| Copyright I | 2 |
All published works start with an original idea, and all ideas have an author. The Oxford English Dictionary equates author with ‘originator’: in the classic publishing hierarchy, the inspiration of authors is the beginning, the process starts here. This is the classic blank sheet of paper (or the blank screen) which all authors encounter, in the back bedroom, on the kitchen table, or (in J.K. Rowling’s case) in the Edinburgh coffee bar. When – finally – the original idea appears, is it protected at all by the law?
It is not at all easy to protect original ideas as such; as a general rule, there is no copyright in an idea, and the less developed it is, the harder it will be to protect in any other way.
Some possible ways include:
• Trade mark protection – for a new children’s character, for example (see Chapter 11).
• Confidential information – concepts, plots and other ideas imparted in confidence may be protected by the law of confidence in appropriate circumstances (see Chapter 9).
• Copyright – particularly for material set down and developed beyond the idea stage, perhaps to substantial drafts, sketches or works in progress (see below).
We saw above that there is no copyright in an idea. However, there might be copyright protection for some kinds of more developed material, once something is put into concrete form or given tangible expression. Copyright law will not protect you just for having a good idea, but it may protect you for doing something positive to express it – in effect, for putting it into a form where it can be shared with the rest of the world. The law recognises that doing this requires an investment of time and effort, and also some skill (and possible costs,). It also carries with it a serious risk: once expressed in tangible, physical form, an idea can be copied by others. This is particularly true in an Internet age. So the law provides protection against copying for those who make that investment and take that risk, and thus an incentive for them to invest their efforts in more ideas in the future. This is one of the most important truths to grasp about copyright, and UK copyright in particular. Although it protects authors and their works – quite rightly – it is not only a reward for authorship, but a protection for investment. This explains why UK copyright law has developed in the way it has over the centuries, and it is unlikely that the UK’s worldwide publishing business in its present form could exist without it.
What is copyright then, and why is it so important to publishing?
COPYRIGHT AND INTELLECTUAL PROPERTY
Copyright should, literally, be the right to copy; in fact in legal terms it is better to think of it as the right to control copying by others. Put a little more precisely, copyright in the UK is the exclusive statutory right, given (usually) to those who create original works, to exercise control for a specified period of time over the copying and other exploitation of those works. It therefore gives creators two different, but matching rights:
• an exclusive, positive right to copy and exploit their own works, or license other people (such as publishers) to do it for them; and
• a negative right to prevent anyone else from doing so without their consent, coupled with powerful legal remedies for copyright infringement if they do.
It is important to remember that UK copyright is far from being an absolute monopoly, and was never intended to be; as well as a limited duration, after which works revert to the public domain, there are clear exceptions for purposes beneficial to society, such as ‘fair dealing’ for research and private study, or library and educational exceptions. (We will look at the various permitted copyright exceptions under UK law in Chapter 3, and for copyright licensing, see p. 71 below.)
Copyright may thus be grouped with the protection given to the owners of patents and the proprietors of trade marks, which (together with registered and unregistered designs, database rights, rights in performances, publication rights, moral rights and confidential information) traditionally make up the area of law known as ‘intellectual property’. This term is not very precise, or very accurate, but it is a useful label for the increasingly important legal protection given to products of the mind: intellectual creations which, when applied commercially or industrially, are of some value to society, and worth protecting legally. In today’s Internet society, intellectual property (the more scientific rights such as patents are sometimes called ‘industrial property’) is an increasingly important form of national and international legal protection for trade in all kinds of goods and services; not only for books, e-books, websites and databases, but also for films, DVDs, computer software, distinctive trade brands, new drugs and other inventions. It is a key issue for all trading countries, and for trading blocs such as the EU and for international organisations like the World Trade Organisation, and intellectual property is normally fairly near the top of the agenda in international trade negotiations. Some developing countries, whose lack of infrastructure puts them on the wrong side of a growing ‘digital divide’, have suggested that intellectual property should be diluted to allow easier access, primarily to generic drugs, but this would equally harm local authors and publishers, who need copyright protection (for example, against piracy) even more than their colleagues in the West.
Before looking at modern copyright law in detail, it may be helpful to explain how we have got to this point, and how copyright law has developed over the centuries to meet the challenges of a fast-moving digital society.
FROM SCROLLS TO SCREENS: A BRIEF HISTORY OF COPYRIGHT
Although authors had a limited form of copyright and moral rights in the ancient world (plagiarism being punishable in Ancient Greece, for example), and Chinese block-printed books dating from the eleventh-century Song Dynasty have been found with copyright claims, copyright only really started to develop as an organised system of legal protection in Europe when commercial copying first became possible in the fifteenth century with the invention of the printing press. In England the new printing process – introduced here by William Caxton – quickly came under the control of the Stationers Guild as part of a royal licensing system which, by the time of the Catholic Queen Mary, had as much to do with the suppression of heresy as the propagation of literature or learning. Parliament finally refused to renew any further Licensing Acts in 1694 after the Glorious Revolution, and the Stationers therefore lobbied Parliament for a proper statutory form of copyright protection.
The result was the first Copyright Act, the Statute of Anne of 1710. Under that Act, authors were given ‘the sole right and liberty’ of printing books for a fixed (renewable) term of 14 years, or 21 years for works already in print. Works still had to be registered at the time with the Stationers Company. This provided initially only a brief statutory monopoly, and continuing arguments about common law copyright were only finally resolved in favour of a fixed statutory term for published works in the historic case of Donaldson v. Becket in 1774. The term was progressively increased through the eighteenth and nineteenth centuries, and extended to other works, such as paintings and photographs, but it remained, as today, a fixed statutory term, although increasingly this varied depending on how long the author lived.
To this developing national protection, the Berne Convention in 1886 added for the first time an international treaty system of reciprocal copyright protection, now (after a hundred years) accepted by over 160 nations. Key elements are:
• fully reciprocal ‘national treatment’;
• no requirement for formalities, e.g. registration, but works must be ‘original’;
• minimum protection for life of author plus 50 years.
A watered-down version of these requirements was included in the 1952 Universal Copyright Convention (UCC), established largely to accommodate the then two superpowers, the USA and Russia, neither of which had yet joined Berne (they both since have). The UK joined the UCC in 1957.
The twentieth century was otherwise a century of rapid technological change, during which new advances such as films, sound recordings, broadcasts and computer programs were successively given statutory protection. The current UK Act, the Copyright, Designs and Patents Act, was passed in 1988 and came into force on 1 August the following year (referred to throughout the rest of this book as the ‘1988 Act’). It has already been heavily amended to take account of various EU directives, providing among other things for rental and lending rights, legal protection of databases, and for extension of the term of copyright protection from life plus 50 years to life plus 70 for most works. Some of the most significant changes came when the UK implemented the EU Copyright Directive (below), designed to harmonise copyright protection across the expanding EU and enable full accession to the 1996 WIPO Copyright Treaty, bringing the Berne Convention more fully up to date with digital society. Further significant changes to UK copyright exceptions came in 2014 (on which see Chapter 3).
In addition, the World Trade Organisation has now replaced the old system of GATT trade negotiations, not only adopting Berne as the minimum copyright standard for member states, but also (via the 1994 TRIPS Agreement) requiring member states to provide sufficient and effective copyright enforcement. For more on this, see Chapter 10. In an Internet world, this continues to prove a challenge.
Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (the EU Information Society Directive, generally referred to as the EU Copyright Directive) was passed on 9 April 2001 after many years of unprecedented lobbying, and implemented in the UK (late) via the Copyright and Related Rights Regulations 2003. The following summary sets out the basic structure of this key Directive (now fully implemented by all EU member states), together with references to the UK Regulations where appropriate. At the time of writing, the Copyright Directive is still under review in Brussels, both by the EU Commission (following its 2015 ‘Digital Single Market Strategy for Europe’), and the European Parliament (following the Reda report of the same year), both of which may lead to further proposals, probably in 2016. The Digital Single Market Strategy focuses particularly on portabilility of legally acquired content and cross-border access for consumers to avoid territorial restrictions, wider use of Text and Data Mining (for more on this, see Chapter 3), and the role of platforms and intermediaries.
Further details of EU and UK copyright exceptions are included in Chapter 3 and, for copyright enforcement provisions, in Chapter 10.
Adopting wording drawn directly from the WIPO Copyright Treaty 1996, the Directive required member states to provide the following key rights for authors:
• Reproduction right (Article 2). The exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part. This was largely already covered in the 1988 Act.
• Right of communication/making available to the public (Article 3). The exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them. This was new, and has resulted in changes to sections 16 and 20 of the 1988 Act (set out fully in Chapter 10).
• Distribution right (Article 4). The exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise (already dealt with under the 1988 Act).
• Technical protection rights Articles 6 and 7 required member states to provide protection against circumvention of technological rights or measures, such as encryption, and rights-management information. Both these provisions were implemented in the 2003 Regulations. Article 8.3 (also implemented) further provided for sanctions and remedies, which must be ‘effective, proportionate and dissuasive’, including remedies against service providers, which it is hoped will lead to effective Notice and Takedown provisions suitable for the Internet age. The Publishers Association’s Publishing Infringement Portal, although primarily based on the E-Commerce Directive, is a good example (see Chapter 10).
