"The introduction of the Law marks a significant change to the legal framework in Jersey in relation to unregistered intellectual property rights."
"The Law also establishes the rights of persons in relation to other unregistered rights, such as designs and performances as well as moral rights and publication right."

Intellectual Property (Unregistered Rights) (Jersey) Law 2011

18 Jul 2013

The Intellectual Property (Unregistered Rights) (Jersey) Law 2011 (the "Law") came into force on 18 December 2012.  The introduction of the Law marks a significant change to the legal framework in Jersey in relation to unregistered intellectual property rights.  Copyright (and other unregistered rights) make up one of the four broad categories of IP rights, the other three being patents, trademarks and designs. Matters concerning patents, trademarks and registered designs fall within the category of registered rights and accordingly are not further dealt with in this briefing. With regard to registered rights, the Island already has legislation in respect of patents, trade marks and registered designs. It is anticipated that further updates to the law in Jersey on registered rights will be made in due course.  This briefing deals with unregistered rights only.

Intellectual Property and copyright
Intellectual Property ("IP") is the term used to describe a proprietary interest resulting from the expression of an idea. IP legislation provides rights and protection for people and organisations who, for example, create brands, inventions, designs and songs. IP can be owned, bought and sold.

Copyright is the right of an author, composer, artist or creator of an original work to prevent another from copying it. Copyright does not protect the idea underlying what is created; it only protects the particular expression or work. As with other unregistered rights, copyright is a right that comes into being automatically when the material that can be protected, is created (subject to any relevant qualification provisions under the Law being met).

Changes to the legal framework
Prior to the Law coming into force, Jersey's copyright law was derived from two UK Acts of Parliament: the Music Copyright Act 1906 and the Copyright Act 1911 (the "1911 Act"), which were applied to Jersey by an Order in Council dated 1913, the Loi (1913) au sujet des Droits d'Auteur.

Since the 1911 Act, English law relating to copyright has developed considerably. The Copyright Act 1956 introduced further protection, including in respect of sound recordings, broadcasting and educational material. The Copyright, Designs and Patents Act 1988 (CDPA), as amended, is the principal legislation in force in England and Wales dealing with unregistered rights. Since 1988, a series of European Union ("EU") Directives have sought to extend and harmonise copyright legislation within the EU. Until now, Jersey law in relation to copyright had not kept pace with many of these fundamental changes.

Rationale for introducing the Law
EDD anticipates that the Law will enable Jersey to:

  • comply fully with the Trade Related Aspects of Intellectual Property Rights ("TRIPS") requirements of the World Trade Organisation ("WTO"), which EDD regard as necessary for Jersey to expand its laws on intellectual property (More information about this is provided below.);
  • exploit opportunities to grow Jersey's e-commerce industry, regarded by EDD as a major potential contributor to Jersey's economy in the future; and
  • establish a modern, effective legislative framework for individuals and businesses that create IP, i.e. to improve protection for works (for example: books, films, music, inventions and brands) and to provide for the fair use of those works (for example, in schools and libraries).

Material protected as copyright under the Law
The Law constitutes a major advancement in the law in Jersey related to copyright.

The types of material covered by copyright will include anything falling under the following broad definitions contained in Chapter 2 of the Law:

  • dramatic, literary (to include computer programmes and databases), musical and artistic works;
  • sound recordings, films or broadcasts; and
  • the typographical arrangement of published editions.

The Law also establishes the rights of persons in relation to other unregistered rights, such as designs and performances as well as moral rights and publication right. 

Protections
Protections from infringement vary under the Law and may depend on the type of unregistered right in question (e.g. copyright or publication right) and the type of work that a right is intended to protect (e.g. a literary work).

The duration of protection varies also and may be determined with reference to a key date (i.e. time may run from the date of publication or the death of the author/director). In relation to copyright, different types of copyright work have different limitation periods. The general rule in relation to literary, film, dramatic, musical and artistic works is that copyright protection subsists for 70 years. The starting point in relation to other works capable of copyright protection, such as sound recordings and broadcasts, is 50 years.

In relation to other unregistered rights, some moral rights (of which there are several types) can subsist for as long as copyright subsists in the work: other moral rights have a defined limitation period (e.g. 20 years). In relation to publication right, the general rule is that the right expires 25 years from the end of the calendar year in which the work was first published.

Remedies
Remedies available to the copyright owner under the Law for copyright infringement include: injunctive relief, accounting (i.e. delivery up of infringing copies), seizure and/or damages. These remedies also apply in relation to the infringement of other unregistered rights, such as publication right and design right.

In addition to the above, the Law:

  • creates offences in relation to the fraudulent reception and/or decoding of transmissions (such as satellite television transmissions); and
  • defines the civil and criminal liability of Internet Service Providers in relation to copyright.

The Law in force: a finished article?
For the States to meet its key objective going forward (i.e. to exploit opportunities to grow Jersey's digital industries), the Law will need to keep pace with continual changes in the field of IP. Responding to the Economic Affairs Scrutiny Panel during the drafting process, EDD set out its policy in relation to developing the Law further in the future:
"[The Law] has been drafted with a view to ensuring it is compliant with the main international conventions and treaties in the copyright area, including the Berne Convention, the Rome Convention and the two WIPO Treaties of 1996. We have also tried to ensure compliance with the provision on copyright in the WTO TRIPS Agreement."

In 2012, EDD received confirmation from the United Kingdom Intellectual Property Office that it would prioritise the work required in order to extend the Berne Convention to Jersey. At that time EDD was also pursuing discussions with the UK in relation to Jersey's membership of the WIPO Copyright Treaty, the WIPO Performances and Phonograms Treaty and the Rome Convention.

Conclusion
Government initiatives, such as the establishment of Digital Jersey in 2012, illustrate a commitment by the States of Jersey to investigate ways in which Jersey can diversify its economy through e-commerce and the "creative industries". Speaking in the States on 1 December 2010, the Minister responsible for implementing the Law, Senator Alan Maclean, stated:
"There may indeed be no silver bullet or single emergent sector that can rival our financial services industry in terms of economic impact but there are still many ways that we can create the business-friendly environment to attract entrepreneurs, support business development and drive economic growth across a range of new and existing sectors."

Time will tell whether the introduction of the Law will lead to the levels of inward investment that the States aspire to. Nonetheless, it constitutes a major development in unregistered IP rights in Jersey from which Jersey residents and businesses can benefit.