| Other rights of authors and publishers | 4 |
INTRODUCTION
In addition to copyright, authors have in the UK personal statutory rights relating to their works and their reputations, called moral rights. They are quite separate from the copyright itself, and remain attached to the author personally, or the author’s estate, even if the copyright is later assigned to someone else, such as a publisher. They cannot be sold or assigned to anyone else (although they can be inherited) but they can be waived: we will consider waiver further, below.
The idea of authors having personal moral rights is (relatively) new to UK law, although droit moral has been well-established in France, and elsewhere in Europe, for some time: indeed, the Continental view of copyright itself is primarily as an author’s right (droit d’auteur) – quite different from the pragmatic economic right which has developed in the UK. With our different mercantile traditions, some in the UK initially regarded moral rights as dangerously romantic and suspiciously foreign, but they have been a (Berne) treaty obligation of the UK for some time, and the key rights were belatedly included in the 1988 Act.
Moral rights are unaffected by the EU Copyright Directive, and are specifically stated (Recital 19) to be outside its scope. There are occasional suggestions of an EU Moral Rights Directive, but at the time of writing this seems unlikely.
Article 6 bis of Berne
Moral rights as a species come in all shapes and sizes: consider, for example, the thought-provoking droit de repentir, which in countries where it applies (not the UK) allows an author to have second thoughts entirely and insist on withdrawing a work, even after publication (there is usually provision for compensation). Only two moral rights, however, are specifically written into the Berne Convention (at Article 6 bis): the right to claim authorship of the work (the right of paternity), and the right to object to distortions, mutilations or other derogatory treatments of the work which would prejudice the author’s honour or reputation (the right of integrity). All member countries are obliged to provide for protection of these two key rights.
The 1988 Copyright, Designs and Patents Act now provides for four statutory moral rights in the UK:
• the right of paternity;
• the right of integrity;
• the right to prevent false attribution;
• the right to privacy of certain photographs or films.
They are, however, severely hedged about with restrictions, as we shall see.
Section 77 of the 1988 Act gives the author of a copyright literary, dramatic, musical or artistic work, and the director of a copyright film, the right to be identified as the author or director of the work whenever the work is published commercially, performed in public, or communicated to the public, or issued to the public as part of a film or sound recording (or, in the case of an artistic work, exhibited in public, or a visual image of it communicated to the public). Given that communication to the public includes making available to the public on the Internet, the paternity right has considerable relevance to Internet exploitation. In the case of commercial publication, this means that the author has the right to be identified in (or on) each copy or, if that is not appropriate, in some other way ‘likely to bring his identity to the notice of a person acquiring a copy’. The relevant menu pages will probably be more appropriate if the information is only available online, or as part of a website. The identification must be ‘clear and reasonably prominent’. The author may specify a pseudonym, or some other form of preferred identification (for example, initials). The right lasts for as long as the work remains in copyright.
In a recent case, the claimant claimed that his moral rights had been contravened by a number of articles not attributed to him which he claimed ‘exploited’ a number of articles written by him. While he accepted he was not the author of the other work, he argued that he was entitled to be identified as the author under section 77 of the 1988 Act, as he was the originator of the ideas. The court found that the moral right contained in section 77 is, in relation to a literary work, concerned with the authorship of a written paper and not with crediting the originator of the ideas embodied in the paper. The claim was accordingly struck out.
Although this statutory right now complies with the UK’s Berne obligations, it is accompanied by a number of restrictions, some of them quite significant.
THE WORK MUST BE IN COPYRIGHT
The paternity right only applies to ‘copyright’ works: the works must meet the various criteria for copyright protection in the UK (see Chapter 2) and the period of copyright must still be running. It also only applies to copyright literary, musical, dramatic or artistic works, or films – sound recordings, broadcasts and typographical arrangements are not covered.
