copyright assignment uk

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License, sell or market your copyright material

Guidance for copyright owners on how to grant a licence for, sell or market their work.

The new UK National Security and Investment Act 2021 comes into effect fully from 4 January 2022. Businesses and investors should check the guidance to understand what types of acquisitions are covered by the new rules.

License your copyright

As a copyright owner, it is for you to decide whether and how to license use of your work.

IP BASICS: Should I license or franchise my Intellectual Property?

A licence is a contractual agreement between the copyright owner and user which sets out what the user can do with a work. Any licence agreed can relate to one or more of the rights granted by copyright and can also be limited in time or any other way.

An exclusive licence could be granted, but remember that this enables the licensee to use the copyright work in the manner specified by the licence to the exclusion of all others, including the copyright owner.

Sometimes people may be able to argue that a copyright work is subject to an implied licence even when there has been no agreement about a licence.

You may prefer to allow limited access to their work without charge. One way to do this is by using a Creative Commons Licence .

Contractual agreement

Unless a copyright owner is the only person going to use your copyright work then contracts are likely to be agreed at some point. General law such as company law and competition law may govern what is acceptable in a contractual agreement. You may wish to seek advice from a lawyer, perhaps one specialising in copyright and contract law, before proceeding.

Contractual agreements are likely to be important when you:

• need a partner to help exploit the copyright work
• wish to negotiate the sale or other transfer of the copyright
• would like to agree a licence with someone else who wants to use the copyright work
• would like someone else, such as a collecting society, to administer some or all of the economic rights

In some cases it might be important to obtain an agreement/contract of confidentiality while negotiating copyright matters, especially if the work has not been published.

Implied licence

An implied licence to use a copyright work might arise when there is nothing in writing granting the user a licence and a licence has not even been agreed verbally with the copyright owner. However it is always better to ensure that any agreement about a licence is recorded in some way.

It is only possible to argue that an implied licence exists where all the circumstances suggest that the copyright owner expected the user to make use of the copyright material in the way they intend, even though this was never discussed and has not been written down anywhere. For example, this might occur where a person has commissioned the creation of a work (for example, a company logo or a corporate training video), but has not agreed a licence to use the work.

Sell your copyright

If you decide to sell or transfer your copyright there would need to be a written, signed contract stating a transfer has taken place. This is known as an assignment .

You should note that with certain copyright material even if you sell the copyright in the work you may still have certain moral rights. For instance you may have the right to be identified as the author (provided you have asserted that right previously) and the right to object to any derogatory treatment of your work. Moral rights in a work can not be transferred or ‘assigned’ but you are entitled to waive those rights.

Market your copyright

You may want to involve others to help exploit, develop or market your copyright material. We do not give direct advice on this, but help is available.

National advice

Chamber of Commerce offers a comprehensive range of cost effective business services.

Innovate UK EDGE offers advice, consultation and training on intellectual property rights.

Regional advice

Scottish Enterprise offers practical advice on developing new ideas.

Invest Northern Ireland offers advice and assistance on innovation and entrepreneurship.

If you license or sell your copyright, you must keep detailed records of any contracts or agreements you have made.

Copy protection devices

For copyright material issued to the public in an electronic form, you may decide to use technological measures so that it is not possible to make a copy of your material , that is, it is copy-protected .

It is also possible for you to use other technological measures to prevent other types of unlawful uses of copyright material.

Where you have sold copies that are protected by technological measures, you may have the right to take action against a person who gets round or who makes, sells or otherwise deals in devices or means specifically designed or adapted to get round, the technological measures.

The right to take action is equivalent to the rights you have when suing for infringement of your copyright in the civil courts. Criminal offences may also apply to those who deal in the means to get round technological measures.

Updates to this page

New text has been added to inform our users of the new UK National Security and Investment Act 2021 that comes into effect fully from 4 January 2022. Businesses and investors should check the guidance to understand what types of acquisitions are covered by the new rules.

Video added to guide 'IP BASICS: Should I license or franchise my Intellectual Property?'.

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Out-law / your daily need-to-know.

Out-Law Guide 9 min. read

UK copyright law: the basics

21 Jun 2024, 9:02 am

This includes the exclusive right to copy, issue copies, rent or lend, perform, show, play, communicate the work to the public or adapt the work, and the right to stop others from doing any of these things without their consent.

Copyright is a hugely complex area of law which gives territorial rights on a country by country basis which are recognised globally through a series of international treaties. However, even in Europe there is only limited harmonisation and so it is essential to seek advice from local experts as to whether the particular work in question is protected.

The focus of this guide is the copyright protection of works in the UK.

What is copyright?

