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Law and copyright

Gillian Haggart Davies answers questions to draw out some of the legal issues and explain the basics of how copyright works, or should work, for the benefit of the writer.

What is copyright?

Copyright is a negative right in the sense that it is not a right of possession but is a right of exclusion. However, if you know your rights it can be a strong legal tool because copyright law affords remedies in both the civil and criminal courts. Material will automatically be protected by copyright without registration (in the UK) if it is original, i.e. not copied. The onus is on you, the writer, and your publisher to do the work of protecting, policing and enforcing your valuable intellectual property. Copyright is different in every country – registration is not possible in the UK, Japan or the Netherlands; it is optional in the USA (for some works), China and India; and mandatory for some works in other jurisdictions (e.g. for some works in the Kyrgyz Republic, Mauritius and Nepal). Unfortunately, generally speaking, people do not respect copyright and there are ongoing issues to do with copyright, especially online, with large expanses of ‘grey areas’.

I am a freelance writer and submitted an article to a magazine editor and heard nothing back. Six months later I read a feature in a Sunday newspaper which looks very similar. Can I sue someone?

Pitching ideas can be fraught with difficulty. In legal terms you do not have any protection under copyright law for ‘ideas’, but only for ‘the expression of those ideas’ – for the way in which the ideas have been ‘clothed in words’ to paraphrase a Learned Judge. It could be argued that in many ways this distinction between ideas and their expression does not work for writing and ‘literary works’. But that won’t help you in court or get you legal recompense if you are ripped off.

In the situation described, you would need to prove that your work came first in time; that your work was seen by the second writer or publisher; and that the second person copied unlawfully a ‘substantial part’ of your work (this is qualitative not quantitative), which these days involves a very woolly and subjective judicial comparison of one work weighed against the other. You would also need to be able to counter any claims that the subject matter is not capable of being monopolised by you and show that there is actual language copying. Further, you might then have to fend off counter-arguments from the other party that you did not have copyright in the first place. The other writer can rely on a ‘defence’ that she has ‘incidentally included’ the text; or that her use is ‘fair dealing’ (because she is using it for a permitted purpose, for example of reporting news or current affairs; or that it is for research for non-commercial purposes; is included in educational materials (Indian case); or for private use; or for ‘criticism or review’; or that it is parody, pastiche or satire). These defences are actually referred to in the legislation as ‘exceptions’ and are very strict, i.e. they have always been difficult to make out. On parody and pastiche see a recent situation on using Enid Blyton headings in an Edinburgh Fringe performance ‘Five Go Off on One!’, reminding us that trade mark law also protects headings, which are generally too short to be protected by copyright law (www.thetimes.co.uk/article/five-go-to-their-solicitor-so-now-there-are-four-for-fringe-show-kwwdjwstr).

In addition, the person doing the ‘copying’ or publishing could say that she had an ‘implied licence’ from you to do so; or that she had a common law right under trusts law: this would arise, say, if she and you had been accustomed to dealing with each other in such a way that you commonly gave her original work and she used/copied it.

Avoid these difficulties by taking practical pre-emptive steps: mark your speculative pieces ‘in confidence’ and add ‘© Your Name 201X’. Using the © symbol puts people on notice that you are aware of your rights. It would also have an effect later on if it came to litigation evidentially, i.e. if a person sees the copyright sign but nevertheless goes ahead and uses work without permission, the defence of ‘innocent dissemination’ cannot be relied upon.

You did not have copyright in the first place: if the subject matter is ‘out there’, i.e. common knowledge, copyright law may not protect the first work. The law is very contradictory in this area, as can be seen in these three cases which went to court: the persistent lifting of facts from another newspaper, even with rewriting, was deemed a copyright infringement; but copyright did protect a detailed sequence of ideas where precise wording was not copied; the fact that an author went to primary sources did not necessarily ensure that he was not copyright-infringing. However, copyright law does weigh heavily in favour of protecting the originator.

If a newspaper pays for an article and I then want to sell the story to a magazine, am I free under copyright law to do so?

Yes, provided that you have not assigned copyright or licensed exclusive use to the newspaper. When selling your work to newspapers or magazines, make it clear in writing that you are selling only First or Second Serial Rights, not your copyright.

Does being paid a kill fee affect my copyright in a given piece?

No, provided that you have not assigned or licensed your copyright to the magazine or newspaper. Broadly, never agree to an assignation; it is irreversible. Always license: those parts of copyright you want to license, for example print-only; UK only; not television rights, etc. Copyright rights are infinitely divisible and negotiable. If you have inadvertently or purposely granted copyright permission to the publisher and the publisher prints the piece, and you have taken a kill fee, don’t forget that you can at least also claim ‘secondary licence’ income from the collective pool of monies collected on behalf of UK authors by both the ALCS (see here) and PLR (see here) if you are named on the piece. This may amount to only a tiny amount of money but it may take the sting out of the tail.

I am writing an (unauthorised) biography of a novelist. Can I quote her novels – since they are published and ‘public domain’?

