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What is copyright?

Copyright provides exclusive legal rights to control the reproduction and reuse of original, protectable works, for a long (but not unlimited) time. Copyright protects original works of intellectual creation – and investment in communications – from unauthorised copying, distribution, and other forms of restricted reuse.

Under UK law, copyright subsists automatically in original literary, dramatic, musical and artistic works, recorded in any material form (as “authorial� works of intellectual creation). Copyright also protects original sound recordings, films, broadcasts and the typographical arrangement of published editions (as “entrepreneurial� works, conveying information).

As a form of intellectual property, copyright is an intangible asset. Copyright ownership is distinct from ownership of any physical or digital instance of the copyright-protected work, such as a manuscript, canvas or electronic file. The automatic “first owner� of copyright in an original authorial work is the creator, or – for works created in the course of employment – their employer. In general, the rights in such works last for the lifetime of the (last surviving) author plus 70 years.

Copyright ownership can be transferred and bequeathed, so doesn’t necessarily remain property of the author (or their estate), or employer, for the full duration of protection. Permission to use a protected work in a manner restricted by copyright must always be sought from the current copyright owner(s), or their authorised representative. Seeking the original author’s permission assists only if they remain the copyright owner, or have otherwise retained the right to authorise reuse.

Academic authors should consult the terms of their publishing agreements to ensure they avoid giving away copyright in their scholarly works for free. Transferring copyright may prevent authors from complying with funder mandates or institutional policies requiring publicly-funded research outputs to be made publicly available via an online repository.

Aside from material in which copyright has expired (or never subsisted), most text, images, and recordings are likely to be protected by copyright. Public availability of a copyright-protected work online does not denote that the work is free from copyright restrictions.

What does copyright protect?

Copyright subsists automatically in original, authorial works of intellectual creation. Under UK law, such works are categorised as follows:

• Literary works (whether written, spoken or sung), including software code, psychometric instruments, tables and compilations;
• Dramatic works (of action and for performance), including choreography, cinematography, playscripts and screenplays;
• Musical works (excluding lyrics and librettos, being literary and dramatic works respectively);
• Artistic works (for visual appreciation), including maps, photographs, and works of architecture and artistic craftsmanship.

Copyright protects original expression, rather than the underlying facts or ideas that might inform or inspire the work. For example, copyright in a database constituting a protected literary work subsists on account of the selection and arrangement of the information conveyed, rather than with reference to the individual data points compiled. Authorial works are original – and therefore protectable – if resulting from and reflecting the exercise of their author’s creative choices. However, there is no requirement for a work to exhibit particular novelty, quality or cultural worth.

Under UK law, copyright also subsists automatically in entrepreneurial works, comprising sound recordings, films, broadcasts and the typographical arrangements of published editions. Such works are original – and therefore protectable – simply if they do not reproduce an existing sound recording, film, broadcast or typographical arrangement.

Accordingly, products such as books and films usually encompass multiple, distinct copyright works of more than one category. For example, in a published collection of essays, copyright may subsist in each contribution individually and in the editor’s compilation and any original foreword or preface, all as literary works, and in any cover artwork or illustrations as artistic works, as well as in the publisher’s typographical arrangement. Identifying constituent works is an important prerequisite to reuse, with implications both for establishing the substantiality and extent of the intended use, and for identifying the relevant rights owner(s) from whom any necessary permissions should be sought.

Copyright does not subsist in works that merely copy an existing work, but identical works that are created independently – each without reference to the other – are both independently protectable.

What does copyright restrict?

Copyright protects the economic interests of copyright owners by preventing others from exploiting their protected works. Under copyright law, rights owners receive a bundle of exclusive rights, including:

• a reproduction right, to copy (from) the work;
• a distribution right, to issue copies of the work to the public;
• a performance right, to perform literary, dramatic or musical works in public, by any mode of visual or acoustic presentation, and to play or show a sound recording, film or broadcast;
• a “making availableâ€� right, to communicate works to the public by electronic transmission (e.g. online);
• an adaptation right, to translate or otherwise adapt literary, dramatic and musical works, including by dramatization or novelisation, and by arrangement of musical works.

These exclusive rights restrict unauthorised reuse of any substantial part of a copyright-protected work, unless a copyright exception applies. Undertaking – or authorising others to undertake – restricted reuse not covered by an applicable exception requires permission, or risks constituting copyright infringement. Such permission must be obtained from the copyright owner, or someone authorised to act on the copyright owner’s behalf, to be valid.

Copyright works are sometimes subject to other intellectual property rights (e.g. an artistic work separately acquiring trade mark protection) and commonly covered by rights related to copyright. Moral rights provide protection for an author’s reputation and the integrity of their work, including rights to be identified – but not falsely identified – as the author of a work. The attribution right, if asserted, and the integrity right (to object to derogatory treatment of a work) subsist for the same duration as copyright. In this way, the bond between authors and their works is maintained, even if copyright ownership is transferred. Moral rights remain personal to the author, so cannot be assigned to someone else, but can be waived, and are more limited in employment contexts. 

Rights in performances provide performers with some control over recordings, copies and broadcasts of a live performance (including readings or recitations of literary works).

Duration of copyright

As a general rule, copyright in literary, dramatic, musical and artistic works lasts for the lifetime of the (last surviving) author plus 70 years. Thus, early works of long-lived authors are protected for longer, in practice, than works created later in life or by an author who dies young. A worked example, illustrating differences in the ultimate duration of copyright protection resulting from this rule, is provided below.

After copyright expires, the work is said to enter the ‘public domain’. In this context, this term refers specifically to material that is no longer, or never was, protected by copyright. Much material that happens to be publicly accessible (e.g. online) will not enter the public domain (through copyright expiry) for a very long time.

Copyright duration differs for works of unknown authorship, works of government departments and other “Crown bodies�, and for some older, unpublished works.

The duration of copyright protection has varied over time and continues to vary internationally. As a result, it is possible for a work to enter the public domain in one country while remaining protected in another.

A worked example

Ted Hughes published his first poetry collection, The Hawk in the Rain, in 1957. Hughes died in 1998, meaning UK copyright in these poems will expire at the end of 2068. Sylvia Plath published her novel, The Bell Jar, in 1963, and died that same year. UK copyright in this work will expire at the end of 2033.

The Bell Jar was published in the USA in 1971. At the time, the US did not observe the now standard term of lifetime plus 70 years. Instead, copyright in The Bell Jar will expire in the USA at the end of 2058, 95 years after first publication (in the UK). Conversely, US copyright in The Hawk in the Rain will expire at the end of 2052, except for any poems first published in periodicals in previous years, which will expire earlier.

In Canada, copyright in The Bell Jar expired at the end of 2013, fifty years after the author’s death. The copyright term in Canada has since been extended to lifetime plus 70 years. This change is not retroactive, so does not restore copyright in Sylvia Plath’s published works. However, Canadian copyright in The Hawk in the Rain will now continue to subsist until the end of 2068, as in the UK.

Identifying or calculating copyright duration can be complex, especially where varying between countries, subject to the terms of international treaties or bilateral agreements. Whether copyright continues to subsist in any given work generally depends on the last-surviving author’s death date, or on the work’s publication status, or both. For works of less high profile authors, such information is not always straightforward to discern.

The National Archives provides a detailing the duration of UK copyright protection for literary, dramatic, musical and artistic works (and a for Crown copyright material). Note that the separate copyright in the original typographical layout of a published edition expires at the end of the 25th year following first publication of that edition.