digital products such as films, sound recordings, and computer software. However, neither expression is found in the Act and they should be avoided in formal legal usage.

Copyright theft

Theft is committed when a person takes another’s property, intending permanently to deprive the rightful owner of it. Copyright theft is therefore logically impossible, except that it might just be apt to describe a fraud which involves forging an assignment of copyright. I find it a useful indication of whether a piece of literature is a polemic or a serious commentary. No-one who understands the subject should ever use the word ‘theft’ in close proximity to the name of any intellectual property right.

1There is disagreement about whether it is correct to date the Act to 1709 or 1710. It came into operation on 10 April 1710, that much is clear, but before Chesterfield’s Act, the Calendar (New Style) Act 1750 (c.23), the calendar year started, inconveniently to modern minds, on Lady Day, which as every lawyer knows is 25 March. According to the new calendar, the Act was indeed passed in 1710 (on 5 April), but the Chronological Table of the Statutes (London, 1963) lists it as 1709, 8 Ann., c.19 (although Ruffhead numbers it c.21).

2 2 Brown's Parl. Cases 129, 1 Eng. Rep. 837; 4 Burr. 2408, 98 Eng. Rep. 257 (1774). I once took the trouble to track down the report, in the Bodleian Library, and learnt nothing useful from it. I share this with you in the hope that it might prevent you wasting your time.

3 See Nicholas Montenegro, Being Digital (Hodder & Stoughton, 1995), and more recently Laurence Lessig, “Getting the Law Out of the Way” RSA lecture, 14 January 2004 and many other works by the same author.

4(1989) 12 EIPR 449.