Copyright: An Overview

Last updated: 03 February 2010
Published in: Managing your digital resources | Finding and using digital media
Tags: copyright

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Summary

Copyright and other intellectual property rights are central to the development, use and sustainability of digital collections. This advice document provides a broad overview of copyright.

Contents

1. What is copyright and what does it protect?

2. Duration of copyright

   • 2.1 For literary, dramatic, musical or artistic works
   • 2.2 For sound recordings
   • 2.3 For films
   • 2.4 For broadcasts
   • 2.5 For typographical arrangements of published editions
   • 2.6 Quick reference guide to the duration of copyright

3. Fair dealing - acceptable use of copyrighted materials

   • 3.1 Making temporary copies
   • 3.2 Research and private study
   • 3.3 Criticism and review
   • 3.4 Incidental inclusion of copyright material
   • 3.5 Instruction or examination
     

4. Other types of intellectual property rights

   • 4.1 Moral rights
   • 4.2 Performance rights

Please note: The remit of JISC Digital Media includes the provision of practical advice and guidance to the FE and HE communities on copyright matters. Staff at JISC Digital Media are not lawyers and all advice is provided on that basis. Should you wish to receive a legal opinion in relation to a copyright matter then you will need to seek the services of a suitable qualified lawyer. In the first instance you might wish to contact our colleagues at JISC Legal.

1. What is copyright?

Copyright, together with moral rights, patents, trademarks, database rights, design rights and performers’ rights are some examples of Intellectual property rights (IPR), which is the name given to the broad range of legal rights that protect the fruits of human innovation, intellectual creativity and invention. The Intellectual Property Office (formerly Patent Office) is responsible for managing how IPR are administered in the UK. Information about all forms of IPR can be found at the Intellectual Property Office website. The law governing copyright is the Copyright, Designs and Patents Act (CDPA) 1988.

In the UK, copyright is an automatic right afforded to creators of literary, dramatic, musical and artistic works meaning you do not have to register the work for it to be protected. Copyright gives the creators exclusive rights over the exploitation of their work. This can include control of copying, adaptation, issuance of copies to the public, performance and broadcasting of their work by others. In giving permission for the use of their copyright work creators cab be entitled to receive royalty payments and this permission is given through a license agreement. In the UK, copyright is only created if the work is tangible or fixed is some kind of material form. Ideas cannot be given copyright protection, but the material expression of that idea can be protected. For example, the idea for a website cannot be copyright protected but the website itself can be.

There are other conditions that need to be met for protection under UK copyright law:

The work must be original, which means that it must not have been copied from something that already exists. This is complex and not always straight forward when applied to digital media. Whilst simply scanning a photograph with little human intervention is unlikely to be classed as original, an image that is scanned, altered and enhanced using a high level of human skill, labour and judgement might in itself be afforded copyright protection as an original work. A work is original if adequate skill, labour and judgement is expended creating it. It is important to note however that only literary, dramatic, artistic or musical works need to classed as original to be protected. Sound recordings, films, broadcasts and typographic arrangements of works do not need to demonstrate originality in order to be protected by copyright. Original or not these works have a separate category of copyright protection.

Either the author must be a qualified person - which means a British subject or someone who normally lives or is domiciled here, or the material must first be published in this country (note that this protection is extended to work created in other countries or by other nationalities under International Copyright law).

Most digital content found on the Internet will be protected by copyright. For example, a website will have its own copyright, but there will also be separate copyright in the domain name, title, sound effects, images and photographs and written content. In most cases, the copyright holder will need to be approached for permission prior to any use of the digital resource(s) that fall outside the exceptions by the CDPA 1988, which give limited circumstances where permission is not required. This means that the prescence of a copyright credit line or acknowledgement is not necessary for a work to be copyright protected. If a credit line is used, this can be useful in providing evidence that the work is protected by copyright particularly in the context of the international publishing activities of the Web. If used, the copyright credit line could take the following recommended form:

“Year, name of rights holder, All Rights Reserved”.

Increasingly, digital content is being made available under open content licences such as Creative Commons Licenses. These provide creators with the ability to pre-determine the terms of use of their digital creations, providing other users the ability to use the digital resources without having first to contact the rights holder.

You can access further information about licensing content from the Joint Information Systems Committee (JISC) and from the JISC Advance advisory body JISC Legal.

