Step 4: Copyright
Copyright protects artistic creations such as music, film and literature. The protection cannot be applied for but arises automatically when the work is created.
Copyright gives artists, photographers, authors and other creators the exclusive right to decide how their own work may be produced, disseminated and displayed. Copyright applies for 70 years after the death of the author.
The Act on copyright concerning literature and artistic works, or the Copyright Act as it is usually known, dates from 1960. At that time, copyright was often considered to exist for the noble arts such as fiction, music and the visual arts. Today, copyright-protected works sell for huge sums of money and often form an integral part of much of what we encounter in our daily lives. We are overwhelmed by impressions in our everyday lives by phenomena which may be copyrightprotected. In shops, restaurants and cafés, we hear recorded music which has been created by composers, recorded by musicians and marketed by music companies and/or record labels. In theatres and clubs, plays and music are performed live. Today, many products are designed in an original way in order to attract consumers. We are reached through radio, TV, newspapers and online. Most people have access to computers which offer amazing opportunities to obtain information of various kinds. Computer programs are used as entertainment in the form of games, for example, but they are also used as work tools in virtually every industry. Computers and the internet have impacted on our lives and in social media, enormous quantities of information are transferred in the form of photographs, films, music and texts, for example. All this makes issues concerning copyright and other related rights very topical.
4.1 What can be protected by copyright?
The Copyright Act regulates which types of phenomena may be of relevance for copyright. The list is long and includes some fairly diverse phenomena. Texts, computer programs, music, theatre, films, photographs, building art and applied art (design) are listed, but these categories are not exhaustive. Copyright protection can also be obtained for other types of intellectual performances. Many enterprises produce a lot that may be protected by copyright law without those involved being aware of it. It is therefore a good idea to try to analyse what is being created and find out whether what is created could be covered by copyright protection. Remember that other actors may also have copyright protection.
In addition to what is often called “the actual copyright”, the Copyright Act also affords protection for a number of phenomena which are known as “neighbouring rights”. Neighbouring rights can apply in favour of performing artists, producers of films and music, radio and TV companies, producers of databases (summaries of information) and photographers. You should also note that computer programs and databases are considered to be different phenomena, which can get very
complicated. Within the area of computers, computer programs and databases, there is considerable confusion over terminology, partly as a result of the rapid pace of technological development, which means that you should think carefully about the whole field of IT. Photographs can be protected by both copyright and the neighbouring ‘photography right’. This means that you should also pay a little more attention to photographs.
The differences between actual copyright and neighbouring rights are sometimes considerable, but sometimes only theoretical. However, it does pay to be careful. Here, we will focus on what constitutes the actual copyright.
4.2 What is required in order for something to be protected by copyright?
Not all texts, songs and paintings are protected by copyright. What is required in order for a song, for example, to be covered by copyright is that it is considered to be a work in the sense of the law. The term ‘work’ means that the song is sufficiently original. It may be difficult to assess in some cases, but many people believe the requirement for originality to be set quite low. If something is sufficiently original, it is often said to meet the "threshold of originality". Examples of works which the Supreme Court has considered to meet the threshold of originality are the design of the Mini Maglite torch (the appearance of the torch), a drawing of Gotland (which contained many quite basic details) and a reasonably simple violin melody (Drängarna’s summer song "Om du vill bli min fru" infringed the Landslaget’s song "Tala om vart du ska resa", which was considered to be sufficiently original).
An important principle is therefore that it is the originality which affords the protection. Quality is not relevant to the question of whether copyright protection applies, which surprises many people. Another issue is that qualitative creations are usually also sufficiently original.
Copyright arises directly through the creation. No registration with any authority or a notary public is therefore necessary. Through a number of international agreements, copyright also applies directly in many countries.
The neighbouring rights have other requirements which do not assume any threshold of originality. For example, photographs are protected as neighbouring rights, regardless of their originality.
4.3 Who holds the copyright?
The general rule is that it is the "the person who created" a work who becomes the holder of the exclusive rights. The creator of a work is often called the “author”, regardless of their gender or age.
It only one person wrote a book, for example, determining the author is easy. It becomes considerably more complicated if several people created a work together, e.g. a band which puts a song together or a team which writes a script for a film together. Copyright can largely be agreed, and in such situations, it is a good idea to try to write down in an agreement what will happen to the work, preferably at an early stage. Unfortunately, the Copyright Act does not resolve these problems particularly well.
Many works are created by people within the framework of their employment. Unlike the situation as regards employees’ inventions (see section 1.3), there is no general statutory regulation which states that an employer is entitled to something which an employee creates and which could be covered by copyright. It is therefore a good idea to state the circumstances in which the copyright is transferred to the employer in a collective agreement, employment agreement or other type of agreement. In the absence of such an agreement, the employer may have to pay salary in order to have a text created and then pay additional amounts in order to be able to use the material. As regards computer programs, there are specific rules for cases where an employee creates a computer program as part of their job. In the absence of an agreement stating otherwise, the employer will become the holder of the rights to the computer program.
