on 1 March 2003The digital age has enormously complicated and expanded the legal field of intellectual property. Software copyright and copy protection are hot issues for manufacturers, developers, movie distributors and record companies. While trying to keep up with all this, there’s a danger that businesses overlook the traditional principles of copyright, which govern just about all the written, visual or recorded material that passes through any office every day.
When computers were first invented, their basic function was calculation. Today, with printers, scanners and Internet connections on every LAN, you could argue that the PC’s primary capability is reproduction. And wherever there’s copying, there are copyright issues. In this article we’ll clarify the basics you need to know to keep your business out of trouble, both online and in the physical world.
What copyright means
Copyright is the right of the author of any original literary, dramatic, musical or artistic work to control its reproduction, dissemination and performance. It exists as soon as the work is fixed in some way, for example by being written down. Contrary to popular opinion, there’s no requirement to display a copyright message, with or without the © symbol, and no process of ‘copyrighting’. Protection is entirely automatic.
Although copyright law is complex, its effect can be summed up very simply: you may not copy anyone else’s work without their permission. Any kind of copying counts, including photocopying, scanning, OCRing, ‘re-keying’ (typing), or for that matter writing out text longhand.
Breaking this rule can be a criminal offence carrying fines and prison sentences. Fortunately, prosecution is usually limited to cases of organised counterfeiting. Copyright infringement is more typically pursued through civil actions, where the copyright owner sues the infringer for damages. Since it’s usually straightforward to prove infringement, cases are often settled quickly in favour of the claimant. If you do go to court as a defendant and lose, you’ll generally have to pay around 70% of the claimant’s legal costs, as well as your own, on top of whatever damages are awarded. In most cases the total bill can be expected to range from four to six figures.
When technology makes copying easy, we’re inclined to do it It goes without saying, then, that you need to avoid infringing copyright. Unfortunately, that’s quite a tall order. Surrounded by technology designed to make copying easy, we’re inclined to do it without thinking. Need some facts and figures for a report? Download them. Want some music to pep up a presentation? Rip it from CD. Looking for some artwork for a brochure? Scan it in.
Oops, you did it again.
What’s protected
Not everything you may want to reproduce is protected by copyright. Ideas and facts aren’t intellectual property, so there’s nothing to stop you imitating a successful marketing ploy or taking information from a news story, as long as you don’t copy the specific form in which it’s expressed. But a compilation of ideas or facts may be protected. Titles, slogans and product names are generally too brief to fall under copyright, but you need to check they’re not protected as trademarks, and any use of material similar to a rival’s could constitute a common-law offence of ‘passing off’. The design of three-dimensional objects, as opposed to printed pages, websites and so on, is protected by design right, not by copyright; you can find out more about this at the Patent Office.
On the other hand, some unexpected kinds of work are protected. Perhaps the most significant example is databases. Databases were previously regarded as a form of literary compilation, and as such protected by copyright law insofar as some intellectual effort was involved in creating them. The Copyright and Rights in Databases Regulations 1997 now recognise databases as a category of copyright work in their own right, and add the extra protection of ‘database right’. This protects the owner’s investment in obtaining, verifying and presenting their content. So extracting information from someone else’s database, even if it’s freely accessible (for example via the web), and using it for your own commercial purposes without their permission, is a no-no.
There are surprisingly few circumstances in which you can reproduce copyright material without permission. Under the law’s ‘fair dealing’ provisions, brief extracts may be copied for the purposes of research and private study, criticism and review, or news reporting, as long as the source is acknowledged. (Photos are excluded from news reporting, and databases from criticism or review.) But fair dealing is rarely applicable in a business context. ‘Private’ study must be private, and most business don’t engage in criticism, review or news reporting. That only leaves ‘research’, but any possibility that this could apply to commercial use is likely to be ruled out by European Union Copyright Directive 2001/29/EC (commonly referred to as ‘EUCD’), currently being incorporated into UK law. In respect of databases, commercial research is already excluded from fair dealing.
