Copyright Lawyers and Database Rights

We are copyright lawyers based in London (UK) who offer expert copyright law advice for businesses of all sizes.

What are Copyright and Database Rights?

Copyright and database rights underpin many of our clients’ business-critical assets.  For example, copyright law is often the primary intellectual property right that protects digital content in industries as diverse as computer software, gaming, advertising and marketing, media, entertainment and publishing – to name only a few.

Waterfront Law’s copyright lawyers and database solicitors are highly regarded experts in their field and recognised by the most prestigious legal directories. We use our significant expertise in these areas to leverage our clients’ position and to protect, exploit and enforce their rights.

Specifically, Waterfront’s team of expert copyright lawyers can help you with the following:

• Identifying your copyrights and database rights;
• Understanding whether copyright and database rights offer sufficient protection or whether additional intellectual property protection is available;
• Making sure that the copyright chain-of-title is in place (and working to correct any defects that are identified);
• Ensuring your copyrights and database rights are owned by the correct entities;
• Checking that any copyright licences and database licences are properly drafted and that these reflect your commercial objectives; and
• Enforcing your copyrights and/or database rights or defending your position.

Copyright law is wrongly assumed by some to be simple and we regularly act for clients who have been let down by previous lawyers who did not possess the necessary copyright law or database law expertise to meet their client’s commercial objectives.

The harsh reality is that copyright and database law is hugely complex.  It has the potential to cover a wide range of works and there are often overlapping UK, EU and international laws and treaties to consider.  While the UK and the EU apply similar approaches to copyright and database law, important differences can and do exist.

Copyright

Copyright is an unregistered intellectual property right under UK law.  In other words, copyright comes into existence automatically once certain criteria have been satisfied.

For copyright to exist, the relevant work must be:

(1) original; and

(2) identifiable.

What does that mean?

To be original – the relevant work (e.g. a line of code) must express the “free and creative choices” of the person that produced it.  For example, if the work is an exact copy of a line of code already in existence, then it is unlikely to attract copyright protection.

To be identifiable – the relevant work must be “objectively identifiable” by third parties (and the court).  It must be possible to show what the work is that you claim to have copyright in.  For example, if the copyright work is a song, is this recorded or is the music written down?

If those criteria are met, the final step is to show that the copyright work falls within one of the protected categories of works under UK law, which are: “literary, dramatic, musical or artistic works; sound recordings, films or broadcasts, and the typographical arrangement of published editions”.

Those categories can be interpreted widely to accommodate a wide range of works.  For example, both computer code and a character in a famous TV show have been found to fall under the category of “literary works”.

Other factors to consider include the nationality or place of residence of the creator of the work and where in the world the work was first published.

Copyright is, also, a time-limited right.  In the UK, the basic position is that copyright protection expires 50-70 years after the creator of the work dies.

Once you have demonstrated that you own a qualifying and subsisting copyright in the UK, this is not necessarily the end of the complex legal analysis.  The following issues may need consideration by a copyright lawyer:

Has a copyright work been transferred effectively over time?   This is known as chain-of-title research and can be a complex task spanning several decades, analysing various differing laws and many different documents.

• How do you exploit your copyright works effectively? While there are various documents floating around the internet, these are unlikely to be correct for your specific needs.  When exploiting copyrights, you will usually be best advised to obtain a carefully crafted contract which adequately identifies and protects your copyright assets, whether as a licensor or as a licensee.
• Are your copyright works being infringed? What amounts to copyright infringement is another often complex issue which requires expert analysis by a copyright lawyer.  Copyright disputes are rarely straightforward.

As mentioned above, UK copyright law is complicated by the fact that non-UK law still has a significant impact.

EU case law continues to have influence and bind the courts of England and Wales, except the Court of Appeal and the Supreme Court.  But it is possible, post-Brexit, that the EU and UK will increasingly have different approaches to copyright law.

Even before Brexit, there was arguably a tension between various aspects of UK and EU interpretations of copyright issues, such as the law concerning copyright originality.  In the CJEU case of Infopaq (C-5/08), the CJEU set out EU-wide standards for copyright originality and copyright infringement.

