Copyright in Common law : focus on the United Kingdom – Master 1 IP/IT and space activities

When it comes to intellectual property, it’s common to be confronted with the terms “fair use” or “copyright”, without really understanding what they mean. Intellectual property law is, by its very nature, marked by an international interconnectedness that transcends our national borders. Common law systems have influenced and continue to influence civil law systems, and vice versa. This influence is all the more notable today with the emergence of artificial intelligence, where Europe and the United States are seeking the best possible regulation (when it comes to improving a legal system, it is common to observe the developments and practices adopted by our neighbors). In this sense, a certain common logic is taking root in our systems, particularly with international texts, even if it has to be said that each one retains its singularity. Thus, observing how other countries conceive and apply the law can enrich our own understanding of these same rights.

Against this backdrop, this article looks at intellectual property from the angle of the famous Common Law, focusing in particular on the notion of copyright.

What is Common law ?

Common law is the legal system in force in many English-speaking countries, including the United Kingdom, the United States, Canada and Australia. The legal tradition of these countries is built around the Common Law system, which has its origins in the Norman Conquest of 1066. At that time, Common Law was the law produced by the Royal Courts of England, which explains the system of “judge made law” referring to the laws that are established by judges previous decisions.

Common law is thus based primarily on custom and case law, although it also incorporates written texts, which constitutes a first distinction with our civil law traditions.

What is copyright ?

Copyright is a complex concept to define, but it is possible to confirm one thing: it is not the equivalent of “droit d’auteur” as we know it in French law. Indeed, the “droit d’auteur” is based on the protection of the author and his work, justifying the right of ownership he enjoys. The author’s personality is thus central, if not essential. As for copyright, the first real legislative text, the “Statute of Anne”, adopted in 1710 in England, granting a 14-year right to apply for copyright, inspiring the United States to adopt it in 1790. The Copyright Designs and Patents Acts (CDPA) 1988 (UK) defines it as “a property right subsisting, (…) in original literary, dramatic, musical or artistic works, phonograms, videograms or broadcasts and typographical arrangements of published editions”. Similar definitions can be found in the Australian, Irish and Canadian Copyrights Acts. In this vein, the “droits voisins” (producers) are included in copyright. On the other hand, the definition of copyright in the United States is more synthetic, referring to original works of the mind, as long as they are fixed in a tangible form enabling them to be perceived, reproduced or communicated, either directly or via a device. However, the “droits voisins” are not included here.

In reading these definitions, we can see that protection is based on a more economic vision, which is more interested in the content than the author, justifying the legal right enjoyed by the author. As a result, we can attempt to define copyright as the set of exclusive rights of an economic nature conferred on natural or legal persons according to a category of works.

As you will have understood, each country retains control over the assessment of the rules applicable in this field, and it is therefore important to define the scope of our study.

Today, we’ll be looking at the United Kingdom, which I’m particularly interested in because of its history with the European Union, oscillating between two traditions.

In the first part, we’ll look at the principles that guide British copyright, putting them into perspective with our civil law system. Finally, I’ll take a more distanced approach to theory, in order to plunge into the heart of practice by directly confronting the people who make up the very essence of this field. To this end, I’m delighted to present the London-based Tierney siblings, who tell us about their experiences and feelings in the creative process.

I – Copyright law of the United Kingdom

As a former member of the European Union, the UK is an interesting country to develop, as it was heavily influenced before it left in 2020. The British approach blends a stable legal environment with a more liberal and pragmatic approach, typical of Common Law countries.

As mentioned above, the main law in the UK is the CDPA of 1988, incorporating European directives such as the Copyright in the Information Society Directive of 2001 and the Orphan Works Directive of 2012. Other regulations in force include the Copyright and Rights in Performances Regulations 2000, The Copyright and Related Rights Regulations 1996, Enterprise and Regulatory Reform Act 2013, The Copyright (International Protection) Regulations 1995. The applicable treaties are the same as for French law, namely the 1886 Berne Convention, the WIPO Copyright Treaty and the 1994 TRIPS Agreement. However, the UK has not transposed the 2019 “DAMUN” Directive.

First and foremost, a common logic should be stressed : the work must demonstrate originality. The difficulty lies in the importance attached to this criterion. British judges tend to oscillate between several criteria: workmanship, talent, discernment and, above all, the substantiality of the work. In this sense, the judge has sometimes refused protection for a creation, deeming it insufficiently significant. Nevertheless, judges have also sometimes emphasized the importance of the author’s own expression of intellectual creation. Thus, the question of originality is not a problem unique to France.

