Legal Eagle

Published Wednesday 23 July 2008 at 11:45 by D Michael Rose

Q: I hear so much about the importance of copyright in the theatre, but how does it work ?

A: Wow, what a huge topic. Whole books have been written about it, running to many hundreds of pages.

Much of the law relating to it is enshrined in the Copyright, Designs and Patents Act 1988 as amended, and regulations made thereunder. The act alone runs to 306 sections and eight schedules.

Interaction with foreign legal jurisdictions is governed by international copyright convention. The leading UK legal textbook on the subject is Copinger and Skone James on Copyright, which contains a specific theatre section written, as it happens, by me.

All I can do, in the space available to me here, is to give you a few general principles of English law on the subject.

Copyright is a property right which attaches, amongst other things, to an original literary, dramatic, musical or artistic work when recorded in writing or other permanent form.

The first owner of copyright in such a work is the creator (author and/or composer). Copyright in such a work subsists until the expiration of 70 years from the end of the calendar year in which the creator dies, but in the case of sound recordings the period is 50 years from the end of the calendar year in which the work is first recorded, published or publicly played - whichever is later.

Copyright is transferable by written assignment or by succession, and is licensable either for a specified period or for the full period of copyright. It is divisible in the sense that by assignment, licence or succession there may be different copyright owners and licensees of the same work in different places and in different media at different times.

Future copyright in a work not yet created may be (and often is, as in the case of commissioned work) similarly assigned and/or licensed in advance of its creation.

There is no system of copyright registration in the UK, but there is in various overseas territories, most importantly in the USA.

There is no copyright in a performance as such, but there are certain analogous performers’ rights, such as not to have a performance filmed or otherwise recorded without the performers’ consent.

Copyright confers on the owner the right not to have the work copied, published, rented, lent, performed, played, communicated and/or adapted without the owner’s consent, and any violation of this right will constitute an “infringement” for which possible legal remedies are damages, a restraining order (injunction) and an order for seizure and delivery up and/or disposal of infringing copies.

There is a long list of acts which are given express statutory permission and will not therefore constitute an infringement. Examples are fair dealing for purpose of research or private study, or for purpose of criticism or review; certain things done for purpose of education, instruction or examination; certain copying by librarians and archivists; and copying for public administration, parliamentary and judicial proceedings.

Copyright is to be distinguished from moral rights vested only in the creator of the work, which are not transferable (except on death of the creator) but which can be waived. A creator’s moral rights referable to the theatre are a right (if asserted) to be identified as author, a right of objection to derogatory treatment of work, and a right of objection to false attribution.

So far as theatre performances are concerned, the principal “possible” creators of copyright material are authors, composers, directors, choreographers, designers, translators, orchestrators and adaptors, all of whom are usually remunerated for the exploitation of their copyright material by reference to so-called “royalties”.

There is a Copyright Tribunal whose principal function is the authorisation and regulation of semi-public licensing schemes and bodies (such as The Performing Right Society), grievances relating to same, and resolution of disputes as to equitable remuneration of performers for sale or hire of recorded performances. It also has a significant number of other functions.

You should understand that the above is just a quick overview which barely scratches the surface, but should give you some rough idea of what is involved.