PUBLICATION MUST BE COMMERCIAL
In the case of a book or similar publication containing literary and/or artistic works, the author’s right of paternity operates to give the author the right to be identified when certain acts take place. These include ‘commercial’ publication, performance in public, communication or making available to the public or inclusion in copies of a film or sound recording issued to the public. This therefore rules out token or nominal publication, or anything that is not intended to satisfy the reasonable requirements of the public. By implication, the book must be reasonably widely advertised to its intended market, and be available in quantities capable of fulfilling a likely minimum of orders. In the case of communication or making available to the public, including transmissions on the Internet, the requirement that the act is done commercially does not apply. Care needs to be taken, therefore, with Internet uses.
THE RIGHT MUST BE ASSERTED
The right of paternity is the only moral right that needs to be expressly ‘asserted’ by the author before it can be enforced (section 78). Joint authors must each assert independently. The UK government consulted in 2009 on a proposal to abolish this requirement, but abolition did not appear to promise significant savings, and at the time of writing the requirement seems likely to remain.
The assertion may be included:
• in an assignment of copyright (which must be in writing); or
• via some other written document signed by the author.
The former method binds not only the person to whom copyright is assigned but also all those whose claims stem from theirs – whether they personally knew about the assertion or not. The latter method binds only those ‘to whose notice the assertion is brought’, which is why many author contracts now provide not only that the publishers themselves will credit the author but also that a similar contractual obligation will be written into any sub-licences. It also explains why notice of assertion appears in most books published in the UK.
The author must therefore assert his or her right positively and in writing. For print and e-book editions, a form of assertion is usually included on the reverse title page of each edition of the work, next to the copyright and bibliographic details. For publications only available online, an equivalent method of public notice (e.g. via the menu pages) would need to be found. Note that it is only the paternity right which needs to be asserted: all-embracing phrases such as ‘the author’s moral rights are hereby asserted’ go further than is strictly necessary.
Assertion is not retrospective, so if an author allows a work to be published without asserting his or her right of paternity, and later decides to assert, the publisher cannot be sued in respect of sales already made. Once the publisher is on notice of the author’s assertion, however, all copies subsequently sold must identify the author in accordance with the Act.
THE RIGHT DOES NOT APPLY TO EVERY WORK
No right of paternity attaches to authors of certain works. The following are the most important:
• computer programs, computer-generated works, or typeface designs;
• works created in the course of employment (where the copyright is originally owned by the employer and the employer has authorised the publication complained of);
• works made for the purpose of reporting current events;
• works written for publication and published in a newspaper, magazine or similar periodical;
• works written for publication and published in a ‘collective work’ such as an encyclopaedia, dictionary or year book.
The last exception seems at first sight to cover all major (even multi-volume) works of reference, but it must surely be a question of degree. Where individual articles or entries are significant contributions to the literature in their own right, it will probably still be advisable to identify the author in accordance with the Act – unless one of the restrictions applies (for example, that the right has not been asserted, or has been waived).
THE AUTHOR MAY CONSENT, OR WAIVE THE RIGHT ALTOGETHER
Under section 87 of the 1988 Act, none of the author’s moral rights will be infringed if he or she consented to the acts concerned. This is perhaps only reasonable; however, section 87 also goes much further and provides that all the author’s moral rights, including the right of paternity, may also be waived, partially or completely. This is in sharp contrast to the Continental position – in France, for example, the author’s droit moral is ‘perpetual, inalienable and imprescriptible’ – and has been strongly criticised as a further serious weakening of the author’s rights in the UK.
Under the 1988 Act a waiver may be general and unconditional, or it may be limited in some way: it may apply only to certain works, or kinds of works, or it may apply only in certain circumstances, for example, as in some contracts, only in so far as necessary to exploit subsidiary rights, such as film or tv rights. It may also be conditional, and it may be made subject to revocation.
Waivers do not have to be in writing, and section 87(4) specifically allows for informal waivers (implied by the author’s conduct, for example) under general common law principles. However, such implied or informal waivers may be difficult to prove, and if a reliable waiver is needed it is probably advisable to take the hint in section 87(2) that moral rights ‘may be’ waived by a written document signed by the author.
SUMMARY CHECKLIST: THE RIGHT OF PATERNITY
• Is the work a relevant copyright work? Is it one of the excluded categories of works?
• Has it been published commercially, or otherwise exploited?
• Has the right been asserted?
• Has the author consented, or waived the right?
