Copyright -

These are rough lecture notes and do not constitute legal advice.

UPDATED NOVEMBER 2009

Copyright has existed in the UK and US in common law since the early18th. In common law breach of copyright is similar to theft – it is the act of making beneficial use of somebody else’s intellectual WORK (work is the key thing) without permission. If a person was intending to sell permission to use intellectual work for beneficial reasons, then the breach is similar to theft. If a person can prove that their intellectual property (or intellectual property they have bought the rights to) has been ‘stolen’ then they can sue for compensation (loss of earnings, or likely loss of earnings). In the entertainment industry the compensation claims can be massive – eg Napster and unsuspecting parents who suddenly get massive bills from record companies because their children have been stealing lots of music using Limewire or similar.

The statutes are the 1911 Copyright Act, which made breach of copyright a crime, and the 1988 Copyright, Designs and Patents Act 1988. This gave extended rights to the makers of certain types of ‘intellectual property’ which didn’t really exist in 1911 (like photography) to make their work protected. Recently there has been a lot of litigation around intellectual property right in DNA and genetic engineering – people like the Monsanto corporation copyrighting the genetic pattern of modified wheat or rape seed or whatever. In a world where more and more economic value comes from abstractions rather than bricks and mortar and lumps of metal, then intellectual property rights have become as significant. I satirized this a few years ago in an article for < http://news.bbc.co.uk/1/hi/uk/1494746.stm BBC News – How to Copyright Yourself>

Copyright – the branch of law that enables journalism to exist as a business. Development of effective copyright law is the key to the entire industry. Without copyright law there could be no profit, since giving up rights to copyright is the way in which we are able to charge money for our work, as individuals and as an industry as a whole.

“Journalism is the business of turning information into money”. But note ‘information’ is not in itself valuable, since there is no copyright in mere information. It has to be turned into something valuable – news – by journalists,

Intellectual property – is a residual right that every citizen has not to have their work stolen and exploited by others. This property right is protected in the same way as any other right.

PROTECTING YOUR OWN COPYRIGHT

Any work you do belongs to you until you sell the result of that work to somebody else. This includes physical work, the provision of a service and to intellectual work (such as journalism, literary work and photography). So if you are a building worker and you install a garden shed, that garden shed belongs to you until you sell it to the owner of the property where you installed it.

Normally there will be a contract of employment which means that the garden shed will belong to whoever it was who paid you to make it. In return you have wages or a fee. Normally when somebody accepts wages or a fee they surrender all rights to the benefit of their work, or the property they have created.

In theory the building worker could perhaps retain ownership of the garden shed, but then charge the user a fee (license) every time they used it. But the person who wants the garden shed is unlikely to agree to such a contract. They will normally insist on complete beneficial ownership of the work (or the results of the work) in return for a fixed fee. You could call this a complete “buy out” of all the rights in the property. The building worker no longer has any right to use this notional garden shed, because he or she has sold this right. Neither do they have any right to prevent anyone else using the garden shed. That is now up to the new owner of the work. The contract of employment will also act as a title deed to the garden shed in this notional example.

It is the same with ‘intellectual property’ that you might create by intellectual work. The law sees no basic distinction between work by hand, or by brain. Intellectual property is just as concrete in law as our notional garden shed. So if you create a newspaper article, or a poem or a photograph or a drawing or lecture notes, or even your own seminar papers and essays you to begin with at least own that work absolutely – it is a residual right which you have to sign away one way or another (usually in return for money or some other benefit – such as education).

Just like the shed builder you can sell the rights to use your intellectual work. But unlike the shed builder you are more likely to license the use of your work in return for payment (while retaining ownership) especially if you are a freelance journalist, or a freelance documentary maker or photographer (most/many photographers are freelance). There are three ways this would normally work.

If on the staff (fully employed with legal employment protection) of a broadcaster or newspaper or website almost always your contract of employment (whether written or not) will either state (or imply) that you surrender the rights to commercial exploitation of your work. You are like the shed builder. You have been paid wages and the employer has all rights to your work. If the shed builder was paid £100 (let’s say a day’s wages, or a negotiated “buy out” fee) to make the shed; and the owner then sells that shed for £1 million, then the owner of the shed does not have to give any of that money to the person shed. Likewise if you write an article or take a picture for wages (or an agreed fee) and the employer then re-sells that article for a lot of money; you will not be paid any more. However, since the 1988 Copyright Act, you do retain ‘moral rights’ – you must be identified as the author of the work, and you have a right to prevent the article being altered in such a way that you would be denigrated if identified as author of the work.

Therefore as a journalist/photographer/author, etc, you can negotiate a different contract of employment, which gives you some rights to money if your work is re-sold (eg – discuss syndication). Normally of course the employer will pay less wages if you retain these rights. More likely you can be a ‘freelance’ journalist. What this means is that you retain the rights to your work, and license the use to publishers or broadcasters – either exclusively (in return for a lot of money) or non-exclusively (for which they will pay less money of course). You then retain the copyright so that after an agreed period of time the copyright in the work will return to you. If you are freelance make absolutely sure that you are retaining the commercial rights to your work, and that for whatever they are paying you are only agreeing to ‘single use’ or whatever. If you don’t say anything, there could be an implied contract that they have paid you for the work, that this is akin to wages for employment and you have implicitly surrendered all commercial rights (but never mral rights, because of the 1988 act). If this happens consult the NUJ, since one of the main things the union does is give legal advice and backing to journalists.

