All you ever wanted to know about copyright but were afraid to ask

Compiled by: Charles Oppenheim c.oppenheim@btinternet.com. December 2011

A reminder of UK copyright law, and some changes that might occur in the near future, in the form of some questions and answers.  It can’t be stressed too strongly that the law is likely to change during 2012, so watch out for updates to the law.

1.            Remind me of what the law says.  Copyright gives the rights owner (who may be an individual, or an organisation) the right to prevent, or authorise, the so-called “restricted acts”, i.e.,  copying (and certain other things such as distributing copies to the public, adapting the work, performing the work, broadcasting the work, etc.) all or a “substantial part” of a copyright work.  Copyright is created automatically, without any formality (there is no need, for example, to include a Ó somewhere to gain copyright) as soon as a new work is created.  Works are divided into various media categories, such as literary works, artistic works, films, TV and radio broadcasts and typographical arrangements, each of which, unfortunately, has subtly different rules about ownership, lifetime and what one can or cannot do with the work without having to ask permission from the rights owner.  If someone does copy (or do one of the other so-called “restricted acts”) all or a “substantial part” of the work without permission (permission includes explicit written permission or a licence) and such copying is not provided for under one of the so-called “exceptions to copyright”, then that person has infringed the copyright and can be sued for infringement.

2.            What is “substantial?” There is no fixed rule, so forget about statements along the line of “no more than 10%”.  Each case would be considered on its own merits; what is important is not the proportion of what has been copied, but its importance.  A recent European Court case deemed 11 words from a text was “substantial”, and an earlier UK case decided one single frame from a film was "substantial".

3.            Lifetime? Ownership?  Lifetime can vary according to media type, but very often it is 70 years from the end of the year when the creator died.  So copyright lasts a very long time indeed.  In general, the owner of the copyright is the creator, but where an employee has created a copyright work as part of his/her employee duties, then normally the copyright belongs to the employer. The copyright owner can sell it, give it away, or license it to third parties.  In the latter case, the owner retains ownership, but gives the licensee permission to do certain restricted acts; very often the licence is charged for, but this is not inevitable; Creative Commons licences (http://creativecommons.org/) do not cost anything, for example. (A Creative Commons licence allows copying of the work at no charge, so long as the source is attributed.  However, depending on the licence on offer, there may or may not be restrictions imposed on use, e.g., no commercial exploitation, or no adaption, amendment or incorporation into another work.  It is down to the user to check what restrictions have been imposed, and abide by them.)

4.            What is fair dealing?  This is the best known of the many exceptions to copyright.  Anyone can copy all, or a substantial part of a work as long as it is for one of the purposes permitted under this exception, and as long as the copying does not damage the legitimate interests of the copyright owner.  The major purposes are: non-commercial research or private study; reporting current events; or criticism or review.  Be aware that not all media types are covered by fair dealing, and the person being sued for infringement would have to demonstrate that the copying was indeed done for one of the specified purposes and did not damage the interests of the rights holder – in other words, this exception, like other exceptions to copyright, is a defence to be used if one is sued for infringement, and is not a guarantee of immunity.  There are many other exceptions to copyright, including some limited ones for educational purposes, for judicial purposes, for library preservation purposes, and for those with visual impairment. Library privilege, whereby librarians can make copies for patrons on receipt of a signed form and payment of a fee, is another exception.  It should not be confused with fair dealing.  The two are very different.

5.            What are related rights? These are rights linked to, but not identical to copyright.  They include database right, which provides protection for collections of data or other materials, performers’ rights, which stops people making unauthorised copies of public performances, and moral rights, including the right to be identified as the creator of the work and the right to object to derogatory treatment of your work.  They all need to be taken into account when handling any copyright work.

6.            What about electronic copyright?  In general, the basic rules of copyright apply whatever the medium that the work is in.  Thus, for example, one normally needs permission to digitise born-analogue materials, or to copy born-digital materials in the same way as for any other types of copying. However, in some applications, e.g., Web 2.0, cloud computing and computer software, some particular issues come to the fore.  Thus, particular problems in Web 2.0 applications include who owns the copyright in a wiki, and the problem of orphan works.

7.            What are orphan works?  These are works, which are in copyright, but where it is impossible to track down the copyright owner, and so there is no-one to approach when seeking permission to carry out a restricted act on that work.  The problem, which applies to all media, including photographs, films, broadcasts and textual materials, is particular acute for those wishing to mass digitise materials in their collections.

8.            What about the Digital Economy Act?  This Act, which at the time of writing was not yet in force, famously includes “three strikes and you are out” provisions.  These provisions are designed to penalise those who repeatedly illegally upload and/or download copyright works such as music, films and software. They allow an aggrieved copyright owner to demand that the ISP either reduce, or close down entirely, the bandwidth to a subscriber who has been warned that illegal file sharing has been going on. There are significant implications for libraries and information units that offer wifi or networked PC access on their premises if this Act is put into force with its current wording.  Ofcom is tasked with the detailed implementation of the Act.  Readers should look out for announcements regarding the Act during 2012.

9.            Why is there so much interest in copyright law right now?  In addition to concerns about the Digital Economy Act, David Cameron instructed Professor Hargreaves to undertake a review of copyright legislation to see whether it does enough to encourage innovation.  This recommended a substantial increase in the scope of exceptions to copyright, and proposed solutions to the problem of Orphan Works. The Government announced it was accepting all the recommendations and plans to implement them in 2012. In addition, the European Commission has published a rather limited draft Directive on Orphan Works.  It is unclear if and when these various initiatives will lead to any substantive changes to the law, or whether such changes will turn out to be beneficial or not to UKeiG members.  Beneficial changes can only come about through reasoned argument and well focussed lobbying.  I represent the UKeiG on LACA (Libraries and Archives Copyright Alliance), the body that lobbies Government on behalf of the community on such matters.

10.       Where can I find out the latest developments?  Unfortunately, there is no good single source. A useful JISCmail discussion group is lis-copyseek, but membership is confined to those whose job involves copyright clearance.  There is a range of courses offered to those in the LIS profession by UKeiG, CILIP, Aslib, TFPL and various JISC-funded services.  Look out, too, for articles of relevance in the professional press.  For general introductions to copyright law, Facet has published helpful books on the subject by Graham Cornish and Tim Padfield. Finally, the Web2Rights (www.web2rights.org.uk) and Strategic Content Alliance (http://sca.jiscinvolve.org/wp/ipr-publications/) websites are strongly recommended for all with an interested in electronic copyright. 

Also available in Slovenian (from Victor Zdrawlica): http://lawyerscheck.com/glossator~/afraid-ask-sl

Pdf Version: 

Copyright Questions_Nov11.pdf