Copyright is an intellectual property right which stops copying. It provides rights holders, such as artists, writers, software engineers, website developers and composers, with a range of rights in respect of their works including a right to royalties and to restrict how their works are reproduced by other people.

Copyright allows the owner to prevent the reproduction of a 'substantial' part of the copyright work; a test which is satisfied on a 'qualitative', rather than purely quantitative, basis. 'Reproduction' includes reproduction in any material form and so could be as a result of printing, including copyright works in TV programmes, films or publications, distributing copies of the work on the internet, or making a copy in 2D or 3D of a work.

Who owns copyright?

The 'author' of a work, i.e. the creator of the work, is generally the first copyright owner. Where there are two or more authors who have created a work, they may have joint ownership of the copyright if their contributions are indivisible or co-authorship where separate contributions can be identified.

To qualify for copyright protection, a work has to be 'original'. For a time it was unclear whether the test of originality to be applied was that of the author having expended 'skill and labour' or whether the work must exhibit "the author's own intellectual creation" - the latter test having been developed by the EU courts. The Court of Appeal has clarified that the correct test is that the work must be the author's own intellectual creation. What is required is that "the author was able to express their creative abilities in the production of the work by making free and creative choices so as to stamp the work created with their personal touch". This test is not satisfied where the content of the work is dictated by technical considerations, rules or other constraints which leave no room for creative freedom.

This so-called 'European' test is considered more demanding than the skill and labour test it replaced, although the originality bar is still low and will in most cases be satisfied.

Ideas are not protected by copyright; only the expression of those ideas as fixed in a material form are protected.

Where works are commissioned or created in the course of employment, the contractor or the employer is usually the first copyright owner, even though the party commissioning the work has paid for it. However, this will depend upon the terms of the contract, and whether the work falls within the scope of the commission or the work is created during the course of employment; both of which will need to be assessed carefully. In the case of a contractor commissioned to create a copyright work, it is essential to ensure that copyright is assigned to the commissioning party otherwise this could seriously limit their future ability to use or make modifications to the work.

A common example where copyright ownership needs to be established as soon as possible is where a business hires a third party developer to create a new website or software platform. As the developer is the author of the work, it will own the copyright unless the copyright position is dealt with differently in the contract. In practice, contracts are often silent - which leads to disputes which could have been easily avoided by the contract stipulating either a licence or an assignment of copyright to the business at the outset.

What types of works are protected by copyright?

The sorts of work which benefit from copyright protection are broken down into the following categories:

• Original literary, dramatic, musical or artistic works;
• Computer programs and software code;
• Databases (in addition to the separate Database Right)
• Sound recordings, films or broadcasts; and
• Typographical arrangements of published editions.

Artistic works include:

• a graphic work, photograph, sculpture or collage, irrespective of artistic quality,
• a work of architecture being a building or a model for a building, or
• a work of artistic craftsmanship.

Usually, a work need have no artistic qualities to be protected by copyright. Works of artistic craftsmanship are an exception, and a judicial ruling is awaited which will clarify whether an aesthetic element is necessary for works in this category to be protected by copyright or whether originality is the only criterion to be satisfied by works in all categories, as is the case in the EU. If the latter, the door would be opened to functional items being protected by copyright. This would be a good result for designers, who could rely on this lengthy and free IP right in preference to design rights  which provide a lesser term of protection and are subject to a registration process.

What is the duration of copyright protection?

The duration of copyright protection depends on the nature of the protected work itself. In respect of literary, dramatic, musical or artistic works copyright generally lasts for the lifetime of the owner plus 70 years after their death (or 50 years if the work was computer generated).

Copyright in audiovisual works follow slightly different rules. Broadcasts are protected for 50 years from the date the broadcast is made. Sound recordings are protected for 50 years from the end of the year in which the recording is made or, if published during that period, for 70 years from the end of the year of publication. Films are protected for 70 years following the death of the last of the following: the principal director; the author of the screenplay; the author of the dialogue; or the composer of the original music commissioned for or used in the film.

Copyright in typographical arrangements has the shortest duration, lasting for 25 years from the end of the year in which the edition was first published.

Does copyright need to be registered?

In the UK, provided the work is 'original', copyright will arise automatically as soon as the work is created and fixed in material form without any need for registration. It is important to note that ideas are not protected by copyright; only the expression of those ideas as fixed in a material form are protected.

Given copyright arises automatically, it is good practice to keep records and evidence of any materials or works created and when (an 'audit' trail), which may be needed to establish the subsistence and ownership of copyright in infringement proceedings. A copyright owner is advised to mark copyright material when it is published with the international copyright symbol © followed by the name of the copyright owner and year of publication (e.g. © [OWNER] [YEAR]). While this "copyright notice" is not a necessary requirement in the UK, it may assist a copyright owner in the event of infringement proceedings. It will also be necessary if a copyright owner wishes to enforce their copyright in certain foreign countries.