If the right of paternity is the Berne Convention’s primary moral right of authors, the second key right enshrined in Article 6 bis is almost as important: the right of authors to object to ‘derogatory treatment’ of their work. This is usually referred to informally as the right of integrity. The right is set out in section 80 of the 1988 Act, which provides that authors of copyright literary, dramatic, musical or artistic works, and directors of copyright films, have the right, in specified circumstances, not to have their work subjected to derogatory treatment. Like the paternity right, the right of integrity lasts for as long as the work remains in copyright.
What, one may ask, is ‘derogatory treatment’? Does it cover what publishing contracts often refer to as reasonable editorial changes?
There are in fact two separate questions:
• Do the particular acts complained of amount to a ‘treatment’ at all?
• If so, is that treatment ‘derogatory’?
Treatment
The 1988 Act defines ‘treatment’ to include any of the following things done to a work:
• adding to it;
• deleting from it;
• altering it;
• adapting it.
Specifically excluded from this list, however, are translations, or musical arrangements or transcriptions which amount to no more than a change of key or register. The exclusion of translations might seem hard to justify, given their frequency, but contractual remedies are usually available in such circumstances, under the translation rights contract (see Chapter 6).
What if the work is entirely untouched and unchanged, but is placed in an unflattering or unfortunate context (perhaps included in a website next to racist or indecent material)? Under the 1988 Act if none of the four positive acts listed above had occurred, the placing of the work in that context would not amount to a ‘treatment’ at all, and could not therefore infringe the integrity right. So a composer whose music was faithfully played and recorded could not complain of a breach of the integrity right if that recording then featured in the sound track of a documentary film condemning the political regime under which the composer lived and worked (as Shostakovich and a number of other Soviet composers found in a celebrated US case after the Second World War).
‘Derogatory’
The 1988 Act (section 80) provides that:
The treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director.
‘Distortion’ and ‘mutilation’ are strong words. ‘Prejudicial to . . . honour or reputation’ also implies an objective standard, similar in strength to the various definitions of defamation (see Chapter 8). It seems likely, therefore, that it will not be the author’s opinion (or injured feelings) alone which will provide the yardstick for what is or is not prejudicial to their honour or reputation: authors will have to produce objective evidence that their honour or reputations have actually suffered, or are likely to.
Derogatory treatment will clearly include complete mutilation or emasculation of a work, or a complete misrepresentation of the author’s real views or philosophy. Indeed, if the treatment is that serious there would probably also have been an action for defamation anyway.
Editorial ‘improvements’ in general are therefore highly unsafe, particularly where the risk of breaching the author’s right of integrity is accompanied by the risk of defamation, or breach of contract. In the case of breach of contract this will particularly be so where the contract is an informal one, with no express provisions allowing the publishers to make ‘reasonable’ (or any other) changes.
In a more standard publishing agreement, it is likely that there will be some provision for reasonable alterations, and if the alterations made broadly comply with the terms of the contract it is unlikely that a claim of derogatory treatment will succeed, since the author will have consented – via the contract – to the changes made (see below).
Where alterations go beyond any contract, however, an action for breach of contract may well succeed and there may also now be derogatory treatment. There might also be an issue of false attribution.
The courts’ view of derogatory treatment
The injunction granted to George Michael in 1991 is still instructive as one of the first reported occasions on which an issue of derogatory treatment was considered by the UK courts. Michael complained that five of his early tracks, recorded with Wham!, had been used without his consent in a ‘Bad Boys Megamix’ medley: the tracks (he alleged) had been edited, some words had been changed, and fill-in music from elsewhere had been added. Clearly, a ‘treatment’ of the works had taken place, since there were both deletions and alterations (and possibly additions) – but was the treatment ‘derogatory’? Michael argued that the megamix ‘completely alters the character of the original compositions’. The judge, first pointing out that ‘It is not, in my judgment, self-evident that taking parts of five different works and putting them together necessarily involves a change of character or modification’, took the view that it was at least arguable that such treatment amounts to distortion or mutilation within section 80(2)(b) of the 1988 Act, and therefore granted Michael’s application for an injunction.
