Part 1 – Copyright
31.10A.4 Copyright generally
When an original work is created, so in effect is the copyright to that work. Its purpose is to give authors of original creative or artistic works the rights to control reproduction, distribution, copying or performance of the work. The types of works that are protected by copyright are many and varied, including original art, literary, dramatic or musical works, sound and film recordings, broadcasts, directories and published works. Original computer programs are also protected by copyright.
31.10A.5Copyright Designs and Patents Act 1988
The Copyright, Designs & Patents Act 1988 (CDPA88) defines the types of work that can be copyrighted [note 1]. Copyright protection extends to almost anything that can be called ‘a work’, but under the terms of the CDPA88, for the copyright to be protected certain qualifications must be met, as detailed at paragraphs (i) to (iv) below [note 2]:
At the material date (see sub-paragraph (iv) below) the author must be a qualifying person. This means he/she will be either:
In some instances a CDPA88 section 159 Order can be made to extend the application of the CDPA88 to countries over which it does not ordinarily have jurisdiction [note 4] [note 5]. This allows a work to qualify for copyright protection under the CDPA88 where the author was a citizen or subject of, an individual domiciled or resident in, or a body incorporated under the law of, a country to which the Order relates.
Copyright protection under the CDPA88 is afforded for literary, dramatic, musical or artistic work, or a sound recording or film, or the typographical arrangement of a published edition, with regard to the country in which the work was first made, published or broadcast at the material date(see sub-paragraph (iv) below). This is dependent on its first publication being either:
Where a work is published in a qualifying country the date of its publication is considered to be the first publication, however publication elsewhere within the previous 30 days can be treated as simultaneous publication [note 7].
Broadcasts qualify for copyright protection under the CPDA88 where, at the material date (see sub-paragraph (iv) below) the broadcast is made from either:
The material date is the date at which the event creating the copyright occurs.
In relation to literary, dramatic, musical or artistic work, the material date is:
In relation other types of work, the material date is:
If the qualification requirements at the material date have been met, copyright does not cease to exist in that item, irrespective of any subsequent event.
31.10A.6 Independent development of the same ideaCopyright does not in itself protect an idea, but rather the expression of that idea. If someone else develops an identical or similar idea on a parallel basis, copyright will not protect against this. Copyright only offers the copyright holder protection against the actual copying of his/her work or idea, or unauthorised use of his/her idea (e.g. making copies or extracts from the original work without permission)
31.10A.7 Protection afforded by copyrightUnlike other forms of intellectual property, there is no formal registration procedure for copyright. Copyright protection is effective from the date that the work is created (subject to the requirements of the CPDA88 as detailed at paragraph 31.10A.5 and, whilst there are accepted procedures for establishing the originality of the work (such as the author posting a copy to him/herself), or depositing a dated copy with a bank or solicitor), the final decision may rest with the courts.
31.10A.8 Copyright in existence at date of bankruptcy orderAn author who is made bankrupt should be informed that any copyrights already in existence form part of the bankruptcy estate. This means that any income arising under the copyright vests in the estate and can be claimed in full. Also the bankrupt should be advised that future copyrights may be claimed as after acquired property. If the author already has an agreement or contract with a publisher, the publisher should be notified of the bankruptcy order and asked to provide a copy of the agreement or contract, as well as full details of all anticipated income due under the copyright.
31.10A.9 Ownership of copyright
The Copyright, Designs and Patents Act 1988 defines the author of the work to be the first owner [note 13] (see paragraph 31.10A.5). The exception is where the work is created by an employee during the course of his/her employment when, subject to any agreement to the contrary, the ownership passes to the employer [note 13]. Similar provisions apply to Crown Servants in respect of works created in the course of their duties [note 14].
31.10A.10 International conventions relating to copyright
There are two main international conventions relating to copyright protection. These are the Berne Convention for the Protection of Literary and Artistic Works, and the Universal Copyright Convention. The United Kingdom (UK) is a member of both conventions and means that copyright protection for works created in the UK is extended to other countries that are members of the convention.
31.10A.11 Duration of copyright
In the UK the length of time for which copyright protection is afforded is dependent on the nature of the work. Literary, dramatic, musical or artistic works are protected under copyright for 70 years after the death of the author [note 15]. For films, the protection lasts for 70 years after the death of the last survivor of the director, author of the screenplay or composer of any original soundtrack [note 16]. Sound recordings [note 17] and broadcasts [note 18] are protected for 50 years after the year of release or broadcast and for written works the period is 25 years after publication [note 19].