When is copyright infringed?

Copyright provides the owner with the exclusive right to copy, issue copies, rent or lend, perform, show, play, communicate or adapt the copyright work.

Copyright is infringed by anyone who carries out any of the copyright owner's exclusive rights without the permission of the copyright owner, unless an exception to copyright applies. 

The main exceptions include making temporary copies; fair dealing for the purpose of criticism, review, quotation or news reporting; fair dealing for caricature, parody or pastiche; fair dealing for research and private study; incidental use; educational use; public interest or copying works for the visually impaired. However, the exceptions are narrow and, contrary to popular belief, there is no "innocent infringer" defence nor is there a defence of making personal copies for private use due to a legal challenge to legislation implementing it.

The scope of the 'text and data mining' exception has come under intense scrutiny in the context of the use of works protected by copyright as training data by developers of artificial intelligence tools. It was generally acknowledged that this exception would not be available in respect of any AI commercially exploited - which would cover most AI solutions - and a contentious proposal to expand the exception  to enable developers to rely on it even where AI would be commercialised was dropped after significant opposition by the creative industries .

Infringement can be in relation to the whole or a substantial part of the work. A 'substantial' part of the work has been copied if the infringer has taken the "author's intellectual creation".

'Substantial' is determined by a qualitative test, not a quantitative one, which means that there may be an infringement even if a small, but important, portion of the original work is copied.

In addition an individual or corporate entity may commit a secondary infringement of copyright if, among other things, they import into the UK, possess, sell or distribute an article which they know or have reason to believe is an infringing copy.

How are computer programs dealt with?

Computer programs are regarded as literary works and therefore at a basic level their protection is no different from any other literary work. However, with the development of ever more advanced technology and AI, this area is increasingly contentious.

Contention also surrounds the copyright protection of 'computer generated works'. These are defined as works that are generated by computer where there is no human author. The suggestion is that these works cannot satisfy the 'author's own intellectual creation' originality test. However, these works are protected by copyright for 50 years from the end of the calendar year in which they are made, and proposals to reform this position were rejected. The UK is one of only a handful of countries which gives copyright protection to computer generated works .

Can rights in copyright be sold?

Provided the relevant statutory mechanism is followed, copyright is a property right which can be bought or sold, inherited or otherwise transferred, either wholly or in part. Copyright may therefore belong to someone other than the author of the work.

Copyright owners may choose to license others to use protected works while retaining ownership themselves. The terms of any such licence should deal with issues such as exclusivity, assignability, the length of the term and the scope of the licence .

What are moral rights?

Moral rights are a collection of personal rights, allied to copyright, given to authors of literary, dramatic, musical, or artistic works and the directors of films. These rights include:

• the right to be identified as author or director respectively whenever the work is commercially published, exhibited to the public or included in a film or broadcast (the 'paternity right');
• the right to object to derogatory treatment of their work (the 'right of integrity'); and
• the right not to be identified as the creator of a work created by someone else ('false attribution').

Additionally, a person who for private and domestic purposes commissions the taking of a photograph or making of a film has the right not to have copies exhibited, broadcast or issued to the public (the 'right of privacy').

Moral rights belong to the author of an original work. They may be waived (i.e. given up), but cannot be assigned or sold to a third party. Importantly, they remain with the creator of the work even if the copyright does not, and are passed to the author's estate on death. In agreeing to waive moral rights, an author would no longer obtain the benefits moral rights provide, so it is highly advisable to seek legal advice before agreeing to waive such rights.

How does Brexit affect copyright?

Copyright is territorial and as stated above, even in the European Union there is limited harmonisation, so the scope of protection for copyright works in the UK and for UK works abroad remains largely unaffected by Brexit.

To the extent that UK law is derived from EU Directives and Regulations, it is preserved in UK law post-Brexit as 'assimilated law' and will remain so until the law is changed by future UK legislation or by judicial interpretation. Divergence over time between copyright law in the UK and EU is a possibility given the greater freedom UK judges now have under the Retained EU Law (Revocation and Reform) Act 2023 to depart from assimilated law in their decision making.

• Brand protection & creative rights
• Intellectual Property
• Technology & Digital Markets
• Technology, Science & Industry
• United Kingdom

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Copyright Laws and Regulations United Kingdom 2024

ICLG - Copyright Laws and Regulations - United Kingdom Chapter covers common issues in copyright laws and regulations – including copyright subsistence, ownership, exploitation, owners' rights, copyright enforcement and criminal offences.