There have been few cases since: in a 2003 case (Confetti Records v. Warner Music UK Ltd) it was decided that the addition of a rap line to a sound recording did not in itself amount to derogatory treatment of the musical work recorded. There was no evidence that rapping of the kind added was prejudicial to the honour or reputation of the author. But in one 2010 case, heavy cropping in a photograph was held to be derogatory treatment, although the damages were very low (see ‘Remedies’, below).
Since 2014, it is likely that the interpretation of derogatory treatment will have to bear in mind whatever the courts decide may constitute fair dealing for caricature, parody or pastiche, permitted as a copyright exception under the 2014 Quotation and Parody Regulations. Whether a ‘derogatory treatment’ can also at the same time be ‘fair dealing’ for parody, etc., could occupy the courts for some time, and remains to be seen.
LIMITATIONS ON THE RIGHT OF INTEGRITY
As with the right of paternity, the author’s right of integrity will only apply if:
• the work is a copyright work;
• the work is published commercially (other uses may also suffice: see above).
The integrity right does not, however, need to be ‘asserted’. The right does not apply to the following works, among others:
• computer programs or computer-generated works;
• works made for the purpose of reporting current events;
• works written or made available with the consent of the author for publication and published in a newspaper, magazine or similar periodical;
• works written or made available with the consent of the author for publication and published in a ‘collective work’ such as an encyclopaedia, dictionary or year book;
• works created in the course of employment (where the employer owns the copyright, authorises the treatment concerned and – where the author is identified – provides a ‘sufficient disclaimer’).
Most of the above exceptions are similar to the list of exceptions to the right of paternity (see above), apart from the provision for a disclaimer in employee works, and the omission of typeface designs from the list – the paternity right does not apply to such designs, but the right of integrity does.
The right of integrity also does not apply to anything done to avoid the commission of an offence, or complying with a statutory duty, or (as with the BBC or possibly organisations such as the Internet Watch Foundation) to avoid anything which offends against ‘good taste or decency or which is likely to encourage or incite to crime or lead to disorder or to be offensive to public feeling’. This last exception now provides a let-out for the BBC even where alterations are significant structural changes. While the deletion even of a few (crucial) words from a play could be ‘structural’, it would not amount to derogatory treatment if the BBC’s cuts were motivated by a desire not to offend public feeling. As with employee works, however, there must be a ‘sufficient disclaimer’ (if the author is identified).
Finally the right of integrity will not apply:
• to anything done with the author’s consent; or
• if the author has fully waived the right.
SUMMARY CHECKLIST: THE RIGHT OF INTEGRITY
• Is the work a relevant copyright work? Is it one of the excluded categories of works?
• Has it been published commercially, or otherwise exploited?
• Has any ‘treatment’ of the work taken place?
• Has the work been added to, deleted from, altered or adapted (except by translation)?
• If so, was the treatment ‘derogatory’?
• Did it distort or mutilate the work?
• Was it otherwise prejudicial to the author’s honour or reputation?
• Did the author consent, or waive the right?
Authors not only have a moral right of paternity – to be credited as the author – but also have its converse: the right not to be credited with things they did not write. This is known as the right to prevent false attribution, and is contained in section 84 of the 1988 Act. Of the four moral rights contained in the 1988 Act, it is the only one to have existed before in statutory form: there was a very similar right in section 43 of the 1956 Copyright Act.
The right applies to literary, dramatic, musical and artistic works, and to films and (unlike the paternity and integrity rights) can be exercised by any ‘person’ – they do not have to be authors.
The attribution complained of may be express or implied, and the right will be infringed wherever a false attribution:
• is included in copies of a work issued to the public; or
• is in (or on) an artistic work exhibited to the public.
In the 1998 case of Alan Clark v. Associated Newspapers, the MP Alan Clark brought an action for false attribution against the publishers of the Evening Standard newspaper. One of the Standard’s journalists wrote a regular column entitled ‘Alan Clark’s Secret Election Diary’ (together with a picture of Mr Clark) which was intended to be a parody of Mr Clark’s well-known diaries. The court used a similar test under section 84 as in the law of defamation, namely that it was necessary to determine what single meaning was conveyed to the reasonable reader. Since the articles contained clear and unequivocal false statements attributing authorship to Mr Clark, he therefore proved his false attribution claim.