In France, Article L112-2 of the Intellectual Property Code, which lists works eligible for copyright protection, is an open-ended list, as indicated by the use of the term “notamment”. In the UK, on the other hand, 8 categories group together protected works drawing their sources from different acts. The 1997 Creation Records decision illustrates this “closed list”. In this case, the judge refused to protect the scene staged for the cover of the Oasis album Be Here Now, published by the British newspaper “The Sun” without their authorization, on the grounds that the work did not fall within the categories of protected works. This reasoning runs counter to that of the CJEU, which requires proof of a creative contribution to the work.

Protection of works in the UK covers a vast field, from classic literary works to software and databases. In addition, copyright covers sound, music, film and television recordings, as well as the layout of published editions. Thus, the human approach to the person as author of a work is not the one adopted by the UK, since the producer, for example, will have the status of author (Section 9 2° CDPA). A strange choice, given that England is familiar with the vision adopted by the European Union, but the economic aspect of Common Law countries may explain such a choice, with the emphasis on protecting investments (often held by companies).

Lastly, British law confers specific protection on works of artistic craftsmanship, i.e. works of fine art, although their application remains complex.

These different categories have a direct impact on the duration of protection. Written, dramatic, musical and artistic works and films are protected for 70 years after the death of the author/director/screenwriter, etc. Sound and musical recordings are protected for 70 years after first publication, while broadcasting rights, often held by producers and publishers, are protected for 50 years after first broadcast. Finally, the layout of editions is protected for 25 years after first publication.

You have probably heard of the “work made for hire” doctrine, which is based on the 1976 Copyright Act. It refers to works whose ownership belongs to a third party (the employer) rather than the creator. Nevertheless, this doctrine applies to the United States. In the case of the United Kingdom, the approach adopted is interesting. The United Kingdom adopts an approach close to French law: “The author of a work of the mind enjoys an exclusive intangible property right in this work, by the sole fact of its creation, enforceable against all” (article L111-1 CPI). However, the judge leaves implicit assignments open, as illustrated by the case of Griggs Group v. Raben Footwear, where no assignment contract was made and copyright was considered to have been implicitly transferred to the company. Thus, the UK seems torn between the continental vision and the more liberal approach of Common Law countries. However, this approach creates considerable legal uncertainty for litigants.

The UK provides exceptions to the principle of monopoly that fall somewhere between the US and EU systems. Thus, fair dealing falls somewhere between American fair use and the closed exceptions of European law. In this sense, to assess the reasonable use of a protected work, the judge does not base himself on the triple test of the Berne Convention. Instead, the judge applies a number of criteria, which he adapts on a case-by-case basis, such as the extent of the borrowing, the use made, its consequences, the lawfulness of the obtaining, the reasons for the borrowing, or the non-commercial nature of the use (criteria found in European Union law).

UK law has 70 sections distinguishing between exceptions subject to fair dealing (teaching, criticism, news reporting, non-commercial research, private use, parody, TDM, etc.) and those excluded (technical measures, transitional copies, software, databases, fundamental exceptions, etc.).

At first glance, the UK’s approach to moral rights appears to be in line with French law, since it confers the right of paternity, the right of integrity and the right of disclosure. As a reminder, moral rights refer to prerogatives directly attached to the person of the author. Nevertheless, the approach is far from being as sacralized and absolute as it is in France. To begin with, the perpetual vision of moral rights is not the one adopted here, as they are only protected for the duration of the work’s protection. What’s more, infringement of the author’s moral rights is qualified not as counterfeiting but as a breach of statutory duty. Finally, these moral rights are subject to numerous exceptions, limiting their scope.

British law differs from continental law in requiring the author’s name to be mentioned in parodic works, and in recognizing the author’s right to object to false attributions (1998 Act) “enabling the author not to be associated with a work he has not created” (cf livre). This right remains applicable for 20 years after the author’s death.

In accordance with the Berne Convention, it is established that the exercise of rights in a work is not subject to any formality. In the United Kingdom, a law passed in 1842 made registration compulsory, on pain of prosecution. Since 1911, however, there has been no need to register in order to benefit from copyright protection. In this sense, as in French law, the work is protected as soon as it is created. Nevertheless, it is always advisable to keep a record of the date of creation for evidentiary purposes in the event of litigation, in order to claim a prior right to the work.

The acronym Copyright © is specific to Anglo-Saxon countries and refers to the Copyright Office, which has no legal scope in France. In fact, this acronym distinguishes between works protected by copyright and those that are not. In the UK, the Intellectual Property Office states that marking with the acronym is optional, and in no way affects the level of protection. This is in contrast to the USA, where the Copyright Act allows a plea of “innocent infringement” in the absence of the mark.