Chapter Content Free Access

1. copyright subsistence, 2. ownership, 3. exploitation, 4. owners’ rights, 5. copyright enforcement, 6. criminal offences, 7. current developments.

1.1        What are the requirements for copyright to subsist in a work?

For copyright to subsist:

• literary, dramatic, musical and artistic works must comply with the criterion of originality, i.e. the work must originate from its author and must not be copied from another work.  This does not mean that the work must be the expression of original or inventive thought; the originality required relates to the expression of the thought and is not a subjective test regarding the ‘artistic’ originality or novelty.  The standard of originality is low and depends on the author having created the work through his own skill, judgment and individual effort, and not having copied from other works;
• the work must be fixed, i.e. recorded in writing or in some other material form;
• the work must meet UK qualification requirements, either through the nationality of its author or through its place of first publication; and
• the relevant term of copyright must not have expired.

1.2        Does your jurisdiction operate an open or closed list of works that can qualify for copyright protection?

The Copyright, Designs and Patents Act 1988 sets out a closed list of works that qualify for copyright protection.  However, CJEU case law, in particular in the Cofemel and Brompton Bicycles decisions, suggests that a closed list may be incompatible with the requirements of the InfoSoc Directive (Dir 2001/29).  (CJEU case law remains in force and binding on the English courts until there is a legislative change or the Court of Appeal or Supreme Court departs from it.)  The UK courts have endorsed this approach in Shazam Productions Ltd v Only Fools The Dining Experience Ltd .

1.3        In what works can copyright subsist?

Copyright can subsist in: original literary, dramatic, musical or artistic works; sound recordings, films or broadcasts; and typographical arrangements of published works.

1.4        Are there any works which are excluded from copyright protection?

Works which do not include the requisite level of originality as set out in question 1.1 are excluded from copyright protection.

1.5        Is there a system for registration of copyright and, if so, what is the effect of registration?

No, copyright subsists automatically.

1.6        What is the duration of copyright protection? Does this vary depending on the type of work?

In general, the terms of protection in the UK are as follows:

• Copyright in a literary, dramatic, musical or artistic work lasts for the life of the author plus 70 years from the end of the calendar year in which the author dies.
• Copyright in computer-generated literary, dramatic, musical or artistic works lasts 50 years from the end of the calendar year in which the work was made.
• Copyright in a film expires 70 years after the end of the calendar year in which the death occurs of the last to survive of the principal director, the author of the screenplay or dialogue, and the composer of any music specifically created for the film.
• Copyright in a sound recording expires 50 years from the end of the calendar year in which the recording is made; or if, during that period, the recording is published, 70 years from the end of the calendar year in which it was first published; or if, during that period, the recording is not published but is played or communicated in public, 70 years from the end of the calendar year in which it was first so made available.
• Copyright in a broadcast expires 50 years from the end of the calendar year in which the broadcast was made.
• Copyright in the typographical arrangement of a published edition expires at the end of the period of 25 years from the end of the calendar year in which the edition was first published.

1.7        Is there any overlap between copyright and other intellectual property rights such as design rights and database rights?

Some works are also covered by other intellectual property rights in addition to copyright: e.g. 3-D and other designs can be protected by design rights; a database may be protected by the sui generis database right (this is intended to protect and reward investment in the creation and arrangement of databases, and protects rightsholders from the extraction and/or re-utilisation of the contents of the database).  A logo protected by copyright may also be protected as a trade mark.

1.8        Are there any restrictions on the protection for copyright works which are made by an industrial process?

No, there are not. 

2.1        Who is the first owner of copyright in each of the works protected (other than where questions 2.2 or 2.3 apply)?

The author, i.e. the person who creates the work, is usually the first owner of copyright in that work.  The presumption is that the author will be:

• the person who creates a work for literary, dramatic, musical or artistic works;
• the producer of a sound recording;
• the producer and the principal director of a film;
• the publisher of a published edition;
• the person making a broadcast or effecting a retransmission of a broadcast;
• the publisher of a typographical arrangement; and
• the person making the arrangements necessary for the creation of the work for computer-generated works (including certain works created by artificial intelligence systems).

However, this may be amended by agreement.  For example, it is possible for someone who would ordinarily be deemed to be the copyright owner to assign the benefit of future copyright, even prior to that work having been created.

2.2        Where a work is commissioned, how is ownership of the copyright determined between the author and the commissioner?