31.10A.12 Ascertaining a copyright owner
As there is no registration process for copyright, it follows that there is no register available to check or verify the holder of the copyright of a work. In order to ascertain the owner of a copyright the official receiver may have to contact a number of different organisations depending on the nature of the work:
31.10A.13 PRS for Music (formerly The Performing Rights Society)
PRS for Music is a membership organisation for composers, songwriters and music publishers that collects and distributes money (royalties) for the use of musical compositions and lyrics, on behalf of authors, songwriters, composers and publishers, relating to music that is heard in public. The majority of copyright holders whose music is, or has been, heard in public will be members of the organisation. Their contact details are as follows:
Main contact point for “PRS for Music”:
Address: Copyright House
29-33 Berners St
London W1T 3AB
Switchboard: 020 7580 5544
Fax: 020 7306 4455
Other contact points for “PRS for Music”:
PRS for Music
41 Streatham High Road
London SW16 1ER
PRS for Music
National Sales Centre
19 Church Walk
Peterborough PE1 2UZ
PRS for Music Ireland
Lower Bagott Street
PRS for Music Scotland
3 St George's Studios
93-97 St George's Road
Glasgow G3 6JA
31.10A.14 PPLUK (Phonographic Performance Limited)
PPLUK is a membership organisation for holders of copyright that licenses the use of recorded music played in public, broadcast on radio, TV or on the internet, and collects royalties relating to recorded music or music videos played in public, on behalf of record companies and performers. It differs from PRS for Music in that it collects royalties relating to the copyright on the recording of the work rather than the copyright of the work itself (for example, the composer would typically be paid by PRS for Music but the singer or musician would be paid by PPLUK). Their contact details are as follows:
1 Upper James Street
Tel: 020 7534 1000
31.10A.15 PRS for Music (The Mechanical Copyright Protection Society)
The Mechanical Copyright Protection Society was disbanded in 2009 and was absorbed into PRS for Music (see paragraph 31.10A.13 above). The mechanical (reproduction) rights and mechanical royalty payments for members are still dealt with by PRS for Music, which collects royalties whenever a member’s music is downloaded or listened to online, or recorded onto an audio-visual or other physical product.
31.10A.16 PPLUK (Video Performance Limited)
Video Performance Limited was absorbed into PPLUK as a membership organisation for holders of copyright on music videos. PPLUK collects royalties relating to the broadcast, public performance, copying and duplication of music videos and passes the royalties on to the copyright holders. Their contact details are as follows:
1 Upper James Street
Tel: 020 7534 1000
31.10A.17 The Authors’ Licensing and Collecting Society
The Authors’ Licensing Collecting Society collects royalties due to writers for what is known as “secondary rights”, this is royalties due for the photocopying, broadcasting or recording of written works such as books, published articles or scripts. Unusually, in the field of copyright, there is no organisation with responsibility for collecting royalties relating to “primary rights”, that is the royalties on the initial sale of the book. This is usually administered under a commercial arrangement between the writer, publisher and author. The contact details of The Authors’ Licensing Collecting Society are as follows:
Authors’ Licensing and Collecting Society
The Writers House
13 Haydon Street
Tel: 0207 264 5700
31.10A.18 Design and Artists Copyright Society
The Design and Artists Copyright Society collects royalties relating to the copyright on works of art such as pictures, paintings, drawings, sculptures, photographs and ceramics where the work is reproduced or used in, for example, a television programme or book. The Design Artists Copyright Society also collect royalties relating to what is known as “Artist’s Resale Right” [note 20]. This is due on the re-sale of copyrighted works of art after the initial sale by the artist. Where an interested party exists (for example, a relative connected to the subject of an artwork which vests in the insolvent’s estate) the official receiver may consider asking that interested party to make an offer for the artwork, taking into account any independent valuations as available. If the interested third party wishes to pay by instalments, the sanction of Technical Section (acting on behalf of the Secretary of State) must be obtained before any payment plan can be agreed.
The Design and Artists Copyright Society contact details are as follows:
33 Great Sutton Street
Tel: 020 7336 8811
31.10A.19 Public Lending Right
The Public Lending Right Act 1979 established a system whereby authors, illustrators, translators, adaptors, ghostwriters and editors are paid a fee in relation to the number of times their book is borrowed from a public library. At the start of the “lending year” (July-June) the Government sets aside a sum of money which is to be used for this purpose and, during the year, a sample is taken of books borrowed from libraries to allow a calculation to be made for the “pence per loan” to be paid to the author. The maximum any one author may receive is currently £6,600 in any one year. The right to receive these monies can be assigned by the author to another party, for example a publisher. There are rules regarding the eligibility of books and authors for registration to the scheme and these can be viewed at the scheme website (www.plr.uk.com). Their contact details are as follows:
Public Lending Right
Tel: 01642 604699
Fax: 01642 615641
31.10A.20 Copyright as an asset
Copyright is property and therefore the copyright relating to any work created by an insolvent prior to the making of an insolvency order vests in the liquidation estate or trustee of the bankruptcy estate [note 21][note 22] subject to the exclusions relating to the creation of the works outlined in paragraph 31.10A.9. Conversely, a company in liquidation or a bankrupt may hold the benefit of a copyright on the basis of these same exceptions [note 23] [note 24]. The copyright relating to a work created by a person whilst in bankruptcy may be claimed by the trustee as after-acquired property [note 25]. Again, this is subject to the exceptions relating to works created in the course of employment.
