This chapter is not intended to provide legal advice, but as a general guide to copyright and other related areas, with emphasis on the position in the UK. It should alert readers to matters on which help may need to be sought from their publisher or legal adviser.
Copyright is a property right that attaches to an ‘original’ literary, dramatic, musical, or artistic work: examples of these are books, letters, drawings, book layouts, and computer programs. It arises when a work is created in permanent form such as in writing, or by visual, audio, or electronic means. Copyright initially belongs to the creator of the work unless the work is made in the course of employment, when it will generally belong to the employer. In the UK the test of ‘originality’ has been characterized as low: for example, a train timetable can attract copyright protection. In many other countries, such as France and Germany, a higher degree of originality has generally been required for copyright protection, as a copyright work is expected to demonstrate some aspect of the author’s ‘personality’. However, following developments in European case law, a certain convergence has come about, with ‘originality’ in all EU Member States requiring the work to be the ‘author’s own intellectual creation’. Broadly, copyright protects the expression of ideas, not ideas themselves, although the two do converge: for instance, incidents in a story have been protected.
In the UK the Copyright, Designs and Patents Act 1988 (‘Copyright Act 1988’) established the copyright period for most of types of work to be the life of the author plus fifty years from the end of the year in which the author died. From 1 July 1995 this was increased to the life of the author plus seventy years. Reference books, multi-author works, and other works with no named author are also covered by the Copyright Act 1988, and it can be very difficult to establish whether they are still in copyright.
A separate copyright, belonging to the publisher and lasting for twenty-five years from the end of the year of first publication, also exists. This right attaches to the typographical arrangement of a literary, musical, or dramatic work, irrespective of whether the underlying content of the work is still in copyright. This provides the publisher with protection from unauthorized reproduction of the printed page.
As from 1995, a new right akin to copyright was introduced. This right, called ‘publication right’, arises where a previously unpublished work is first published after the expiry of copyright. It lasts for twenty-five years from the end of the year of first publication.
Copyright confers on its owner the exclusive right to authorize certain acts in relation to their work, including copying, publishing, and adapting. Copyright owners can give third parties the right to use their works by licensing or assigning the work. Licensing means allowing a third party to use the work in a specified way, for example in a certain territory, for a certain length of time, in a specified language, or on a specific medium, or a combination of these. Generally, assigning a work means that the work is permanently given away. Copyright owners will usually only deal with their works in this way in return for financial compensation. This may be a one-off fee or royalties (which are payments linked to sales of the work). Authors’ agreements with their publishers often provide that copyright transferred to the publishers revert to the author in certain circumstances, such as if the publisher allows the work to go out of print.
Copyright is infringed if the whole or a substantial part of the work is reproduced without the copyright owner’s permission. (There are exceptions to this, described in 20.2.3.). Although the amount used will be relevant, the test is qualitative rather than quantitative. If the essential element of a work is copied, even if this constitutes only a small part of the work quantitatively, copyright will be infringed.
If authors or editors adapt or add to a copyright work, and in so doing exercise sufficient skill and care, demonstrating the efforts of their own intellectual creation, then a new copyright can arise in the revised work. Nevertheless, if the revised work incorporates a substantial part of the original work without the consent of the copyright owner, copyright in the original work will be infringed.
A joint copyright work is one in which the contributions of two or more authors are commingled. A collective work is one in which the contribution of each author, and initially the copyright for it, is separate from that of the other author(s). One party to a joint copyright cannot alone give consent binding on their co-authors to use a joint work.
Copyright is subject to national frontiers. Different copyright periods apply, and acts of infringement that take place outside the UK are not generally actionable in the UK. As a general rule, proceedings have to be brought in the jurisdiction in which the infringement took place.
Illustrations an author wishes to include, but that are not their own work, are governed by laws similar to those for writing. For example, in the main, the copyright in a painting belongs to the artist, and continues with their heirs or anyone to whom they have transferred their copyright until seventy years after their death. Although the owners of the painting may sell it, they may not generally reproduce it without the copyright owner’s permission. The same law applies to commissioned works, including photographs, with copyright belonging to the creator and not the commissioner, unless otherwise agreed. Copyright in images is quite complex, especially in multimedia works and websites, and a specialist picture researcher may be needed to determine what may and may not be done with them. For example, although works of art are on show in a public place and are themselves often out of copyright, permission to reproduce must sometimes be sought from the gallery that owns or displays them. Also, the photographer of a painting can hold their own copyright in the photograph they have taken.
