| Publishing and the law | 1 |
Anyone can be a publisher in the UK. You don’t need professional qualifications, or letters after your name, or a practising certificate. All of us ‘publish’ opinions or other information every time we send an email, or circulate anything that anyone other than the intended recipient may see (although there may be an argument about personal text messaging). Most of this is normal Internet and mobile phone traffic, the lifeblood of twenty-first century communication, and most of it – most of the time – keeps well away from the law. But what if an email you send to a list of friends or colleagues defames someone’s reputation? Or what if text or pictures you use on your website infringe someone else’s copyright? The law can quickly become involved, even in such apparently domestic transactions, so anyone who is part of the full-scale business of publishing – either as an author, a publisher, or in any other capacity – needs to keep the law in mind all the time. That is what this book is about, and what it is for – a roadmap of publishing, for those who wish to stay within the law.
The rest of this book will broadly follow the chronological sequence of most publishing, so we will start at the beginning, with the author’s first idea, and follow the process through copyright and contract, to the legal risks of publication to the outside world (such as libel), and on through sales and marketing to distribution and export (in hard copy or digital form). At every point, we will find that the law has a habit of getting involved. Those of us who are familiar with the law will not find this terribly surprising (although there is a school of thought that some of us should get out more). Those for whom law (especially English law) is an arcane mystery, may need a few more signposts along the way. So even before our author has his (or her) first idea, here is a brief introductory map of the legal system which governs most UK publishing – UK and EU law, linked to foreign laws in many cases via international treaties such as the Berne Convention.
One of the most important things to understand about law is that most laws operate on a territorial basis – in other words, they are promulgated by nation-states for their own citizens and to regulate activities within their own territorial boundaries.
They do not generally apply anywhere else. This has strengths and weaknesses – if in the UK you create or publish an original copyright work (like this book) you will have the full protection of UK copyright law, but if you find your copyright is being infringed in, say, Turkey or China, there is nothing UK law itself can do to help you and any legal remedies you may have will largely be dependent on local Turkish or Chinese law and on local courts. As you can imagine, some countries have better laws (and offer better protection) than others. In an Internet age, this worldwide patchwork of very different legal regimes is already proving a challenge. If material which infringes copyright, or libels someone, is created in New Jersey, uploaded to a server there, hosted on a UK website and downloaded in France and Saudi Arabia, whose law should govern the resulting dispute, and whose courts should have jurisdiction to try the case? This is no tiresome technicality – for publishing today, this can matter a great deal, since some laws are relatively liberal while others can be positively restrictive.
Increasingly, of course, the countries of the world have tried to regularise a lot of this by means of international treaties, so there is an International Court of Justice at The Hague (mainly referred to for war crimes), and a European Court of Human Rights in Strasbourg. However, these only operate in certain areas, and (as in the case of the European Court of Human Rights) their judgments may be regional rather than global, and normally enforced against individual member states. There is no truly global International Court, applying global laws. Many think the Internet will eventually require something similar, but it seems we are still a long way away from persuading all governments in the world to agree on what the global laws would be, and who should enforce them. Copyright, however, is comparatively well off, thanks to one of the world’s most successful and longest-running treaties, the Berne Copyright Convention of 1886, now acceded to by well over 160 countries, which obliges members to apply reciprocal ‘national treatment’ in their own courts to works of other member states. National treatment means that the UK, for example, is required to give copyright works of other convention countries – such as France – the same protection in UK courts as it gives to UK works – and vice versa. The World Trade Organisation’s TRIPS Treaty also requires member states to enforce copyright effectively (for more on this, see Chapter 10).
The UK is currently a member of the European Union, comprising 28 countries at the time of writing (with six more countries currently having ‘candidate’ status for membership –Albania, Iceland, Montenegro, Serbia, Turkey and Macedonia), and like every other member state the UK participates in its government, with nominated Commissioners holding portfolios at the Commission in Brussels, and elects MEPs to the European Parliament in Brussels and Strasbourg. Equally, apart from its own domestic laws, it is also subject to EU laws. The UK government at the time of writing is committed to holding a national referendum on the issue of continued UK membership of the EU by 2017, but it seems unlikely – although not impossible – that a British exit will happen, or at least happen soon.