Using extracts and quotes is a very difficult area and there is no easy answer to this. If the author has definitely been deceased for 70 years or more, you may be fine; the work may have passed into the ‘public domain’. However, unpublished works require caution. In general, unpublished works are protected by copyright as soon as they are ‘expressed’ and copyright belongs to the author until/unless published and rights are transferred to a publisher. Protection for unpublished works lasts for 50 years (usually); Crown copyright lasts for 125 years for unpublished works, etc.

Generally, copyright law requires you to ask permission and (usually) pay a fee for reuse. There is no exact recipe for the amount of money payable or the number of words you can ‘take’ before you need to pay. A law passed on 1 October 2014 says, somewhat vaguely, that you can take ‘no more than is required for the specific purpose for which it is needed’. To quote from the legislation: ‘Copyright in a work is not infringed by the use of a quotation from the work (whether for criticism or review or otherwise) provided that (a) the work has been made available to the public, (b) the use of the quotation is fair dealing with the work, (c) the extent of the quotation is no more than is required by the specific purpose for which it is used [emphasis added], and (d) the quotation is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise [emphasis added])’ [Copyright and Rights in Performances (Quotation and Parody) Regulations 2014, No. 2356 (in force since 1 October 2014)]. But does this help? Is it not a bit woolly? In the biography example here, how much would ‘no more than is necessary’ be? A line from every work? A paragraph from every work? A page? The entirety of one work but excerpts only of others ... or none at all? What if the biography is authorised, not unauthorised? These are all unanswered questions and untried by case law.

I want to use a quote from another book but don’t know who owns the copyright. Can I just put it in quotes and use it?

If you cannot identify the source of the quote, we enter the murky waters of ‘orphan works’. A scheme is now in place whereby you can buy a non-exclusive licence for the UK commercial or non-commercial use of an ‘orphan work’ from the IPO (Intellectual Property Office), for an application fee of £20 (for a single ‘work’, e.g. book), up to £80 for 30 ‘works’, plus a licence fee, which will depend on the work and what you say about its use on the application form. The licence will last for seven years, which is the window of time allowed for a copyright owner to ‘claim’ the work (which goes on the IPO orphan works register when it becomes a licensed subject under the scheme).

The IPO will not grant an orphan-use licence if it thinks your use will be ‘derogatory’ of the copyright work, or if you are unable to show that you have made diligent attempts to trace the copyright owner, so the old rules about making such efforts now apply in statutory form. ‘Diligent’ efforts to trace the copyright owner could include contacting publishers, searching the WATCH (Writers Artists and their Copyright Holders) database (http://norman.hrc.utexas.edu/watch), and placing an advertisement in the TLS, the Bookseller, etc). Keep a record of all your efforts in case the copyright question comes back to bite you later, and use a disclaimer on your material. In an ideal world, all content would be tagged with details of what is permissible and how to contact the owner. [See www.alcs.co.uk/wiseup; IPO orphan works guidance at https://www.gov.uk/government/collections/orphan-works-guidance; and the section above relating to quoting from a novel.]

The US Supreme Court ruled in 2015 that Google’s use of scanned text extracts and images, used in its search engine to let users choose whether to go ahead and read/see the full work, was not in breach of copyright. The US Copyright Office said the defence is decided on a case-by-case basis. ‘The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission,’ the US Copyright Office said. There are, however, at least four factors that judges must consider when deciding fair use: the purpose of use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market. Google had urged the justices to side against the writers because, in the end, their works would be more readily discovered: ‘Google Books gives readers a dramatically new way to find books of interest.’ Google has stated that ‘By formulating their own text queries and reviewing search results, users can identify, determine the relevance of, and locate books they might otherwise never have found.’

My publisher has forgotten to assert my copyright on the imprint page. What does that mean for me?

Technically, what is usually asserted on the imprint page is the moral right to be identified as author of the work. This ‘paternity right’ is lost if it is not ‘asserted’, so if it is not on the imprint page or anywhere else you lose the right. Moral rights are copyrights, separate to and additional to what we normally refer to as ‘(‘economic’) copyright’: they protect the personal side of creation, in that they are about the integrity of the work and the person/reputation of the creator; whereas the ‘main’/economic copyright protection is there to ensure you get revenues from your work, for example licence fees and royalties. Both economic copyrights and moral rights were conferred by the 1988 UK statute and Berne Convention. They exist separately, so you can keep moral rights and ‘licence away’ copyright (economic copyrights). And so in reverse, even if your moral right to be identified as author is lost, your other rights – economic copyright and the moral right to not have your work subjected to ‘derogatory treatment’ – remain with you. Moral rights cannot be licensed or assigned because they are personal to the author, but they can be ‘waived’; for example, a ghostwriter may well waive the right to be identified as author. Moral rights are very flexible and useful, but are not widely used.

I’ve found an illustration I want to use for the cover of a book that I’m self-publishing. I chose the picture (dated 1928) on purpose because the artist is out of copyright and the picture is in the ‘public domain’. Why is the picture library, which holds the image, charging a reproduction fee?

