Useful Tips for Your SME as a Copyright User

Useful Tips for Your SME as a Copyright Owner

Is your enterprise involved in the creation, recording, publication, dissemination, distribution or retailing of artistic, musical or literary works? Does your company have a website, a brochure, a corporate video, or does it advertise on newspapers or TV? Is your SME using music, pictures, or software products owned by others in any of its publications, brochures, databases or websites? Does your company own the rights to any computer software? If you answered “yes” to any of the above, then you may wish to find out more about copyright issues. A brief explanation of the types of works covered by copyright protection and the rights conferred by copyright and related rights is available here.

Once you have a clearer picture on the basics of copyright protection you may wish to know what your SME should do to:

1. Legitimately use or exploit the works or creations of others with the authorization of the author or right holder on fair and reasonable terms;

2. Protect your own works or creations and make sure you make best use of your right and get fair economic rewards from any use made of your creations.

For some enterprises, the use or exploitation of copyrighted works, sound recordings, broadcasts or performances may be a central part of their daily business activities. This may be the case for radio stations, publishing houses, libraries, shops or nightclubs. For others, it may simply be an occasional tool used for enhancing corporate publications, websites and other marketing devices. For others still, use of copyright material may be confined to the use of their computer software. In all such cases, you may wish to consider the following issues:

Do I need a license?

Probably the most important thing to know for an enterprise using or dealing in works protected by copyright or related rights is whether these activities require a license. As a general rule, every commercial use or exploitation of these rights requires a license or an assignment of the rights from the right-owner. This ranges from the use of a famous song in a TV advertisement, to the sale and distribution of CDs and DVDs, and the use of software in a company’s computers. In relation to licensing, you should find out whether the rights are administered by a collective management organization or by the author or producer directly and negotiate a license agreement before you use or exploit the product. Remember that litigation over copyright infringement may be a very expensive affair, and it would be convenient to think about these issues before you get yourself, and your company, into trouble! You may also wish to seek advice about the terms of your licensing agreement before you sign. In the case of certain products such as packaged software, the product is often licensed to you upon purchase. The terms and conditions of the license are often contained in the package which can be returned if you do not agree with the terms and conditions of the license.

Is there a collective management society?

Collective management societies considerably simplify the process of obtaining licenses for various works. Rather than dealing directly with each individual author or right holder, collective management societies offer users a centralized source where rates and terms of use can be negotiated, and where authorizations can be easily and quickly obtained. In recent years, the development of “one stop shops”, bringing together various collective management societies that can easily and quickly deliver authorizations is considered to be particularly useful for multimedia productions that require a wide variety of authorizations. Dealing with collective management societies, wherever possible, may save you a lot of time and money. Details of the relevant collecting societies operating in your country can be obtained from the national copyright office.

Can you freely use works published on the Internet?

A common misperception is that works published on the Internet are in the public domain and may therefore be widely used by anybody without the authorization of the right owner. Any works protected by copyright or related rights, ranging from musical compositions, to multimedia products, newspaper articles and audiovisual productions for which the time of protection has not expired, are protected regardless of whether they are published on paper or by other means for example, on the Internet. In each case you should, generally, seek the authorization of the right owner prior to use. Similarly, authorization is required if your SME is engaged in publishing or making copyright works, sound recordings, broadcasts or performances available through your Internet website.

If your company is directly involved in the so-called “copyright industries,” e.g. creating, publishing, recording, distributing or selling works protected by copyright or related rights, you should make sure you are aware of your rights and take appropriate measures to exercise, license and enforce them. But even if you are not directly involved in the “copyright industries,” your enterprise may occasionally produce some works protected by copyright or related rights. Corporate publications, brochures, websites, TV or newspaper advertisements, marketing videos are all likely to be protected under copyright legislation.

Either way, if you believe that your enterprise has created works protected by copyright or related rights and you wish to maximize your SME’s rewards from such works, it would be prudent for you to seek the advice of your national copyright office or of a copyright lawyer. The following are some of the questions you could ask to better understand the copyright system in your country:

Is there a copyright depositary?

As a general rule, copyright protection is automatic and does not depend on registration. In some countries, however, there is a copyright depositary and registering your work in the depository would be a smart choice as it would considerably assist you in case of dispute for example over the ownership of the work.

Who owns the rights?

The owner of copyright in a work is generally the original creator or author of the work. There are, however, some exceptions to this rule. In some countries, for example, the economic rights over a copyright work are deemed to vest initially in the employer/producer, while in some others these are deemed to be assigned or transferred to the employer/producer. It would therefore be advisable to find out about the specific regulations in your own country.

What are my rights? The exclusive rights which are accorded to authors and right holders under national copyright legislation vary from one country to another. However, exclusive rights usually encompass, for example, the right of reproduction (right of making copies), the right of public performance, the right of broadcasting, and the right of adaptation. Also an increasing number of countries provide right holders with rights in relation to the distribution of their works over the Internet as well as protection against the circumvention of technological protection measures. Thus, it would be worthwhile finding out what rights are provided under your national copyright legislation in order for your SME to fully benefit from the protection of copyright and related rights. In order to facilitate legitimate trade of copyright works, it should also be kept in mind that the economic rights granted to authors have a time limit, according to the WIPO treaties, of 50 years after the creator’s death. Longer periods of protection might be provided at the national level. Collective management organizations are usually in a position to provide appropriate information on the issue. Do also remember that copyright protection usually includes moral rights which include the right to claim authorship of a work and the right to oppose changes to it that could harm the creator's reputation.

How do I obtain international protection for my works?

If the country of which you are a national or a resident has ratified the international conventions in the field of copyright and related rights administered by WIPO, such as the Berne Convention, or is a member of the World Trade Organization and has implemented its obligations under the TRIPS Agreement, or if you have published your work for the first time or at least simultaneously in one of the above countries, your work protected by copyright will benefit from automatic protection in a large number of countries. If this is not the case, there may still be some reciprocal agreements between your country and some foreign countries that provide similar rights.

How should I license my works? If you wish to license your work to users such as broadcasters, publishers, or even entertainment establishments of any kind, ranging from bars to nightclubs, joining a collective management society may be a good option. Collective management organizations monitor uses of works on behalf of creators and are in charge of negotiating licenses and collecting remuneration. They are particularly common in the field of musical and literary works where there may be a large number of users of the same work and it would be difficult both for the owner of rights and the users to seek specific authorization for every single use and to monitor them. Where collective management societies are not available, license agreements need to be negotiated individually with the licensee. Expert advice may be useful for obtaining advantageous terms in the licensing contract.

How should I enforce my rights? The creator of a work has the right to allow or to prohibit the use of his work. If you discover anybody using your copyright works without authorization you may enforce your rights administratively and in the courts. In many countries, so-called border measures to prevent the importation of pirated copyright goods are also available. Expert advice by an IP agent or attorney, the Copyright Office or the customs authorities would be crucial whenever you discover that your works are being infringed (also see "What Should Your SME do to Resolve Disputes Related to Intellectual Property?"). Some works such as software products phonograms and audiovisual works may include technological measures of protection (e.g. encryptions, conditional access systems) to safeguard them from unlicensed use. Such systems are means by which right owners may limit access to those customers who accept certain conditions for the use of works and the payment to be made for such use.