UK CORE RIGHTS
Most of these EU core rights are now included in amended section 16 of the UK’s 1988 Copyright Act, which lists the ‘Restricted Acts’ which are the exclusive right of UK owners in relation to most copyright works. These currently include the exclusive right to do the following things:
• copy the work;
• issue copies of the work to the public;
• rent or lend the work to the public;
• communicate (or make available) the work to the public; and
• make an adaptation of the work.
Fuller individual treatment of all these Restricted Acts is included in Chapter 10.
In addition to the EU’s core rights (above), there are 21 possible or optional exceptions under EU law, set out in Article 5.
The first (5.1) dealing with temporary copying, is mandatory; the other 20 at present are optional, forming an à la carte menu from which the (currently 28) member states now required to implement the Directive are inevitably making different selections – thus seriously limiting the chances of any real harmonisation. It is at least an exhaustive list, so that no further exceptions within the EU are possible at present, although this may change in the context of any EU copyright reform (see above).
• Temporary reproduction: (Article 5.1) This exempts from the reproduction right temporary acts of reproduction ‘which are transient or incidental and an integral and essential part of a technological process and whose sole purpose is to enable [network transmissions or lawful uses] . . . which have no independent economic significance’. This mandatory exception was included almost verbatim in the UK Regulations (regulation 8), giving a new UK exception of ‘Making Temporary Copies’ under a new section 28A of the 1988 Act (see Chapter 3 for more on this). It is generally felt to be a workable compromise between the interests of rightsholders to protect their works against economically significant misuse, and the legitimate need for intermediaries, users and telecommunications companies to have a workable exception that will enable the Internet to function.
• Optional exceptions: There is not space here to set out all 20 optional exceptions, particularly since the UK initially selected very few, sticking broadly to current ‘fair dealing’ exceptions, plus existing educational and library exceptions, many now subject to express ‘non commercial’ criteria. UK exceptions were, however, significantly extended in 2014 (on which, see Chapter 3).
• The ‘three-step test’: One very important proviso applying to all 21 exceptions is contained in Article 5.5., providing that each exception should only be applied (1) ‘in certain special cases (2) which do not conflict with a normal exploitation of the work or other subject-matter and (3) do not unreasonably prejudice the legitimate interests of the rightsholder’. This wording is an increasingly important yardstick for future interpretation in the UK and across the EU. For more on this, see Chapter 3.
UK EXCEPTIONS
The UK as an EU member state is fully subject to the EU rules and limits above, and any new or amended UK copyright exceptions must comply with them. There is not space here to set out all the current UK exceptions, but these – including the significant extensions in 2014 – are fully covered in Chapter 3.
In recent years, copyright has been under almost constant scrutiny in the UK, EU and internationally. Aspects of copyright such as the extent of copyright exceptions in a digital age have received (and, at the time of writing, still receive) particular attention. This is in many ways a good thing, in a fast-moving digital age, with new formats and rapidly developing business models: most commentators agree on the importance of maintaining the essential balance in the UK copyright system, between (1) the need to protect exclusive rights from easy cybercrime, and (2) the legitimate expectations of users and society for reasonable access, increasingly in digital formats.
Following the Hargreaves Review in 2011, broadly accepted by the UK government’s ‘Modernising Copyright’ report in 2012, the government legislated in 2014 for wide-ranging extensions (and additions) to existing copyright in the UK, including for the first time in the UK a personal copying exception (although this has now been quashed by the High Court), exceptions for Text and Data Mining, and Parody, together with extended educational and library exceptions, and an extended exception for print disabled people. For more on all the 2014 changes, see Chapter 3.
Meanwhile, in Europe, at the time of writing copyright remains a high priority, with frequent Communications and White Papers on topics such as fragmented cross-border licensing, mass digitisation, orphan works (on which, see Chapter 3), extended collective licensing (Chapter 3), and possibly publishing contracts (Chapter 5), all combined with an overall concern to protect consumer rights, as well as keeping Europe competitive, in a digital world.
Perhaps a broader issue for copyright remains: that of public awareness and acceptance. Unlike previous generations, twenty-first-century users rightly expect quick and easy access to information, and the difference between (free) public information and (possibly restricted) copyright content is often a difficult act to sell. As ever, as we have seen above, technology itself increasingly has the answer (for example, in the Copyright Hub, and digital rights management), but there is no doubt that much consultation and negotiation between rightsholders, users and governments lies ahead.
INTRODUCTION: TYPES OF WORKS
Initially, as we have seen above, copyright only extended to books and other printed matter. However, definitions based on traditional packages such as ‘books’ are no longer specific or flexible enough for modern content industries like publishing, where individual creations may now need to be re-used and adapted in different combinations and in different forms (such as online services or websites). Each original work may also be created and owned by quite different people, who may wish to exploit them in different ways; it is important therefore to identify who owns the rights in each constituent part and deal with those rights separately. For this reason, it is better to think of books, e-books, journals, or websites not as ‘works’ at all but as packages or bundles of works, each of which may need different treatment.
What copyright works, then, does UK law protect? Not every creation counts as a work. The works which may currently be protected are set out in section 1(1) of the Copyright, Designs and Patents Act 1988. Three general categories of works may now be protected:
(1) original literary, dramatic, musical or artistic works;
(2) sound recordings, films, or broadcasts; and
(3) the typographical arrangement of published editions.
There is a separate publication right in previously unpublished works, and a separate statutory database right, both dealt with in Chapter 4. Copyright may still cover some original databases, dealt with below.
If you want to secure copyright protection for a work in the UK, therefore, the first thing you will need to do is make sure that it falls into one of the above categories. There are other qualifying criteria which each individual work will also need to fulfil (see below), but these three categories are the essential starting point. Many of the categories have been defined quite widely over the years – so that literary works, for example, now include computer programs and compilations – and we will examine each of the categories most relevant to publishing in turn. As will become obvious, a modern publication may contain several different types of copyright works.
Of all copyright works, literary works are still the most important for authors and publishers, although others (such as artistic works) are important too as we shall see. Under section 3 of the 1988 Act, a ‘literary work’:
• means any work (other than a dramatic or musical work) which is written, spoken or sung;
• includes a table or compilation (other than a database) and a computer program;
• includes a database which by reason of the selection or arrangement of its contents, constitutes the author’s own intellectual creation;
• must be recorded, ‘in writing or otherwise’.
‘Written, spoken or sung’
A work does not need to be ‘literary’ in the colloquial sense in order to be a literary work, as long as it is written, spoken or sung. Some very un-‘literary’ written matter indeed has been given copyright protection in the past, such as business letters, football coupons, trade advertisements and examination papers: indeed, it is possibly more useful to think of ‘literary’ in the broadest context of sales ‘literature’ or business ‘literature’ than as having any necessary connection with Dickens or Proust. It merely needs to be written (or spoken or sung) and recorded, in writing or otherwise (see below). There is no requirement for written matter to be written in any particular language or notation, or even to use words at all: mathematical symbols and equations, scientific formulae or even circuit diagrams will be equally protected. However, a single invented word will not be sufficient to constitute a literary ‘work’, although it may make a good trade mark (see Chapter 11). Under section 178 of the 1988 Act ‘writing’ and ‘written’ include any form of notation or code, whether by hand or otherwise, and regardless of the method or the medium used.
Tables and compilations have been given copyright protection as literary works since the 1911 Copyright Act, and may be of considerable commercial value in published works today. Examples are TV listings, sports fixture lists, professional or trade directories, street directories, trade catalogues, websites, bulletin boards, or even – given sufficient originality in the selection (see below) – schemes of chapters or sequences of topics or headings. However, compilations stored electronically are equally protected whether or not printed out or published in written form. UK copyright law recognises that an original compilation is more than the sum total of individual entries (which may or may not be literary or other works in their own right) and protects the selection and arrangement of those items as a separate copyright work. This new compilation may have value as much for what is omitted, as for what is included: however, there does need to be some evidence that some skill and judgment has gone into the selection and arrangement – we will consider this below, and under originality. Compilations which are databases now have to satisfy a more rigorous test of originality to qualify for copyright protection (see below).
Databases
Although databases (however mundane) have traditionally been protected under UK copyright law as compilations, since the Copyright and Rights in Databases Regulations 1997 (implementing the EU Database Directive) databases have only been eligible for full copyright protection in the UK if they bear the hallmark of the author’s ‘intellectual creation’. With this proviso, they are still protected as literary works, and are now defined widely to include any collection of independent works, data or other materials which:
(a) are arranged in a systematic or methodical way; and
(b) are individually accessible by electronic or other means.
This broad definition would include not only commercial databases and most websites, but also newspapers and journals (and even this book) but probably not films, because of the requirements of individual accessibility at (b). However, none of these will be given copyright protection unless original, and revised section 3A(2) of the 1988 Act (inserted by the 1997 Regulations) now provides that:
a literary work consisting of a database is original if, and only if, by reason of the selection or arrangement of the contents of the database, the database constitutes the author’s own intellectual creation.