Even very small portions of a work can be ‘substantial’Infringement can only occur if a ‘substantial part’ of a copyright work is reproduced. The law doesn’t define what ‘substantial’ means, but past judgements have found that even very small portions can be substantial; when it comes to databases, repeated extractions of insubstantial parts can add up to substantial use. Quoting a few lines of an article is usually safe, but this is of no help when you want to copy all or most of an item. Bear in mind that one article within a journal may be a copyright work in itself. If you do copy material as fair dealing, remember you must acknowledge the copyright holder.
The safest material to copy is that in which copyright has expired. Copyright lasts until 70 years after the death of the author; older material can be used freely. Database right lasts only 15 years, but since any substantial revision or re-checking of the database sets off a new term of protection, it’s unlikely any database worth copying will be out of copyright.
Safe to copy?
As we’ve already seen, the lack of a copyright notice doesn’t make a document fair game. Somebody owns the rights (unless the author has been dead 70 years), and you’re obliged to obtain their permission for any reproduction. Making genuine but unsuccessful efforts to trace the copyright owner might prevent damages being awarded against you in any subsequent action for infringement, but you could still be forced to forfeit all copies of the infringing material. Ultimately, you have no right to use work without permission, however elusive or intransigent its owner.
What if you got the material off the Internet? That doesn’t indicate any absence of copyright. Even if it was written in a country you’ve never heard of and posted online for all the world to see, British law respects the rights of its author.
Some material may be accompanied by a statement to the effect that reproduction is permitted under certain circumstances. Such statements are legally binding as far as they go, but the onus is on you to interpret them reasonably and comply with any conditions. Even if Jed from Ohio had a footnote on his gopher-fancying website saying gopher lovers could quote freely from his pages, his lawyers might well argue that this didn’t entitle you to download the entire site and republish it as The Complete Guide to Gophers (£14.95 hardback).
Even with out-of-copyright material, dangers lurk. Let’s say you want to use a painting by Velasquez to illustrate a brochure. Velasquez died in 1827. But you’re unlikely to have the opportunity to place his original work on your office scanner. You’ll be working from a photo of it, taken by a photographer, who has rights as the author of that image, under licence from the museum that owns the painting, which will have reserved some rights over reproduction. Ay, Caramba!, as Velasquez might have said. The only answer is to find a fine-art picture library and pay its search and licensing fees.
A Shakespeare play may be out of copyright, but that doesn’t mean you can photocopy it from a book Similarly, while the original text of a written work such as a Shakespeare play may be out of copyright, that doesn’t mean you can scan or photocopy it from a book. The ‘typographical arrangement’ of a printed work is protected for 25 years from publication, and the text may incorporate the work of scholars and editors who haven’t been dead 70 years.
Playing fair
For a modern business to maintain absolute compliance with copyright law, it would probably have to impose such oppressive restrictions on its employees’ use of copyright material and reproductive tools that its efficiency and competitiveness would be unacceptably restricted. In practice, the best you can hope to do is understand what kinds of infringement are likely to be viewed with leniency, and what kinds are too dangerous to risk.
Something you’ve probably done many times: you read an article on a newspaper’s website, find it interesting, and download it to your hard disk for future reference. This could be an infringement, but there’s an established principle that it’s fair to make a copy for short-term convenience, where the user already has legitimate access to the work. The law recognises this explicitly in the cases of making software backups and taping broadcast TV programmes for later private viewing. But it’s important not to push this principle too far.
Let’s say you circulate the newspaper article around the office via email. This is an infringement, unless the terms and conditions displayed on the website explicitly permit such use. But the publisher must be aware that users will sometimes retain and disseminate articles in this way, and in most contexts is unlikely to regard this as damaging. Your colleagues could have read the article for free in any case (although, if they’d accessed it themselves, they would have contributed to the hit rate and advertising audience of the website, so there’s some loss there already). On the other hand, if you did the same thing with an article from a site to which you had a paid subscription but your colleagues didn’t, this would be damaging to the owner, and might be pursued.