The Copyright Act 1988 contains a list of various activities which permit substantial parts of a copyright work to be reproduced without the copyright owner’s permission, in certain circumstances. Of most relevance to authors and publishers are the various ‘fair dealing’ exceptions which operate as a defence to an act that would otherwise be an infringement of copyright. In general, when reproducing a substantial part of a work using one of these defences sufficient acknowledgement to the copyright owner needs to be given. The forms of fair dealing are as follows: use for purposes of non-commercial research or private study, for the purposes of criticism or review (provided the work has already been made available to the public), or for the purposes of reporting current events. Photographs are excluded from the fair dealing provisions relating to the reporting of current events.
The amount of a work that can be copied within the fair dealing limits varies according to the particular circumstances of the works in question, although there is no fixed portion or percentage that may be copied from a work. Issues to take into account include whether the work could be considered by potential purchasers to constitute a substitute for the other work, and the number and extent of the proposed quotations or extracts in the context of the work in which they are to be incorporated. Trade practice may also be relevant. Various guidelines have been issued, for example by the Society of Authors, but these are not legally binding and are by way of general guidance only. As a general rule, copyists must reproduce the minimum necessary to achieve their purposes.
Separate provisions exist for dealing by librarians and for copying for the purposes of educational instruction or examination.
In summary, therefore, there are two steps to determining whether the use of a work infringes the copyright in it. It must be established whether a substantial part of the work has been used. If so, one must consider whether such use constitutes fair dealing.
Under the Copyright Act 1988, authors have four basic ‘moral rights’; many other countries extend similar ‘moral rights’ to their authors. The rights apply to works entitled to copyright protection, and ownership of copyright is a separate issue: authors can sell their copyright without affecting their moral rights, which cannot be assigned but can be waived. (The Act itself gives specific information about when and to whom the rights do and do not apply, and how the right of paternity is asserted in the case of non-literary works.) The rights are:
The rights of paternity and integrity do not extend to works reporting current events, or to works where an author contributes to a periodical or other collective work of reference. In such cases the work may be trimmed, altered, and edited without the author’s consent, subject to the general laws of copyright and any contractual obligations which may be owed to the authors.
In the EU a separate right that protects databases, akin to copyright, has existed since 1998. This right, which arises automatically, can exist alongside copyright in a database. Database right arises where a collection of data or other material is created which: (a) is arranged in such a way that the items are individually accessible; and (b) is the result of a substantial investment in either the obtaining, verification or presentation of the data. Database right is infringed by the extraction and/or re-utilization of the whole or a substantial part of the contents of the database.
Database right lasts for fifteen years from making, but if publication takes place during this time, the term is fifteen years from publication.
Most countries give copyright protection to foreign works under international copyright treaties, such as the Berne and Universal Copyright Conventions (see 20.3.1 and 20.3.2). Anomalies exist in the treatment afforded in different countries, however, for example because the qualification requirements and rules on ownership and duration differ.
Most industrialized countries are signatories to the Berne Convention, including the UK, the US, and Russia. The Berne Convention does not require registration of copyright and there is no obligation to include a copyright statement or to use the © symbol (although doing so is good practice in any event).
To claim copyright protection in signatories to the Universal Copyright Convention, the following formality must be complied with: the symbol ©, the name of the copyright owner, and date of first publication must appear in a prominent place in every copy of the work published with the authority of the copyright owner. There is no requirement to register the copyright. Very few countries are parties to the Universal Copyright Convention and not to the Berne Convention, and so in most of the world, to obtain copyright protection this © wording is not required, although, as said above, its use is good practice in any event.
Having said that there is no requirement to register copyright, in some countries, such as the US and China, it can be advisable to do so to avoid potential enforcement problems.