This new ‘intellectual’ standard was a dramatic change for UK copyright, which had previously protected quite mundane databases. As a result, many basic, but commercially valuable, databases, such as alphabetical listings or directories, may not now be eligible for full copyright protection, now lasting in most cases for the life of the author plus 70 years. They may still, however, be protected if there has been ‘substantial investment’ in ‘obtaining, verifying or presenting’ their contents – in which case they may be protected by the separate statutory Database Right, preventing unauthorised extraction or re-use, and lasting for a much shorter 15-year term, but renewable regularly in appropriate circumstances. Database Right is dealt with fully in Chapter 4.
Computer programs
Computer programs are specifically protected as literary works, having been given statutory protection for the first time by the Copyright (Computer Software) Amendment Act 1985. They are not defined in the 1988 Act, but would probably include any sequence or set of instructions in machine-readable form which are capable of causing a computer to perform a particular task or function. This would extend to programs held in most current forms, as long as they could be said to be held in notation or code and therefore ‘written’. Design material created in preparation for computer programs is also protected as a literary work under the Copyright (Computer Programs) Regulations 1992 (as amended).
‘Computer-generated works’ are also protected under the 1988 Act, and are defined as works generated by a computer ‘in circumstances such that there is no known author of the work’. We will consider who owns such creations at p. 31.
User generated content
One of the major features of twenty-first-century online society is creative content which users upload to content-sharing sites such as Facebook, Twitter and YouTube, and which may easily nowadays be made available on a vast scale worldwide. Much of this content consists of photographs, video or film, but a great deal of it will be text or other literary works. These may be original works that users create themselves, or they may be works belonging to others, either reproduced verbatim as they are, or adapted or mashed up with other works, with or without the copyright owner’s consent. This raises complex copyright issues, dealt with at greater length below (pp. 26 and 32).
Recorded in writing, or otherwise
A literary work will not be protected unless it is put into some permanent, or material, form or, in the case of electronic information, a retrievable form. The means of recording used is very widely defined: ‘in writing, or otherwise’ could include almost any form of record, and specifically extends to non-written media. This means that a speech or lecture will be protected as a literary work even if delivered without a text or notes, provided that someone (not necessarily the speaker) makes a record of it at the time; for example, keys it into the memory of a lap-top or iPad. The same might be true of an interview, provided what was said had enough originality to qualify as a copyright work at all (see below).
It does not matter who makes the recording, and in fact there is no requirement that it should even be made with the speaker’s consent. In many cases two quite separate copyrights will be created at the same time – copyright in the spoken (and recorded) words as a literary work, and a separate copyright in the recording, or a transcription of it, either as a new literary work or as a sound recording. Even a verbatim written report of a speech has been given separate copyright protection – in the famous case of Walter v. Lane in 1900 – where special skill is needed to write it down. As we shall see later, although such parallel copyrights may be dependent on each other, they may be owned by different people. For example, a photograph taken of a painting may be entitled to copyright protection if sufficient skill is used by the photographer (for example, in choice of angle, cropping or lighting). If the painting is still in copyright, there will then be two separate copyrights, which may well be owned by separate people, the artist and the photographer.
Originality
Copyright protection under the 1988 Act is not given to all literary works, but only to ‘original’ literary works: dramatic, musical and artistic works must also be original. The requirement does not extend to any other works, but since literary (and artistic) works in particular play such a central role in publishing, establishing originality in appropriate cases is clearly of great importance. So: what is ‘original’?
For the purposes of copyright law, all that original means is that the work concerned should originate from the author: in other words, that he or she should not have copied it from anywhere else. Any evidence that you have saved yourself time and effort by copying directly from someone else, without sufficient original input from you, will rob your work of its originality and thus of its copyright protection. However, it does not need to display what we may think of colloquially as original thought, in the sense of unique perception or insight which no one else has contributed to the subject before. It is quite permissible to base your work entirely on common sources and existing material (provided you do not copy them) – as the Court of Appeal recently confirmed in a case involving Dan Brown, author of The Da Vinci Code, who (it found) had not infringed copyright in an earlier work The Holy Blood and The Holy Grail despite using it as a source of general themes (‘generalised propositions, at too high a level of abstraction to qualify for copyright protection’), with no actual textual copying. The originality which is required is not so much original thought as original effort: an independent work which (however mundane or derivative) you have used your own time and effort, and your own faculties and skills, to create.
On this basis, it is easy to see how English law has granted copyright protection to railway timetables and sports fixture lists, as well as to great works of literature. It also means that two or more very similar – or even identical – works could be created independently by different people, provided that each of them has expended their own skill and effort. Thus two photographers might take virtually identical photographs of the same scene, and two novelists may write strikingly similar stories: provided no copying had taken place, each one may constitute a separate copyright work.
Some copyright works are, by their very nature, bound to be similar, if not identical. Published mathematical tables are the classic example, since any two authors working them out properly are bound (one hopes) to arrive at the same result. A compilation such as a directory of professional names and addresses is bound to be very similar to another directory covering the same profession, but both will be protected if both are the result of independent skill and effort. Copying does occur, of course, and we will consider ‘originality’ again later on, under infringement of copyright (Chapter 10). Many directory publishers include deliberate minor errors in their databases in order to expose copying: it is stretching coincidence a bit far to claim that, while expending your own skill and effort, you still nevertheless happened to reproduce exactly the same errors as someone else (as confirmed in the 1993 case Macmillan Publishers v. Thomas Reed Publications).
New editions, and even possibly revised reprints, will often contain enough originality to be protected as separate copyright works, provided that there is sufficient that is new. However, to create a copyright by alterations in the text, these must be extensive and substantial, rather than minor or merely cosmetic.
Abridgements may also be protected, including abstracts of articles (but abstracts may often be copied under section 60 of the 1988 Act (see Chapter 3).
Adaptations of a book by turning it into a play or a film will create new copyrights, if sufficient skill and judgment is used, even though the original work is reproduced in the new works.
Translations have always been given separate copyright protection in view of the obvious skill involved, even though – by definition – derived entirely from an existing work.
It is very unlikely that the title of a book would have enough originality to be protected as a literary work in its own right – unless it was unusually long. Indeed, it may not be a ‘work’ at all, and it may also not be a substantial part of another work (see Chapter 10). However, titles may in appropriate cases be protected as registered trade marks, given their necessary distinctiveness, or in some cases by the law of passing off (see Chapter 11).
SUMMARY CHECKLIST: LITERARY WORKS
To summarise briefly so far: in order to be protected under UK copyright law as a literary work, a work must display the following features, among others:
• It must be written, spoken or sung (this includes tables, compilations and computer programs).
• It must be recorded, in writing or otherwise.
• It must be ‘original’.
There are other qualifying requirements which apply to all copyright works, as we shall see below, but a work must fulfil at least the above three criteria if it is to be protected as a literary work at all.
Artistic works are defined in section 4(1) of the 1988 Act to mean:
(1) a graphic work, photograph, sculpture or collage, irrespective of artistic quality;
(2) a work of architecture being a building or a model for a building; or
(3) a work of artistic craftsmanship.
‘Artistic’ is not defined but, like ‘literary’, it is more a generic grouping than any particular cultural yardstick. As the definition shows, artistic quality is not required at all for graphic works, photographs, etc., which are protected ‘irrespective of artistic quality’, but a specific artistic element does seem to be required for works of artistic craftsmanship: we will look at this further when we consider those works below.
Remember also that artistic works, like literary works, must be ‘original’ in order to be protected under the 1988 Act: a direct copy would be unlikely to be given copyright protection. It is arguable, however, that a professional (or at least a skilful) copy of a painting might constitute a new copyright work, even though it was an exact replica, and re-origination of old illustrations by a new computer process might also create new copyrights if sufficient skill and judgment were involved.
The artistic works most relevant to publishing are graphic works, photographs and works of artistic craftsmanship.
Graphic works
Graphic works are defined in section 4(2) of the Act as including:
• paintings, drawings, diagrams, maps, charts or plans;
• engravings, etchings, lithographs, woodcuts or similar works.
All such works are protected irrespective of artistic quality, so judges (fortunately, one may think) are not required to make value judgments about ‘art’.
Together with photographs, this wide definition of graphic works must cover most if not all illustrations which may currently be contained in published or accessible works, or which are relevant to publishing; for example, the design of a new typeface. Note also that diagrams and charts are included, so that small and relatively mundane technical illustrations within the text or website, such as graphs, may be given copyright protection as artistic works just as much as more obvious pictures, provided they display sufficient originality.
Artistic works are defined in the 1988 Act in such a way that they would have to exist in a material form to fall within the definition and thus be protected. In the case of a painting, there is also some authority for saying that it must be put on to some permanent (or at least fairly fixed) surface.
As from 1 January 2006, artists who have created original works of graphic (or plastic) art have been entitled to an artist’s resale right (or droit de suite) to a percentage share of the sale price every time their work is resold (e.g. by a gallery). For more on this, see Chapter 4.
Photographs
Section 4(2) of the 1988 Act defines a photograph as:
a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film.