You have to pay a reproduction fee under copyright law because of the separate copyright issue for photography. Because the original artwork was photographed, copyright vests separately in the photograph (of the artwork) as opposed to the artwork itself. It is a controversial area and one where the UK/US legal systems are split. Make sure that standing behind this is a contract with your publishing services provider identifying you as the copyright holder. Do not cede any rights. You should be granting the publisher a nonexclusive licence to publish your book only.

You should also be aware of changes which took effect in the UK in July 2016, which apply to all publishers of any illustrative or photographic pictures of 2D objects (e.g. chairs and furniture), 3D artworks, and possibly architecture (widely held by the design community as absurd). Publishers must now clear UK copyright permissions and pay any relevant fees for use of such images, unless that change to the law is undermined by judicial review, a sort of appeal procedure which could be instigated by, for example, the Publishers Association and/or the designers themselves, artists, photographers, publishers or authors.

I included someone’s work on my blog, but as I blog for free and it’s not a money-making thing, can I be sued for copyright infringement?

Yes you can. If the person alleging copyright infringement can show she has copyright in the work, that you had access to her work, can show you copied the whole of that work or a ‘substantial part’ of it, and that you did not have permission, you could well be infringing criminal and civil copyright laws. The point of copyright law – the economic as opposed to the moral rights aspect – is to protect the economic interests of the original copyright owner. If she can demonstrate that her position has been undermined by your blog in terms of her market share having diminished and/or that sales have been adversely affected, etc or if she can show that you have not paid her any reuse fee or asked permission or acknowledged her authorship, you are on very thin ice.

I retweeted, edited, two lines from Twitter. I tweet for free and it’s not a money-making exercise; can I be sued for copyright infringement?

A similar answer to the above. ‘Yes’ or at least ‘probably yes’. A ruling of the Court of Justice of the European Union (CJEU) interpreting EU copyright law strongly suggests copyright vests in anything that is the original author’s creation, and in the EU case in point (Infopaq, 2009) that applied to an 11-word extract. This is in spite of the fact that there is a broader general principle in copyright that an ‘insubstantial part’ of a work does not enjoy copyright protection in the first place, and therefore there could be no breach. A good lawyer could argue either way as this is a grey area. The situation in the USA may be different but seems certainly arguable. An alternative way of viewing the situation is that this is a ‘quote’, and therefore ‘exceptional’, i.e. non-infringing under legislation introduced in 2014 (see above). But the issues have not been tested in court and, again, are wide open to argument. Keep an eye on the Great Repeal [Brexit] Bill.

In the UK the courts have moved in a different direction on this matter. The old ‘test’ looked at the author’s ‘labour’, skill and effort. In continental EU countries a literary, dramatic or artistic work must generally possess a creative element or express its author’s personality.

My book has been made available by a free book download site but I never agreed to this. What can I do?

Contact your publisher or ask the site direct (if it’s a self-published work) to remove it from their website. If they do not act or do not respond, get legal advice: a lawyer will be able to issue a warning followed by a ‘take down notice’, followed if necessary by a court injunction. However, this is very difficult for cases worth under £10,000. And it is no understatement to say that the present system of access to justice and costs of lawyers and litigation will prove to be a significant hurdle for most writers. Take practical steps to protect copyright in your own works yourself by setting up a Google Alert for every title you own.

First steps legal advice may be available from the Society of Authors (see here), the Writers’ Guild of Great Britain (see here), the National Union of Journalists (NUJ), the Society for Editors and Proofreaders (SfEP, here) or your local BusinessLink or an intellectual property specialist adviser like Own-It or Artquest (which deals with the visual arts but carries advice applicable to writers too).

May I reproduce and share a selfie taken in an art gallery or museum?

If you take a selfie in front of a sculpture and use the photo for a T-shirt and post and share it on Facebook, that picture violates the sculptor’s copyright protection against high-commercialisation. Artists, designers, photographers and crafters are protected too. Since 28 July 2016, those creating for sale reproduction furniture have been restricted by a tighter UK copyright law, and those designers now enjoy the same protection as is afforded to makers of ‘plastic graphic works’, musicians, writers, broadcasters and filmmakers, i.e. 75 years (not 25) post creator’s death, following the repeal of section 52 of the 1988 UK Act which applies to reproductions of e.g. anglepoise lamps, the ‘Barcelona’ chair, and Eames’ furniture, all going up in price x12. In line with ‘the rest of the EU’, the loop exempting pre-1957 designs closed. The repeal of section 52 of the 1988 Act became effective on 28 July 2016 (see www.gov.uk/government/uploads/system/uploads/attachment_data/file/606207/160408_guidance_s52_final_web_accessible.pdf).

Gillian Haggart Davies MA (Hons), LLB is the author of Copyright Law for Artists, Designers and Photographers (A&C Black 2010) and Copyright Law for Writers, Editors and Publishers (A&C Black 2011).

See also...

