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Misconceptions about copyright

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As a copyright lawyer, I am often asked by clients, friends and acquaintances about copyright. And I see that there are a lot of misconceptions circulating about this. 

It therefore seemed relevant to me to pick up these recurring misconceptions, and to rectify them systematically and in a pedagogical way. 

  • To be protected by copyright, you have to deposit or register your work, take out a copyright … 

In Belgian law, copyright arises without formality (unlike other intellectual rights, such as trademarks and patents). 

As soon as an (original) work is created, i.e. as soon as it is edited and exists in tangible form, it automatically enjoys copyright protection. 

So, for example, you start to write a book. What you have started to write (even if it is far from being completed) is protected (as long as this beginning of writing is original, that is to say that it is the result of your free choices. and creative). 

No need for filing, registration, or US copyright. 

Afterwards, but that’s another question, the question of proof remains: to be able to prove that you are the author of your work, it may be good to deposit or register it (via, for example, the I-Depot of the Benelux Office for Intellectual Property, or via other private sites such as Ma Preuve). 

But such deposits or tm registration online are only useful to prove your creation and the date of your creation. Nothing more. This means, in concrete terms, that if you do not make such deposits or registrations, you can still prove your copyright in another way (e.g. via e-mails sent to your publisher; via letters in which you discuss your work with your partners; via dated manuscripts; etc.). 

Let it be said therefore: a work is protected from the day of its creation; without the need to make a deposit, registration, or other formality. 

On the other hand, it can be useful to add the mention (c) or © followed or preceded by his name and, possibly, a date, on his work (on this subject, see here). 

  • I was the first to have the idea, so I am the author 

You’re the first to have an idea, that’s fine, but that doesn’t guarantee you copyright. 

Indeed, it is common ground that copyright does not protect simple ideas, even the best or the most “original”. 

To be able to benefit from copyright protection, your idea must be formatted (a start of formatting may suffice). 

So, to give you an example, if you have the idea of ​​writing a novel about a parallel fantasy world, you won’t have any protection. You will only enjoy protection once you have (at least) described the plot of this novel a little, the characters (eg the peoples of this imaginary parallel world), the plot, etc. On condition that the plot of this novel is original; that the characters in this novel are original; that the plot is original. 

In a completely different register, but it proceeds from the same principles, if you have the idea of ​​creating a great revolutionary mobile application, which would allow such and such functionalities, this idea of ​​application is not protectable by copyright. . It will only be the concrete realization of this application that can be protected (eg source code or object of the application; graphic appearance of the application, etc.). 

The idea (non-protectable) and formatted (protectable) distinction is complex, but it underlies the entire copyright system. I therefore invite you to consult a copyright professional when you are starting a project and have questions about this distinction. 

Practical advice: if in doubt and before consulting a professional, do not talk about your ‘idea’ around you. 

  • I can protect my research results (scientific or otherwise) via copyright 

This idea is also very widespread, but it is dead wrong! 

Copyright only protects works; but not discoveries, inventions, research results … 

Indeed, the object of copyright is to protect original creations (artistic and literary). However, the results of research are not “creations”, but the result of a work of research, of observation … Such a work of research or of observation certainly requires effort and a lot of labor, but such is not. is not the criterion for copyright protection (incidentally, an effortlessly created work is copyrightable). 

Consequently, as soon as the research results are not creations, a fortiori artistic or literary, and that in addition these results are directly dictated by science, any protection by copyright is excluded. 

Of course, it is possible to formalize these research results in a scientific article. And this scientific article will be a copyrightable “literary work”. But the protection granted by copyright to this scientific article will only extend to the form of this article (structure, way in which the sentences are written, links between ideas, etc.), and not to the content of this article. ! The search results, as such, will therefore not be protected by copyright. As I wrote here: 

“If the researcher wrote an article on topic X: 

  • researcher B can write another article on the same topic X 
  • researcher B can even write an article on topic X with all the ideas, discoveries and experiences that researcher A has described in his article 
  • the only thing researcher B cannot do is: 
  • take again the formatting of researcher A (that is to say the way in which researcher A formulated or structured his article); 
  • to recopy (passages from) the article of researcher A, even a few sentences 
  • plagiarize researcher A ” 

About misconceptions about intellectual property and science, also see here. 

  • A work created by an employee automatically belongs to the employer 

I have already had the opportunity to say it and say it again: it is not because an employee creates a work (eg an article, a logo, a drawing, an article …) within the framework of his assignment or his employment contract, whether the copyright in this work belongs directly or automatically to his employer. 

For copyright to belong to the employer, it must have been transferred to him in writing (whether through the employment contract, through another contract, or through any other form of writing) . 

But if the employer and employee have not provided for anything in writing, the copyright remains with the employee … 

There are some exceptions to the above (eg software). 

  • I can download as many works as I like from the Internet, as long as it is for my private use 

This idea is firmly anchored in the minds of Internet users. 

However, it is (largely) false, because it is based on a misinterpretation of the private copying exception. 

Private copying isn’t everything… and it’s certainly not intended to legalize illegal downloading. Spread the word. 

As I wrote already here: 

  1. the private copying exception applies only to reproductions from lawful sources ; 
  1. also, except to be able to prove the legality of the source (which is difficult on Internet), the on-line download will systematically resemble a reproduction requiring the authorization of the author.