Films are separately protected, and a single frame of a film would therefore now be protected as part of a film and not as a photograph, although the position was different before the 1956 Copyright Act came into force: the date the photograph was taken may therefore be highly relevant, to ownership, to whether or not any ‘originality’ is required, and also to how long copyright protection lasts (see ‘Duration of copyright’, below).
The 1988 Act makes no distinction between negatives and positive prints: negatives, as the master copy, would certainly be protected, and prints may well be protected separately if they displayed sufficient originality. However, a straightforward photocopy would not qualify as an original copyright work.
Works of artistic craftsmanship
Original works of craftsmanship, such as furniture or ceramics, may be protected as registered designs under the Registered Designs Act 1949, or (since the 1988 Act) as unregistered designs: however, they may also in some circumstances be entitled to copyright protection as works of artistic craftsmanship if they are more than merely functional and display some ‘artistic’ element. It is not clear how significant this artistic element needs to be, or what relationship it needs to bear (if any) to the function of the item in question. A prototype for a suite of mass-produced furniture, and the arrangement of objects and the members of the pop group Oasis from an album cover, have both been denied copyright protection on this basis, but works with a more obvious artistic element, such as hand-painted ceramics, inlaid cabinets, stained glass, specialised printing and hand-tooled bookbinding would almost certainly be protected.
SUMMARY CHECKLIST: ARTISTIC WORKS
To be protected under UK copyright law:
• All artistic works must be ‘original’.
• Graphic works (paintings, drawings, etc.) and photographs must be original, but need not display any particular artistic quality.
• Paintings must be fixed on to a surface.
• Works of artistic craftsmanship must have an ‘artistic’ element.
Dramatic works
Under the 1988 Act, dramatic works are not defined at all, other than to specify (in section 3(1)) that they include a work of dance or mime. A dramatic work probably, however, needs to be capable not only of being performed in some way, but also of being acted, and hence needs to have an essential and coherent dramatic structure of its own. The cases of Fraser v. Thames TV (1983) and De Maudsley v. Palumbo (1995) confirmed that, to be protected, a dramatic work must be ‘clearly identifiable and potentially realisable’, and ‘capable of being realised as a finished product’. Similarly, a singer giving a recital in the Wigmore Hall, although clearly performing, would be unlikely to be performing a dramatic work, unless a significant amount of action was involved.
The case of Norowzian v. Arks Ltd (No 2) (2000) decided that a film could be a dramatic work for the purposes of the 1988 Act. The Court of Appeal held that the ordinary and natural meaning of a ‘dramatic work’ was a ‘work of action, with or without words or music, which was capable of being performed before an audience’. A film would often, though not always, be a work of action and it would be capable of being performed before an audience. In making this finding the Court of Appeal recognised that cartoons could now be classed as dramatic works and as such receive protection under UK copyright law. They would still be protected as films, and the underlying drawings would also be protected as artistic works. Perhaps the most puzzling example of a dramatic work given by the courts is a film made using particular editing techniques (which was later used in a Guinness advertising campaign) because film works are already entitled to their own copyright protection under section 5B of the 1988 Act (see later).
Like literary and musical works, dramatic works must be recorded ‘in writing, or otherwise’. They must also be ‘original’.
Musical works
The 1988 Act, at section 3(1), helpfully defines a musical work as ‘a work consisting of music’; it does however go on to tell us that such a work is distinct from any words or action intended to be sung, spoken or performed with it. Thus, lyrics of a song or the libretto of an opera would not be part of the musical work itself, but would normally be separate literary works, and choreography or other action would be a dramatic work: quite often these works would have been created and thus will be owned by different people.
Musical works, to be protected by copyright, must be recorded, in writing or otherwise – this may be by means of written scores or by being recorded on to CDs, or by being fixed by any other means. The recording itself will be a separate copyright work (probably either a literary work or a sound recording).
Finally, as with other copyright works in this group, all musical works must be ‘original’. As has been seen with literary and artistic works, this implies no more than some significant creative effort and skill, and an absence of copying: it is not necessary to be Mozart. However, an original musical work must be more than a mere interpretation.
The UK government introduced a copyright exception for personal copying of musical and other works in 2014, but without any compensation for rightsholders (quashed for that reason by the High Court in 2015) – see Chapter 3.
SOUND RECORDINGS, FILMS AND BROADCASTS
Sound recordings
The recording industry is a major international industry and the opportunities for digital as well as mechanical copying continue to be considerably more sophisticated, as the Napster and Grokster litigation in the USA showed – involving not only unauthorised copying but also systematic uploading and peer-to-peer file-swapping. The US Supreme Court found that the filesharing activities of Grokster were illegal and infringed copyright, but the more recent Pirate Bay litigation in Sweden showed that the opportunities for cybercrime are still very real.
Sound recordings continue to be protected in the UK as separate copyright works under the 1988 Act, and are now defined (in section 5A(1)) as meaning:
(a) a recording of sounds, from which the sounds may be reproduced; or
(b) a recording of the whole or any part of a literary, dramatic or musical work, from which sounds reproducing the work or part may be produced,
regardless of the medium on which the recording is made or the method by which the sounds are reproduced or produced.
Thus, two separate kinds of sound recording are protected – those which are recordings of pure sounds (such as birdsong), and those which are recordings of other copyright works, such as recordings of famous actors reading books (literary works), or reciting plays (dramatic works), as well as – of course – recordings of music.
Modern film soundtracks are now protected not only as part of the films which they accompany (under section 5B(2)) but also as sound recordings separately from the films themselves (although the position may be different for soundtracks created before 1989).
In addition to copyright, the 1988 Act also introduced a limited rental right for sound recordings (and for films and computer programs) – we will deal with this later, when we look at the restricted acts which only a copyright owner may do (Chapter 10). There is, as yet, no blank tape levy in the UK.
There is no requirement that a sound recording should be original (unlike literary, dramatic, musical or artistic works). However, copyright will not protect a sound recording which is merely a copy of a previous sound recording (section 5A(2)).
Films
A film is a separate copyright work, defined in section 5B(1) of the 1988 Act as meaning ‘a recording on any medium from which a moving image may by any means be produced’. This definition is wide enough to cover DVDs, film downloads and some aspects of computer games. Film soundtracks are now protected both as part of the films concerned, and independently as sound recordings (see above). In addition, a typical film will include many other copyright works, and the relevant rights will need to be acquired (or licensed) from the respective owners in order to make the film: these rights are collectively referred to in the film business as the ‘underlying rights’. These might include, for example, the screenplay and the book or script (dramatic and literary works), the score (a musical work), graphics, cartoons or set designs (artistic works), as well as the soundtrack (sound recording). Individual frames or stills from a film are protected as part of the film, and not as photographs (see above,). This may be significant, since (for example) a photograph (as an artistic work) must be original, whereas the film need not be. Films, like sound recordings, do not need to be original; however, section 5B(4) of the 1988 Act provides that a film which is merely a copy of a previous film will not be protected by copyright.
Broadcasts
Broadcasts include not only traditional radio and TV broadcasts and cable transmissions, but also (since the Cable and Broadcasting Act 1984) direct broadcasting by satellite. The wide definition of broadcasts (in section 6 of the 1988 Act, as amended by the 2003 Regulations) effectively includes all transmissions including those sent via fixed, land-based routes (such as cable): broadcast means ‘an electronic transmission of visual images, sounds or other information’ which can lawfully be received by the public or which is sent for public presentation. Note: (1) that broadcasts may consist not only of pictures and sound but also of ‘other information’; and (2) that an encrypted transmission is only regarded as being lawfully received by the public if they have access to authorised decoding equipment.
Broadcasts do not include Internet transmissions unless they fall into one of three categories:
(a) transmissions taking place simultaneously on the Internet and by other means;
(b) concurrent transmissions of a live event; or
(c) transmissions of recorded moving images or sounds forming part of a [scheduled] programme service offered by the person responsible for making the transmission.
These categories of transmission on the Internet will be treated as broadcasts. Other Internet transmissions will fall within section 20 of the 1988 Act (see below).
INTERNET TRANSMISSIONS AND USER-GENERATED WORKS
Internet transmissions and communications to the public
Section 20 deals with ‘communication to the public’, which includes both broadcasting and ‘making a work available’ to the public. It is this latter right which will cover most Internet activities. Making a work available to the public is defined in section 20(2)(b) of the 1988 Act as ‘the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them’. This can clearly be distinguished from broadcasting, where the public does not determine the time of the broadcast.
There is now no specific category of copyright work which relates to transmissions on the Internet which are not included in the category of ‘broadcast’. Under the previous law, such a transmission would have been protected as a cable programme, but since 2003 cable programmes have been protected as a type of broadcast. Under the present law, works transmitted on the Internet are protected by the communication to the public and making available rights, but the transmission itself is not protected as such, unless it falls within the new definition of a broadcast, which excludes many types of Internet transmission.
