Copyright offers important protection to businesses, individuals and organisations that prevents content from being misused by others.

Without the copyright rules, all of the skill, creative effort, time and money invested in producing material would be wasted.

The rules regarding copyright can often frustrate a business’s efforts to market a product or promote a product or service.

To help get a better appreciation of the rules of copyright and what is and is not allowed, we have put together a basic guide.

What do the copyright rules cover?

In copyright legislation, items that are protected are often referred to as works and are broken down into the following categories:

  • Original literary, dramatic, musical or artistic works, including computer programs and some databases;
  • Sound recordings, films or broadcasts; and
  • Typographical arrangements of published editions.

Within the first category literary, dramatic, musical and artistic works will only be original if they are the result of independent creative effort and not if they are direct copies. This first category also covers logos, which are generally considered to be artistic works.

Even if two works are almost identical, they will still be considered original if they have been created by their respective authors independently of each other.

Many publications and companies may also protect their brand via trade marks and design rights, meaning that in some cases the use of colours or certain patterns may be considered an infringement on a company’s intellectual property.

However, Ideas are not protected by copyright. Copyright only protects the expression of ideas rather than the concepts from which they are created.

When is copyright infringed?

The owners of copyrighted works are allowed to copy, issue copies, rent or lend, communicate or adapt the work themselves.

This means that works are infringed by any party who performs any of the actions listed above without the permission of the work’s owner.

Care must be taken, as a person or organisation may commit a secondary infringement of copyright if they use or attempt in some way to sell a work, which they know or have reason to believe is already infringing copyright. 

The myth of online content

There is a persistent myth that once material is posted on the internet it somehow becomes a public work.

This is simply not, nor has it ever been, true. Works that are sent via the internet or stored online are protected by the same rules as works that are published or created physically.

That means that if you intend to use imagery or copy from another site you must have the express permission of the copyright owner.

The exceptions

Although the rules surrounding copyright are strict there are exceptions to consider. Here are some (but not all) of the exceptions to the rules:

  • Minor infringements – Copyright is only infringed where the whole or a ‘substantial part’ of a piece is replicated. It may be possible to use part of a copyrighted text, but the question is not the quantity of the text used but the quality i.e. the skill used to achieve it. It is often better to air on the side of caution. 
  • Fair dealing – There is no copyright infringement when the use is fair, such as in a review, criticism or the reporting of information to a wider audience. This also covers caricature, parody or pastiche. To be covered by fair dealing the work must be publicly available and include an acknowledgement of the name of the copyrighted work and its author.
  • Incidental inclusion – There is no copyright infringement if copyright work is incidentally included in an artistic work, sound recording, film or broadcast, such as background music in a public place.
  • Educational use – There is no copyright infringement if a protected work is used for the purposes of instruction and examination. However, it must not be used for commercial purposes and the rights of the author must be acknowledged.
  • Public administration – There is also no copyright infringement where copyright work is used for administrative purposes, for example as part of judicial proceedings. As such, there is no copyright infringement in reporting public enquiries or Parliamentary proceedings, including material which much be open to public inspection by Parliament. However, this does not cover the copying of a published report.
  • Public interest – In certain circumstances, the publication or use of the copyrighted work can be defended if it is in the public interest, for example where the material is critical to the administration of justice.

Why is this so relevant to modern marketing? 

Modern marketing often relies on building or following new trends, but in doing so you may find yourself infringing on the copyright-protected works of others – sometimes without even realising.

The growth of the internet has also led to a growth in infringement, partly driven by the myth of all online content being ‘public works’.

With the advancement of AI, it is becoming increasingly easier for organisations to detect and track infringements, so it is important that you remain on top of the content that you are posting. If you are ever unsure of whether something you intend to post may or may not be infringing on the copyright of others, please feel free to contact our team for clarification.

This guide is designed to be used for illustrative purposes and is in no way comprehensive- it does not constitute legal advice. We strongly advise that you seek professional legal advice at the earliest opportunity if you believe you may be infringing on the IP rights of others, or if you believe your own rights have been infringed. 

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