European legislation derives from the EU Treaties (so-called EU primary legislation), which are agreed voluntarily on joining by all member states. The latest Treaty in force, since December 2009, is the Lisbon Treaty, which was introduced mainly to increase efficiencies in the decision-making process, give a greater role to the European Parliament and national parliaments, and increase external effectiveness (e.g. with a single Presidency and foreign affairs role). The purpose of much EU law is to harmonise legal regimes across Europe, in pursuit of the famous ‘level playing field’. These EU laws can be on a wide variety of topics – from fish farming to intellectual property – and (as so-called secondary legislation) commonly take the form of:
• Regulations, which have direct effect in the member states of the EU, or
• Directives, which as the name implies are directions to member states to amend their own laws in accordance with given rules.
Both these forms of EU law take precedence over the national laws of member states (including UK law). The E-Commerce Directive of 2000 and the Copyright Directive of 2001 are examples of laws which particularly affect publishing in the EU. They are enforced by the Court of Justice of the European Union, which sits in Luxembourg, with 28 judges, one from each of the member states, and 9 Advocates General. A General Court (formerly known as the Court of First Instance) was also established in 1988 to help with the case-load problem. In addition, there are Decisions, binding on those to whom they are addressed, and Recommendations and Opinions which have no binding force but which result from references by national courts to the European Court of Justice for interpretation. Recently there have been more frequent Communications on EU policy proposals, such as the 2015 Communication on ‘A Digital Single Market Strategy for Europe’, which contained advance proposals for significant changes to EU copyright law (for more on which, see Chapter 2). Such ‘soft law’ instruments have become the most frequent tools used to develop EU policies in recent years, in particular relating to issues affecting publishing.
HUMAN RIGHTS LAW
The UK has been a signatory to the European Convention for the Protection of Human Rights and Fundamental Freedoms since 1950. However, in October 2000 the Human Rights Act 1998 came into force, thus bringing convention rights such as freedom of expression and privacy more directly into UK law. When courts now interpret the law, they must do so in a way which is compatible with the 2000 Act and the Convention. In doing so, they must take account of the decisions of the European Court of Human Rights. There have recently been proposals from the UK government to repeal the 2000 Act and replace it with a stand-alone UK Bill of Rights (largely to avoid the supervisory role of the European Court) but at the time of writing the UK is still a member of the Convention and the 2000 Act is still in force.
This, then, is the international and European context in which UK law now operates.
‘COMMON LAW’
After the Romans departed (taking Roman law with them) the islands now making up the UK were a pretty lawless place. But over the centuries a body of Anglo-Saxon, and then Norman, law developed, based on cases decided by judges, and increasingly following set rules.
This became known as the common law of England (a key part of English law) and was administered by common law courts. Separate laws developed in Scotland (Scots law) and Northern Ireland. Actions for breach of contract or negligence were (and still are) common law actions. Separate ecclesiastical courts regulated matrimonial law, and Courts of Equity, such as the Chancery courts, could be appealed to for remedies (such as injunctions) based less on rules than on basic fairness and justice (hence ‘equitable’ solutions). The judges, however, played a crucial role. Meanwhile, on the Continent, the codified rules of Roman law continued to be influential, so a separate civil law tradition grew up (and still operates, e.g. in France and Germany, based on civil Codes containing general principles, rather than a body of fact-based case law).
STATUTES
Although much of publishing law is still based on common law and equity, nowadays an increasing amount comes from Acts of Parliament (also called Statutes), passed by Parliament in Westminster, and subsidiary orders or Regulations made under those Acts, called Statutory Instruments (or S.I.s). Examples of Statutes relevant to publishing law are the Copyright, Designs and Patents Act 1988 (still the primary source of copyright law in the UK, although much amended), the Trade Marks Act 1994, and the Defamation Act 2013. Most of this legislation is introduced into Parliament in the form of government Bills, usually in the House of Commons, but Bills are sometimes introduced in the Lords, or often appear as Private Members’ Bills: the Copyright (Visually Impaired Persons) Act 2002 began life as a backbench MP’s Bill.
Often, the legal principles contained in Acts of Parliament need fleshing out in more detail, so may be followed by Regulations, which amplify – and perhaps amend – the original Act. The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 – one of several 2014 Regulations extending UK copyright exceptions (dealt with in Chapter 3) – is a good example. Such Regulations are often accompanied by government Guidance Notes, designed to explain to people directly involved, and the public, in (fairly) plain English what the changes actually mean.
