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I'm a writer – what do I need to know about IP?

Published 26.04.10 at 10:59

Under UK and European Intellectual Property (IP) law, writers may have certain rights over their works. Understanding which rights you have will help you make decisions about how to exploit these rights in a commercial context.

This answer assumes that you are an independent writer and that you are not producing work in the course of employment. If you are writing in the course of employment, under a contract of service, your rights will automatically belong to your employer unless otherwise specified in your employment contract. For further information on this, see Who owns the IP – the employer or the employee?

This answer focuses on the rights of writers of literary works in a narrow sense and does not cover IP law issues relevant to creators of dramatic or musical works.

Writers need to be aware of issues concerning copyright, moral rights and confidentiality.

Copyright
A writer's work will most likely attract copyright protection, so long as it is original (in the sense that it has not been copied from anyone else).  No formalities are required to obtain copyright protection, the work must simply be recorded in a material form such as on paper, in a computer memory or other recording medium. If a work is protected by copyright, others will not be allowed to reproduce it without your consent. (In case of freelance or commissioned work, the author usually retains the copyright, unless there is an agreement to the contrary. For further information on this, see Who owns the IP – the freelancer or the client?

You should also be aware that other original works may be protected by copyright and you should take care not to infringe the copyright in such works.

For further information on copyright, see the Own-it Copyright Factsheet; for further information on how to copyright your work, see our FAQ, How to copyright your work.

Moral rights
In addition to copyright, writers have moral rights in their work. These afford important protection to the writer's reputation. Information about moral rights can be found here.

Confidentiality
Writers will usually need to present their ideas and work to publishers. If you do this, it is important to ensure that your work is protected by confidentiality agreements.

Confidentiality can protect your work if it has not already been made available publicly and it is provided in circumstances importing an obligation of confidence.  This can be done by expressly emphasising the need to keep your work confidential or marking it as 'confidential'.

For further information on confidentiality, please refer to the Confidentiality Factsheet.

Exploiting your work
When dealing with publishers, it is important to understand the different ways in which you can exploit the copyright in your work. There are two main ways to exploit copyright, either by assignment or licence.

An assignment of your IP rights fully transfers those rights to a third party who then exploits them. You will also lose your right to bring proceedings for any infringements.

In contrast to an assignment, a licence is a limited permission for another person to use your IP rights for the duration of the licence, and means that you remain the owner. The advantages of licences are that they can be limited in terms of scope (you can dictate how you want your rights to be exploited), time (the length of time that someone can use your rights for) and territory (you can give permission for certain countries, ie UK only, EU, US, worldwide etc).

Whether you assign or license your copyright will largely depend on your bargaining power. Clearly if you retain ownership of the copyright, you will have generally greater control over its exploitation than if you assign it. Most publishers will require an exclusive licence which should be sufficient to enable them to exploit and protect your work.

If you obtain a book deal, it is highly recommended that you have the contract reviewed before signing. Both the Society of Authors and the Writers' Guild of Great Britain offer help with contract terms for members.

Protecting your copyright
Only the owner of the copyright or his exclusive licensee can bring an action for copyright infringement. Potential remedies include damages, an account of the infringer's profits from the infringement, an injunction to prevent the production of further infringing copies, and an order or to deliver all infringing copies to the owner. Certain infringing acts are also criminal offences and can result in fines and/or imprisonment for the infringer. If you think that your copyright has been infringed, try to obtain legal advice, for example, through Own-It's Ask Us page, before taking further steps.  

Content supplied by College of Law students at the Moorgate Centre supervised by Tim Harris of Bird & Bird LLP. Photo credit: Geishaboy

 

Please note that this article discusses the legal position in the UK at the time of publication. It provides general information only but is not to be regarded as legal advice. You must take advice from a specialist lawyer in relation to your specific circumstances. Further, you should seek additional legal advice when dealing with parties based in other parts of the world or works originating from other parts of the world as the legal position may vary.

Comments

  1. Very helpful article

    Thank you to all concerned for this comprehensive guide.

    Ironically enough, I used to temp for Bird and Bird many years ago and therefore respect what they have supervised herein.

    As I now have my own Intellectual Property Limited Company, animation project, and am an artist as well as a writer, intellectual property is a very complex and important area of law where any creative work or endeavour is replicated between specialties. There are anomalies as well, and often it is better to leave something out if one is not certain on legalities involved.
    Various countries have different laws on the same issues, and many times over my own project has been protected by issuing Licensing Agreements to third parties 'just in case' they default.

    There are some basic key facts which should be included in all Licensing Agreements, after that, you can try adding 'wish list' elements if third parties agree to sign.

    It has taken me 10 years to learn what I know now and this year I have learnt more things as media arts and intellectual property merge more and more.

    So look at your film, painting, script contracts time and time again to see if you have missed anything. Take advice from the people who jointly prepared this article.

    Renewed thanks for writing this guide, which I shall re-read and recommend to others.

    Best regards to all
    Hazel A. Speed BA (Lond.) - Philosophy

    Creator, Author and Writer
    www.thepinkprofessor.com

    Executive Producer

    Posted by Hazel Speed on 26.04.10 at 14:36

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