• UK copyright law and publishing rights, here

• Writing features for newspapers and magazines, here

• Copyright Licensing Agency Ltd, here

• DACS (Design and Artists Copyright Society), here

• Publishers’ Licensing Services, here

UK copyright law and publishing rights

Publisher Lynette Owen outlines the basic principles of copyright and how UK copyright law provides a framework for the protection of creative works, with particular reference to publishing.

Creators including writers and artists are dependent on copyright to protect their works and to underpin the arrangements they make with the publishers who bring their works to market. The United Kingdom has the oldest tradition of copyright legislation, starting with the Statute of Anne which came into force in 1710. The last full revision of UK copyright law resulted in the Copyright, Designs and Patents Act 1988 (CDPA); this replaced the 1956 Copyright Act, which in turn replaced the 1911 Copyright Act. Since the 1988 Act, there have been a number of revisions, usually undertaken via Statutory Instrument.

What is copyright?

Copyright is one aspect of intellectual property rights (IPR), which are often defined as relating to ‘works of the mind’. Other aspects include design and patent rights. Copyright has both positive and negative aspects – it enables rightsholders to authorise the use of their work in a variety of ways and also to take action against unauthorised use. It is worth flagging here that there are different philosophies of copyright; the UK, in common with other Anglophone countries, operates under common law, based on factual case law, and views copyright works as property which can be traded and transferred. By contrast, countries which operate under civil law, based on civil codes, (e.g. the countries of mainland Europe) view copyright (referred to as droit d’auteur) more as a human right belonging to the creator, with far more restrictive regulations on how it can be exploited.

How does it work?

Each country has its own national copyright legislation which normally covers works created by citizens of that country, creators normally resident in that country, and works first published in that country. There is also normally an obligation to respect the creative works originating in other countries which belong to the same international copyright conventions; this is normally undertaken in the form of ‘national treatment’, i.e. each member country provides to the creative works from other member states the same standard of protection it would grant to the works of its own citizens. This means that there may be varying standards of protection from country to country, for example in terms of the duration of copyright protection; there may also be differing exceptions to copyright from country to country. Most countries in the world now belong to one or more of the international copyright conventions: the Berne Convention (1886), the Universal Copyright Convention (1952) and the World Intellectual Property Organization (WIPO) Copyright Treaty (1996, but in force from 2002 – this convention reinforces the concept of copyright in the digital age). Membership of a convention requires member states to observe certain minimum standards of copyright protection.

What types of work are protected by copyright?

The CDPA (Copyright, Designs and Patents Act 1988; see above) provides copyright protection to three main categories of creative works:

1. Original literary, dramatic, musical and artistic works

‘Literary works’ includes any work which is written, including tables, graphs, compilations and computer programs. It also includes databases which involve creativity in terms of selection by the compiler. Dramatic and musical works include performable works such as plays and dances, with the lyrics of musical works protected separately. Artistic works include graphic works (paintings, drawings, maps, engravings or similar works), sculptures, collages, works of architecture and works of artistic craftsmanship (although these can also be protected under design rights). All works must be original and in written or other fixed form.

2. Sound recordings, films and broadcasts

These are also protected and may involve the many different copyrights of performers, producers and broadcasters. Broadcasts traditionally covered transmission by radio and television, but now include satellite broadcasts and transmissions via the internet.

3. Copyright in typographical arrangements

This is a specific right under UK copyright law which does not appear in the legislation of many other countries. This right covers the design and layout of text and, as such, is a right quite separate from that of the creative content of the text; it belongs to the publisher in recognition of their skill and investment in the layout of a work and lasts for 25 years from the date of first publication of that version of the text.

Who owns the copyright?

The first owner of copyright is normally the creator, e.g. the writer, artist, composer, etc. The major exception to this, in UK copyright law, is if a work is created as part of the creator’s regular employment, in which case copyright belongs to the employer. A good example of this would be when a publisher employs a team of lexicographers in-house to compile dictionary entries. US copyright law has a provision for ‘works for hire’ where content (text, illustrations, etc) may be commissioned by a publisher, usually on the basis of an outright fee, with copyright then belonging to the commissioning entity.

In the case of copyright controlled by the creator, he or she will then have a choice on how to deal with the question of copyright when dealing with a publisher. For an author or illustrator seeking to contract with a publisher, there are two possibilities:

i) They may retain ownership of the copyright and grant an exclusive licence or licences to one or more publishers for publication of the work in an agreed language, in agreed format/s, within agreed sales territories and for an agreed period of time. For example, an author could grant an exclusive licence to a UK publisher for the UK and Commonwealth markets, and a separate licence to a US publisher for the American market. This is a common scenario in trade (general) publishing.

ii) In educational, academic and professional publishing, the scenario may be different. The author may be asked to assign copyright to the publishing house – this is often a requirement for academic journal articles but may also be requested for books, even when the author is receiving an advance and ongoing royalties; it is particularly logical for multi author works where individual contributors may each be paid an outright fee. There is often much misunderstanding of copyright assignment and publishers should always be prepared to explain to authors and illustrators their reasons for requesting it. One particularly powerful reason is that it is often much simpler to take action against piracy if copyright is in the name of the publishing house.

