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Frequently Asked Questions about Copyright

Last updated: 12 October 2006
Published in: Managing your digital resources |
Tags: business & community engagement | copyright | workflow |

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This document is intended as a quick reference guide, answering frequently asked questions about copyright. You are advised to check reference works and/or seek legal advice for your specific circumstances.

Disclaimer

While JISC Digital Media has endeavoured to ensure the accuracy of this document it does not constitute legal advice and no responsibility can be accepted for any action taken by readers. Copyright law is complex and occasionally ambiguous. This document is intended as a quick reference guide and you are advised to check reference works and/or seek legal advice for your specific circumstances.

FAQ 1: Is there a difference between analogue and digital copyright?

In the United Kingdom, virtually every work, both digital and analogue, created by the labour, skill and judgement of individuals and institutions is covered by copyright as long as it meets certain conditions. These pre-requisites are:

The work must be original
The work must be in a material form. Ideas cannot be copyrighted, but the expression of those ideas in a "physical" format will gain copyright. For example, Web pages and digital images will exist at least virtually and therefore constitute more than mere ideas.
The work falls under one of the categories protected by copyright. These include: literary, dramatic and artistic works, films, sounds recordings, broadcasts, dramatic works and typographic works.

With the implementation of the Copyright and Related Rights Regulations in the UK, the penalties for infringing the rights of material available in digital form are more severe. If you remove any technical protection measures associated with the digital content or remove any rights information, this will now constitute an infringement of copyright and may be subject to criminal proceedings.

FAQ 2: How do I find out who owns the copyright of a digital image?

The availability of an image on the Internet does not mean you are free to copy it. Unless there is a licence granting permission for reuse, you will need to request permission from the copyright owner. Sometimes the Web site will include a copyright notice giving details of the copyright holder(s). Where there is no such notice, you may be able to contact the author or publisher and check the copyright in the digital image.

Please see the JISC Digital Media advice paper Roles and Responsibilities for Staff Using Digital Images for Teaching and Research for more details about how to trace rights holders, due diligence and risk management.

FAQ 3: What happens when it is unclear who holds copyright in a digital image?

Access to digital images or ownership of image files does not convey ownership of copyright. Indeed, the image creator themselves may not always be the copyright holder. This can arise through two situations:

The person who created the piece of work was employed at the time, and the work was created as part of his/her duties. In this situation the copyright owner is the employer.
The original creator may have sold, given or bequeathed the copyright to one person, but sold, given or bequeathed the physical object to another person. In this situation the owner of the physical object does not own the copyright, the person who bought or was given the copyright does.

The onus is upon the potential user to make sure that they research copyright ownership carefully.

FAQ 4: What happens if more than one person contributed to the work I want to digitise?

Copyright can be jointly owned or there can be multiple separate copyrights within a work. All copyright holders in that work need to give permission for it to be used. If, despite your best endeavours, some of the copyright owners cannot be traced, it would be wise to seek legal advice on how you should proceed.

FAQ 5: How can I copyright my images?

Copyright in any work that you create will arise automatically as long as you meet the three requirements in question 1 above. There is no need to register your work, pay a fee or undergo any bureaucratic process. You do not have to use the Copyright symbol (©), although it might serve as a useful reminder, especially if your image is going to appear on the Internet. A typical copyright statement might look like: © 2006 University of Bristol, All rights reserved. Although there is no need to declare your rights, using a symbol and statement is likely to help your case in any legal action you pursue and will enable anyone wanting permission to use your images to contact you for permission

FAQ 6: When images are copied from a Web site published in another country (e.g. US): which country's laws apply?

Images are covered by the copyright law of the country in which they were generated, but will be automatically protected in most other countries. This is because most countries are signatories of the Berne Convention, which provides reciprocal protection. Downloading images from the Internet can confuse the issue, because it is sometimes unclear where the request came from and where the material is stored. For infringements of copyright the jurisdiction of the country where the infringement took place will apply.

FAQ 7: Can I use a picture I found on the Internet? Isn't it in the public domain?

Just because an image is made publicly available, this does not mean it is not in copyright - almost everything on the Internet will still be within copyright. As we said in question 5, there is no requirement to declare copyright, so the absence of a symbol or copyright notice does not mean a work is free to reuse. You should also be careful when an image is declared to be copyright-free or within the public domain. It may be that the person making the image available is mistaken, or that it is free for use within their country but not within the UK.

FAQ 8: If a photograph contains people do I need to get copyright clearance from them?

A person cannot copyright their face or looks, so you do not need to obtain copyright permission from them. However, in some cases there may be privacy or data protection issues. Where possible, it is a good idea to obtain permission from people who are depicted in photographs, especially if you're using the image in a controversial or commercial way. In these circumstances a model release form is usually used either when the photograph is taken, or retrospectively.

FAQ 9: What if I take an existing image and alter it so much that it is barely recognisable: do I still need to get permission?

