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Insights

08 April 2020

Using the lockdown to create content at home? Here are some things to think about…

The Coronavirus crisis, and the corresponding lockdown, has meant that an extraordinary number of people are either working from home, are furloughed, or for whatever reason have a lot of extra time on their hands. It is no surprise therefore that there has been a spike in the amount of creative content being developed by individuals at home for consumption online. Creative ‘works’ such as videos, music, images, literary works, software code, paintings, sculptures, and even some everyday items, if they are ‘works of artistic craftsmanship’ are protectable by the law of copyright.

But what are the risks involved in this? Did you know that in certain circumstances individuals may not own the rights to the content they create? Even if they do it alone, from the comfort of their own home? And, even if you own the rights, are you at risk of a copyright infringement claim if you use, incorporate or replicate content made by third parties?

Ownership of rights – is it in the course of your employment?

This is particularly relevant for home workers and their employers because under English law, the intellectual property rights in ‘works’ created by employees, during the course of their employment, automatically belong to their employer.

Given that the boundaries of work time vs personal time are now somewhat blurred, and that many people have employer owned equipment at home with them, care must be taken to separate ‘work product’ from the creative content they produce in their own capacity. What constitutes ‘during the course of employment’ can be a complicated question – but the following are all potential red flags: (i) if individuals are using their employer’s equipment, (ii) if the content they are creating is similar to, or part of, what they generally create as part of their job, or (iii) if they are ‘creating’ during normal work hours.

For example, even though I am writing this very article from the comfort of my living room, at 8pm, I am doing it on my work laptop and it is very much part of my role as an IP lawyer, so the copyright in the article belongs to my employer. If, after finishing this, I use my own laptop to film a video of me playing an original musical composition on the pots and pans in my kitchen (don’t worry, I won’t!) then I will own the rights in that video. However, it is rarely as clear cut as these two examples. 

With this in mind, it is advisable for employees to remember to separate work from other activities and to be clear on what falls under which category. If there is doubt (from either side) it is probably worth having an upfront discussion before content is created – acknowledgment from an employer that a certain activity falls outside of an employee’s scope of work should be enough to protect the employee’s creations. Both employers and employees should also check their employment contracts, as this may assist with ascertaining what belongs to whom.

Employers should be equally (if not more) concerned about the content created by contractors or external agencies. Although there is no change in the law here, it is always useful to have on the radar that, from a copyright perspective, the same rules do not apply to non-employees. Therefore in any agreement involving the creation of protectable content, the ownership of the copyright should be explicitly dealt with and clearly set out.

The legal landscape gets even more complicated where two or more people collaborate in their creativity. If a work is created by the collaboration of several people then it could be a ‘work of joint authorship’ and the copyright will belong jointly to all of the creators. Similarly if a studio or other online platform acts as a ‘content aggregator’ for multiple contributors, they will either be joint authors or the underlying rights in the resulting product may be split between them.

In these circumstances, the consent of all authors is required for any one of them to deal with the work. Thus, by using the ‘work’, an individual creator (or their employer, or the entity that thinks they have acquired the rights from that creator) could well infringe the rights of all their co-collaborators by using the content.

Third party content – are you infringing third party rights?

Most people think that, if you are sitting at home, churning out amateur content through your mobile device, for your own entertainment and that of your followers, you are immune to claims of copyright infringement. Unfortunately, this is not correct; even if you are not making a profit from your activities.
The owner of the copyright in a work has the exclusive right to deal with that work (this includes copying, performing, making an adaption of, and otherwise communicating the work to the public). If you do any of these acts to a ‘substantial part’ of a protectable work, you are risking a claim of infringement. Contrary to popular belief, just because someone has already put something online (even if it is accessible by all), it does not mean that everyone else is free to use that content.

Of course these rights are only as strong as the ability, or will, of the owners to enforce them (and it might be reputationally damaging for an artist, studio or company, to go after individuals for performing their songs, for example, or recreating their paintings on social media), especially, in the current climate, if the output of the copied work is for “a good cause”, e.g. raising funds for the NHS. However, there is a risk that they will – this is particularly relevant to influencers who generate substantial income from their online presence.

In practical terms, there are many blurred lines to consider here, for example if you happen to have a poster or painting on your wall, which inadvertently makes it onto a video, this may be ok as it could be covered by the ‘incidental inclusion’ defence. There are also defences for criticism, review, quotation or news reporting as well as caricature, parody or pastiche. So, for instance, whilst it would in most cases be an infringement to read a protectable book out on a live stream– it probably wouldn’t be an infringement to conduct a review of it (even if you quote brief passages)

It is also of note that formal court action does not always need to be taken to pursue ‘infringers’. For most (if not all) online platforms, uploading infringing content will inevitably be a breach of the terms and conditions imposed on users. It is relatively easy for rights-owners to make a complaint to the platforms and the punishment for this can include temporary bans or even deletion of accounts – which could be catastrophic for some users, such as influencers.

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