If consultants are hired, the company/client should remember that consultants are not employees. Issues related to copyright should therefore be regulated in an agreement. The special rules in the Copyright Act does not apply to the relationship between consultants and clients.
Similar issues apply to neighbouring rights.
4.4 How long does copyright apply for?
Basically, copyright applies for a period of 70 years after the death of the author.
Neighbouring rights have different periods of protection, which are normally shorter than those for the copyright itself.
4.5 What uses of the work can be prohibited?
The actual point of having exclusive rights is to be able to determine how the work will be used. As with other intellectual property rights, copyright is what is known as a ‘negative right’, which means that authors can prevent others from using the work in various ways. However, a copyright holder does not always have the right to use their own works in any way they choose. An author may be prohibited from using a work if it breaches other legislation (e.g. it constitutes racial hatred or unlawful threats).
The actual uses (or actions) which an author can prevent others from exercising are to (1) produce copies of the work, and (2) make it available to the public.
For the production of copies, it may be sufficient that parts of the work are produced. On computers, copies are often produced temporarily. Such copies also count from a legal perspective. When computers are used, issues concerning the production of copies often become complicated.
Works can be made available to the public in four ways: Transfer to the public (e.g. via the internet, radio or TV, public performance (in front of an audience), distribution of (physical) copies and the display of (physical) copies.
There is currently intensive debate concerning uploading, downloading and file sharing of music and films, for example, on the internet. You should note that, as a general rule, consent is required to download a work to your computer (production of copy) and to share works with others (transfer to the public).
Within copyright law, there is also something called "moral rights". Moral rights mean that the author must be named when a work is made available to the public. In addition, others may not alter a work or use it in a context which is considered to be offensive or insulting to the author. This type of moral right can generally not be waived through an agreement.
In general, similar principles apply to the neighbouring rights.
4.6 How similar does someone else’s phenomenon be in order for infringement to have occurred?
It is not just simple copies of someone’s work which are covered by the exclusive rights. Translations and reworkings into other forms of art are also covered by the copyright protection. The question is whether the design is sufficiently similar. This is often a difficult matter to determine and the assessment is frequently quite subjective. It can be difficult to draw parallels from one case to another.
The author does not have exclusive rights to the thoughts, principles, factual information and ideas behind a work. Exclusive rights only cover the design. In the event of a dispute, it is ultimately a question of deciding whether the other actor created something which is sufficiently novel and independent. No one who has created something which is sufficiently novel and independent will have committed an infringement. It is often stated that the scope of the protection is narrow, i.e. that relatively little is required for someone to have created something novel and independent. It is permitted to be inspired by someone else’s works, but not to plagiarise.
Similar principles often apply to neighbouring rights, although there are many exceptions.
4.7 What restrictions are there on the exclusive rights?
Copyright is the field of intellectual property law which contains the most restrictions. There are exceptions which mean that certain actions with protected works may be permitted. The exclusive rights are balanced against a number of other very important interests in society.
Examples of such interests include freedom of speech and freedom of information, which can considered to be fundamental human rights. Copyright has been balanced against these very important interests through the fact that thoughts, facts and ideas are not protected by copyright, only the formulation is protected. Thus, others can disseminate the same ideas but in a different way.
Another example is the protection of the private domain, teaching purposes, research needs, help for people with disabilities, competitive considerations, commercial interests and the right to quote others. There are many examples of restrictions listed in the act. If there is an applicable restriction rule, the right holder cannot prevent other actors from acting. The restriction rules often contain many conditions, so you must read these carefully. It is also important to be thorough when investigating which uses are restricted.
The neighbouring rights refer to certain restriction rules. Check carefully what applies in each individual case.
4.8 Possible recourses in the event of copyright infringement?
In Chapter 5, you can read about the recourses which a right holder has open to them if someone else utilises their rights. The recourses are very similar within the various intellectual property laws.
4.9 Copyright internationally
Copyright differs slightly from the other intellectual property laws. Of course, only the Swedish Copyright Act applies in Sweden, but the Bern Convention in particular has meant that the protection arises without any formal action being taken, and actors from other countries may not be discriminated against. Thus, copyright will be triggered automatically if the conditions are met in accordance with the legislation of many countries simultaneously. The TRIPS agreement has also resulted in the legislation of many countries being similar to that of Sweden.
The EU has had the biggest impact on our Swedish legislation in recent years through a number of directives. This means that the Swedish legislation is very similar to that of other EU Member States.