Copyright will belong to the author of the work (i.e. the person commissioned), unless there is an agreement to the contrary assigning the copyright and which is signed by the commissioned party, e.g. in a services contract.  However, where a work has been commissioned and there is no express assignment of the copyright to the commissioner or licence to the commissioner to use the work, the courts have often been willing to imply a contractual term that copyright should be licensed to the commissioner for the use that was envisaged when the work was commissioned.  Occasionally, the court will even assign the copyright to the commissioner.  The extent of any implied licence will depend on the facts of any given case, but generally the licence will be limited to that necessary to meet the needs of the commissioner.

2.3        Where a work is created by an employee, how is ownership of the copyright determined between the employee and the employer?

If a work is produced as part of an employee’s employment, the first owner will automatically be the company that employs the individual who created the work, unless the employee and employer agree otherwise in writing.  No further formalities are required and the employee has no rights to subsequent compensation.

2.4        Is there a concept of joint ownership and, if so, what rules apply to dealings with a jointly owned work?

Yes.  A work will be of joint authorship if it is produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors.  If the contribution is distinct, then separate copyrights will subsist in each author’s respective parts of the work.

A joint author will have individual rights that they can assign independently of the other author or authors.  However, a joint owner cannot grant a licence which is binding on the other co-owners, nor can a joint owner grant an exclusive licence.

3.1        Are there any formalities which apply to the transfer/assignment of ownership?

Copyright is transmissible by assignment, by testamentary disposition or by operation of law, as personal or movable property.

The only formal requirements for an assignment of copyright are that it is in writing and signed by or on behalf of the assignor.  The terms of the assignment (and how they are expressed) are entirely at the discretion of the contracting parties.

An assignment or other transfer of copyright may be partial, that is, limited so as to apply to one or more, but not all, of the acts the copyright owner has the exclusive right to do; and can be in relation to part or the whole of the period for which the copyright is to subsist.

3.2        Are there any formalities required for a copyright licence?

Unlike an assignment, a licence of copyright need not be in writing nor comply with particular formalities and may, therefore, be oral or implied.  However, in order to obtain the statutory rights of an exclusive licensee, e.g. the right to sue third party infringers, an exclusive licence must be recorded in writing and signed by or on behalf of the licensor.  If an exclusive licence is not in writing, the licensee will only have a contractual right to use the copyright, not to enforce it.

3.3        Are there any laws which limit the licence terms parties may agree to (other than as addressed in questions 3.4 to 3.6)?

Please see the answers to questions 2.4 and 4.2.

3.4        Which types of copyright work have collective licensing bodies (please name the relevant bodies)?

There are numerous collecting societies in existence in the UK, including:

• the Performing Rights Society (PRS), which administers the public performance rights (including in relation to broadcasts, streaming services, and non-theatrical performances) of songwriters, composers and music publishers in musical compositions and lyrics;
• the Mechanical-Copyright Protection Society (MCPS), which administers the reproduction rights (e.g. in relation to CDs, digital downloads and musical toys) of songwriters, composers and music publishers (PRS and MCPS operate jointly as PRS for Music);
• Phonographic Performance Ltd (PPL), which licenses recorded music when it is played in public or broadcast on the radio or TV in the UK and then distributes the fees to the performers and recording rightsholders it represents;
• PPL PRS (a joint venture between PPL and PRS for Music), which offers a single joint music licence, on behalf of them both, for playing and performing music in public;
• ICE (a joint venture between PRS for Music, Swedish collecting society STIM and German collecting society GEMA), which is an integrated multi-territory music copyright licensing and processing hub;
• NLA Media Access (formerly the Newspaper Licensing Agency), which administers the reproduction rights of newspaper and some magazine publishers in articles;
• the Copyright Licensing Agency (CLA), which administers the reproduction rights of authors and publishers in literary and artistic works;
• the Authors’ Licensing and Collecting Society (ALCS), which administers various rights of authors in literary and dramatic works; and
• the Design and Artists Copyright Society (DACS) and the Artists’ Collecting Society (ACS), which administer rights in artistic works (including resale rights).

3.5        Where there are collective licensing bodies, how are they regulated?

Collecting societies are regulated by the Collective Management of Copyright (EU Directive) Regulations 2016.  They are also subject to the supervision of the Copyright Tribunal in relation to licensing terms.

3.6        On what grounds can licence terms offered by a collective licensing body be challenged?

A reference in respect of the terms of a proposed licensing scheme may be made to the Copyright Tribunal by an organisation claiming to be representative of persons who claim that they require licences under the proposed scheme.  A licensee may also refer to the Copyright Tribunal the terms on which a licensing body proposes to grant a licence to it.  A reference to the Copyright Tribunal in respect of the terms of an existing licence scheme may be brought by a person claiming that he requires a licence under it, or an organisation claiming to be representative of such persons.