Here is an example of how the EU and UK legal systems currently work together:
• The UK term of copyright under the 1988 Copyright, Designs and Patents Act was ‘Life plus 50’ (more precisely, 50 years after the end of the year in which the author died).
• In October 1993, the EU Parliament passed EU Directive 93/98/EEC (the Term Directive, sometimes called the Duration Directive), harmonising the term of copyright throughout the EU at ‘Life plus 70’. Member states had until July 1995 to increase their copyright terms if necessary.
• This required an amendment to the UK’s 1988 Act, so the required changes were introduced by the UK government in part by a Statutory Instrument called the Duration of Copyright and Rights in Performances Regulations 1995, which came into force (late) on 1 January 1996. From that moment, the UK term of copyright for most works was increased by 20 years, to Life plus 70, in line with the rest of the EU.
It will be seen from this how Acts of Parliament passed in Westminster come to be amended by laws created in Brussels, and also how important it is to keep track of any amending Regulations, many of which change the law quite dramatically.
CONTRACTS
All this important-sounding government activity should not blind us to the fact that we can make laws too. Or at least, that we can enter into agreements that the law will enforce, called contracts. Publishing is crowded with contracts, of course, from licences, which permit or authorise us to do things, to more complex agreements such as author contracts, which grant rights in return for a promise to publish and (usually) remuneration, to agreements not to do things at all, such as restrictive covenants. Some contracts need to comply with certain formalities (an exclusive licence needs to be in writing, and signed by the person granting it, for example), but as a general rule contracts do not necessarily need to be written at all. All this is set out in detail in Chapters 5 and 6.
The law will enforce most reasonable contracts, so if one of the parties to a contract fails to comply with significant terms of that contract, the other party may bring a legal action against him (or her) for breach of contract. Usually, if the value of a case is less than £10,000 it will generally be allocated to the small claims track or (for claims between £10,000 and £25,000) to the fast track, both of which are within the County Court. Claims for over £25,000, or complicated claims, are allocated to a ‘multi track’ and can be heard in the High Court, depending on the claimant’s choice of court and the nature of the claim. There is an appeal from there to the Court of Appeal, and from there in some cases to the Supreme Court (formerly the judicial committee of the House of Lords). Where cases involve questions of interpretation of EU law, the UK courts at the time of writing can make references to the European Court of Justice. Decisions of these court cases are reported and published, and judgments – particularly of the higher courts – are followed by judges in later cases, thus establishing a system of judge-made law, known as precedent. So although an increasing amount of our law derives from politicians passing Acts of Parliament, judges still have a very important role in interpreting the law in order to reach decisions in individual cases.
If a breach of contract is proved, claimants are entitled to a remedy sufficient to restore them to the position they would have been in had the breach not occurred.
TORTS
Tort is the French word for wrong, so since Norman times a tort has meant a civil wrong (as opposed to a criminal wrong, which is a crime). Examples of torts are libel, negligence, nuisance, copyright and trade mark infringement, breach of confidence, malicious falsehood or passing off – wrongful or harmful acts which we may do to each other, and for which we may take legal action against each other in the civil courts (as with breach of contract, above).
Successful claimants in a tort action are generally entitled to a remedy so far as possible sufficient to restore them to the position they would have been in had the tort not occurred.
CRIMES
Criminal offences, on the other hand, like murder or assault, are regarded as so serious by the state that prevention and punishment are taken out of our hands altogether in order for those concerned to be prosecuted, usually by the Crown Prosecution Service, or H.M. Revenue and Customs (formerly the Inland Revenue and H.M. Customs and Excise). Obscenity, indecency and incitement of hatred on the grounds of race, religion or sexual orientation are criminal offences, all of which may affect publishers (see Chapter 10). Certain activities infringing copyright, such as importing or possessing infringing equipment, are also criminal offences under the 1988 Copyright Act, for which there are set penalties, including fines, seizure or destruction of stock, and even imprisonment. Offences involving illegal importation are usually the responsibility of H.M. Revenue and Customs. Offences such as selling illegal or bootleg copies, e.g. of books, CDs or DVDs, are usually prosecuted by Trading Standards Officers, as are offences under the Trade Descriptions Act. So reputable publishers, as well as more recognisable criminals, may commit criminal offences.
On which happy note, we should perhaps complete our tour of the legal system which governs publishing in the UK, and turn our attention, in the next chapter, to an author starting to write an original work.