20 Copyright and other publishing responsibilities
20.2 UK copyright
20.2.1 General principles
Copyright is a property right that attaches to an ‘original’ literary, dramatic, musical, or artistic work: examples of these are books, letters, drawings, book layouts, and computer programs. It arises when a work is created in permanent form such as in writing, or by visual, audio, or electronic means. Copyright initially belongs to the creator of the work unless the work is made in the course of employment, when it will generally belong to the employer. In the UK the test of ‘originality’ has been characterized as low: for example, a train timetable can attract copyright protection. In many other countries, such as France and Germany, a higher degree of originality has generally been required for copyright protection, as a copyright work is expected to demonstrate some aspect of the author’s ‘personality’. However, following developments in European case law, a certain convergence has come about, with ‘originality’ in all EU Member States requiring the work to be the ‘author’s own intellectual creation’. Broadly, copyright protects the expression of ideas, not ideas themselves, although the two do converge: for instance, incidents in a story have been protected.
In the UK the Copyright, Designs and Patents Act 1988 (‘Copyright Act 1988’) established the copyright period for most of types of work to be the life of the author plus fifty years from the end of the year in which the author died. From 1 July 1995 this was increased to the life of the author plus seventy years. Reference books, multi-author works, and other works with no named author are also covered by the Copyright Act 1988, and it can be very difficult to establish whether they are still in copyright.
A separate copyright, belonging to the publisher and lasting for twenty-five years from the end of the year of first publication, also exists. This right attaches to the typographical arrangement of a literary, musical, or dramatic work, irrespective of whether the underlying content of the work is still in copyright. This provides the publisher with protection from unauthorized reproduction of the printed page.
As from 1995, a new right akin to copyright was introduced. This right, called ‘publication right’, arises where a previously unpublished work is first published after the expiry of copyright. It lasts for twenty-five years from the end of the year of first publication.
Copyright confers on its owner the exclusive right to authorize certain acts in relation to their work, including copying, publishing, and adapting. Copyright owners can give third parties the right to use their works by licensing or assigning the work. Licensing means allowing a third party to use the work in a specified way, for example in a certain territory, for a certain length of time, in a specified language, or on a specific medium, or a combination of these. Generally, assigning a work means that the work is permanently given away. Copyright owners will usually only deal with their works in this way in return for financial compensation. This may be a one-off fee or royalties (which are payments linked to sales of the work). Authors’ agreements with their publishers often provide that copyright transferred to the publishers revert to the author in certain circumstances, such as if the publisher allows the work to go out of print.
Copyright is infringed if the whole or a substantial part of the work is reproduced without the copyright owner’s permission. (There are exceptions to this, described in
If authors or editors adapt or add to a copyright work, and in so doing exercise sufficient skill and care, demonstrating the efforts of their own intellectual creation, then a new copyright can arise in the revised work. Nevertheless, if the revised work incorporates a substantial part of the original work without the consent of the copyright owner, copyright in the original work will be infringed.
A joint copyright work is one in which the contributions of two or more authors are commingled. A collective work is one in which the contribution of each author, and initially the copyright for it, is separate from that of the other author(s). One party to a joint copyright cannot alone give consent binding on their co-authors to use a joint work.
Copyright is subject to national frontiers. Different copyright periods apply, and acts of infringement that take place outside the UK are not generally actionable in the UK. As a general rule, proceedings have to be brought in the jurisdiction in which the infringement took place.
Illustrations an author wishes to include, but that are not their own work, are governed by laws similar to those for writing. For example, in the main, the copyright in a painting belongs to the artist, and continues with their heirs or anyone to whom they have transferred their copyright until seventy years after their death. Although the owners of the painting may sell it, they may not generally reproduce it without the copyright owner’s permission. The same law applies to commissioned works, including photographs, with copyright belonging to the creator and not the commissioner, unless otherwise agreed. Copyright in images is quite complex, especially in multimedia works and websites, and a specialist picture researcher may be needed to determine what may and may not be done with them. For example, although works of art are on show in a public place and are themselves often out of copyright, permission to reproduce must sometimes be sought from the gallery that owns or displays them. Also, the photographer of a painting can hold their own copyright in the photograph they have taken.