The primary grounds of challenge which the Copyright Tribunal can consider are that the terms are unreasonable or discriminate unfairly between licensees.

In addition, a person can make an application to the Copyright Tribunal where an operator of a scheme has unreasonably refused to grant a licence under that scheme.

In addition to copyright claims, the Collective Management of Copyright (EU Directive) Regulations 2016 require copyright licensing bodies to make available alternative dispute resolution procedures in relation to any breach of the Regulations, except in relation to tariffs.

4.1        What acts involving a copyright work are capable of being restricted by the rights holder?

Copyright holders have the exclusive right to do or authorise the following:

• copying the work;
• issuing copies of the work to the public;
• renting or lending the work to the public;
• performing, showing or playing the work in public;
• communicating the work to the public; and
• adapting the work.

The copyright owner can restrict these acts in relation to the whole or any substantial part of the work. 

The courts have shown that they are willing to find intermediary service providers (ISPs) liable for primary copyright infringement where they have infringed the exclusive right of copyright owners to authorise any of the above acts, most notably where ISPs have authorised the copying of works or making them available to the public.

The courts have also shown a willingness to use common law principles to protect the rights of copyright owners.  For example:

• parties have been found to infringe copyright where they act in a common design with each other to induce others to do any of the above infringing acts; and
• case law has also found that where website operators or service providers provide the key means by which copyright can be infringed, and they know or intend for their service to be used for that purpose, they can be held to be joint tortfeasors with those who actually perform the infringing act.

4.2        Are there any ancillary rights related to copyright, such as moral rights, and, if so, what do they protect, and can they be waived or assigned?

There are a number of ancillary rights associated with the creation of copyright works, the most common of which are:

Moral rights: the author or director of a copyright work usually has moral rights in relation to the work.  These are the rights to: i) be identified as the work’s author or director; ii) object to derogatory treatment of the work; iii) privacy in respect of certain photographs and films; and iv) not have the work’s authorship wrongly attributed.  These rights may be waived by the author or director but not assigned.  The first three rights have the same duration as copyright, but the right to object to false attribution lasts for the author’s or director’s lifetime plus 20 years.

Performers’ rights: performers have various property and non-property rights in relation to the exploitation of their performances, in addition to a right to equitable remuneration in certain cases.

Publication right: the publication right grants rights equivalent to copyright to a person who publishes for the first time a literary, dramatic, musical or artistic work, or a film in which copyright has expired.

4.3        Are there circumstances in which a copyright owner is unable to restrain subsequent dealings in works which have been put on the market with his consent?

The doctrine of exhaustion of rights provides that once copies of a copyright work are issued to the public in one EEA Member State with the owner’s consent, the owner cannot object to their circulation anywhere else within the EEA.  The courts have held that the principle does not apply to subsequent/back-up copies of digital works.  In those cases, it appears that the copyright owner’s rights would only be exhausted in relation to the original digital version placed on the market.  Since the UK left the EU, the UK has confirmed that the copyright will still be exhausted as set out above.  However, the EU has not adopted the same approach: copyright will not be exhausted in the EU as a result of a copyright work being made available in the UK with the owner’s consent.  As a result of this imbalance, the UK is considering whether any amendments are required in relation to the UK’s exhaustion regime, but has not put in place any timeframe for any decision to be made.

5.1        Are there any statutory enforcement agencies and, if so, are they used by rights holders as an alternative to civil actions?

HMRC is the UK customs authority responsible for national policy governing IP rights enforcement at the UK external border.  In certain circumstances, HMRC (and Border Force, the law enforcement command within the Home Office responsible for carrying out the frontier interventions that implement this policy) are empowered to detain goods that may infringe intellectual property rights such as copyright.  The UK regime is governed by Section 111 of CDPA 1988, which permits the owner of copyright in certain types of works to lodge a notice with HMRC stating their ownership of copyright in a work and requesting infringing copies to be treated as prohibited goods.

Trading Standards officers in the UK are also under a statutory duty to enforce copyright and have the powers, among others, to make test purchases of infringing goods, to enter premises and to inspect and seize goods and documents which infringe.

The City of London Police and the UK Intellectual Property Office have also set up the Police Intellectual Property Crime Unit (PIPCU) to tackle serious and organised intellectual property crime (counterfeit and piracy) affecting physical and digital goods (with the exception of pharmaceutical goods).  PIPCU’s focus is on offences committed online.

5.2        Other than the copyright owner, can anyone else bring a claim for infringement of the copyright in a work?

Yes, an exclusive licensee has the same rights and remedies in respect of matters that occur after the exclusive licence was granted, as if the licence had been an assignment.  This statutory position can be modified by contract.