So, whether in the U.K., France or the U.S., registering a work offers significant evidential advantages, since a right cannot be recognized and enforced without tangible proof.

In the age of artificial intelligence (AI), the question of digital regulation in the UK is essential (and topical!). Indeed, a concern is emerging on an international scale: how to protect authors in the face of the advent of artificial intelligence ?

To address this, the UK government recently proposed a regulation on copyright and AI within the Digital Markets, Competition and Consumers Act 2024, which is gradually coming into force. One of the main proposals is to introduce an exception to copyright for text and data mining (TDM). This measure would allow AI developers to train their models on protected works without prior license, unless explicitly opposed by the owners via an opt-out mechanism, subject to transparency to avoid abuse. However, many artists and music labels have opposed this proposal, jeopardizing their work.

II – Analyses of the artists’ point of view

It’s now time to take a step back from these principles and consider the testimonies of two London-based artists. These testimonies are particularly enlightening as they bridge the gap between legal principles and real-world practice. While theory provides the framework for understanding British copyright within our civil law perspective, it is through the lived experiences of creators that we grasp the true impact of these rules. The insights shared by the Tierney siblings offer a valuable, first perspective on how legal concepts translate into tangible challenges and opportunities in the creative process.

Let me first introduce you to Luke Tierney : Starting off by writing a blog about music videos and the people who made them, Luke finally succeeded by moving as a British producer for music videos and commercials working on British and International projects. You’ll find him behind leading commercials such as Adidas (Predator ’25), Zalando (What do I wear?) Stellar (Where blockchain meets the real world) and artists such as Jade (Angel of my dreams) or Ibeyi and Jorja Smith (Lavender & Red Roses). Furthermore, his production of Hideous was nominated at the “Festival de Cannes” during “La semaine de la critique” in 2022.

Can you tell us a bit about your role as a producer ?

“I manage the project from the pitching phase, through to pre-production where we organise everything, then the shoot and finally post production.”

How do you manage working with other artists (directors, scriptwriter, art director) and other people involved in getting the word out about a project (distributor, press officer, etc.)?

“⁠It really depends on the project and the role of the person. Directors will have the vision of what’s needed and then I’ll make it happen as well as suggest other options of ways we could make it happen. Their characters vary completely from person to person so you really have to adjust depending on their style of directing. The same with most roles, however the director is special as they ultimately lead on creative projects. Distribution depends, if a music video the label will handle that side of things, and if a commercial the advertising agency will look after it. My job finishes once the final film is delivered.”

Are there any moments or experiences that have marked you in the management of your rights? Have you ever been faced with situations where regulations limited your creativity?

“I didn’t know I had any rights! But in terms of IP we have to be careful, when showing brands, when showing people we need to get release forms, the same for locations. There’s different rules for each situation that you learn through experience.

I remember we did a music video once and we wanted to impersonate the biggest popstar in the world and I asked a lawyer friend for advice and they said you’d be at risk. We went for it anyway and no one minded in the end, but we had to agree as a group that we were going for it e.g. the artist label, management and us.”

With the rise of digital technology and streaming platforms, do you feel that your job has changed?

“Not so much, the big thing is AI at the moment. Everyones still afraid to use it, and also you need to be careful how it’s used. If inputting someone’s image into an open system of AI then that becomes a part of the AI forever. So we recently worked on a job and needed an artist to sign a release form to put their image into an AI system and do some crazy things with the video clip, but they said no and we moved on.”

Analyses : Luke’s testimony as a producer highlights several interesting issues at odds with existing legal theory. Indeed, Luke wasn’t even aware of his rights as a producer, but learned them on the job through experience. This lack of awareness on producer rights is a common issue in the creative industries, particularly in collective work, where rights are not clearly defined between ownership and authorship. Unlike artists, who directly create a work, a producer contributes indirectly. Those rights depend mainly on contractual agreements, not just the creative involvement.

Finally, the role of the producer is largely influenced by the decisions of the artistic director or even the artist himself, highlighting the importance of the collective of the work in which each has a role to play on which the other will depend. A collective work is a creative project that involves multiple contributors where individuals contribute a distinct part to a unified final work but each retains copyright to their own section. The role of producers is also constant negotiations and compromises. As the example of the IA project illustrates, despite the technical feasibility and interest of the producer, the project ultimately depends on the artist’s agreement. The final decision often rests with the primary copyright holder. It also highlights the lack of clear legal precedent on AI making artists reluctant to this system. Consequently, contracts are an essential part to ensure that each contributor’s authority is respected. This also depends if the producer is hired by a studio or if he is an independent contractor. Finally, risk-taking is an integral part of the artistic process, underlining the importance of collective agreements within the team.