2. Duration of copyright

Before deciding on whether you are allowed to make a copyright work work available digitally you will need to ascertain whether or not the copyright has lapsed as copyright only lasts for a fixed time period. The Copyright, Designs and Patents Act 1988 (CDPA) outlines the duration of copyright is as follows:

2.1 For literary, dramatic, musical or artistic works

Copyright expires at the end of the 70th year from the end of the calendar year of the author’s death.

However, if the work is of unknown authorship copyright expires at the end of the 70th year from the end of the calendar year in which the work was created if it is unpublished. If during that period the work has been made available to the public, at the end of the 70th year from the end of the calendar year in which first made available the copyright will expire.

That said, should the identity of the author become known before the end of the period outlined above then copyright will expire at the end of the period of the 70th year from the end of the calendar year of the author’s death.

2.2 For sound recordings

Copyright expires at the end of the period of 50 years from the end of the calendar year in which the recording is made, or if during that period the recording is published, 50 years from the end of the calendar year in which it is first published, or if during that period the recording is not published but is made available to the public by being played in public or communicated to the public, 50 years from the end of the calendar year in which it is first made available.

That said, where the author of a sound recording is not a national of an European Economic Area (EEA) state, the duration of copyright is that to which the sound recording is entitled in the country of which the author is a national, provided that does not exceed the 50 year periods outlined above.  Moreover, the duration of copyright will need to be considered in line with the international obligation to which the United Kingdom became subject prior to 29 October 1993 (European Council Directive 93/98/EEC of 29th October 1993).

2.3 For films

Copyright expires at the end of the period of 70 years from the end of the calendar year in which the death occurs of the last to die of the following persons:

a. The principle director
b. The author of the screenplay
c. The author of the dialogue
d. The composer of music specially created for and used in the film

However, if the identity of one or more of the persons referred to above is known yet the identity of one or more of the others is not, the reference to the death of the last of them to die shall be construed as a reference to the death of the last whose identity is known.

Moreover, if the identity of all the persons listed above is unknown then copyright expires at the end of the period of 70 years from the end of the calendar year in which the film was made, or if during that period the film is made available to the public, at the end of the period of 70 years from the end of the calendar year it was first made available.

Where the country of origin is an EEA state and the author of the film is not a national of an EEA state, the duration of copyright is that to which the work is entitled in the country of origin.

2.4 For broadcasts

Copyright in a broadcast expires at the end of the period of 50 years from the end of the calendar year in which the broadcast was made subject to the following:

Where the author of the broadcast is not a national of an EEA state, the duration of copyright in the broadcast is that to which it is entitled in the county of which the author is a national (provided it does not exceed the 50 year limit descried above).

It should also be noted that copyright in a repeat broadcast expires at the same time as the copyright in the original broadcast.

2.5 For typographical arrangement of published editions

Copyright in the typographical arrangement of a published edition expires at the end of the period of 25 years from the end of the calendar year in which the edition was first published.

2.6 Quick reference guide to duration of copyright

The following gives a brief overview of copyright duration for a number of works. Please refer to the Act for comprehensive information.

3. Fair dealing - acceptable use of copyrighted materials

The owner of the copyright in a particular work or works has the exclusive rights to the following acts in the United Kingdom:

a. To copy the work
b. To issue copies of the work to the public
c. To rent of lend the work to the public
d. To perform, show or play the work in public
e. To communicate the work to the public
f. To make an adaptation of the work or do any of the above in relation to an adaptation

That said copyrighted material can be used in a number of ways whereby copyright is not infringed.

The following is a description of some of the ways in which copyrighted materials can be used without infringing the copyright. It is stressed that this is not an exhaustive list.  For a full list please refer to the Copyright, Design and Patent Act 1988.

3.1 Making temporary copies

The making of temporary copies of copyrighted works which is transient or incidental and which are not produced for economic gain do not infringe copyright. The types of work included are literary, dramatic, musical or artistic works, the typographical arrangement of a published edition, a sound recording or a film. Making temporary copies does not apply to computer programs or databases.

3.2 Research and private study

Fair dealing with a literary, dramatic, musical or artistic work for the purposes of research for non-commercial purposes does not infringe any copyright in the work as long as an appropriate acknowledgement is also included.

3.3 Criticism and review

Fair dealing with a work for the purpose of criticism or review does not infringe any copyright in the work provided that an appropriate acknowledgement is included (and provided that the work has been made available to the public).  For the purposes of the Act a work has been made available to the public by any means if one or more of the following have been undertaken:

a. Copies of the work have been issued to the public
b. The work has been made available by means of an electronic retrieval system
c. Copies of the work have been lent to or rented to the public
d. The work has been performed, exhibited, played or showed in public
e. The work has been communicated to the public

3.4 Incidental inclusion of copyright material

Copyright is not infringed if a work is included incidentally in an artistic work, sound recording, film or broadcast. Moreover, copyright is not infringed if such incidental material is issued to the public in the form of copies of the material or the playing or showing of the material to the public.

