Copyright
Qualification
Jane Lambert
Last
updated 5 May
2004
The protection of artistic, dramatic, literary, musical and other copyright works in the United Kingdom by nationals and residents of other countries is required by TRIPs, Berne and the UCC. Those requirements are implemented in the United Kingdom by Chapter IX of the Copyright Designs and Patents Act 1988 (as amended) ("CDPA"). There are equivalent qualifying provisions in Part II of that Act for rights in performances and Part III for unregistered design rights.
Basic Provisions
S. 153 (1) of the CDPA provides that copyright does not subsist in a
work unless the qualification requirements of Chapter IX are satisfied
as regards the
author, the country in which the work was first published
in the case of a broadcast or cable programme, the country from which
the broadcast was made or the cable programme was sent.
The Author
S.154 (1) provides that a work qualifies for copyright protection if the
author was at the material time a qualifying person. If the
author is an
individual he is a qualifying person if he is a British citizen, a
British dependent territories citizen, a British national (overseas), a
British overseas citizen, a British subject or a British protected
person within the meaning of the British Nationality Act 1981, or an
individual domiciled or resident in the United Kingdom or another
country to which those provisions extend. If the
author is a limited
company or other corporation it is a qualifying person if it is
incorporated in England and Wales, Scotland or Northern Ireland or in
some other country to which those provisions extend.
The material time in relation to a literary, dramatic, musical or artistic work is:
-
in the case of an unpublished work, when the work was made or, if the making of the work extended over a period, a substantial part of that period; or
-
in the case of a published work, when the work was first published or, if the author had died before that time, immediately before his death.
In the case of a film, sound recording or broadcast, the material time is when the work was made. In the case of a typographical arrangements, it is when the edition was first published.
Joint
Authorship
Where the work is a work of joint authorship s. 154 (3) provides that it
qualifies for copyright protection if at the material time any of the
authors satisfies the above requirements. However, where a work
qualifies for copyright protection only under this provision, only those
authors who satisfy the nationality, residence or domicil requirements
shall be taken into account for the purposes of first ownership of
copyright and duration by reference to the life of the
author.
Publication
A literary, dramatic, musical or artistic work, a sound recording or
film, or the typographical arrangement of a published edition, qualifies
for copyright protection pursuant to s.155 if it is first published in
the United Kingdom, or another country to which the relevant provisions
of this Part extend. For the purposes of that section, publication in
one country is not regarded as other than the first publication by
reason of simultaneous publication elsewhere. Simultaneous means for
this purpose publication within the previous 30 days.
Broadcast
A broadcast qualifies for copyright protection under s.156 (1) if it is
made from a place in the United Kingdom, or another country to which the
relevant provisions of this Part extend.
Application to
other Countries
S. 157 (1) provides that Part I of the CDPA (the part that contains the
copyright provisions) applies automatically to England and Wales,
Scotland and Northern Ireland. There is power for the Queen in Council
to:
 |
extend to extend Part I to the Channel Islands, Isle of Man and British Colonies overseas subject to such exceptions and modifications as may be specified under s.157 (2); and |
|
|
make provision for applying in relation to any other country any of the provisions of Part I in respect of works created by citizens, residents or persons domiciled, or companies incorporated in, those countries as it does to British citizens under s.159 (1). |
Except in the case of a Convention country or another member State of the European Economic Community, the Queen in Council may not make an order under that section unless satisfied that provision has been or will be made under the law of that country for reciprocal protection for the works of British nationals, residents or persons domiciled in this country. Indeed, the Queen has power under s.160 to revoke or restrict such protection If it appears to her that the law of a country fails to give adequate protection to British works.
Crown and
Parliamentary Copyright
None of these provisions applies to works made by work Her Majesty,
either House of Parliament or by an officer or servant of the Crown or
Parliament in the course of his duties. In those cases the work
qualifies automatically for copyright protection even if the
qualification provisions of Chapter IX are not satisfied and Her Majesty
or, as the case may require, one or both Houses, is the first owner of
any copyright in the work (see s. 163 (1) and s. 165 of the CDPA.