These standards are still applied by the UK courts in copyright litigation.

The UK courts also continue to adopt the approach of the EU as the first stage of identifying whether copyright exists in a work, i.e. whether the work is original and identifiable as explained above.

This approach to copyright law means there is a wide scope for many different creations to benefit from copyright protection in the UK.

Whether the Court of Appeal or the Supreme Court choose to diverge from EU copyright law remains to be seen, but it is certainly an area to watch.  UK copyright law is already complex and were the approach in the UK to differ from EU copyright law, potentially just on discrete issues, this would likely add to the complexity of copyright disputes.

Copyright and emerging issues

Copyright has been around in some form for centuries and lawmakers continue to amend copyright laws to try and keep pace with technological inventions.

For example, copyright is one of the main IP rights which protects technologies in the IT sector, such as computer software.   Emerging technologies, such as AI, require careful consideration of current and future copyright laws.  Questions which are still in the process of being answered by the courts are: to what extent will AI applications, based on learning derived from copyrighted material, have infringed such copyrights?  Will AI be a qualifying “author” capable of creating new and subsisting forms of copyrights?

Waterfront’s team of expert copyright solicitors in London are able to advise on these evolving questions.  In our experience, it is better to invest some time upfront with copyright solicitors, in order to mitigate or at least understand your risk profile, before just waiting for a letter of claim to arrive.

Waterfront’s copyright solicitors in the UK also work with copyright solicitors across the world.  Given that there is no such thing as a “worldwide copyright”, advice from copyright solicitors from particularly important jurisdictions might be necessary and a wise investment.

As a consequence of our good relations with expert copyright solicitors from around the world, we are able to build cross-jurisdictional teams of copyright solicitors to meet your specific needs.

Database Rights

Legally protectable “Database Rights” exist which recognise the commercial reality that databases can be a valuable business IP asset, as a result of the money and time that is spent on their creation and maintenance.

As with copyright, there is overlapping UK and EU database law,  but the definition of a database is broadly the same namely, “a collection of independent works, data or other materials which are arranged in a systematic or methodical way and are individually accessible by electronic or other means.”

This may sound complicated but UK database rights have been found to exist in a simple PDF document that contained medical results.

Databases can be protected by two types of intellectual property right: i) copyright; and ii) the sui generis “database right”.  Both arise automatically as unregistered rights and have differing requirements for protection to arise, explained as follows:

1. Copyright protection extends to certain types of databases which protect the selection or arrangement of the material in a database if it is “original”. The right does not attach to the information in the database itself but rather to its arrangement and selection.
   • In short, is the information in the database ordered / categorised in a way that expresses the “free and creative choices” of the person creating the database?  As you can imagine, a database organised simply in alphabetical or numerical order is unlikely to attract copyright protection.
   • If this test is met, copyright in the database is protected as a literary work for the life of the creator plus 70 years.  This right remains unaffected post-Brexit.
2. Databases can also be protected by a UK-wide database right if it can be shown that the maker has made a substantial investment (human, technical or financial) in obtaining, verifying or presenting the contents of the database.
   • It is important to bear in mind that where and how the investment is made in the database will affect whether this database right exists.  Simply investing in creating data may not be sufficient, what is key is the money spent on obtaining (or recording), verifying and presenting that data in a database.
   • Protection of your database rights under this legislation is generally for 15 years and there are circumstances in which this protection can be extended for a further 15 years.
   • Again, there are post-Brexit complications such as concurrent EU and UK database rights existing in the same database.   However, for databases created by UK nationals on or after 1 January 2021, these are eligible for protection under UK database right in the UK only.

Waterfront’s team of renowned UK copyright lawyers have decades of experience and routinely advise on copyright law issues affecting a range of industry-sectors in the UK and beyond.  Our copyright lawyers are skilled in advising on copyright protection issues and understand the legal issues from both sides.  We have extensive experience representing both copyright owners in enforcing their rights and parties defending against copyright claims.

Given the importance of copyright to fast developing industries, emerging technologies, the internet, digital media and advertising, it is unsurprising that copyright law is one of the fastest moving areas of intellectual property law.  This topic often features on our blog, written by various members of our copyright lawyer team.