3.5 Instruction or examination

Copyright in a literary, dramatic, musical or artistic work is not infringed by its being copied in the course of instruction or of preparation for instruction provided the copying is undertaken in line with the following:

a. It is done by a person giving or receiving the instruction
b. It is not done by means of a reprographic process - for the purposes of the Act a “reprographic process” is defined as making facsimile copies, or involving the use of an appliance for making multiple copies.  This includes work held in electronic form, any copying by electronic means but does not include the making of a film or sound recording.
c. Sufficient acknowledgment accompanies any copy   - for the purposes of the Act “sufficient acknowledgement” means an acknowledgement identifying the work in question by its title (or other description) and identifying the author unless in the case of a published work it is published anonymously, or in the case of an unpublished work, it is not possible to ascertain the identity of the author by a reasonable enquiry.
d. The relevant instruction is undertaken on a non-commercial basis

Copyright in a sound recording, film or broadcast is not infringed by its being copied by making a film or film sound track for the purpose of instruction provided the copying is undertaken by the person giving or receiving the instruction and that an acknowledgement accompanies the copy.

Copyright in a literary, dramatic, musical or artistic work which has been made available to the public is not infringed by its being copied in the course of instruction if the following apply:

a. The copy is done by a person giving or receiving the instruction
b. The copying is not done by means of a reprographic process
c. That sufficient acknowledgement is given to the copy
d. That the copying is undertaken in line with fair dealing

It should also be noted that copyright is not infringed by anything done for the purposes of an examination as long as an appropriate acknowledgement is given and where the copying is done to set the questions, communicate the questions to the candidates or by candidates answering the question.

4. Other types of intellectual property rights

As was stated earlier copyright is but one aspect of intellectual property rights.

There are other rights that need to be considered including Moral Rights and Performance Rights.

4.1 Moral rights

As well as the economic benefits of copyright afforded to a creator of a work, the Copyright, Designs and Patents Act 1988, implemented from 1st August 1989, introduced the concept of ‘Moral Rights’ which are distinct and separate from property rights. They provide the creator with the ability to protect the artistic integrity of their work. Moral rights can be summarised as follows:

1. The right of the author of a work to be acknowledged as the author or creator
2. The right of the author to object to false attribution
3. The right not to have his or her work subjected to ‘derogatory’ treatment

In addition to the above there is the additional moral right afforded to the subjects of still images and moving images taken for domestic and private purposes. This restricts the subsequent use of such images beyond the purposes for which they were originally taken, without the consent of the subjects.

In the digital environment, Moral Rights are important because of the ease with which content can be shared, altered and manipulated. Creators of digital resources should be credited appropriately and measures undertaken to ensure provenance information about the history of digital surrogates is not lost in the process of digitisation.

It should also be noted that, unlike copyright, Moral Rights cannot be transferred: but they can be waived however. Moreover, ordinarily Moral Rights do not arise in work produced by staff during the course of their employment.

More information about moral rights can be found at the Intellectual Property Office.

4.2 Performance rights

Performance rights apply world wide to literary, musical and dramatic works. Under UK legislation (the Copyright, Designs and Patents Act 1988) there is no requirement to register the right. Performance rights are separate from copyright with each participant in a performance entitled to a claim of the right.

The Act defines a “performance” as:

1. A dramatic performance
2. A musical performance
3. A reading or recitation of a literary work
4. A performance of a variety act or similar performance

The natural owner of the right is the relevant performer or performers. The rights granted under the act are the reproduction right, the distribution right, rental and lending rights and the making available right.  The performance right s can be sold or licensed but any arrangement to do so must be done in writing.

The duration of a performer’s right lasts 50 years from the date of the recording. If the recording is first published or shown in public within that initial term, protection of the right continues for another 50 years. The performance right also entitles the performer to be remunerated for any performance communicated to the public. The collection of any payment due might be assigned to a third party collection agency which will collect payment on behalf of the performer.

Any right to reproduce performances is infringed when a person records, broadcasts, or copies a recording or broadcast of a whole or substantial part of a qualifying live performance.

Further information on performance rights and related topics can be found at the Copyright Licensing Agency.

Last updated: 03 February 2010
Published in: Managing your digital resources | Finding and using digital media
Tags: copyright

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