With the rise of the internet, there is a need for protection of internet transmissions and for user-generated works; these are covered under provisions for ‘communication to the public’ and ‘making available to the public’. However, the question of copyright ownership in user-generated works is complex, given the scale of material which is uploaded to social media sites such as YouTube, Facebook, Twitter, Instagram and others. If the material uploaded is original to the person undertaking the uploading, then copyright will belong to them, but a lot of such material may belong to other parties and may have been uploaded without their knowledge or consent.

What are moral rights?

Moral rights are personal to the creator and were introduced into UK copyright legislation for the first time in the CDPA 1988; they had long been a feature of civil law. They are quite separate from the economic rights of the creator and in the UK they last for the same period as copyright protection; in some other legislations they are inalienable and perpetual. They include the right of paternity (the right to be recognised as the creator), the right of integrity (the right to object to derogatory or damaging treatment of the work), and the right to object to false attribution of a work. UK legislation is unusual in that it requires the creator to assert his or her right of paternity (this is often done via a notice on the title verso page of a book); it also allows for the creator to waive his or her moral rights, something which may be necessary for certain forms of publication or when a book is used as the basis for film or television exploitation.

How long does copyright last?

In the case of the UK, the period of protection is now 70 years from the end of the year in which the creator dies – in the case of works of collaborative authorship, from the end of the year in which the last author dies. The term of protection was extended from 50 to 70 years for all works still in copyright as at 1 July 1995, as a result of an EU directive to harmonise the term of copyright within the European Union. Works published in the USA since 1 January 1978 also now have a similar period of protection. However, many countries in the world still have a shorter period of protection (e.g. Japan and China have a period of 50 years post mortem auctoris).

What does copyright enable the owner to do?

It enables the owner to undertake or authorise reproduction and distribution of the work to the public, as well as a range of other methods of exploiting the work, including performance, broadcasting and adaptations (which would include translations). It is normally an infringement of copyright for anyone to undertake any of these activities without authorisation from the copyright holder.

What action can be taken against copyright infringement?

UK copyright legislation permits action to be taken under civil or criminal law, depending on the nature of the infringement; penalties are decided by the courts. By contrast, the legislation of some countries defines the penalties in terms of maximum financial fines or terms of imprisonment. There are many possible categories of infringement – these could include unauthorised reproduction, unauthorised adaptation, plagiarism and passing off. In the internet age, unauthorised use of copyright content has increased; some is undertaken for commercial purposes via torrent sites, whilst other cases may be file sharing (e.g. of textbooks amongst students). The Publishers Association has a website which enables its members to issue ‘notice and takedown’ to infringing sites (see www.copyrightinfringementportal.org.uk).

Are there exceptions to copyright?

Most national copyright laws list a number of uses of copyright material which can be undertaken without permission from or payment to the copyright owner, subject to certain conditions. The CDPA 1988 provides for a number of these:

• Fair dealing with a literary, dramatic, musical or artistic work for the purposes of research or study;

• Fair dealing for the purposes of criticism or review;

• Fair dealing with a work (other than a photograph) for the purpose or reporting current events.

These uses are permitted subject to due acknowledgement to the creator and the source, provided they do not adversely affect the normal interests of the copyright holder. There is no statutory definition of fair dealing, but most publishers would consider that fair dealing does not apply to use in the context of a commercial publication, so an author wishing to include copyright text or illustrations from outside sources in his or her own book should not assume that this is covered by fair dealing, however short the material may be.

Useful websites

Authors Licensing and Collecting Society (ALCS): www.alcs.co.uk

Design and Artists Copyright Society (DACS): www.dacs.org.uk

Intellectual Property Office (IPO): www.ipo.gov.uk

Picture Industry Collecting Society for Effective Licensing (PICSEL): www.picsel.org.uk

Publishers’ Licensing Services (PLS): www.pls.org.uk

Publishers Association: www.publishers.org.uk

Society of Authors: www.societyofauthors.org

World Intellectual Property Organisation (WIPO): www.wipo.int/portal/en/index.html

The CDPA also provides for the copying of material for educational purposes, provided this is not undertaken by a reprographic process; thus, for example, displaying a passage of text on an interactive whiteboard is permitted. Large-scale copying of limited amounts of copyright material via photocopying or scanning (e.g. for course-packs for schools or universities, or on a company intranet) is covered under collective licences issued by the Copyright Licensing Agency (CLA) which negotiates licences to schools, colleges, universities, government departments and private businesses for such use; a share of licence revenue is paid to authors via the Authors Licensing and Collecting Society (ALCS), to visual artists via the Design and Artists Collecting Society (DACS) or the Picture Industry Collecting Society for Effective Licensing (PICSEL), and to publishers via Publishers’ Licensing Services (PLS). Organisations similar to CLA exist in many overseas countries and revenue from the copying of extracts from UK copyright works abroad is channelled to CLA via bilateral agreements with those organisations.

There are also provisions for the inclusion of short passages of published literary and dramatic works in educational anthologies, provided this does not affect the interests of the copyright holders and that such material does not represent the majority of the anthology.