Copyright will be infringed where a "substantial" part of the work is reproduced in a material form. "Substantial" is not defined in the Copyright Act, but case law and best practice interpretation suggests it relates to the both the quality and quantity of the amount copied. It is likely to take into account similarities between the two works. Where the work you create can be recognisably derived from another image, it would be sensible to get permission. In addition to infringing copyright, altering someone else's work might constitute an infringement of the creator's moral rights, specifically the right of a creator not to have their work subjected to derogatory treatment.

FAQ 10: What if I redraw the image (e.g. diagram or map) - is this OK? Does my new drawing have its own copyright?

As with the previous question this could constitute an infringement of copyright or moral rights if it is clear that your work is based on another. If your copying is permissible (e.g. the work is out of copyright or licensed for use), then you would own the copyright in any original elements you have added.

FAQ 11: What if I digitise a work that is out of copyright - can I claim a new copyright in the digital image?

Where you have made an original contribution, you may be able to claim a copyright in the digital image. You will not gain a copyright in the original work itself, which means that someone else could produce their own digital copy of the original without infringing any copyright you might have in the digital image. In certain, very limited, cases you might acquire a publication right in unpublished works. There is some disagreement about what it takes to add a new copyright. Batch scanning of slides or photographs might not introduce an original copyrightable element, but careful attention to lighting and colour management might do. It is clearer where you have created digital images of 3D works such as sculptures or artefacts, since you will have selected a particular view of the work.

FAQ 12: Where can I find copyright free images?

JISC Digital Media's papers on finding and using images provide sources of images that you can use. Note that most of these images are still in copyright, but rights have been waived or licensed. Often there are still some restrictions on how the image can be used (e.g. to non-commercial or educational use).

FAQ 13: If I contract a photographer to take some pictures for me, do I own the copyright?

Only if the photographer has explicitly assigned copyright to you. Unless the photographer is an employee, they will own the copyright in the work they create. This was an important change made in the 1988 Act. Prior to that the person contracting the work did usually own copyright. When you are using freelancers or volunteers it is sensible to have them assign rights or at least provide a license for you to use the images for all the uses you have in mind.

FAQ 14: I'm not employed as a photographer, but took some pictures at a work event. Who owns the rights to these images: me or my employer?

It's not possible to give a definitive answer to this question. It might depend on the nature of your employment contract or job description, whether you were asked to take the photographs, whether the event was during work time and the photographs taken on work equipment. If this is important, you should seek some legal advice.

FAQ 15: We have a slide collection in our department, built up over a number of years. Can we scan it?

You can only scan the slides if you own the copyright or have permission from the rights owners. For slides created by staff members as part of their work your institution might hold copyright, but you are unlikely to have copyright or appropriate permission for: photographs taken by students, photographs of student work (e.g. art work), purchased slide sets, or slides created by photographing images from publications. Many institutions have built up slide collections through the Slide Licensing Scheme maintained by DACS (Design and Artists Copyright Society). Slides created under this scheme cannot be digitised. Although there are now scanning licenses available from the CLA (Copyright Licensing Agency), it is important to note that these do not cover slide scanning and will not allow the establishment of general digital image collections.

FAQ 16: Can I take a screen-shot from a Web site and use that in my publication?

A typical Web page will be composed of several different copyrightable elements, such as illustrations, text and typographical arrangement. Depending on your purpose in reproducing the page, you might be able to claim that you are reproducing it for criticism or review (fair dealing exceptions), but it is probably sensible to ask permission, which is usually freely given.

FAQ 17: If I put images up on the Web, how can I stop people from copying them?

It is next to impossible to stop someone from taking images from your Web site if they are determined enough and are technically-minded. The only way to be sure no one takes your images is not to put them up on the Web! However, there are some ways to deter users, such as: disabling the "right-click, copy" function in the Web browser; visibly watermarking your images; embedding your images within another format or program (e.g. a Java applet, Flash interface, or zooming program). It is worth remembering that if the images are fairly small and designed for screen viewing, there is a limit to what someone can do with them (e.g. a 400-pixel long image will be fairly big on the screen, but only print well at postage stamp size).

FAQ 18: An American contributor to our conference has incorporated some images into their presentation as "fair use". Can I put their PowerPoint presentation up onto our Web site?

It would be unwise to publish the PowerPoint presentation on a UK Web site on this basis. The US concept of "fair use" is more generous to educators than UK Copyright's "fair dealing", but even the US Law is unlikely to allow such use. It would be sensible to ask the academic to get appropriate permission.

FAQ 19: Can we digitise work by our students and put into an image database?

Students are not employees of an academic institution, so you cannot automatically claim copyright over their work. You will need to ask them to assign copyright or to license their work to you. In some cases you may also need to ask students to clear copyright for other people's work they have incorporated within their own work.

FAQ 20: We want to make a digital image collection. The images are still in copyright, but the collection will only be accessed by staff within the department. Is this okay?

The law does not make a distinction between collections made available within your department or institution and those published more widely. However, in limiting it to departmental use you are more likely to be able to secure permission from rights owners. Limiting access in this way may also play a part in a risk management strategy. If you are unable to identify or clear copyright for some images, keeping them in-house makes it less likely that (a) your use of the images is discovered or (b) that the rights-holders would object to your use.