20.2.3 Fair dealing
The Copyright Act 1988 contains a list of various activities which permit substantial parts of a copyright work to be reproduced without the copyright owner’s permission, in certain circumstances. Of most relevance to authors and publishers are the various ‘fair dealing’ exceptions which operate as a defence to an act that would otherwise be an infringement of copyright. In general, when reproducing a substantial part of a work using one of these defences sufficient acknowledgement to the copyright owner needs to be given. The forms of fair dealing are as follows: use for purposes of non-commercial research or private study, for the purposes of criticism or review (provided the work has already been made available to the public), or for the purposes of reporting current events. Photographs are excluded from the fair dealing provisions relating to the reporting of current events.
The amount of a work that can be copied within the fair dealing limits varies according to the particular circumstances of the works in question, although there is no fixed portion or percentage that may be copied from a work. Issues to take into account include whether the work could be considered by potential purchasers to constitute a substitute for the other work, and the number and extent of the proposed quotations or extracts in the context of the work in which they are to be incorporated. Trade practice may also be relevant. Various guidelines have been issued, for example by the Society of Authors, but these are not legally binding and are by way of general guidance only. As a general rule, copyists must reproduce the minimum necessary to achieve their purposes.
Separate provisions exist for dealing by librarians and for copying for the purposes of educational instruction or examination.
In summary, therefore, there are two steps to determining whether the use of a work infringes the copyright in it. It must be established whether a substantial part of the work has been used. If so, one must consider whether such use constitutes fair dealing.
20.2.4 Moral rights
Under the Copyright Act 1988, authors have four basic ‘moral rights’; many other countries extend similar ‘moral rights’ to their authors. The rights apply to works entitled to copyright protection, and ownership of copyright is a separate issue: authors can sell their copyright without affecting their moral rights, which cannot be assigned but can be waived. (The Act itself gives specific information about when and to whom the rights do and do not apply, and how the right of paternity is asserted in the case of non-literary works.) The rights are:
• the right of paternity: the right to be identified as the work’s author. This needs to be asserted, as it does not exist automatically; many publishers affirm the author’s moral right to be identified as the author of the work as a matter of course, usually on the title verso. The right lasts for the same period as the copyright period.
• the right of integrity: the right to protest against treatment that ‘amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author’. (Thus something done that is prejudicial to the author’s honour or reputation will not generally be actionable unless there is also some modification to the work itself, although the context in which a work is placed can constitute a ‘treatment’.) The right does not need to be asserted, as it exists automatically; it lasts for the same period as the copyright period. It is common practice for publishers to ask authors to waive by contract their right to protest against such treatment, where modification of the work is required for editorial or sub-licensing purposes.
The rights of paternity and integrity do not extend to works reporting current events, or to works where an author contributes to a periodical or other collective work of reference. In such cases the work may be trimmed, altered, and edited without the author’s consent, subject to the general laws of copyright and any contractual obligations which may be owed to the authors.
• the right of false attribution: the right not to have a literary, dramatic, musical, or artistic work falsely attributed to one as author. This right lasts for twenty years after the person’s death.
• the right of privacy of photographs and films commissioned for private and domestic purposes: the right not have such photographs or films shown in public or issued to the public.
20.2.5 Database rights
In the EU a separate right that protects databases, akin to copyright, has existed since 1998. This right, which arises automatically, can exist alongside copyright in a database. Database right arises where a collection of data or other material is created which: (a) is arranged in such a way that the items are individually accessible; and (b) is the result of a substantial investment in either the obtaining, verification or presentation of the data. Database right is infringed by the extraction and/or re-utilization of the whole or a substantial part of the contents of the database.
Database right lasts for fifteen years from making, but if publication takes place during this time, the term is fifteen years from publication.