31.10A.21 Sale of a copyright
Where the copyright of an insolvent’s work (or a copyright assigned to a company in liquidation or a bankrupt ) has vested in the liquidation estate or trustee, the copyright may be sold with the assignment being signed by the liquidator or trustee of the bankruptcy estate as assignor (see also paragraph 31.10A.24). If the insolvent owes outstanding royalties to the author, the liquidator or trustee may still, subject to the terms of the original assignment, sell the copyright with the outstanding royalties being a provable debt in the insolvency.
31.10A.22 Realising royalties where the insolvent owns a copyrightRoyalties may be paid by a publisher or other organisation (see paragraphs 25 to 26) to the owner of a copyright in exchange for exploiting that copyright. The royalties may be payable under the terms of a licence, with the owner retaining the copyright. In circumstances where a bankruptcy or winding-up order is made against the owner of a copyright, the official receiver should make contact with the publisher or other organisation paying the royalties and ask them to pay any royalties due to the liquidator/trustee.
31.10A.23 Realising royalties paid as a condition of the sale of a copyright
It may be the case that a bankrupt is in receipt of royalties as a condition of the sale of a copyright. In this case the royalties cannot be claimed as an asset as the copyright does not vest in the estate. Instead, the royalties should be treated as income and can be claimed under an income payments agreement or an income payments order (see Chapter 31.7 for more information on income payments). Royalties are treated as income for corporation or income tax purposes.
31.10A.24 Assignment of copyright
As with any other asset copyright can be freely transferred, either as a whole or for a particular field (for example, the film rights to a novel). Copyright is transmissible by assignment, testamentary disposition (under a will) or by operation of law as personal property [note 26]. An assignment must be made in writing and signed by, or on behalf of, the assignor [note 27].
A copyright owner who does not wish to transfer the copyright outright may instead choose to licence its use [note 28], that is, grant someone else the right to do acts which would normally infringe copyright. There is no requirement for the licence to be in writing. See paragraph 31.10A.25 for more information on licensing of copyright,
31.10A.25 Licensing of copyright
The copyright, or part thereof, relating to a work may be subject to a licence granting permission to the licensee to carry out certain acts (for example, to produce copies or publicly perform) a work subject to copyright. The licence may be exclusive in that it allows only the licensee to carry out those certain acts (for example, the right to produce the DVD of a cinema released film) or non-exclusive in that a number of parties have similar rights to carry out the act (for example, a number of radio stations with a right to play the same song).
There is no requirement for the licence to be in writing, but an exclusive licensee will have no right to sue infringers unless the licence is in writing and signed by the copyright owner.
Should a licensing agreement be signed or entered into after the date of the insolvency order, the licence is null and void, and the person who was interested in buying the licence should be asked to make an offer to purchase the copyright from the insolvent’s estate.
31.10A.26 Sale of a copyright licence
A company in liquidation or a bankrupt may hold a licence in respect of a work subject to copyright. In theory it may be possible to sell the licence as an asset in the insolvency. Often though, the licensee may have been chosen specifically for his/her personal skill or reputation and this may make the licence agreement one of a personal nature, which cannot be transferred or sold.
It has been decided that an author may have a personal contract with a company notwithstanding that the constitution of the company or its directors may change [note 29]. Where an author is to be remunerated either by a share of profits or by royalties, it is usually assumed that a contract is of a personal nature and not assignable. Alternatively, if the author was paid a fixed sum, it is probable that the publisher would have the right to assign the agreement.
In the circumstances where the official receiver wishes to effect the sale of a licence he/she should obtain a copy of the original agreement in order to establish the nature of the licence and whether or not it is realisable. Licenses which are not of a personal nature may be assigned. It is very likely that legal advice of a specialist nature will be required.
31.10A.27 Disclaimer of copyright
Returns relating to copyright licensing or exploitation can be very low, and unpublished works generate no royalties at all. Unless the work is a bestseller the returns are likely to be low. In these circumstances where there are no interested parties willing to purchase the copyright or licence, it may be appropriate for the official receiver to consider disclaiming his/her interest in the copyright [note 30] [note 31], particularly when it is considered that copyright can continue for 70 years after the death of the author, requiring potential administration over a long period.
As an alternative an unsaleable copyright relating to films (fiction and non-fiction) and television programmes, and particularly any physical film stock, may be offered to the British Film Institute who maintain and preserve an archive of moving images. The contact details are as follows:
21 Stephen Street
Tel: 020 7255 1444
Fax: 020 7436 0165