As explained above, unless the fair dealing provisions apply the copyright owner’s permission needs to be obtained when a substantial part of a copyright work is to be copied. Such permission may sometimes only be given on payment of a fee or some other form of consideration. Most publishers expect authors to secure permissions to reproduce any copyrighted work in their text.
There can be no hard-and-fast rules to allow authors to gauge when they have taken a ‘substantial part’ of a work. As stated in 20.2.1, substantiality is a qualitative measure and calculating the arithmetic proportion copied does not assist. An extract may be deemed to be a substantial part of a work, and therefore infringing, even where only a small part of the work has been taken. Careful consideration must always be given to the amount copied from a qualitative viewpoint. For example, one author was found to have infringed the copyright of another when he copied one page from a long book, and a thirty-two-line poem was deemed to have been infringed by the unauthorized use of four lines. If in doubt authors should seek guidance from their editor/publisher.
In requesting permission, authors should describe the work in which the material is to be included, specifying the author, the title, the publisher, and the type of work, so the copyright owner understands where, and in what circumstances, their material will appear. Authors should give the copyright owner specific information about the work in which the material originally appeared, to aid identification.
Authors should make clear if they are translating, redrawing, or modifying copyright material. Care should be taken to request all the rights needed. Note that the rights for different territories may be separately owned. Also, care needs to be taken when issuing a new edition of a work to check whether the original permissions cover the new edition as well.
Crown copyright publications include bills and Acts of Parliament, command papers, reports of select committees, Hansard, non-parliamentary publications by government departments, naval charts published by the Ministry of Defence, and Ordnance Survey publications. The rules relating to Crown copyright are different from the general rules on copyright. Guidance can be obtained from the National Archives.
This section sets out general industry practice relating to acknowledgements. It applies where the copyright owner does not impose specific provisions relating to the acknowledgement. For details on setting out acknowledgements see 1.2.11.
The acknowledgement should identify: (a) the author of the work (remembering that under the fair dealing provisions, it is the author who has to be acknowledged, not the copyright owner—who could be different); and (b) the work by its title or other description.
The acknowledgement should be placed where practicable or logical, given the quantity and variety of material to be acknowledged. When an entire chapter or section is being reproduced, practice is for it to appear as an uncued note at the foot of its first page. When a smaller extract or series of extracts is being reproduced, details are generally listed in an acknowledgements section, either in the preliminary matter or—especially with anthologies or collections—at the end of the work.
For illustrations, acknowledgements should be set as part of the caption; for figures and tables they are often set in a separate note below the caption under the heading Source.
General practice is to credit the source, providing the elements in an acknowledgements format along these lines:
[author], from [title of copyrighted text] [edition, if other than the first], [year of publication], © [copyright proprietor—this can be the author or another party]. Reprinted [or Reproduced] by permission of [usually a publisher or agent].
The publisher’s name alone is generally given, without the address, city, or country. When it is in a foreign language it should not generally be translated, although romanization from a non-Roman alphabet is usually acceptable. When copyright illustrations are acknowledged, use reproduced instead of reprinted.
Wording, capitalization, and punctuation can generally be standardized, although not where the copyright holder specifies a particular form of words for the acknowledgement, or its position. An acknowledgement list may be prefaced by We are grateful for permission to reproduce the following material in this volume, to save space and avoid repetition.
As a general rule, permission should be obtained for all copyright material in an anthology, regardless of length. The result is usually a separate acknowledgements section, placed either in the preliminary pages or at the end of the book, before the index. Normally an acknowledgement must be in the exact form specified by the copyright holder and not standardized; reprint and copyright years must be given in full where indicated.
In some situations copyright owners cannot be located, despite real efforts having been made to trace and contact them. When this happens the author needs to decide whether to omit the extract or to include it and risk being the subject of a copyright infringement action. If the author chooses to include the extract, a ‘disclaimer’ at the end of the acknowledgements section should be included, for example:
There are instances where we have been unable to trace or contact the copyright holder. If notified the publisher will be pleased to rectify any errors or omissions at the earliest opportunity.
It is important to understand that such a disclaimer is not a defence to copyright infringement; if an author chooses to include such material, however, the disclaimer together with the evidence of efforts made to trace and contact the copyright owners may mitigate the adverse consequences if a copyright owner should subsequently object.