User-generated works
One of the major – and currently booming – features of the Internet has been the rapid growth of content-sharing sites such as Facebook, Twitter and YouTube, which allow users to share and enjoy creative content by uploading it to websites owned and run (usually) by commercial operations, sometimes licensed but often free to users and paid for by advertising. At the time of writing Facebook had 1.5 billion users worldwide, primarily sharing photographs and video. Twitter, sharing more limited text uploads and hyperlinks, had 316 million users, and 300 hours of video were being uploaded every minute to YouTube. These are clearly already substantial online communities, and rapidly growing.
While this boom in sharing content directly on a ‘many-to-many’ basis on such a vast worldwide scale is for many of us one of the great freedoms of a digital society, it is already raising significant legal challenges, particularly the copyright status of the content shared, and who owns it. We will look at ownership later (below), but consider briefly here what (if anything) is being created or adapted in copyright terms and whether – and how far – its use might be legal. One of the most important points to make at the outset is to rebut the popular myth that ‘if it’s on the net, it’s free’. It may be, of course, but it may well not be, or at least not authorised.
As we saw above, original text, photographs and music are protected by copyright both in the UK and worldwide as literary, artistic and musical works, currently (in the UK, Europe and the USA) for the life of the author plus 70 years. The owners of these copyrights – in most cases (usually) the creators (e.g. the authors, photographers and composers) – have exclusive rights to control or license any copying or making available of ‘substantial parts’ of the works concerned, and equally the exclusive right to control any adaptation of them. They are also very likely to have moral rights over them, particularly the right to claim authorship and the right to object to any ‘derogatory treatment’ of them. This means that any use or adaptation of the works that is not authorised or consented to by the copyright owner may well be infringing copyright, and quite possibly the author’s moral rights.
This is, of course, no problem at all if what you are uploading to Facebook or Twitter is your own original creation and you are happy to share it freely with the world. Creative content created and uploaded by you to a content-sharing site is very likely to constitute a new copyright work (which you or others might own), if it is sufficiently original. However, if you are uploading and making available substantial parts of original works created by others, or adapting them, or mashing them up with other things, without the copyright owner’s consent, you may well be infringing someone else’s copyright. And if your use or adaptation fails to credit the owner or involves derogatory treatment of their work, their moral rights may also be infringed.
There may be defences to any suggestion of copyright infringement if, for example, the use you make of the work concerned is covered by a licence (e.g. for YouTube) or by a copyright exception, such as ‘fair dealing’ for quotation for criticism or review, or for parody, or reporting current events. There may also be a ‘fair use’ exception in the USA for any use which may be regarded as a ‘transformative use’ under US law. However, there is currently no such ‘fair use’ exception in the UK or EU (for more on exceptions and fair dealing, see Chapter 3).
The hosting site may also claim a defence under the hosting and caching provisions of the EU’s E-Commerce Directive 2000 (under which intermediaries are not liable for any illegal content hosted on their sites provided they respond promptly to any notice of infringement and take down the infringing content ‘expeditiously’), and equally under the corresponding ‘safe harbor’ provisions of the Digital Millennium Copyright Act in the USA. However, there is currently much debate about all this, and we are still some way from a settled, effective system for notice and takedown (and ‘stay down’) in such cases internationally.
There is a separate copyright in the UK in typographical arrangements of published editions. It lasts only for 25 years from the end of the year of publication, and is owned by the publisher: the purpose is to protect the publisher’s skill and investment in the composition and setting, so a separate copyright is given to the visual appearance of the page itself as well as to its contents. This means that, on a typical page there are likely to be several copyrights: a literary copyright in the text, and possibly in any compilation, artistic copyright in any photographs, charts or illustrations, and a separate typographical copyright, owned by the publishers, in the arrangement of the page itself. This protects a publisher of a public domain edition, say of Shakespeare or Milton: although the text is long since out of copyright, there may still be an enforceable copyright in the publisher’s edition.
It seems likely that this protection would also be available to the creator of a website or an e-book. However, it seems equally possible that a conventional book, or similar text, might be reproduced via those media, and typographical copyright in the original edition might be infringed depending on the way it was reproduced.
A substantial part of the whole ‘published edition’ does, however, need to be copied. This is clear from the decision of the House of Lords in Newspaper Licensing Agency Ltd v. Marks & Spencer PLC (2001), where the NLA failed in a claim that Marks & Spencer had infringed typographical copyright in newspapers by operating an unlicensed cuttings service which circulated cuttings of individual articles to members of its staff, usually mounted as single items on plain sheets of paper. Was a single article, taken out of context, a substantial part of the typographical arrangement of the whole published edition? The Lords thought not, and Lord Hoffmann spoke for the majority view when he said ‘I find it difficult to think of the skill and labour which has gone into the typographical arrangement of a newspaper being expressed, in anything less than a full page’. For more on the need to copy a substantial part, see Chapter 10.
Typographical arrangements do not need to be ‘original’ as such (unlike the artistic copyright which may exist in a new typeface) but they will not be protected if they merely reproduce the typographical arrangement of a previous edition. A publisher cannot therefore perpetually extend typographical copyright beyond 25 years simply by re-issuing the last edition.
SUMMARY CHECKLIST: COPYRIGHT WORKS
It should be clear by now that a modern publication such as an e-book or journal is unlikely to be a single copyright work, but a bundle of several different works. Before we go on to consider who owns each copyright, it may be useful to remind ourselves which works may most often be relevant.
Books and e-books
May contain:
• original text (literary work). The plot – if any – may be a dramatic work;
• quoted text from other sources (separate literary works);
• index, prelims, tables or compilations (literary works);
• illustrations/photographs (artistic works);
• overall compilation (particularly in the case of collective works such as encyclopaedias (literary works);
• databases (literary works and/or database right works);
• typographical arrangement (typographical copyright);
• jacket or website text and illustrations (literary and artistic works);
• computer programs/software (literary works), in the case of e-books.
Digital publications (such as a website)
May contain:
• some or all works in books and e-books (see above);
• animations/graphics/cartoons (artistic works);
• video and film (films);
• music (musical work);
• lyrics (literary works);
• drama/plays (dramatic works);
• recordings of music, speech or other sounds (sound recordings);
• performances of works (rights in performances);
• broadcasts (insofar as a website is broadcasting).
Moral rights of authors may also now be relevant in relation to many of the above works – on moral rights generally, see Chapter 4.
Who owns all these different copyrights, and connected rights? Given the variety of copyright works which UK law protects, it might be thought that working out who owns which rights would be a complete nightmare – but in fact, in most cases, the underlying principle of copyright ownership is very simple. There are (of course) some exceptions (such as employee works) which we will come to, but, subject to those, the general rule is stated in section 11(1) of the 1988 Act: ‘The author of a work is the first owner of any copyright in it. . .’
The search for a copyright owner is therefore in most cases the search for the author. And who, then, is the ‘author’? Section 9(1) tells us: the author is the person who creates the work. As a general rule, therefore, the creator of a work usually owns the copyright in it.
It should not be forgotten that the rules governing who is the author of a work and who owns copyright in it vary according to when the work was made. In the notes which follow, we will focus on the current law, but for pre-August 1989 works it will often be necessary to refer back to the 1956 or 1911 Copyright Acts, or even earlier.
‘AUTHORS’
As we saw in Chapter 1, there is no copyright in ideas, so the author or creator of a novel or a play is not necessarily the person who had the original idea, but the person who first put that idea into concrete form. These may be one and the same person, of course, or they may have worked on the project together (in which case they may be joint authors), but they may also be completely different people. The law tries to find the real creator – the person who actually executed the work, the person who made it. This may vary according to the type of work. For example, the creators of a film will be more than one type of person, such as the producer and the principal director.
Someone who was merely putting a literary (or artistic) work on to paper at the instruction of someone else – a secretary writing a letter, or an amanuensis helping to take down a book, for example – would not be regarded as the author of that work. But where the work is not merely dictated, but is ghost-written, then the ghost writer will own the copyright, because it is the ghost writer who has created the work which appears on the page. Appropriately enough (for ghosts) this was held in a 1927 case to protect the writings of a spiritualist medium, despite claims that the real ‘author’ resided in another world. And, in the same way, a reporter writing up a report of a speech (even, in one famous case, a verbatim report) would probably be regarded as the ‘author’ of that report and would own the copyright in it (although copyright in the speech itself would still be owned by the speaker).
Joint authors
In some cases, it may simply not be possible to identify separate copyright works, and say that X wrote this bit and Y wrote that. Where it is possible (for example where contributors write distinct chapters of a book or entries in an encyclopaedia) each one will own a separate copyright. Where it is not possible, but more than one person clearly contributed (as, for example, where a scientific research team publishes their findings) they are treated as joint authors.
In many cases, it will be a question of degree as to whether what is created is a collection of separate works, or whether it is truly a joint work. Under the 1988 Act (section 10(1)) a work of joint authorship is:
a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors.
Each of them must be authors, however: someone who contributed ideas and suggestions, but took no part in the actual writing, would be unlikely to be considered a joint author (although this is not completely impossible). This would be the case even if they made minor revisions, unless their revisions were unusually original. For example, members of the pop group Spandau Ballet failed in one case to prove that they made a significant and original contribution to the group’s songs and, therefore, were not entitled to joint authorship in the songs with Gary Kemp, the main songwriter and lyricist. Contributions such as a saxophone improvisation in the song ‘True’ were held to be only examples of a performance (that any accomplished musician would make) rather than of the joint creator of a work.