The CDPA 1988 permits the making of a single copy of a copyright work by a library on behalf of a person undertaking research or private study, and it also permits libraries to make copies for the purposes of preservation or replacement of a damaged item.

There has been a copyright exception for visually impaired people since the Copyright (Visually Impaired Persons) Act 2002, giving them the right to accessible versions of copyright content (e.g. in Braille, audio or text-to-speech versions).

2014 saw the introduction of a number of amendments to existing copyright exceptions and some new exceptions, introduced via statutory instruments. Among them was an exception for copying for private use; fair dealing for non-commercial research or private study; a fair dealing exception for criticism or review or otherwise (the latter term undefined); a new exception for caricature, parody or pastiche; a new exception for text and data analysis for non-commercial research; and an extension of the exception for visually impaired persons to cover persons whose ability to read is affected by their disability(either physical or e.g. dyslexia). It remains the case that any fair dealing use must acknowledge the source and must not affect the normal interests of the rightsholder.

•Copyright, Designs and Patents Act 1988 (but it is vital to use an up-to-date amended version). See www.gov.uk/government/organisations/intellectual-property-office.

•Duration of Copyright and Rights in Performances Regulations 1995 (SI 1995 No. 3297)

•Copyright and Rights in Database Regulations 1997 (SI 1997/3032) amended by the Copyright and Rights in Databases (Amendment) Regulations 2003 (SI 2003/2501)

•Copyright and Related Rights Regulations 2003 (SI 2003 No. 2498)

•Intellectual Property (Enforcement, etc) Regulations 2006 (SI 2006 No. 1028)

•Performances (Moral Rights, etc) Regulations 2006 (SI 2006 No. 18)

•Copyright and Rights in Performances (Quotation and Parody) Regulations 2014

•Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014

How has UK copyright law changed?

In particular, UK copyright law has been influenced by a number of EU directives over the years, which have normally been implemented via statutory instruments. The most significant have been: the 1993 Directive on the Duration of Copyright and Authors’ Rights (93/98/EEC), implemented via the Duration of Copyright and Rights in Performance Regulations 1995 (SI 1995 No 3297); the EC Database Directive 96/9 EC which was implemented via the Copyright and Rights in Databases Regulations 1997; and the EU Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society, which included a transmission right and the right for copyright holders to use encryption and identifier systems to protect their works (implemented by SI 2003 No. 2498, the Copyright and Related Rights Regulations). The EC is currently considering a major copyright review, but with the UK due to leave EU membership by 29 March 2019 and a transition period until 31 December 2020, it is unclear what effect that might have on UK copyright legislation.

The last 20 years have seen a plethora of reviews of copyright – at international, multinational and national level – raising the question of the balance of interest between rights-holders and users, and questioning whether copyright remains fit for purpose. The rise of the internet has raised expectations amongst many users that content should be instantly available and preferably free of charge. The dangers of this have been seen all too clearly, in particular with the adverse impact on the music, film and computer software industries and their creators. On the other hand, some creators have been happy to make their work available under a range of Creative Commons licences, some more restrictive than others. There is an ongoing move towards Open Access in the academic sector, with its impact being felt particularly in the area of academic journals.

Copyright has had a long history of adapting to developments in technology and to changing market needs; hence it remains fit for purpose and is a necessary framework that enables creators to receive a just reward for the use of their work and to recognise the skills and investment of those who, like publishers, bring their works to market.

See also...

• Copyright questions, here

• Copyright Licensing Agency Ltd, here

• Authors’ Licensing and Collecting Society, here

• DACS (Design and Artists Copyright Society), here

• Publishers’ Licensing Services, here

Since 1983, the CLA has been the recognised UK collective rights licensing body for text and images from book, journal and magazine content.

CLA provides rights, content and licensing services to customers in the academic, professional and public sectors. It performs collective licensing on behalf of ALCS (the Authors’ Licensing and Collecting Society) and the PLS (Publishers’ Licensing Service) and other copyright owners. With streamlined workflow systems and over 35 years’ experience it is uniquely positioned to help content users access, copy and share the content they need while making sure copyright owners are paid the royalties they are due.

CLA’s licences permit limited copying from print and digital publications. This copying includes photocopying, scanning and emailing of articles and extracts from books, journals and magazines, as well as digital copying from electronic publications, online titles and websites. CLA issues its licences to schools, further and higher education, businesses and government bodies. The money collected is distributed to the copyright owners to ensure that they are fairly rewarded for the use of their intellectual property.

Further information

The Copyright Licensing Agency Ltd

Barnard’s Inn, 86 Fetter Lane, London EC4A 1EN

tel 020-7400 3100

email cla@cla.co.uk

website www.cla.co.uk

Why was CLA established?

CLA was set up in 1983 by its founding members, the ALCS (see here) and PLS (see here). CLA represents creators and publishers by licensing the copying of their work and promoting the role and value of copyright. By championing copyright it is helping to sustain creativity and maintain the incentive to produce new work. It also collects money for visual artists and has two other collective management organisation members who represent visual artists; DACS (Design and Artists Copyright Society (here) and PICSEL (Picture Industry Collecting Society for Effective Licensing) distribute money from CLA licence fees to visual artists such as illustrators and photographers.