In practice, the owner would be unlikely to find out about your infringement, and even less likely to go to the trouble of taking legal action. This might change, however, if the site was regularly abused in this way by employees of your company over a period of time, or if the copied work found its way into materials distributed externally. At the far end of the scale, if material from any site, whether free or paid-for, was systematically incorporated into reports which your company sold to others for a fee, action by the copyright owner would almost inevitably follow.
Certain types of work are protected especially tightly. The most common example is maps. It’s tempting to think the content of maps is purely factual, but the very fact that a map can never precisely represent the real world implies a degree of art. Since teams of lawyers are employed by cartographers specifically to detect infringement and take action against it, any unauthorised reproduction is extremely ill-advised. The AA recently paid Ordnance Survey £20 million in damages after being caught copying OS maps.
It’s common to assume you can get away with infringement by modifying the original It’s all too common to assume you can get away with infringement by modifying the original work: re-crop an image, change a few words of a report. In fact, media owners who actively protect their intellectual property are unlikely to be fooled, and the damages awarded in any subsequent legal action will be higher if the judge believes the defendant deliberately tried to conceal the infringement.
Who to ask
Permission to reproduce copyright work is known as a ‘licence’, but may not be as formal as that sounds. It can only be granted by the copyright holder or an authorised agency or licensee.
The author, artist or composer is usually the first owner of copyright. When work is produced in the course of employment, however, the employer normally owns the copyright. Intellectual property may be bought, sold and inherited like any other property, so rights in a work may change hands many times. A single piece of work may have more than one copyright holder. Work derived from previously existing material doesn’t automatically become the property of its new author; if the source was protected by copyright, the author must obtain permission from its owner for any reproduction and exploitation of the new work.
All of this means it can be tricky to know who to approach for permission to reproduce something. It’s usually pretty clear where to start, though. Most books, newspapers, websites, CDs and videos display a copyright statement, and often provide contact details. Larger organisations will have a ‘permissions’ or ‘copyright clearance’ department that handles reproduction requests.
Pictures are a special case, as illustrators and photographers often retain copyright, so the publisher may not be able to grant permissions. That’s why most images in newspapers and magazines are accompanied by a credit. If this just shows a person’s name, the picture is either by an independent freelance photographer or artist, who can be tracked down via an Internet search or through the publisher’s art director, or by an in-house photographer, in which case the publisher will hold the rights. A company name, either by itself or following the photographer’s name, indicates that the image is from an agency or stock library, which should be approached directly; you can usually find contact details very easily via the Net or Directory Enquiries (offices are almost invariably in London).
Pictures taken for publicity purposes, such as PR shots of a new product or stills from a forthcoming film, are often made easily available by their owners. This doesn’t mean you can use them willy-nilly. If you want to reproduce such images for any purpose other than legitimately promoting the product concerned, you need to obtain permission.
Protecting your rights
Of course, copyright isn’t just about limiting your right to use other people’s work. It’s also there to protect your own work from infringement by others. Any original work generated by your company’s employees within the course of their employment is the intellectual property of the company. It can be exploited as the directors see fit, and any unlicensed use by third parties can be pursued through legal action if necessary.
Employers and employees should agree some ground rules It’s increasingly common for employees to take on freelance work on the side, and if this applies to your staff, it’s important to agree some ground rules on copyright. In general, the company shouldn’t expect to hold copyright in work done outside an employee’s contractual remit, even if the work was done using company resources such as computers. (If resources were used without permission, that would be a separate disciplinary issue.) But employees must be careful not to re-use material generated in the course of their job in private work, as this would infringe the company’s copyright. Any work done for rival companies, whether during or after employment with yours, is also restricted by the law of confidence.
When you commission a contract or freelance worker to produce material, you need to agree copyright terms. Writers traditionally expect to give only ‘first British serial rights’, meaning that you get to publish their work first, but they can resell it to others, and an extra fee will be payable if you want to re-use it later. These days, clients normally expect the right to publish work online for an indefinite period in addition to any printed use, and it’s increasingly common to ask for all rights. Artists and photographers will expect significantly higher fees for all rights. Be sure that you understand what rights you’re buying; if you regularly commission work, you should draw up a standard contract in consultation with any regular contributors.