The right may also be infringed by false attributions contained in public performances or showings, or communications to the public, but only where the person concerned knew or had reason to believe that the attribution was false. There are also secondary offences of possession, or dealing with, copies of works containing such attributions, but again where the presence of the attribution was known, and was known to be false.
The right is an entirely personal right, allied to a person’s reputation rather than to any copyright works he or she may have created – it does not therefore last for the full term of copyright, like other moral rights, but only for 20 years after the person’s death.
As with other moral rights, it often overlaps with other legal remedies – in this case with the existing laws of defamation and passing off. (Alan Clark also succeeded in proving passing off against the Evening Standard because he had a substantial reputation as a diarist which would have been important to the readers in deciding whether to read the articles, because the readers were misled and he suffered loss.) Indeed, where other, more traditional, remedies exist it may well be that judges will prefer to use those and will pay less attention to specific statutory moral rights.
THE RIGHT TO PRIVACY OF CERTAIN PHOTOGRAPHS OR FILMS
Some countries – the USA for example – have significant and substantial laws protecting personal privacy, but a general privacy law is still developing in the UK under the Human Rights Act 1998, particularly since the Naomi Campbell, Michael Douglas and later newspaper cases (see Chapter 9). This limited moral right to privacy, contained in section 85 of the 1988 Act, is not really a moral right at all, and applies only to certain photographs and films which are commissioned for private and domestic purposes (such as wedding photos).
Under the 1956 Act, the person who commissioned such photos (usually the happy couple) owned the copyright in them, and could thus control the use made of them. Under the 1988 Act, however, this rule was changed (see p. 32–3) and the author (that is, the photographer) now owns the copyright. This would have meant that professional photographers could make unlimited copies of wedding photos they had taken and could, for example, sell them to national newspapers if the bride or groom subsequently became newsworthy. It was to prevent this limited, but very real, danger that section 85 was passed. Those commissioning such photos or films can now prevent:
• copies being issued to the public;
• the works being exhibited or shown in public; or
• the works being communicated to the public.
The right lasts for as long as the work concerned remains in copyright.
REMEDIES FOR INFRINGEMENT OF MORAL RIGHTS
Section 103 of the 1988 Act provides that an infringement of a moral right:
Is actionable as a breach of statutory duty owed to the person entitled to the right.
Damages may be awarded, but they tend to be nominal or low – in the 2012 derogatory treatment case referred to above the damages for infringement of moral rights were £50, as opposed to £675 for copyright infringement. Injunctions, however, remain a possibility, and may prove a more effective remedy in appropriate cases. There is also express provision for a disclaimer, to be approved by the court, ‘dissociating the author or director from the treatment of the work’.
There are two possible intellectual property rights that can protect databases:
(1) Database right, as provided for in the Copyright and Rights in Databases Regulations 1997.
(2) Copyright – some databases will qualify for copyright protection, provided that they are original, which they will be (section 3A of the 1988 Act) ‘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’ (as opposed to the content itself). See also the 2010 Football Dataco case, below.
Database right is the right to prevent unauthorised extraction or re-use and was provided for by the EU Database Directive. The right was implemented in the UK by the Copyright and Rights in Databases Regulations 1997.
Under the Regulations, there may be a database right ‘if there has been a substantial investment in obtaining, verifying or presenting the contents of the database’. Following the William Hill case (below), the question of where the investment has been made is key (particularly whether it was truly in ‘obtaining’ the data).
‘Substantial’ is a test of quality as well as quantity (provided, again, that the investment is in obtaining (etc.), rather than creating, the data). ‘Investment’ includes any investment, whether of financial, human or technical resources, and ‘database’ is widely defined to mean any ‘collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means’. Whether there has been ‘substantial investment’ involves an assessment of the resources used to locate the constituent materials, to collate them, verify them and present them. Any investment relating to the creation of the materials (as opposed to obtaining them) is irrelevant to the question of whether there will be database right for the database in which they are contained.