How CLA helps creators and users of copyright work

CLA provides content users with access to millions of titles worldwide. In return, CLA ensures that creators, artists, photographers and writers, along with publishers, are paid royalties for the copying, sharing and re-use of limited extracts of their published work.

Through this collective licensing system CLA is able to provide users with the simplest and most cost-effective means of obtaining authorisation for the use of their work.

CLA has licences which enable digitisation of existing print material, enabling users to scan and electronically send extracts from print copyright works as well as copy digital electronic and online publications, including websites.

Who is licensed?

CLA offers licences to three principal sectors:

• education (schools, further and higher education);

• government (central departments, local authorities, public bodies); and

• business (businesses, industry and the professions).

The licences meet the specific needs of each sector and user groups within each sector. Depending upon the requirement, there are both blanket and transactional licences available. Every licence allows copying from most print and digital books, journals, magazines and periodicals published in the UK.

The international dimension

Many countries have established equivalents to CLA and the number of such agencies is set to grow. Nearly all these agencies, including CLA, are members of the International Federation of Reproduction Rights Organisations (IFRRO).

Through reciprocal arrangements covering 36 overseas territories, including the USA, Canada and most EU countries, CLA’s licences allow copying from an expanding list of international publications. CLA receives monies from these territories for the copying of UK material abroad, passing it on to UK rights holders.

Distribution of licence fees

The fees collected from licensees are forwarded to ALCS, PLS, DACS and PISCEL for distribution to publishers, writers and visual artists. The allocation of fees is based on subscriptions, library holdings and detailed surveys of copying activity (see www.cla.co.uk/who-receives-royalties and read the ‘Distribution Model Report’). CLA has collected and distributed over £1.4 billion as royalties to copyright owners since 1983. For the year 2016/17, £65.5 million was paid to creators and publishers in the UK and abroad.

CLA exist to simplify copyright for content users and copyright owners. They help their customers to legally access, copy and share published content while making sure copyright owners are paid royalties for the use of their work.

Their rights, licences and innovative digital services make it easy for content users across the academic, professional and public sectors to use and manage content from books, journals, magazines and online publications, including websites. By doing so they simplify access to the work of 87,000 authors, 25,000 visual artists and 3,500 publishers and play an important part in supporting the creative industries.

See also...

• Copyright questions, here

• Authors’ Licensing and Collecting Society, here

• DACS (Design and Artists Copyright Society), here

• UK copyright law and publishing rights, here

Authors’ Licensing and Collecting Society

ALCS is the rights management society for UK writers.

ALCS (The Authors’ Licensing and Collecting Society) is the UK collective rights management society for writers. Established in 1977, it represents the interests of all UK writers and aims to ensure that they are fairly compensated for any works that are copied, broadcast or recorded.

Membership

Authors’ Licensing and Collecting Society Ltd

1st Floor, Barnard’s Inn, 86 Fetter Lane, London EC4A 1EN

tel 020-7264 5700

email alcs@alcs.co.uk

website www.alcs.co.uk

Chief Executive Owen Atkinson

Membership is open to all writers and successors to their estates at a one-off fee of £36 for Ordinary membership. Members of the Society of Authors, the Writers’ Guild of Great Britain, National Union of Journalists, Chartered Institute of Journalists and British Association of Journalists have free Ordinary membership of ALCS. Operations are primarily funded through a commission levied on distributions and membership fees. The commission on funds generated for Ordinary members is currently 9.5%. Most writers will find that this, together with a number of other membership benefits, provides good value.

A non-profit company, ALCS was set up in the wake of the campaign to establish a Public Lending Right (see here) to help writers protect and exploit their collective rights. Today, it is the largest writers’ organisation in the UK with a membership of approximately 90,000. In the financial year of 2016/17, over £32.6 million (net) in royalties were paid out to more than 78,000 writers.

ALCS is committed to ensuring that the rights of writers, both intellectual property and moral, are fully respected and fairly rewarded. It represents all types of writers and includes educational, research and academic authors drawn from the professions: scriptwriters, adaptors, playwrights, poets, editors and freelance journalists, across the print and broadcast media.

Internationally recognised as a leading authority on copyright matters and authors’ interests, ALCS is committed to fostering an awareness of intellectual property issues among the writing community. It maintains a close watching brief on all matters affecting copyright, both in the UK and internationally, and makes regular representations to the UK government and the European Union.

ALCS collects fees that are difficult, time-consuming or legally impossible for writers and their representatives to claim on an individual basis, money that is nonetheless due to them. To date, it has distributed over £450 million in secondary royalties to writers. Over the years, ALCS has developed highly specialised knowledge and sophisticated systems that can track writers and their works against any secondary use for which they are due payment. A network of international contacts and reciprocal agreements with foreign collecting societies also ensures that UK writers are compensated for any similar use overseas.