Going to law
As always, legal action is rarely good news, no matter which end of it you’re on. A copyright holder will generally only sue an infringer if it stands to win substantial damages; or has a policy of pursuing all infringements because its business is based on licensing; or is so morally outraged by the illicit use of its work that it feels obliged to act on principle (a position sometimes taken by individuals whose writing or art is plagiarised). It must also be willing to risk substantial legal costs. Copyright cases are usually heard in the Chancery Division of the High Court, not in the more down-to-earth county courts.
It’s impossible to generalise about the level of damages that might be awarded, but a key consideration is the amount of skill and labour the author put into the work that was copied. As an infringer, another way of looking at this is to ask yourself how much effort you saved yourself by copying the material rather than creating it from scratch. The greater the benefit to you, the greater the damage to the plaintiff. Bear this in mind whenever you contemplate the possibility of ‘borrowing’ work. The more you stand to gain by doing it, the more you stand to lose if you’re caught.
If your work is copied without permission, you can seek an injunction If you believe someone is using your work without permission, your first legal step may be to seek an injunction. This is a legal order that prohibits any further reproduction, or distribution of reproductions already made, pending a later hearing or settlement. If infringement is proved, the courts can also order the forfeiture or destruction of any infringing materials.
Whether you’re contemplating action against an infringer or faced with an allegation of infringement, it’s important to get legal advice as early as possible, since the way the matter is handled can significantly affect the outcome. There are various solicitors specialising in intellectual property, which you can find through the Law Society, or if your company already retains a firm of solicitors it should be able to give initial advice, briefing a specialist barrister if necessary later on.
Sensible precautions
If you’re concerned about the possibility of being sued for copyright infringement, you may want to consider legal indemnity insurance. As well as charging a hefty premium, however, the insurer may insist on measures to train your staff in avoiding infringement and monitor the use of copyright materials within your business. Whether or not you need insurance, it wouldn’t be a bad idea to start thinking about such measures right now.
You could start by copying this article around the office. Oh, hang on…
Whose rights are they anyway?
Organisations seeking to enforce copyright, from governments to heavy metal bands, will tell you it exists to protect artists. The truth is that it came into being for much less honourable purposes. Its origins reach back to the late 15th Century, when the invention of the printing press, and its introduction to England by Caxton, first made it possible to reproduce books in significant numbers and make them available to the general population.
Like every new means for the dissemination of information, this development was viewed with suspicion by the state, which feared publication of seditious or heretical works. Equally predictably, businesses seized on it as a money-making opportunity, and set about lobbying for regulations that would maximise profitability. (Funny how the free market is considered a good thing when it permits unfettered greed, but a bad one when it leaves citizens at liberty to exploit technologies without the expensive assistance of corporations.)
The law handed exclusive rights to a cartel. This is now called ‘protecting against piracy’Both the monarchy and the Stationers’ Company – the printers’ guild – therefore stood to gain by limiting the use of the printing press. A Licensing Act was duly passed in 1662, effectively handing exclusive reproduction rights to a politically constituted cartel. The Patent Office today describes this as a law to ‘regulate the book trade and protect printers against piracy’, an interesting form of doublethink.
In 1710, the Statute of Anne recognised that authors had rights to their own works. Which was nice. Copyright legislation went through many piecemeal revisions until 1875, when a Royal Commission recommended an overhaul in conjunction with the USA, resulting in the Berne Convention. It was only in 1911 that the Copyright Act brought everything together in pretty much the form we now know it. Further tweaks were eventually consolidated in the Copyright, Designs and Patents Act of 1988 (known as ‘CDPA 1988’), which forms the basis of current British law.
Ironically, in the 21st Century copyright seems to be in danger of returning to its roots. Since CDPA 1988, little has been done to benefit authors or the public, while more and more control has been handed to media owners, particularly in audio and video, who are increasingly exploiting digital media, and technologies such as copy protection and deactivation, to dictate precisely when, where and how the public can enjoy the fruits of artists’ labour.