The right is owned by the ‘maker’ of the database, who is defined as the person whose initiative is responsible for the relevant obtaining, verifying or presenting, and who assumes the risk of the necessary investment. As with ownership of copyright itself, however, this general rule of ownership does not apply to databases made by employees in the course of their employment: these will be owned by the employer. There will be no database right unless the maker was at the material time (usually when the database was made) an EEA national or resident, or a body incorporated or based in the EEA (including partnerships or other unincorporated bodies).
The database right lasts for 15 years from the end of the year in which the database is completed. This term can be renewed if substantial new investment can be demonstrated as a result of ‘substantial change’, including the accumulation of successive additions, deletions or alterations – in other words, a significant new edition or re-origination but not a mere reprint.
Under Regulation 16 ‘a person infringes database right if, without the consent of the owner of the right, he extracts or re-utilises all or a substantial part of the contents of the database’. Repeated and systematic use of insubstantial parts may amount to use of ‘a substantial part’, provided (following the William Hill case) that the sum total of what was taken would enable the defendant to reconstitute and re-publish a substantial part of the whole database, in a way which would conflict with normal exploitation of the database. Extracts can be permanent or temporary, and by any means or in any form. ‘Re-utilisation’, however, must involve making the contents available to the public, albeit by any means.
There are two exceptions for certain limited purposes. Fair dealing by a lawful user ‘for the purpose of illustration for teaching or research’ will not infringe a database right as long as the source is indicated. Use may also be permitted where it is not possible ‘by reasonable inquiry’ to identify the maker and it is reasonable to assume that the 15-year term has expired.
It is clear from all of the above that UK database right is a distinct and individual statutory right whose operation depends on close consideration of a number of key definitions, some of which are now narrowly defined. Was there a ‘substantial investment’ initially, was it in obtaining, as opposed to creating, the data, and was ‘a substantial part’ extracted or re-utilised? In British Horseracing Board v. William Hill Organisation Ltd (2005), the Court of Appeal, implementing a decision by the European Court of Justice (ECJ), held that William Hill had ‘extracted’ a substantial part of the BHB horseracing database by taking information from its daily data supply and loading it on to computers for the purpose of making it available on its own website, and the later transmission and loading of that data on to its website for access to the public was a ‘re-utilisation’. This was despite the fact that the BHB database was a single database in a constant (daily) state of updating and refinement. In the judge’s view, this meant that ‘as new data are added, so the database’s term of protection is constantly being renewed’. The decision and rulings make it clear that the database right is concerned with obtaining (verifying and presenting) data and not the creation of the data itself. ‘Obtaining’ in this sense does not include the act of selecting and arranging fixtures. Instead, the right is concerned with the promotion and protection of investment in data storage and processing systems (supported by the 2015 decision of the ECJ in Ryanair v. PR Aviation that Ryanair was entitled to prevent a rival company from screenscraping its database and re-using the data for commercial purposes of its own).
This remains a narrow distinction in many cases. Many databases are comprised of relatively simple data with most of the resources being ploughed into sorting through that data. Where the obtaining of the content, the verification and the presentation do not involve much investment beyond creating the data, the right will not apply. In creating most databases, there is often a single process that involves creation of data, its obtaining, verification and presentation, and it may be difficult – if not impossible – to separate these processes one from another.
COPYRIGHT FOR DATABASES
Even though the database does not attract the database right, the database owner may still be entitled to copyright protection in respect of the content, i.e. the data itself, provided that the data passes the test for protection as a literary work and provided that the database owner is also the owner of the copyright in that data. Where the database shows signs of ‘the author’s own intellectual creation’, the database may well attract copyright protection and the owner can take advantage of a longer term of protection. This intellectual standard may prove a difficult test for straightforward listings or alphabetical directories. However, in 2010, the High Court ruled in Football Dataco Ltd and Others v. Britten Pools and Others that database copyright can subsist in football fixture lists. In his judgment, the judge explained that there are a great many steps involved in preparing English FA Premier League and Scottish Premier League football fixture lists (e.g. ensuring that two teams from the same town were not playing at home at the same time, and that international fixtures had been taken into consideration). He found that creation of these fixture lists ‘involved very significant labour and skill in satisfying the multitude of often competing requirements of those involved. The process is not therefore one where everyone would come up with the same answer . . . Judgments have to be taken.’