Joint authors usually own the copyright as ‘tenants in common’ – under section 173(2) of the 1988 Act, no single joint copyright owner can publish or license the work without the consent of the others, and when a joint copyright owner dies the same rights and duties will pass to his or her heirs.
Collective works
In a collective work such as an encyclopaedia or dictionary, there is likely to be a copyright not only in the individual entries – normally owned by the respective authors – but also in the overall compilation of the collective work as a whole. The ‘author’ of that compilation is usually taken to be the person who was responsible for assembling it, and whose selection and arrangement it is. This might be one person, such as a General Editor, or one or more of the contributors (who may then be joint authors of the compilation) or quite possibly the publisher.
Photographs
Under the 1988 Act, the author of a photograph is the person who creates it – usually the photographer. This means that copyright in all photographs taken after 1 August 1989 will be owned by the photographer, unless there is an agreement to the contrary or one of the pre-1989 exceptions for commissioned artistic works applies (see below). For photographs taken between 1 June 1957 and 1 August 1989, however, the 1956 Copyright Act defined the author as the person who, at the relevant time, owned the material on which the photograph was taken – it may therefore be important to find out when the photographs were taken, in order to find out who owns the copyright. Commissioned photographs were also treated differently in some circumstances under the 1956 and 1911 Acts (see below).
Software and computer-generated works
Copyright in a computer program which is created by an identifiable human being will normally be owned by that person, as with any other literary work. In a case of a computer-generated work, however – generated in circumstances such that there is no human author – section 9(3) of the 1988 Act provides that the ‘author’ is the person who undertook the arrangements necessary for the creation of the work.
User-generated works
Works uploaded to content-sharing sites such as Facebook, Twitter and YouTube may often be original copyright works, including (typically) literary or artistic works (especially photographs), musical works or films. As explained above, they will usually be owned by the uploaders or another copyright owner, but works made collaboratively may well raise issues of joint ownership (above). They may also raise issues of copyright infringement if any works were used or adapted in the process of uploading and making available to the public without the consent of the original copyright owners. For more detailed consideration of the many copyright issues raised by user-generated works, see above.
Typographical arrangements
Copyright in typographical arrangements of published editions is owned by the publisher.
Sound recordings and films
Under the 1988 Act, the author of a sound recording or a film is the person by whom the necessary arrangements for making it were made. In many cases this might be several people, but is most likely to be a record or film production company. In the case of a film, the principal director is also an author. Additionally, in the case of a film, the Duration Directive, and 1995 Regulations made under it (see ‘Duration of copyright’, below), have specified that copyright protection shall be calculated from the death of one of four possible categories of persons, but this does not change the position that the authors of a film are the producer and the principal director.
The soundtrack of a film is now not only treated as part of the film concerned but is also protected as a separate copyright work (as a sound recording) and copyright may thus be separately owned.
As pointed out at the beginning of this section, pre-1989 ownership may be different, and the complex provisions are beyond the scope of this book.
Broadcasts
The author of a broadcast under the 1988 Act is the person who makes the broadcast (provided he or she has at least some responsibility for its contents, and is not – like BT – simply a common carrier). Where more than one person is involved in making the broadcast, the broadcast may be a work of joint authorship.
Where a broadcast is relayed, the original broadcaster is the author, rather than the person making the relay.
Commissioned works
Unlike US provisions regarding Works for Hire (where the commissioner may own copyright in certain commissioned work), there are no special provisions in the 1988 Act relating to copyright in commissioned works in the UK, so for works created after 1 August 1989 the general rule of copyright ownership applies, and the author will normally own the copyright, not the commissioner (unless there is a contract providing otherwise, or a contract term which may be implied in appropriate circumstances). In fact (despite popular beliefs to the contrary) even before 1989 there has never been any general rule of law that if you commissioned a work you would automatically own the copyright in it. There were three very limited exceptions under the 1956 Copyright Act, covering certain kinds of commissioned artistic works, but these never extended to literary or other works. The exceptions were:
• commissioned photographs;
• commissioned portraits (painted or drawn);
• commissioned engravings.
A person commissioning such works after 1 June 1957 but before 1 August 1989 might own the copyright, if the work was made in response to the commission, and if he or she paid for it (or at least agreed to). There were somewhat similar provisions under the 1911 Copyright Act. Otherwise, subject to the rules set out above, the artist or photographer, like authors of literary works, would probably own the copyright in the normal way. For most commissioned works, therefore, unless one of the limited exceptions above applies, or unless there is an agreement to the contrary, it is likely that the author or artist, not the commissioner, will own the copyright.
WORKS BY EMPLOYEES
There is one major exception to the general rule that authors own copyright in their works, and that concerns works created by employees. Under section 11(2) of the 1988 Act:
where a literary, dramatic, musical or artistic work or a film is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary.
There are two particular points to note.
The terms ‘employee’ and ‘employment’ refer to employment under what the law calls a contract of service or apprenticeship – in other words, someone employed under a contract of employment, rather than a self-employed person such as a freelancer. The contract of employment does not need to be full-time, or permanent, so part-time and temporary employees would be covered, but as Lord Denning said in one case, the person concerned does need to be ‘employed as part of the business’. One traditional test, in cases of doubt, used to be the degree of control exercised by the employer – if the people concerned have little or no discretion over the way the work is done they are probably employees (although there are exceptions: directors, for example, may have considerable discretion but might still be regarded as employees for copyright purposes). It is usually reasonably easy to tell: in the 1916 case of University of London Press Limited v. University Tutorial Press Limited two external examiners were held not to be employees of London University, since they were not exclusively employed by London University, and prepared the papers in their own time, for a one-off fee: they therefore owned the copyright, not the university. In the more recent case of Beloff v. Pressdram Ltd (1993), Nora Beloff, the lobby correspondent of the Observer, was held to be an employee on the basis, amongst other things, that she worked full time at the Observer and did not use her own capital for the job, and would be paid her salary whether or not the paper made a profit.
‘In the course of his employment’
For the employer to own the copyright, the employee must have created it in the course of that employment, not merely while employed. A night security guard who wrote a novel while on duty would probably therefore own the copyright in it, since writing novels would be unlikely to feature anywhere in his (or her) job description. In other cases, such as lecturers preparing teaching manuals, or academic or scientific researchers publishing research papers, the position may be less clear-cut, and there is considerable pressure from some academic institutions for copyright in works created by their staff to be owned by the institutions, if the institution’s facilities were used, even without any agreement or assignment. This is highly debatable under English law, but even where the work is done outside official working hours, it may still be in the course of employment. Ideally, such issues should be covered clearly in employment contracts.
Before 1989, under the 1956 Copyright Act (and earlier law) employers might also have owned the copyright (or part of it) in works of their employees. In the case of works created by employees of a newspaper, magazine or similar periodical which were created for publication in that newspaper, magazine or periodical, the owner would own part of the copyright in the works. This only applies, however, to pre-1989 works.
Before we leave the subject of ownership, it is important to remember that ownership of copyright in something is not the same as physical ownership of the documents or artwork, or other materials on which it is recorded. Although ownership of physical materials might still be relevant to establish authorship of some older works – such as photographs created before 1989 – for most purposes now the two things are completely separate. An author delivering a manuscript (more usually now an email attachment) or an artist delivering original artwork or photographs, will therefore continue to own those physical materials, and be entitled to their (reasonably) safe return, even if he or she does not own the copyright or subsequently assigns it to someone else. In the case of most artistic works, the artist has, since 1 January 2006, been entitled to an artist’s resale right of up to 4 per cent of any subsequent sales (see Chapter 4). Since busy publishing offices are not always the best places to store valuable materials, many publishers in the delivery clauses of their contracts expressly disclaim any liability for loss or damage to manuscripts and other materials submitted to them; however, publishers are probably under a general duty at least to take reasonable care of an author’s or artist’s materials.
SUMMARY CHECKLIST: COPYRIGHT OWNERSHIP
• As a general rule, for modern works, the author of a work owns the copyright in it.
• Is the person concerned really the ‘author’?
• Are there joint authors? If so, do all the copyright owners agree?
• Is there a separate copyright in any compilation, or a database right in any database?
• Have any computer-generated works, sound recordings or films been created? If so, who made the necessary arrangements, and who is the principal director of the film?
• Were any photographs taken before or after August 1989?
• Were any commissioned photographs, portraits or engravings created before August 1989?
• Was the author an employee?
• Did the author create the work in the course of that employment?
QUALIFICATION FOR COPYRIGHT PROTECTION
Although it is no longer necessary to register copyrights at Stationers Hall (or anywhere else), the work will not qualify for copyright protection under UK law unless it meets certain qualifying criteria. Works may qualify by virtue of:
• the author; or
• the country in which the work was first published.
These two ‘points of attachment’ for copyright protection are common to most Berne member countries: it does not matter whether it is the author or the place of first publication which qualifies for copyright protection, but one or other of them must. Often, of course, a work will qualify on both counts.