THE RIGHTS DILEMA and THE RIP OFF CONTRACT

Discuss with reference to own career – Stick it Up Your Punter and ‘The Paper’.

The phrase ‘rip off’ originates in the 1960s music industry when music publishers would have a pad of total buy-out contracts in recording studios. Groups like (famously) The Who signed these contracts and recorded their songs for wages, eg £10 (or whatever) for a recording session (which was a lot of money to then at the time), but then the record company had all commercial rights to the songs and collected £ millions in sales and gave not a penny to The Who until they litigated in the 1980s to get some of the money on grounds of natural justice. The ‘rip of’ was literally the action of tearing one of these standard contracts off a pad.

UNIVERSITY WORK (By the way)

All commercial rights to any work you produce on a university course belongs to the university. Any intellectual property in your seminar papers, essays, etc belongs to the university and the university can specify how such work is used, who can see it, etc. It MAY be true of lecturers notes, but only the normal notes they would make – not exceptional work over and above contract of employment. Uni doesn’t own work you do off your own bat or for other employers.

NO COPYRIGHT IN ‘IDEAS’

Copyright only applies to work that had been done. It does not apply to “ideas”. So the idea “let’s make a film” can’t be copyright. Nor can the idea “Let’s make a film about Cowboys and Indians set in outerspace”. But the brand name “StarWars” can be copyrighted and so can the actual script or film of Star Wars. If a film is copyrighted then if you reproduce it or any part of it (with the exception of pieces of the film shown for purpose of review – see below) then you are in breach of copyright.

There is no copyright in facts or information, or in particular numbers or particular words (about from brand names – you can use the phrase Coca Cola without paying, but not as the title of a drink – that would be ‘passing off’ – see below).

So the figure representing the exact population of the UK is not copyright and you can repeat this fact without breach of copyright. But you could not reproduce all or part of the UK Census, which is produced after a lot of work by the Central Statistical Office and is copyrighted as government property (‘Crown Copyright’). It is a mistake to think that material produced by official bodies is not copyright. It is and you need the usual permissions to use such work (see below). Sometimes you will have to pay for those permissions. Sometimes there will be an implicit license to reproduce Crown Copyright material (for example when it is a press release or has clearly been given away for free with the clear intention that it should be reproduced).

To be protected by copyright a work must be original, and it must be a substantial piece of work (not just a doodle for example, or a so called ‘trademark’ like Michael Jackson’s glove, or a ‘signature dish’ in a fancy restaurant).

One are of concern is photography – stills and video, which are now so easily available on the internet.

Until 1988 the copyright in a photograph belong to the person who supplied the original photographic plate, or photographic film. The 1988 Act changed that so that photographers had “moral rights” over their own photography. If you use a photograph now you have to do so with permission (license) and in many cases you will have to pay the photographer some money in order to obtain a form of license to use the image.

The reason for the 1988 act was the outdated copyright law as it applied to photography. But it also applies to all “intellectual property” including ‘literary’ work, dramatic work, drawings, works of art, sound recordings, video, design, etc.

“LIFTING” (fair dealing)

There is no copyright in the facts of a news story, though the actual words (especially quotes and even more especially bits of video, or clips of interviews) are protected by copyright. The reason is that the actual way in which the news story is written is the work of the journalist, as are the actual words in the quotes and as is the interview which may have been captured on film.

So if you report a news event such as the result of a football match, that result (including the exact score) is not copyright. But an interview with a footballer IS copyright and that copyright belongs to the person who did the interview and wrote down the quotes or captured then electronically (and/or probably their employer – see below – license in contract of employment).

Likewise if you report that the Prime Minister has resigned then this information can not be copyrighted, but any actual interview with the Prime Minister will belong to the person who conducted the interview (and/or probably their employer – see below – license in contract of employment).

There is a very strong defense to breach of copyright when reporting the news and writing about matters in the public interest. This is the defence of ‘fair dealing’ which covers the old journalistic practice of “lifting” quotes from a newspaper report carried by a rival paper. You can safely “lift” a short, sound-bite type quote from another newspaper or from a broadcast news bulletin and include it in your report under fair dealing so long as you give proper attribution to the source, and that you do not “pass off” the quote as your own work.

So you can write a report saying the minister said he was not lying, he was “being economical with the truth” even if these words were first reported by another journalist on a rival newspaper or broadcaster. But to avoid “passing off” you would have to write: The minister told a newspaper (or told reporters, or told TV listeners or whatever) that he was not telling lies, he was “being economical with the truth”. You do not have to name the rival title – there is no need to give free advertising (they may disagree) but you must NOT give the impression that the quote was given exclusively to you. This will avoid copyright problems and is good practice anyway, since if the quote is made up or is a problem in some way you have avoided (probably, depending on the overall context) malice. You have not heard the actual quote yourself, so you should not give the impression that you have ( = malice). Beyond this ‘lifting’ is a fine old journalistic art and it can be used extensively, in the public interest.