It is unclear how much intellectual creation has to be involved before copyright subsists in a database. We know from the recitals to the Database Directive that the compilation of tracks on a CD is not sufficient for copyright to subsist. However, it remains to be seen whether there will be copyright protection for other sporting fixture lists that can be created with far less skill and effort.
Publication right was introduced by the Copyright and Related Rights Regulations 1996. It protects people who publish for the first time in the EEA original literary, dramatic, musical and artistic works and films in which copyright has expired, but which were never previously published during their copyright terms anywhere in the world. To qualify for the right, the publisher of the work must, at the time of first publication, be a national of an EEA member state.
The right will benefit many editions of previously unpublished works in EU and EEA member states, which do not have typographical copyright, but in the UK it will overlap extensively with existing rights; both typographical copyright and the final stages of perpetual copyright in unpublished works (which is not due to expire finally in most cases until 2039). Many unpublished works in the UK continued to have perpetual copyright under the 1911 and 1956 Copyright Acts, until the 1988 Act ended that arrangement for good by providing that works of deceased authors remaining unpublished when it came into force (1989) would enjoy a maximum of a further 50 years’ protection – i.e. until 2039. So some such unpublished works may still be protected by copyright until 2039, and the key requirement of publication right (that copyright must have expired) may often not apply until then. The extension of copyright to life plus 70 years means that unpublished works created in the 20 years prior to 1989 may continue to be protected until the expiry of the 70 year period.
Publication right may benefit any ‘person’ who satisfies the criteria set out in the Regulations, and ‘publication’ is given a very wide meaning (including any (authorised) communication to the public, such as making available via electronic retrieval systems, rental or lending, performance, exhibition or broadcast) so if ancient manuscripts, diaries or pictures which seem to have some publishing potential are found in the attic, it may be advisable to exercise some caution before they are given or lent to anyone else, or even displayed in a museum or library. However, the criteria are fairly exacting:
• the work must have been protected by copyright;
• copyright must have expired without the work being published;
• the work must still be unpublished;
• the person publishing the work must be an EEA national and must first publish the work in the EEA.
For most unpublished works of deceased authors in the UK, at least the second of these criteria may not be satisfied until 2039 or later, as (described above) in the case of authors who died before 1989. For those who died later, copyright in their unpublished works will continue for 70 years after their death. For works which do qualify, though, publication right may prove a valuable right, effectively conferring all the rights of a copyright owner. The right lasts for 25 years from the end of the year of first publication. It goes without saying that the unpublished works of living authors are still in copyright.
Under the European Convention on Human Rights, the Human Rights Act 1998 (which incorporated it verbatim into UK law), and a number of key judicial decisions, a general right of privacy is developing as part of UK domestic law. There have been proposals by the UK government to abolish the 1998 Act and replace it (and the references to the European Court of Human Rights it involves) with a stand-alone UK Bill of Rights, but at the time of writing the UK is still a party to the European Convention and the 1998 Act still applies. For a fuller treatment of this, and some early decided cases, see Chapter 9.
After vigorous lobbying by authors such as Maureen Duffy and Brigid Brophy, a public lending right for authors (PLR) was established in the UK by the Public Lending Right Act 1979, and came into effect in 1982. The first payments were made in 1984, and payments have been made annually ever since: payment is entirely out of central government funds. The scheme is currently administered by the British Library and a small staff in Stockton on Tees, supported by an advisory committee representing interested bodies, including the responsible government department, the Department of Culture, Media and Sport.
The PLR scheme provides for authors (and others, such as illustrators) throughout the EEA to receive payments in proportion to the number of times their books are borrowed from public libraries in the UK: borrowings are recorded from a sample of 30 library authorities around the UK and the results grossed up annually to arrive at an estimate of the national loans of each book.
