What you ought to know about copyright

The nature of copyright can exist in almost every medium whether as photographs, framed paintings, novels, the e-mails you sent to friends, loved ones or customers as well as the scribbling you make on rough paper. You may not have realized this but it is good to know that you can claim copyright over all of these and that copyright is the most common and proliferated form of intellectual property. Not all of these copyrighted materials will have any commercial value but before you stumble on something that does, it is good to have some basic understanding of this concept known as copyright.

Copyright does not protect an idea but only the expression of the idea in a tangible form.

Good ideas remain outside the protection of copyright laws until it is reduced in a material or tangible form. Often, people find themselves in a situation where their ideas can be copied by others but these can be expressed in a different form. A photographer can take a picture of a person standing on top of Mount Everest while an artist can paint a picture of the same person at the same time.

Therefore, no one can stop you from trying to paint the Mona Lisa or the Last Supper even though it was Leonardo Da Vinci's idea. Similarly, no one can stop you from taking a picture of the Mona Lisa from the Louvre. If you do so, you are the owner of the copyright in that photograph but that photograph has little commercial value.

Copyright protects original works.

Originality is not too difficult a concept to grasp. What is original must be new, that is, it has never existed before.

But the law also needs to consider different situations including the case where existing pieces of old work were taken together to create a montage or a collection of works released in print or in the form of a book. For such collections or montage, there is a separate and independent copyright subsisting over the collective or compilation work even though the subject matter which it is made up of may no longer be new. If you are inclined to publish photographs or works of other people in a compilation, you would need their consent to use their copyrighted material.

What the law regards as original is where someone has expended sufficient skill, effort, labour and judgment to create a piece of work. The idea is that in order to attract the protection of copyright laws, you must have expended something on your part which the law can then protect. Copyright laws do not, however, require the subject matter to be of artistic merit or to be worthy at all before it can be protected.

One thing to note of these requirements is that the photographer pulling a shutter mechanically may find himself in a position where he neither exercises any skill, effort, labour or judgment if the set is designed by someone else and our photographer is merely and literally pulling the shutter on a camera fixed to a tripod without making any contribution to the angle of the shot, the lighting and other aesthetic matters.

Copyright belongs to the person who makes or creates the subject matter in question

Generally speaking, the creator will enjoy the ownership of the copyright in his work.

Copyright simply means the right of one to make copies. The only person who has this right must be the person who created the subject matter. It follows that the author of his book is the owner of its copyright as much as the artist who paints a portrait is the owner of the copyright there. Therefore, it is Leonardo Da Vinci who would have owned the copyright in the Mona Lisa and not Mona Lisa herself in the first place unless they agreed to the contrary with the necessary adjustments as to price.

Similarly for photographs, the owner of the copyright naturally belongs to the photographer in most cases, save for the example of the photographer who merely pulls the shutter on a set designed by someone else. The customer who goes to the studio and asks for his picture to be taken has merely consented to the photographer taking his picture and in return he pays the photographer for that copy of his picture.

As far as copyright laws are concerned, the customer does not own the copyright but has merely contracted or paid for a copy of that photograph. He gets that single copy which he paid for but he has no right to make copies of the same unless of course, the photographer allows him to do so. Similarly, a person who buys computer software merely has a right to use that copy and in limited circumstances provided for by the law, he may have the right to make back up as well as transient copies. He has no right to make copies of that software which he owns and sell it to another.

That right to use is known as a licence which one can easily associated with software, DVDs as well as CDs. A licence is also a private agreement or contract between the copyright owner and a third party where the copyright gives that party a right to make copies of his work for purposes stated in the agreement. If the agreement does not state that the customer can reproduce the software or photograph for such and such a use or purpose, he cannot do so. If there is nothing in writing in the first place, then the question may well turn to whether the photographer has allowed the customer to keep soft copies or the negatives. If he did so, then the implication will be that he has sold and licensed his copyright to the customer as well as the physical copies.

Copyright requires no registration

Copyright cannot be registered with the Intellectual Property Office of Singapore (IPOS) or anyone else. Copyright, unlike other forms of intellectual property, requires no formalities in order to exist. It is automatically created every time a photograph is taken or when the subject matter is created. The problem is how the copyright owner proves that he is indeed the copyright owner.

Since patents and trade marks requires formal registration with IPOS, the certificate of registration issued by IPOS is good evidence that the subject matter belongs to that person whose name appears on that certificate in the case of patents and trade marks. However, copyright laws requires the owner to prove his ownership and entitlement to that copyright when he decides to take legal action in a court of law. This is actually not too difficult and ownership of copyright can be proved by a written affidavit by the copyright owner attesting to his ownership. The court will have to accept such testimony unless the defendant can prove otherwise.

As a matter of interest, photographs cannot be registered as trade marks and since it is quite impossible to characterize photographs as inventions or something capable of industrial application, they also cannot be patented.

Copyright protects unpublished works

Publication of a piece of music or a book or the performance of a play in public is often good evidence that the creator of these works is the copyright owner. Photographers are slightly disadvantaged by the fact that they do not publish or release their work to the public in the same manner as a writer, musician or artist and they can hardly find space to insert a copyright notice on their photographs.

Although publication or making the copyright material available to the public is good proof that you are the owner of that material, copyright laws are not defeated if you do not do so. It only makes it slightly more difficult to prove.

Therefore, you can take a picture today and keep it in your own private collection for fifty years before releasing it as part of an album or a magazine. The copyright in that secret picture would have existed for fifty years by the time it was published since the copyright existed as soon as the photograph came into being.

Important to note is a copyright in a work subsists for the lifetime of the creator plus 70 years after his demise. It cannot be extended, unlike trade marks.

Copyright is restricted to Singapore

Singapore is a signatory to various international copyright treaties such as the Berne Convention as well as the TRIPS Agreement under the World Trade Organisation ("Trade-Related Intellectual Property Rights Agreement"). These international treaties essentially provide that any copyright that is created in one of its member states shall automatically enjoy the same recognition and protection of copyright laws in all its other member states. Therefore, if you are the copyright owner of a picture taken in Singapore, you will enjoy the same protection for that copyright in China, Australia, the United States of America, various European countries as well as all the other signatories of the Berne Convention and the TRIPS agreement.

Copyright infringement attracts criminal sanctions and also statutory damages

Copyright infringement often attracts criminal responsibility and sanctions especially where the infringement is for commercial purposes and is significant in terms of volume. This is unlike patent infringement where there are no criminal implications at all and the case for the infringement of a trade mark where criminal implications are limited to cases of counterfeiting or false application of another person's trade marks on goods.

There are also special laws for recovery of statutory or aggravated damages where a fixed compensatory sum is prescribed once the copyright owner can prove his ownership and breach of his copyright. The owner is not required to prove how much revenue or earnings he has lost as a result of the infringement which would usually be a difficult and sometimes forlorn undertaking. Otherwise, copyright owners may not too keen to sue since they run the risk of being unable to recover any compensation.