UNDERSTANDING COPYRIGHT
Think of a story. A painting. A song. A film. These are things people create from their personal imagination. They are a type of property owned by the creator or creators. Copyright is a legal concept describing rights given to creators for their works. These include literary works, music, works of fine art such as paintings and sculpture, as well as technology-based works such as computer programmes.
Copyright provides the legal framework for the ownership, protection and exploitation of these works.
What Rights Does Copyright Provide?
The copyright law gives the creator of a work – also known as a ‘rights holder’ – a diverse bundle of exclusive rights over his or her work. These exclusive rights are given for a limited but lengthy period of time. The rights enable the author to control the economic use of their work in a number of ways, and to receive payment, i.e., royalties. The owner of copyright has exclusive rights to:
- Reproduce the work
- Prepare derivative works
- To distribute the work to the public by sale or transfer of ownership, or by rental, lease, or lending
- Perform the work publicly of such works as literary, musical, dramatic works, motion pictures and other audio-visual works
- Display the copyrighted work publicly
- Perform the work publicly by means of digital audio transmission, in the case of sound recordings
What Is the Basis of Copyright Protection?
The copyright law protects the rights holder against those who ‘copy’ or otherwise take and use the form in which the original work was expressed by the author. To qualify for copyright protection, a work must be original.
Copyright protection rules are fairly similar worldwide, due to several international copyright treaties. The most important is the Berne Convention. Under the Berne Convention, all member States – over 100 – must afford copyright protection to authors who are nationals of any member country. This protection must last for at least the life of the author plus 50 years. It must also be automatic without the need for the author to take any legal steps to preserve the copyright.
Article I of the UNESCO Convention on Copyright states: “Each Contracting State undertakes to provide for the adequate and effective, protection of the rights of authors and other copyright proprietors in literary, scientific and artistic works, including writings, musical, dramatic and cinematographic works, and paintings, engravings and sculpture.”
Copyright also protects the author’s “moral rights” – the right to:
- Claim authorship of a work (the right of attribution)
- Object to any distortion, mutilation or other modification of a work that would harm the author’s reputation (the right of integrity)
There is no law that protects an idea that has not yet been expressed. Hence copyright does not protect ideas. The underlying principle of copyright is to protect and reward the products of the mind, but an idea has to be expressed in some form before it can be the subject of legal protection.
Book Publishers and Copyright
Book publishers possess certain rights in the books they produce and sell, and they hold other rights on behalf of third parties. Their business involves exploiting the rights of others, just as they equally seek to defend and protect what is theirs and what they have been entrusted to defend. Publishers therefore have a professional interest in exploiting these rights to the best advantage of their authors as well as themselves.
Typically, the first owner of copyright in any created work is the person who created it. The publisher enters into a legal relationship with the creator – author – in order to publish the work and issues copies of it in sufficient quantities to satisfy the needs of the public. The publisher does this by virtue of a license in which the author either assigns copyright to the publisher or, more usually, grants to the publisher an exclusive, or non-exclusive, license.
A publisher, in order to do business, needs to acquire from the author the exclusive rights of reproduction and distribution, which are recognized at the international level by the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention), and with regard to publishing in the digital environment, the WIPO Copyright Treaty (WCT).
However, regulation of the license between author and publisher is left to national legislation.
Publishing Rights and Licensing
The author has been thought of as something like an inventor. Under the custom of many countries, the author is recognized as the only person who can authorize publication of their work, unless they had been commissioned (and paid) to create it.
Publishers are usually licensees of other people’s works. The author/publisher license is an agreement under which the author permits the publisher to use those publishing rights under specific conditions. It is absolutely essential that a publisher has a license for every book to be published.
The license should be treated as a negotiable document – the two parties must agree on the contents of the license and be willing to sign it. Every license should provide for the ownership or licensing of specific rights that the publisher controls. These rights must be made clear in the license.
Is It Necessary for Creators to Register their works?
Ownership of copyright is automatic from the moment literary and artistic works are created. The rights holder is not required to register their works for protection. However, it is advantageous for the rights holder to register their work. Apart from creating a public record of ownership, registration would be beneficial in case a copyright infringement lawsuit arises. In Kenya, the Kenya Copyright Board (KECOBO) has an online portal for registering copyright works.
Photo credit: Element5 Digital from Pexels
References
Managing Intellectual Property in the Book Publishing Industry: A business-oriented information booklet, Creative industries, Booklet No. 1, World Intellectual Property Organization (WIPO).
Silbey, J. 2015. The Eureka Myth: Creators, Innovators, and Everyday Intellectual Property, Stanford University Press.
Wang, R. 2015. Disrupting Digital Business: Create an Authentic Experience in the Peer-to-Peer Economy, Harvard Business Review Press.