At the time of writing, over 22,000 UK writers, illustrators, photographers, translators and editors receive PLR payments each year, and PLR funding from the Department of Culture was £6.6 million in 2014–15 (currently frozen for 2016). In order to participate in the PLR scheme, and benefit from any modest annual payments which may be on offer, it is necessary to register with the PLR office (contact details are set out at Appendix B). Those entitled to register include not only authors, but also other persons who have contributed to the text or illustration of a published book: this would include illustrators, photographers, editors and translators, who will receive a share of any PLR payment generated by loan of the book. Those registering must be resident in the EEA, and there are reciprocal arrangements with a number of EU member states including Germany, France and Spain, although implementation of the 1992 Rental and Lending Right Directive elsewhere in the EU (especially Eastern Europe) is less good.
Payment continues for 70 years after the death of the author or contributor, in line with of the term of copyright.
PLR was extended to audiobooks and e-books under section 43 of the Digital Economy Act 2010, although at the time of writing the relevant provisions have not been brought into effect. The definitions of ‘book’, ‘lent out’, ‘loan’ and ‘borrowed’ in the Public Lending Right Act were to be amended accordingly in order to cover cases in which public libraries make audio or e-books available on the premises to members of the public, for use away from the premises for limited periods of time. The definition of ‘author’ was also to be amended to include producers and narrators. However, ministerial undertakings were given that digital lending would be restricted to one loan per reader for each copy of the work held by the library, and that PLR would not extend to making works available online via remote downloads or communication to the public off library premises. It is not clear at the time of writing when, and how far, the section 43 provisions will be brought into effect, but following the Sieghart Review into e-lending in public libraries in 2013 a pilot study on remote e-lending reported in 2015 that although e-lending accounts for only 5 per cent of loans there was evidence that remote e-lending could lead to a drop in footfall in both libraries and bookshops. In a joint statement, all parties involved in the pilot (including authors, publishers, agents, libraries and booksellers) agreed that it is critically important that authors receive fair payment each time their works are borrowed as well as on the initial licence to the library, and that the future development of any remote e-lending model will have to have this principle at its core.
ARTIST’S RESALE RIGHT (DROIT DE SUITE)
Although not strictly speaking an author’s right, artist’s resale right is of considerable importance to many artists. It provides for artists or their heirs within the EEA, or a listed country, to receive a percentage of the sale price of their works of art when they are re-sold by auctioneers, dealers or galleries (often at vastly inflated prices). The idea is written into the Berne Convention and the legislation of most EU member states (France has had droit de suite since 1920), but it took a long time for the Resale Right Directive 2001 to be passed, and then only after a protracted conciliation procedure between the EU Parliament and Council, during which the UK, among others, objected that such a right would seriously damage the London art market. However, there has been no substantial evidence that it has. The UK implemented the Directive under the Artist’s Resale Right Regulations 2006, which apply to all sales of works by living artists. Despite overwhelming public opposition to the delay, the Regulations were only amended to grant resale rights to the heirs of deceased artists in 2011, and the amended Regulations came into effect in 2012.
Key elements of the amended Regulations are:
• the right is limited to genuine re-sales, rather than first sales;
• the work must still be protected by copyright;
• private sales (as opposed to gallery, auction or other commercial sales) are excluded;
• the right may not be assigned or waived (although it may be bequeathed, but only to a human being or a charity.; and
• the right may only be administered collectively, via a collecting society such as DACS.
Under the Regulations, the works cover any works of graphic or plastic art such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, items of glassware and photographs. Artist’s resale right applies to all sales of €1,000 or more. Payment is jointly and severally due from the seller or his agent, or the buyer.
The Regulations provide for a sliding scale of royalty rates as follows:
• 4 per cent for the bottom band up to €50,000
• 3 per cent from €50,000 to €200,000
• 1 per cent from €200,000 to €350,000
• 0.5 per cent from €350,000 to €500,000
• 0.25 per cent for any amount over €500,000
The maximum an artist can receive in resale right on any single sale is €12,500, which is currently reached by works sold for 2 million euros or more.
At the time of writing, the Artist’s Resale Right exists in 74 countries worldwide, including EEA countries. Two major art markets, the USA and China, have not yet established an artist’s resale right, but both countries have introduced draft legislation which may yet be converted into national law.