A non-exclusive licensee can also bring a claim for infringement, although only in limited circumstances; specifically, if the infringement is directly connected to an act which the licensee had been licensed to carry out under the licence, and the licence is in writing, signed by the copyright owner, and expressly grants the non-exclusive licensee a right of action.

5.3        Can an action be brought against ‘secondary’ infringers as well as primary infringers and, if so, on what basis can someone be liable for secondary infringement?

Yes, a person will be liable for secondary infringement of copyright if they do or authorise any of the following:

• import an infringing copy;
• possess or deal with an infringing copy;
• provide means for making infringing copies;
• permit the use of premises for an infringing performance; and
• provide apparatus for an infringing performance.

To be liable for secondary acts of infringement, the secondary infringer must have some actual or imputed knowledge of the primary infringement of the copyright work.

5.4        Are there any general or specific exceptions which can be relied upon as a defence to a claim of infringement?

A number of provisions of the CDPA permit various activities which would otherwise be infringements of copyright in literary, dramatic or musical works.

The most common exceptions relate to:

• temporary copies technically required to enable a lawful use;
• fair dealing, including the use of copyright works for the purpose of:
• news reporting;
• parody, caricature or pastiche; and
• incidental inclusion;
• educational use;
• use in libraries;
• archives and public administration;
• works permanently situated in public places;
• the making of digital copies by various institutions;
• text and data mining;
• making copies accessible to disabled people;
• further exceptions for the purpose of research or private study;
• public interest; and
• copying for the visually impaired.

 There is currently no private copying exception under UK law.

5.5        Are interim or permanent injunctions available?

Yes, both interim and permanent injunctions are available, as are “site-blocking injunctions” (orders against ISPs to prevent access to websites held to infringe copyright).

5.6        On what basis are damages or an account of profits calculated?

Damages are calculated so as to put the claimant in the position it would have been in if the infringing act had not occurred.  This is often based on what would have been a reasonable licence fee had the copyright owner entered into an arm’s length licence with the party found to infringe copyright.  An account of profits is calculated so as to make the defendant forfeit to the copyright owner the profits made as a result of the infringing act.  A successful claimant must elect one of the two remedies. 

In the event that the infringement has been particularly flagrant, the copyright owner will be able to claim punitive damages in addition to the basic amount.

5.7        What are the typical costs of infringement proceedings and how long do they take?

The traditional forum for IP litigation at first instance in the UK is the High Court.  Costs can vary from £250,000–£1 million+ per side (depending on the complexity of the claims at issue) to take an action to trial, and the winner can usually expect to recover about two thirds of its actual costs from the loser.  The typical time for a case to be heard at the High Court is about 12–15 months, and with an appeal within a further 12–18 months.

Infringement proceedings can also be brought in the Intellectual Property and Enterprise Court (IPEC) in which court procedures are simplified to make the cost of actions significantly lower: typical costs are of the order of £75,000–£350,000 per side, although costs recovery by the winner is limited to a maximum of £60,000.  The typical time for a case to be heard is 8–12 months in the IPEC.

5.8        Is there a right of appeal from a first instance judgment and, if so, what are the grounds on which an appeal may be brought?

Yes, the appeal court will allow an appeal where the decision of the lower court was one of the below:

• Wrong, which is presumed to mean: an error of law; an error of fact; or an error in the exercise of the court’s discretion.
• Unjust, because of a serious procedural or other irregularity in the proceedings in the lower court.

5.9        What is the period in which an action must be commenced?

The limitation period for bringing a copyright infringement claim in the UK is six years from the date when the cause of action arose.

6.1        Are there any criminal offences relating to copyright infringement?

There are various criminal offences in respect of copyright infringement, including:

• making an infringing article for sale or hire;
• importing an infringing article into the UK other than for private and domestic use;
• possessing an infringing article in the course of business with a view to committing any act infringing copyright;
• selling, letting for hire, offering/exposing for sale or hire, exhibiting in public, or distributing an infringing article in the course of business;
• distributing an infringing article not in the course of business but to such an extent as to prejudice the copyright owner; for example, a large number of infringing copies are given away for free, therefore affecting the copyright owner’s revenue;
• making/possessing an article specifically designed for making copies of a copyright work; and
• communicating a work to the public intending to make a gain for themselves or another person, or knowing or having reason to believe that communicating the work to the public will cause loss to the owner of the copyright, or will expose the owner of the copyright to a risk of loss.

6.2        What is the threshold for criminal liability and what are the potential sanctions?

Criminal liability usually requires knowledge or reasonable belief about the infringing nature of the works and/or activity, in addition to a commercial purpose.

