Forging & Enforcing a Copyright

by Syamsuriatina Ishak

 

As explained in Basics of Copyright, a copyright subsists in a piece of creative work automatically as soon as it is created. But, to clarify further, there are certain requirements that have to met in order for a copyright holder or author can claim a valid copyright over their work.


FORGING OR ESTABLISHING A COPYRIGHT

Once a piece of creative works has been reduced into a material or tangible form (eg. a story would need to be written down or typed out – arguably this could include having an audio recording made of someone telling the story) then next, to establish copyright, the general requirements under the Berne Convention and most jurisdictions (territorial areas governed under a common set of laws) is for the creative work to meet a basic threshold of originality, i.e. that it is original to that particular author and was not previously in existence. 

While some works can possess similarities with other works, generally the law provides protection over works that meet a minimal requirement of creativity (operational word: create – make from nothing at all). In fact, the American courts have denied copyright protection for mere labour or ‘sweat of the brow’ on the production of creative work (the famous ‘Yellow Pages’ example).  That is not to say that effort poured into creation of a piece of work cannot give rise to copyright. The amount of skill, labour and judgment expanded for the creation of such works is certainly taken into consideration of whether it becomes entitled to protection under the law. Therefore, it is not impossible for a scenario to arise of two different persons claiming copyright over works that are very similar in content, as long as each creator or author can show that they had independently poured in enough skill and effort into making their work an original. 

The above are the general considerations, although almost all jurisdictions have their specific statutory provisions that define a copyrightable piece of work along the same lines, eg. in the USA, this is provided for under Copyright Act 1987, and in UK, it is the Copyright, Designs and Patents Act 1988.


WORK IN THE PUBLIC DOMAIN

In relation to the issue of using extracts of work under the public domain (creative work where the copyright protection has expired or is not applicable eg. books written by authors who have died more than 50 years ago – this is why you see so many classic English books written in the 1900s easily available for download on the internet without being concerned with copyright issues) it is arguable that although you would be entitled to copyright of work which compiles or annotates extracts of these public domain works, you will not receive copyright over those extractions themselves because the extractions were not original to you.


WHAT IS COPYRIGHT INFRINGEMENT?

A copyright can be violated or infringed if the copyrighted work is copied in whole or in part in any material form without the copyright owner’s consent. In most cases, the work of the infringer is not an exact reproduction of original copyright owner’s work. The plagiariser may have tweeked or changed something about it, but this infringement can still be actionable if the reproduction is of a substantial part of the original work or bears a striking resemblance to it.

This then becomes a question of fact and degree, rather than quantity.


HOW CAN YOU PROTECT YOURSELF FROM COPYRIGHT INFRINGEMENT?

An author must realize that it is virtually impossible in practical terms to prevent someone from copying your written work. In this day and age, it is effortless for another person to copy your work once your manuscript is made public (published, or ARC shared with a beta-reading circle, or even a Word document sent to a ‘friend’). I use the term ‘copy’ here loosely, although copyright infringement means doing any of the exclusive rights granted to the copyright owner as explained in Different Types of Author’s Rights.

But, while you may not be able to stop copying from occurring, you would have legal recourse (a remedy in law) against the infringer. 

Most integral to commencing a legal action for copyright is proof of ownership; essentially, establishing the copyright belongs to you. This means you need to show (1) the creation of the work into material or tangible form and then (2) that the work is original to you (i.e. that you created it from scratch). This is where proof of different versions, edits and permutations of your manuscript, your storyboard or plan, synopsis notes etc. come in handy.

To make a case for infringement, the author has to show that the infringer had access to his/her copyrighted work. This is easy to presume if the work is published because the manuscript would be made public, and slightly more difficult if the work is unpublished, because one would then have to show a credible paper trail of how the work fell into the infringer’s hands. Also, it must be proven that the works is too strikingly similar to the author’s work for it to be made by the infringer. 

When two pieces of work are similar, the next question which arises is one of timing: who copied who?

In old times, authors used to resort to the ‘poor man’s copyright’ strategy of posting a copy of the manuscript to themselves in a sealed and untampered envelope, only to be opened before a court official at the proving of copyright, so that the date stamp of the envelope would constitute proof of the existence of such works at the time. Nowadays, it is simpler to just email a copy of your manuscript (and all your drafts) to yourself (or an independent third party) where the date of that email, and the contents and version of each attached manuscript is taken as proof of its contents.


WHAT IS COPYRIGHT REGISTRATION?

In countries/jurisdictions where copyright registration is provided for, once a piece of work is registered under the ‘Copyright Registration Office’, this is regarded as prima facie (first instance presumption) evidence of timing and fact of the existence of the work. It then becomes a veritable confirmation of the date of registration and the content of the work itself. It is customary in the publishing industries of these countries that books published through most traditional publishing houses submit books published by them to this registry concurrent with or soon to the date of publishing, as a way of setting the date for any copyright claim, and therefore, protecting their claim.

In the USA, for example, the law provides that a piece of work must undergo copyright registration before a copyright action can be brought. In the event of a legal claim or case of infringement or plagiarism, a copyright owner can produce a copy of the work from an official government source as prima facie proof of their ownership at the time of registration. 

Again, copyright registration must not be confused with granting of copyright, which as explained before this, happens automatically upon creation of such work.


In most jurisdictions, the copyright owner has to bear and incur the expenses to enforce their copyright in the event of an infringement, in other words, pay for the appointment/engagement of lawyers, undergoing the notice and take down process, and eventual cost of court litigation if no settlement is reached. If the book is published under a traditional publishing agreement, this cost is often borne equally, in part or entirely by the publisher, although the proceeds of any winnings is also shared with the publisher.

A later posting will explain the legal processes entailed in a copyright infringement action.