QUALIFICATION BY REFERENCE TO THE AUTHOR
A work qualifies for copyright protection in the UK if the author was at the material time a ‘qualifying person’. A qualifying person is defined in section 154 of the 1988 Act and includes:
• a British citizen or a citizen of a British Dependent Territory;
• a British National (Overseas) or a British Overseas Citizen;
• a British subject or a British protected person;
• a person domiciled or resident in the UK (or another country to which the 1988 Act extends or has been applied);
• a body incorporated under UK law (or the law of another country to which the Act extends or has been applied);
• a citizen or subject of a foreign country to which the 1988 Act has been applied or extended by Order in Council (or who is domiciled or resident there).
Most of these terms are defined further in the British Nationality Act 1981. For most practical purposes, an author will qualify, at least as ‘resident’, if at the material time he or she lived at a home address in the UK or the relevant foreign country. Foreign countries are periodically added by Order in Council, in accordance with the UK’s Berne, UCC and other treaty obligations (see Chapter 10).
The ‘material time’ is:
• for unpublished works, when the work was made;
• for published works, the date of first publication.
(If the author dies before publication, the material time is immediately before his or her death.)
COUNTRY OF FIRST PUBLICATION
If for some reason copyright protection does not attach to a work by virtue of the author’s nationality or other qualifying status, it may still do so if it was first published in the UK, or another qualifying country to which the 1988 Act extends or is applied.
What is ‘first publication’? Indeed, what is ‘publication’?
Publication
Publication, under the 1988 Act, takes place when copies of the work are issued to the public with the licence of the copyright owner. This would cover most publishing, but not for example the delivery of a speech or lecture, or the exhibition of a painting (unless copies were subsequently issued). Note that copies, in the plural, must be issued, although making the work available to the public via the Internet (‘in such a way that members of the public may access [it] at a place and at a time individually chosen by them’) will count as publication in the case of literary, dramatic, musical and artistic works. A local intranet might be sufficient if access to it was sufficiently wide. It is not necessary that works should be issued for commercial sale: private or free circulation would probably count as publication. The work will not be ‘published’, however, if publication is a purely token gesture and ‘not intended to satisfy the reasonable requirements of the public’ – what the 1988 Act describes as ‘merely colourable’.
First and simultaneous publication
First publication, although not defined, simply means what it says: the first time authorised copies or versions are issued or made available to the public. So if a copyright owner, or his or her licensee, first issues copies of a work to the public in the UK, that work will qualify for copyright protection under UK law, irrespective of the nationality of the author. Works of (say) US authors would therefore have qualified for copyright protection under UK law if they were first published here, even before the USA joined the UCC or Berne Conventions.
Publication also counts as first publication, even if simultaneous publication takes place somewhere else: ‘simultaneous publication’ for these purposes means publication within 30 days. So a US work simultaneously published in New York and London with a gap of no more than 30 days between publication dates would count as first published in the UK.
SUMMARY CHECKLIST: QUALIFYING WORKS
• Was the author a qualifying person at the material time?
• If the author does not have a relevant British qualification (such as nationality or residence) is the author a citizen or subject of a qualifying foreign country?
• For a published work, did the author qualify at the date of first publication?
• For unpublished works, did the author qualify when the work was made?
• If the author is not a qualifying person, was the work first published in the UK (or another country to which the 1988 Act applies)?
• If not first publication, was there ‘simultaneous’ publication within 30 days?
• Did publication satisfy the reasonable expectations of the public?
As we have seen, copyright in the UK is primarily a statutory right, and ever since the first Copyright Act of 1710 it has had a fixed term, or duration. After that, it expires and the protection ends. Although the first statutory copyrights only lasted for 14 years, they could be renewed for a second term if the author was still alive at the end of the first one, so from the outset the length of copyright protection has been linked to how long the author managed to stay alive. After various increases, the Berne Convention countries agreed each to adopt the same minimum term of copyright protection for literary and artistic works, starting from the moment of creation of the work and lasting until 50 years after the death of the author (sometimes referred to as 50 years ‘post mortem auctoris’, or ‘50 years pma’). At the time of the 1911 Act this was thought sufficient to protect two generations of the author’s heirs and seemed a suitable compromise between those who argued that free access to literature required a shorter fixed term and those who felt that copyright should benefit the author’s estate in perpetuity. It is not a perfect formula, but during the course of the twentieth century the Berne period gained widespread international acceptance. Countries belonging to the Universal Copyright Convention (see Chapter 10), adopted a shorter minimum period of 25 years pma, but the Berne period of 50 years is now the minimum period adopted by most countries.
For convenience and certainty, since the exact date of authors’ deaths is often hard to prove, the 50-year period of copyright is deemed to run, not exactly from the 50th anniversary of the author’s death but 50 years from the end of the calendar year in which the author died. So if an author died on 1 July 1945, copyright in the author’s works would expire on 31 December 1995.
REVERSION OF RIGHTS UNDER THE 1911 ACT
While dealing with authors’ lives, it is important not to forget one small but important detail of the 1911 Act, which provided for reversion of many rights to authors after 25 years. The 1911 Act considerably increased the term of copyright from life plus seven years (or 42 years, whichever was longer) to life plus 50 years. Perhaps by way of a counter-balance, a provision (section 5(2)) was included in the 1911 Act under which copyright rights assigned or granted by authors would, in some specified circumstances, revert to them or their estates exactly 25 years from their death. This applied irrespective of any agreement to the contrary. It applied only where the author was the first owner of the copyright (so did not apply to employee works or certain commissioned works). It also did not apply to assignments made by will, or to collective works. The provision was repealed by the 1956 Act, so applied automatically to all such rights assigned or granted between the coming into effect of the 1911 and 1956 Acts (respectively 16 December 1911 and 1 June 1957). People often forget this, since it only applies to old titles, but it can be a significant limitation on publishers’ rights.
It is worth bearing in mind that it was possible for an author or his estate to enter into a fresh assignment on or after 1 June 1957 which would be effective to assign the reversionary rights (even if he or she had previously retained them in any wider assignment, for example to a publisher).
EU HARMONISATION: LIFE PLUS 70
The Berne 50-year standard did not, however, provide a level enough playing field for the European Commission, since it only provided a minimum, and some EU member states (such as Germany and Spain) provided longer terms. In addition, some countries like France gave longer protection to certain works, and, in certain cases, to account for the war years of both world wars.
THE DURATION DIRECTIVE 1993
The EU attempted to deal with this lack of harmony in 1993 by Directive 93/98/ EEC – variously called the Duration Directive, or the Term Directive – which provided for the copyright term for literary, artistic and other works to be harmonised upwards to 70 years pma throughout the EU and EEA. The increased term applied to all EEA-origin works which were protected in at least one member state on 1 July 1995. The UK implemented the Directive by means of the Duration of Copyright and Rights in Performances Regulations (1995). Member states were only permitted to retain longer terms (e.g. Spain, with 80 years) if existing treaty obligations required.
THE 1995 UK REGULATIONS
Because the Duration Directive extended protection for works protected at 1 July 1995 ‘in at least one member state’, each member state’s implementing measures had to provide not only for extensions of copyright periods which were still running, but also for revivals of copyright in works which had gone into the public domain in their own country during the previous 20 years, but which might still be protected in, for example, Germany or Spain. Following the Phil Collins decision of the European Court of Justice in 1993, this was especially true if the author was (or would have been) an EU national. In the UK, this means that works by authors such as Thomas Hardy, John Buchan or Rudyard Kipling will have come back into copyright, having previously been in the public domain.
The 1995 Regulations provided for:
(1) extensions of copyright for relevant works in which copyright still subsisted in the UK at 31 December 1995; and
(2) revivals of copyright for works whose terms of copyright expired before 31 December 1995 in the UK but which were still protected by copyright in another EEA member state on 1 July 1995.
The 1995 provisions did not apply to Crown or Parliamentary copyright, or to computer-generated works.
Extensions
The owner of an extended copyright was generally the person who owned the copyright immediately before 1 January 1996.
In addition, any copyright licence, any term or condition of a copyright agreement, or any waiver or assertion of moral rights which existed immediately before commencement, and which was for the (then) full period of copyright, would have continued to apply during the period of extended copyright (subject to any agreement to the contrary).
Revivals
Revived copyright was likely to apply to the works of all EU and EEA authors who died between 1925 and 1945, provided they were protected in another EEA state (most probably Germany) at 1 July 1995. Depending on the year of the author’s death, the revived copyright may have lasted for anything from a year or so to an extra 20 years.
The new owner of any revived copyright was generally the person who owned copyright immediately before it expired. This was at least even-handed between publishers and authors: the last owner may have been a publisher, or equally a literary estate. If the former owner had died (or, in the event of a company, ceased to exist) the author or his or her estate would have acquired the right.
Any waiver or assertion of moral rights in force immediately before copyright expired would have continued to apply during the period of revived copyright: there were detailed provisions for exercise of moral rights after an author’s death.