Criminal remedies apply in parallel with civil remedies, and offences carry varying levels of possible punishment including fines and/or imprisonment with, in certain cases, a maximum term of imprisonment of 10 years. 

Criminal sanctions for online copyright infringement have recently been brought in line with those for physical infringement (i.e. to increase the sanction from a maximum two-year imprisonment to a maximum of 10 years’ imprisonment).

7.1        Have there been, or are there anticipated, any significant legislative changes or case law developments?

The European Copyright Directive was approved in April 2019, with Member States having two years in which to implement its provisions. However, in February 2020 the UK Government stated that it would not be implementing the Directive. As a result, there is likely to be a divergence between UK and EU law post June 2021 (the deadline for implementation of the Directive by Member States).

In addition, the CJEU decisions in Cofemel and Brompton Bicycles decisions raise the question as to whether the UK’s closed list of copyright works is compatible with EU law. This point was considered in Shazam Productions Ltd v Only Fools The Dining Experience Ltd & Ors and demonstrates how the courts are willing to consider forms of copyright that go beyond the closed list set out the CDPA.

It is also now possible for the UK courts to depart from EU law, this may lead to further divergences from previously harmonised law.  However, both the Shazam Productions and Warner Music v TuneIn cases demonstrate that the UK courts will not diverge unnecessarily from EU law.

7.2        Are there any particularly noteworthy issues around the application and enforcement of copyright in relation to digital content (for example, when a work is deemed to be made available to the public online, hyperlinking, in NFTs or the metaverse, etc.)?

The UK courts have dealt with various blockchain related proceedings.  The courts have shown a willingness to grant orders designed to prevent defendants who hide behind the anonymity of blockchain services from evading litigation (see Osbourne v Ozone Networks and D’Aloia v Binance Holdings ); these options (as well as blocking injunctions and Norwich Pharmacal orders) should be considered by anyone who finds their copyright being infringed in NFTs and/or the metaverse.

In Sergio Mendes Costa v Dissociadid Ltd [2022] EWHC 1934 (IPEC), the IPEC held that the claimant’s instructions to YouTube to take down certain videos on the second defendant’s YouTube channel following a dispute between the parties as to copyright ownership and infringement, constituted unlawful interference with the defendants’ business.  Subsequently, the court granted a mandatory injunction requiring the claimant to take all reasonable steps to withdraw his takedown requests (see [2023] EWHC 49 (IPEC)).  Whilst take down requests can be a quick and cheap tool to deal with copyright (and other IP right) infringement, care must be taken to ensure that they are accurate in the first instance and then monitored and updated where necessary in light of future developments.

7.3        Have there been any decisions or changes of law regarding the role of copyright in relation to artificial intelligence systems, including the use of copyright in those systems and/or any work generated by those systems?

There have not been any legislative or case law developments in this area to date in the UK.  However, there is ongoing litigation in the UK ( Getty Images (US), Inc. and others v Stability Al Ltd ) which includes claims of copyright infringement in relation to a generative AI system.

In 2022, the UK Intellectual Property Office (UKIPO)’s proposed the introduction of a new exception to copyright and database right infringement allowing text and data mining (TDM) systems to function for any purpose without the need for licencing arrangements.  However, the government announced in February 2023 that the UKIPO’s proposal will not be proceeding.  The government’s statement noted that rights holders’ concerns need to be balanced against the drive to promote investment in AI development in the UK.  It was suggested that a more detailed consultation was required before any further proposals are made.

In the government’s Spring Budget of March 2023, the Chancellor announced the introduction of a new regulatory ‘AI sandbox’ “to trial new, faster approaches to help innovators get cutting-edge products to market, and will work at pace with the [UKIPO] to provide clarity on IP rules so generative AI companies can access the material they need”.

Further, following a review by Sir Patrick Vallance (the then Government Chief Scientific Adviser and National Technology Adviser) which recommended that the government should clarify the relationship between intellectual property and generative AI, the UKIPO announced in June 2023 that it has commenced work on a voluntary code of practice on copyright and AI.  The code of practice aims to make licences for TDM more available and to ensure that there are protections for copyright rights holders.  The UKIPO stated that legislation could be considered if the code of practice is not adopted or an agreement is not reached.

Production Editor's Note

This chapter has been written by a member of ICLG's international panel of experts, who has been exclusively appointed for this task as a leading professional in their field by Global Legal Group , ICLG's publisher. ICLG's in-house editorial team carefully reviews and edits each chapter, updated annually, and audits each one for originality, relevance and style, including anti-plagiarism and AI-detection tools. This chapter was copy-edited by Suzie Levy , our in-house editor.

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Rebecca O'Kelly-Gillard Bird & Bird LLP

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