THE DA VINCI CODE CASE

The point that there is no copyright in ideas, concepts, plot outlines, etc and only in the actual work was strengthened in a 2007 High Court appeal case where Dan Brown was sued by two authors who claimed that they had already published the gist of lot in the The Da Vinci Code some years before in a non-fiction book called The Holy Blood and The Holy Grail (essentially that Jesus had children who escaped the middle east ruled as monarchs in the South of France in the middle ages, protected by secret societies and secret knowledge – or at least that such a thing was believed). The two books are in fact very similar in what they allege. But The Holy blood people lost their case, because there was no copyright in an idea of this sort; and it had not been proven that Dan Brown had lifted anything substantial from the earlier book.

Important point: There is no copyright in “ideas”. In practical terms you are very safe in re-doing old stories. But you must not “lift” without attribution (such as Quote – so and so told a newspaper in 1991 or whatever) and you must do some new and original work (not just get hold of an old newspaper article and copy it out).

The copyright is only in the work/effort done by others. Taking a small amount of this work in order to tell the news to the public is permissible (fair dealing) and we call this ‘lifting’. Even when you ‘lift’ quote you must attribute in such a way that a moron in a hurry would not think that the quotes were given exclusively to you (so write <<”Quote, quote,” he recently told a newspaper. If you don’t do that you are ‘passing off’ which is breech of copyright. The only people who can claim that they have quotes on an important news story exclusively, is the person who actually did the interview (this is the best form of journalist, with highest monetary value).

If you get a leaked document (or find it in a skip) from a government department, then they may allege breach of confidence and seek an injunction to stop you publishing the story (as in the Goodwin trade secrets case). They may also allege theft both of the actual document (as in the Sarah Tisdall case), and also infringement of copyrighted words in the document. They may also prosecute for theft of electricity (even a minute amount) if you hack into a computer remotely to obtain copyrighted information (or any information for that matter). There was a case many years ago when hackers who got into the Prince Phillip email inbox (in the early days of the internet) where charged with theft of 0.0001p worth of electricity which it was estimated had been used to complete the file transfer.

Types of work automatically protected in common law and in statue:

Literature (including computer programmes and games, journalism and even leaflets, as well as books, scripts, etc). Drama (including films), music (performance and sheet music), works of art and drawings, photography, typography and page layout, sound recording (the work of recording the sound itself – eg bird song or explosions and not just deliberate speech or music).

The 1992 Copyright (Computer Programmes) regulations 1992 gave protection to computer programmes (classifying as literature – see above).

NB: Automatically protected – no need to register or patent an intellectual work. No need to put a copyright warning (though this might be wise, especially if ‘creative commons’ – see below and want moral rights to be asserted or respected in a work that is commercially free).

Duration:

For literary, dramatic, music (scores), films or artistic works (1988 statute): 70 years after the death of the author.

For sound recordings (and music recordings, not the score) and broadcasts – 50 years from the year in which the work was created. Thus Cliff Richards recent complaints – also compilation CDs of songs from the second world war etc –they are all non copyright.
Copyright has existed in the UK and US in common law since the early18th. In common law breach of copyright is similar to theft – it is the act of making beneficial use of somebody else’s intellectual WORK (work is the key thing) without permission. If a person was intending to sell permission to use intellectual work for beneficial reasons, then the breach is similar to theft. If a person can prove that their intellectual property (or intellectual property they have bought the rights to) has been ‘stolen’ then they can sue for compensation (loss of earnings, or likely loss of earnings). In the entertainment industry the compensation claims can be massive – eg Napster and unsuspecting parents who suddenly get massive bills from record companies because their children have been stealing lots of music using Limewire or similar.

From the statute:
It is an offence to perform any of the following acts without the consent of the owner:

Copy the work.

Rent, lend or issue copies of the work to the public.

Perform, broadcast or show the work in public.

Adapt the work.

The author of a work, or a director of a film may also have certain moral rights:

The right to be identified as the author.

Right to object to derogatory treatment.

FAIR DEALING

You can use copyrighted materials only in the following ways: (from the statute)

* Private and research study purposes.
          * Performance, copies or lending for educational purposes.
          * Criticism and news reporting.
          * Incidental inclusion.
          * Copies and lending by librarians.
          * Acts for the purposes of royal commissions, statutory enquiries, judicial proceedings and parliamentary purposes.
          * Recording of broadcasts for the purposes of listening to or viewing at a more convenient time, this is known as "time shifting".
          * Producing a back up copy for personal use of a computer program.
          * Playing sound recording for a non profit making organisation, club or society.

Most of these rights are lost if you are doing it for profit (eg, journalism).

CREATIVE COMMONS MOVEMENT – discuss. A way of using copyrighted material for free with permission. You must respect moral rights, and share profits if they arise. The license is usually time limited. You must inform the license holder.