In an early case on copyright, Sayre vs Moore (1785), Lord Justice Mansfield noted: ‘We must take care to guard against two extremes equally prejudicial; the one, that men of ability, who have employed their time for the service of the community, may not be deprived of their just merits, and the reward of their ingenuity and labour; the other, that the world may not be deprived of improvements, nor the progress of the arts be retarded.’ Whatever happens to copyright law in the future, this balance must be maintained at all costs.
Licensing schemes
To simplify the licensing of everyday reproduction, various organisations known as ‘collection societies’ have been set up to administer rights on behalf of copyright holders. In some areas these have proved very effective; for example, if you want to pipe Top 10 hits into your lobby, you’ll need a Performing Right Society (PRS) licence, which is straightforward to obtain. Words and pictures in general, however, seem resistant to licensing schemes. The diversity of materials and copyright holders is just too great.
This hasn’t stopped people trying. In the UK, the Copyright Licensing Agency handles reproduction rights to many published books and magazines. Its licensees include libraries, educational establishments and Government departments. For anyone considering copyright compliance in a business context, however, CLA licensing has some frustrating limitations.
A CLA licence is inexpensive but restrictive, overlapping statutory exemptions Firstly, while CLA members include such major organisations as the Publishers Association and Periodical Publishers Association, there’s still no easy way of knowing whether any given publication is covered. Some types of content, such as music and maps, are excluded altogether. Secondly, a CLA licence typically permits copying of up to 5%, or one chapter, of a book, or one article from an issue of a periodical, for internal use only. Not only is this restrictive, but it leaves a considerable overlap between licensed use and copying that might already be exempted as fair dealing or use of an insubstantial part. Thirdly, digital archiving is not currently permitted, nor is digital manipulation such as OCRing.
So CLA licensing seems to offer little more than a vague sense that less of your ad-hoc copying will infringe. The CLA is itself a business, with no statutory remit. Although it’s regulated to an extent by copyright and competition law, it’s not directly accountable to authors or users, and has been criticised for pursuing its members’ interests against those of the public, for example in lobbying for a more draconian interpretation of the EU Copyright Directive, opposed by librarians. Its Copywatch scheme offers a reward of up to £10,000 to anyone who grasses up a company for unlicensed copying. Nice people to do business with.
Then again, a CLA licence would cover everyday uses such as photocopying newspaper articles, and at around £10 to £30 per employee per year (depending on the nature of your business), it’s not prohibitively expensive. Collection societies for other kinds of content include the Design and Artists Copyright Society (DACS), which represents artists and photographers – although, again, only a certain number of them.
Copyright registration
The basic principles of the Berne Convention for the Protection of Artistic Works, formulated in the 1880s, are now respected by most countries, so any protection that applies to your work in the UK also applies elsewhere, and work originated outside the UK shares equal protection here. Within the European Union, copyright law is fairly well harmonised, and for most purposes US law follows the same lines.
Some confusion still surrounds registration. In a few countries, a copyright notice including the (C) symbol is used as an indication that registration has been completed in whatever country the work was originated; since registration isn’t required in the UK, the symbol can be freely applied to any original work, and this is commonly done as a safeguard. In the States, publications can still optionally be registered with a statutory body, the US Copyright Office. This may be useful in pursuing future infringements, but protection doesn’t depend on it.
In the UK, a number of companies offer so-called copyright registration services. These simply witness the existence of your work on a certain date. You could achieve the same thing by lodging a copy with your solicitor, but unless you have some special reason to think infringement will occur, there’s no need to do this.
Acknowledgements and resources
Further information on copyright issues can be found at:
www.intellectual-property.gov.uk
www.humphreys.co.uk
www.nipclaw.com
www.ukcle.ac.uk
www.acid.uk.com
www.cla.co.uk
www.dacs.co.uk
www.prs.co.uk
Special thanks to Paul O’Hare of Kemp Little LLP (www.kemplittle.co.uk) for information and comment on EUCD and other matters. The opinions expressed in this article are those of the author, not the above-mentioned sources, and do not constitute legal opinion.
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