Last but not least, let me introduce you to Nieve Tierney: a former art director and graphic designer in the fashion world, Nieve reinvents herself as a coach and energy healer for prestigious clients such as renowned actors and musicians leading workshops at Stella McCartney or Soho House. Nieve also appears in Vogue, Stylist, and Grazia. Finally, Nieve has just finished writing her book entitled “The Fashion Oracle”, which she will tell us all about.

Can you introduce your career in a few lines?

“I teach individuals and teams how to improve their energy boundaries and optimize the energy they hold. We all hold a vibration but we may not always know how to access it or master it. I guide people through my talks, visualizations and guided meditations.”

As an ex-artistic director in the fashion industry, what were the greatest difficulties you had to deal with, particularly in terms of creation and innovation?

“When I worked in fashion I loved the creativity. This for me was my motivation and fuel. But when you do a job you love, I at the time didn’t have enough balance and would often burn out. I didn’t have any energy work and knowledge in place.”

Can you tell us about the book you are currently writing? What is it about and what inspired you to write it?

“It explores themes of Fashion Alchemy. Which explains and guides you that you can alter the frequency you hold consciously through the clothes that you wear. We know about colour psychology but this book goes deeper. Inspired by Chanel who was deeply inspired by astrology (she is a Leo and would have lion motifs all over her collections including the buttons of her famous suites) and she was interested in tarot (she used wheat which in tarot is a symbol of abundance in her collections and jewellery lines).

The book is like tarot but for fashion – you ask the book for guidance on a fashion dilemma ie – what to wear for a big meeting and you flick through the book and randomly choose a page for the answer. The book connects you to 1 of its 70 archetypes which will tell you what colours and silhouettes etc to wear to evoke the energy of the archetype you landed on.

For instance if you landed on the Lioness archetype, she encourages you to step into the fierce feminine energy which is less about passive feminine templates. And the boom will give you journaling prompts or meditations that will help you understand the archetypes energy in a deeper way.”

What were the difficulties and joys you faced as an author in the process of writing your book?

“Not forcing the creative process but allowing it to come through naturally was a new skill I needed to hone. When I worked in fashion I was happy to work long gruelling hours. But that doesn’t work with energy worms or writing a book. I have to be energetically in balance for the creativity to flow through me easily rather than forced to get my best work.”

What challenges did you encounter in publishing your book?

“I was very lucky. I was approached to write the book by a publisher that found me.”

Are there any moments or experiences that stood out for you when it came to managing your IP rights?

“The energy work that I do is very unique and not a lot of people do it. I want everyone to know about this work and I teach other teachers how to do it. But my IP that I want to protect are the events I develop and the community that surrounds that.”

Analyses : Nieve’s testimony is very interesting, thanks to her bird’s eye view of her field due to her multiple professional cards. In this sense, as a former art director, she highlights how passion can sometimes lead to over-investment, emphasizing the balance to be preserved in the creative process. Writing her book has made her aware of this issue, and the importance of letting her creativity emerge naturally. Copyright protects creative works but not the creative process itself. There are no legal safeguards preventing external pressures from limiting an artist’s creative freedom. It only protects the results of their creative process.

The protection of fashion creation is also interesting. In fact, the application of copyright to fashion designs is mostly restricted due to the consideration of the article as a functional item rather than a pure artistic creation. In this sense, copyright does not extend protection to useful articles defined as “an article that has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” Of course, other alternatives are still open as design protection under certain conditions to the IPO. In France, according to the definition of originality, the “droit d’auteur” is granted automatically to original work regardless of their genre, form of expression, merit or purpose. In this sense, it is easier to have protection under French law than UK law for copyright.

Nieve also describes her book as an interactive experience allowing readers to use it for guidance. This raises questions about the copyright implications of innovative books. In fact, it may require additional copyright considerations like adaptation rights for example, if the concept expands into other media, such as a game or a course. Copyright is not about protecting a single work but also how it evolves and is commercialized across different formats. Nevertheless, copyright can accept fashion designs if they attest of an original artistic work that is fixed in a tangible medium (copyright doesn’t protect ideas)

As her work is unique, she wishes to disseminate it widely, but is also confronted with the legal protection around her events and the community she has built, highlighting the tension between sharing and preservation for the artist. Copyright automatically protects original work upon creation without requiring registration. But copyright doesn’t cover everything : artists also need to consider how they can safeguard the ecosystem around their work, including events and their community. Copyright only protects materials associated with it. Nevertheless, it is possible to consider the protection as a trademark or NDA’s. Finally, Nieve has had to adapt her creative process to suit her energetic work, which reflects a different approach to traditional productivity.