A defamatory statement is one that injures the reputation of another person by exposing that person to hatred, contempt, or ridicule, or is disparaging or injurious to that person in their business, or lowers a person in the estimation of right-thinking members of society generally. Libel is making a defamatory statement in permanent form (e.g. in writing); slander is making a defamatory statement in temporary form (e.g. in speech).
In essence an allegation is defamatory if it is untrue and a person’s reputation is damaged by it. The claimant need not be named but must be identifiable. The defamatory statement need not be direct; it may be implied or by way of innuendo. A company has a reputation but can only sue if it can demonstrate that an allegation has resulted in financial loss. However, directors of a company—if named or identifiable—might be able to sue for untrue allegations made against the company, even if no financial loss has been suffered.
The dead cannot be libelled, but care must be taken to ensure that in statements about the dead the living are not defamed by association.
The author’s intention is irrelevant in determining whether a statement is defamatory. A defamed person is entitled to plead any meaning for the words used that a ‘reasonable’ person might infer.
The clearest defence against a defamation action is that the statements can be proved to be true by direct first-hand evidence. It is no defence to a libel action that the defamatory statements have been published previously, although this might affect the level of damages payable.
Criticism or other expressions of opinion can be defended as fair comment provided the subject matter of the comment is one of public interest, the facts underlying the expression of opinion are true, the comment is one which an honest person could hold, and the statement is ‘comment’ rather than ‘fact’.
If an author makes a statement negligently (without due care) in circumstances where it is likely and reasonable that the reader will place reliance on it, in some, limited, circumstances, the reader could sue the author/publisher. It is not possible to exclude liability for death or personal injury caused by such negligence. It is for this reason that care needs to be taken when, for example, giving information about DIY or other potentially dangerous activities. A publisher will generally require the author to provide warranties in the author contract that any instructions contained in the book are accurate.
‘Passing off’ occurs where a misrepresentation is made which causes or will likely cause damaging confusion. Passing off in publishing can arise in various different ways. Most disputes involve similar titles—especially series titles where customers may buy individual books on the strength of the series name—or similar jacket design, where books from different publishers have a similar appearance, logo, or brand. More specific examples include giving the impression that a biography has been authorized by its subject, or that a sequel was authorized or written by the author of the original book.
It is sometimes necessary to refer to a registered trade mark in a work. When referring to a trade mark care should be taken not to give the impression that it is being used with the approval of its owner, particularly when using in a trade mark in a title or on a cover. A registered trade mark is indicated by the symbol ®; ™ indicates rights that are claimed but not registered.
It is a common misconception that copyright does not apply to material which appears on the Internet. This is untrue: copyright and other laws apply to works put on the Internet as much as printed publications. Hence, copying material from a website can constitute copyright infringement as much as copying material from a book, and the considerations set out earlier in this chapter apply. An added complication of posting to and using material from a website is the issue of jurisdiction: if a work is written in France, posted on to the Internet from a cybercafe in Germany with an ISP based in Ireland, and read by someone in Australia, ascertaining which country’s laws apply can be problematic. A detailed analysis of this issue is beyond the scope of this book.
Publishing a work which contains contemptuous, scandalous, or insulting material relating to the Christian religion is a criminal offence, punishable by a fine or imprisonment. Note that only the Christian religion is covered by this law and that merely attacking Christianity is not blasphemy: the attack would be blasphemous only if it were contemptuous or insulting.
It is also an offence to publish an obscene work. A work is deemed to be obscene if its overall effect is to deprave or corrupt its readers. Lewd or repulsive material is not necessarily obscene: to be obscene the material must constitute a menace to public morals.
By publishing works which could stir up racial hatred publishers could commit another offence. Racial hatred means hatred against groups of people who are defined by their colour, race, nationality, or ethnic or national origins. A work could stir up racial hatred if it contained threatening, abusive, or insulting material, and if there was either an intention to stir up racial hatred or it was likely that the work would do so.
It is also an offence to publish certain types of material if publication could damage national security or interests: cases on this point have related to memoirs by former workers for the Foreign Office or members of the intelligence agencies.