Acquired rights
The Directive required member states to protect acquired rights of third parties such as those, like publishers, who had invested in good faith in editions of public domain works, only to find themselves potentially infringing a new, revived copyright. The 1995 Regulations protected such publishers in relation to revived copyrights in two ways:
(1) Non-infringing acts. After 1 January 1996, it was not an infringement of any revived copyright to do anything in pursuance of ‘arrangements made’ before 1 January 1995, or to issue to the public copies of the work made before 1 July 1995 (in both cases, at a time when the work was in the public domain). There were similar provisions relating to anthologies or adaptations.
(2) Licences of right. There was considerable comfort for publishers of previously public domain works: ‘any acts’ (including copying, or issuing copies to the public) would be treated as licensed by the new owner of the revived copyright, subject only to payment of ‘such reasonable royalty or other remuneration as may be agreed’ (or, in the absence of agreement, arbitrated by the Copyright Tribunal). The acts would be treated as licensed from the outset (even though any royalty was not agreed or arbitrated until later), but the publisher had to give reasonable prior notice to the new copyright owner of an intention to do the acts concerned.
Works not of EEA origin
Works not of EEA origin may also have enjoyed the extension (or part of it) and in appropriate cases revival of copyright where the term of protection in their country of origin exceeded that granted in the UK prior to 1 January 1996.
DURATION OF COPYRIGHT IN INDIVIDUAL WORKS
In addition to harmonising – or attempting to – the period of copyright protection for literary and artistic works, the Duration Directive also contained important provisions for duration of copyright in other works such as films, and for certain neighbouring rights. We shall deal with these and the relevant UK provisions in turn below, when we look briefly at each kind of work.
Literary, artistic, musical and dramatic works
The term of copyright was previously 50 years pma: it was increased in the UK from 1 January 1996 to 70 years pma (that is 70 years from the end of the calendar year in which the author died (see above). Photographs benefitted from the 20-year extension, like other artistic works: this was a double extension for pre-1989 and pre-1957 photographs which were calculated for a fixed period from the year of first publication, and from the year the photograph was taken, respectively: for all photographs the term is now 70 years from the end of the year of the photographer’s death.
Works of artistic craftsmanshsip
Under section 52 of the 1988 Act, works of artistic craftsmanship which had been manufactured ‘by an industrial process’ in quantities of more than 50 copies were protected by copyright for a reduced period of 25 years (or in some cases only 15), instead of the term of life plus 70 years for other artistic works. This apparent anomaly was removed by the UK government under section 74 of the Enterprise and Regulatory Reform Act 2013, so that any artistic work, whether two-dimensional or three-dimensional, will in due course enjoy the full term of 70 years pma. The government originally introduced a transitional arrangement that meant that the repeal would not be implemented until 6 April 2020, to give rightsholders time to sell off copies. However, this was subject to judicial review, challenging its compatibility with EU law, and the transitional arrangement was quashed. At the time of writing, the government has said it will launch a new consultation on a revised transitional arrangement.
The Duration Directive and the 1995 Regulations reinforced the existing UK position, under which the term of copyright (now increased to 70 years pma) is calculated from the year in which the last surviving (known) author dies.
Anonymous and pseudonymous works
Under the 1995 Regulations the term was increased to 70 years from the year it was made, or (if it was published during that period) 70 years from the end of the year in which the work is made available to the public. However, this only applies when the author is truly unknown – when the pseudonym adopted leaves no doubt as to the author’s identity (or the author’s identity is revealed) the term of copyright will be 70 years pma, as in literary, artistic, musical and dramatic works above.
Computer-generated works
The 1995 Regulations exclude computer-generated works from the provisions of the Duration Directive: the term of copyright in the UK is still the term provided in the 1988 Act; that is, 50 years from the end of the calendar year in which the work was made.
Posthumously published works, and publication right
Under the 1956 Copyright Act, copyright in posthumous literary and artistic works ran for 50 years from the year of first publication. With effect from 1 August 1989, the 1988 Act provided a fixed period of 50 years from 1 January 1990 for unpublished works in existence at 31 July 1989. These periods are unchanged by the 1995 Regulations. However, if the 1995 provisions would give a longer period of protection (e.g. life plus 70) to a work unpublished at 31 July 1989, the longer period of protection will apply. Works created on or after 1 August 1989 enjoy the normal copyright period (e.g. life plus 70), calculated in relation to the author’s life, whether they are published or not.
Where posthumous first publication in the UK or elsewhere in the EEA took place after the then period of copyright protection had expired, Article 4 of the Duration Directive provided for a new publication right. This right is owned by the first publisher of the work, and lasts for 25 years from the end of the year in which the work is first made available to the public. The UK implemented these provisions in the Copyright and Related Rights Regulations 1996 (see Chapter 4).
Unpublished works were at one time protected in the UK by a perpetual common law copyright, but this was abolished by the 1911 Copyright Act. The transitional provisions of the 1988 Act provided that works which were still unpublished when the 1988 Act came into force (1 August 1989) should be protected for 50 years from the end of that year – that is, until 31 December 2039. They still are, unless the period of protection given by the 1995 provisions would have given a longer period of protection, in which case the longer period will apply.
Typographical arrangements
Copyright in the typographical arrangement of published editions continues to last for 25 years from the end of the year in which the edition was first published.
Sound recordings and films
Under the 1988 Act, copyright in both sound recordings and films expired 50 years from the end of the year in which they were made (or, if they were released before then, 50 years from the year of release). More recently, the following significant changes have taken place:
(1) the Duration Directive 2011 was implemented in the UK by the Copyright and Rights in Performances Regulations 2013, which increased the copyright term for sound recordings, amongst other things, to 70 years from the year of publication of the sound recording. ‘Publication’ includes any (authorised) making available to the public (by being played in public or communicated to the public);
(2) for films, the period of copyright is increased dramatically to 70 years from the end of the year in which the last known of four persons connected with the films dies:
(a) the principal director;
(b) the author of the screenplay;
(c) the author of the dialogue;
(d) the composer of the music (if it was created specifically for the film, and actually used).
If the identity of none of these people is known, copyright expires 70 years from the year the film was made, or (if it was made available to the public before then) 70 years from the year it was made available.
In the (unlikely) event that no one falls into the categories (a)–(d) above, then the Regulations (and section 13B(9) of the 1988 Act) provide that the extension will not apply and copyright will expire 50 years from the year the film was made.
Broadcasts and cable programmes
Copyright – owned by the relevant broadcasting organisations –lasts 50 years from the end of the year in which the first transmission was made, whether by wire or over the air, by cable or satellite.
Copyright in a repeat broadcast or cable programme expires at the same time as copyright in the original broadcast or cable programme.
Crown and Parliamentary copyright
The Crown claims copyright in every Act of Parliament, and in all works created either by the Queen personally, or by an officer or servant of the Crown in the course of his or her duties: this is called ‘Crown Copyright’, which is administered by the Office of Public Sector Information (OPSI). Under the 1988 Act (unchanged by the 1995 Regulations) Crown Copyright lasts for 125 years from the year the work was made, if the work remains unpublished commercially. Official papers are often never published commercially, but simply made available for inspection after 30 or more years. If the work is published commercially within 75 years of its making, copyright lasts 50 years from the year of first publication.
Parliamentary copyright exists in Bills and other works made under the direction or control of either House: it lasts for 50 years from the end of the year in which the work was made. A similar copyright is owned by certain international organisations. These also are unaffected by the 1995 Regulations.
Universities’ copyright
The universities of Oxford, Cambridge, Edinburgh, Glasgow, St Andrews and Aberdeen, and the Colleges of Eton, Westminster and Winchester secured perpetual copyright in 1775 in works printed by them, in which they had been given or bequeathed the copyright. This perpetual copyright was limited by the 1988 Act, and any such copyrights will now expire at the end of 2039. The works concerned may of course qualify for copyright protection on other grounds, in which case longer terms of protection may apply.
Peter Pan
J.M. Barrie’s famous play went out of copyright at the end of 1987, but the 1988 Act contained special provisions to enable the trustees of the Great Ormond Street Hospital to continue to collect royalties in perpetuity in respect of certain uses of the play. Following the 1995 Regulations, it is likely that all Barrie’s works, including Peter Pan, came back into copyright in the UK as from 1 January 1996, and continued in copyright until the end of 2007: presumably the hospital continued to receive royalties during this period (unless some other arrangement was agreed) and since 2007 the provisions of the 1988 Act have continued.
SUMMARY CHECKLIST: DURATION OF COPYRIGHT
• UK copyright is a statutory right, and now always has a fixed term of years.
• That term may vary, depending on the work, and it may be calculated in relation to the date of the author’s death, or in relation to creation or first publication of the work, or to the year it was ‘released’ or first made available to the public.
• The Berne Convention international minimum for literary and artistic works is 50 years from the end of the year in which the author died.
• Within the EU, the term of copyright in literary, artistic, musical and dramatic works has been harmonised upwards by the Duration Directive to 70 years pma.
• The 70-year term applies to all EEA-origin works which were protected in at least one member state on 1 July 1995.
• The 70-year term (or part of it) also applies to certain works not of EEA origin, depending on the term of protection for those works in their country of origin.
• Within the UK, this meant that some existing copyrights were extended, but also that some works will have come back into copyright, having previously been in the public domain.