The primary sources of fees due to writers are secondary royalties from the following:

Photocopying and scanning

The single largest source of income, this is administered by the Copyright Licensing Agency (CLA, see here). Created in 1982 by ALCS and the Publishers Licensing Society (PLS), CLA grants licences to users for copying books and serials. This includes schools, colleges, universities, central and local government departments, as well as the British Library, businesses and other institutions. Licence fees are based on the number of people who benefit and the number of copies made. The revenue from this is then split between the rights holders: authors, publishers and artists. Money due to authors is transferred to ALCS for distribution. ALCS also receives photocopying payments from foreign sources.

Foreign Public Lending Right

The Public Lending Right (PLR) system pays authors whose books are borrowed from public libraries. Through reciprocal agreements, ALCS members receive payment whenever their books are borrowed from German, Belgian, Dutch, French, Austrian, Estonian and Irish libraries. Please note that ALCS does not administer the UK Public Lending Right; this is managed directly by the UK PLR Office (see here).

ALCS also receives other payments from Germany. These cover the loan of academic, scientific and technical titles from academic libraries; extracts of authors’ works in textbooks and the press, together with other one-off fees.

Simultaneous cable retransmission

This involves the simultaneous showing of one country’s television signals in another country, via a cable network. Cable companies pay a central collecting organisation a percentage of their subscription fees, which must be collectively administered. This sum is then divided by the rights holders. ALCS receives the writers’ share for British programmes containing literary and dramatic material and distributes it to them.

Educational recording

ALCS, together with the main broadcasters and rights holders, set up the Educational Recording Agency (ERA) in 1989 to offer licences to educational establishments. ERA collects fees from the licensees and pays ALCS the amount due to writers for their literary works.

Other sources of income include a blank tape levy and small, miscellaneous literary rights.

Tracing authors

ALCS is dedicated to protecting and promoting authors’ rights and enabling writers to maximise their income. It is committed to ensuring that royalties due to writers are efficiently collected and speedily distributed to them. One of its greatest challenges is finding some of the writers for whom it holds funds and ensuring that they claim their money.

Any published author or broadcast writer could have some funds held by ALCS for them. It may be a nominal sum or it could run into several thousand pounds. Either call or visit the ALCS website – see Membership box for contact details.

DACS (Design and Artists Copyright Society)

Established by artists for artists, DACS is the UK’s leading visual artists’ rights management organisation.

As a not-for-profit organisation, DACS translates rights into revenues and recognition for a wide spectrum of visual artists. It collects and distributes royalties to visual artists and their estates through its different services, including Payback, Artist’s Resale Right, Copyright Licensing and Artimage – in addition to lobbying, advocacy and legal advice for visual artists.

Contact details

DACS

33 Old Bethnal Green Road, London E2 6AA

tel 020-7336 8811

email info@dacs.org.uk

website www.dacs.org.uk

DACS is part of an international network of rights management organisations. Today DACS acts as a trusted broker for 100,000 artists and in 2016 it distributed £14 million in royalties to artists and estates. See website for more information about DACS and its services.

Payback

Each year DACS pays a share of royalties to visual artists whose work has been reproduced in UK magazines and books or broadcast on UK television channels. DACS operates this service for situations where it would be impractical or near impossible for an artist to license their rights on an individual basis, for example when a university student wants to photocopy pages from a book that features their work.

Artist’s Resale Right

The Artist’s Resale Right entitles artists to a royalty each time their work is resold for more than €1,000 by an auction house, gallery or dealer. DACS ensures artists receive their royalties from qualifying sales not just in the UK but also from other countries in the European Economic Area (EEA). Since 1 January 2012 in the UK, artists’ heirs and beneficiaries can now benefit from these royalties. (See website for details of eligibility criteria.)

This service benefits artists and their estates when their work is reproduced for commercial purposes, for example on t-shirts or greetings cards, in a book or on a website. DACS can take care of everything on behalf of the artist, ensuring terms, fees and contractual arrangements are all in order and in their best interests. Artists who use this service are also represented globally through the DACS international network of rights management organisations.

• Copyright is a right granted to visual artists under law.

• Copyright in all artistic works is established from the moment of creation – the only qualification is that the work must be original.

• There is no registration system in the UK; copyright comes into operation automatically and lasts the lifetime of the visual artist plus a period of 70 years after their death.

• After death, copyright is usually transferred to the visual artist’s heirs or beneficiaries. When the 70-year period has expired, the work then enters the public domain and no longer benefits from copyright protection.

• The copyright owner has the exclusive right to authorise the reproduction (or copy) of a work in any medium by any other party.

• Any reproduction can only take place with the copyright owner’s consent.

• Permission is usually granted in return for a fee, which enables the visual artist to derive some income from other people using his or her work.

• If a visual artist is commissioned to produce a work, he or she will usually retain the copyright unless an agreement is signed which specifically assigns the copyright. When visual creators are employees and create work during the course of their employment, the employer retains the copyright in those works.

See also...

• Authors’ Licensing and Collecting Society, here