Copyright article

Friends in Law Journalism

The author of a work is the person who creates it and he (or his employer) is normally the first owner of the copyright, which will last for 70 years from the authors death.... (Bainbridge). Copyright affords entitlement to do certain things in respect of the work, including make copies, broadcast or perform. Doing those without permission amounts to breach, for which various remedies can be sought, including damages and injunctive relief. Copyright does not protect ideas, only the expression of an idea, (that is its tangible form), and others are free to create similar or even identical works as long as they do so independently and by their own efforts.

Two types of right created:

The proprietary or economic rights in the work, for example the right to control copying

Moral rights, which leave the author who may no longer even own the copyright to have control over how the work is used, and which may restrict derogatory treatment of the work.

Relevant legislation: UK Copyright, Designs and Patent Act 1988, Berne Copyright Convention and the Universal Copyright Convention, (UK signatories to both conventions), Copyright and Related Rights Regulations 1996 and 2003.

Need for originality, i.e. fixed work done from an individuals own head.

Six year limitation period from time of awareness of breach to take legal action. Copying even a part may constitute breach.

Moral Rights

Right to be identified as the artist, not to have work falsely attributed to another, and not to have work subjected to derogatory treatment. Even if copyright passed, author still retains rights to be recognised as artist.

Right of Disclosure, see Whistler case 1900. (Whistler not happy with portrait he’d done. Lord Eden commissioned it. Demanded delivery. Whistler entitled not to deliver until considered completed, despite work having been exhibited.)

False attribution (see Private Eye!). Alan Clarke Diaries successful legal action. (Spoof Diaries).

Permitted Acts

Certain things can be done without permission of the copyright owner, such as copying for non-commercial research, private study, criticism or review. Sections 57 to 65 Copyright Act. Principle defences:

Use or copying of a record of spoken words or material from it for the purposes or reporting current events or communicating to the public the whole or part of the work, subject to some restriction.

Public reading or reciting of a reasonable extract of a published literary or dramatic work, (subject to acknowledgement).

Scientific or technical subjects published in periodicals, (subject to licence).

Recording songs for inclusion in archive by recognised body

Making graphic works, photographs, films or broadcasts of visual images of buildings and, if accessible by the public, sculptures, models for buildings and works of artistic craftsmenship. (s62)

Public interest

Freedom of expression (consider Human Rights Act)

Advertising exemptions

Incidental inclusion, e.g. in recorded material, photographs

Making of subsequent artistic works by the author of the previous work, (permitting the artist to use and develop his style)

Fair dealing, such as private research and private study, criticism and review, (limitations as to extent of reproduction of image etc), reporting current events.

Considerations:

Purpose

Proportion

Motive

Status of other work

Extent of use

Prejudice to the copyright owner

Making of temporary copies (Copyright and Related Rights Regulations 2003 s28A), allowing for temporary copies which are transient or incidental and are an integral and essential part of a technological process, the sole aim of which is to enable either the transmission of the work in a network between third parties by an intermediary, or a lawful use of the work and which has no independent economic significance.

Permits:

Copies of literary works, (other than computer programs and databases), dramatic, musical or artistic works, typographical arrangements of published editions and sound recordings or films.

Presumptions (From Bainbridge)

Where a name of that purporting to be the author appeared on copies of the work as published or on the work when it was made, the person by that name shall be presumed to be the author of the work and to have been the first owner of the copyright in the work.

Where there is no name purporting to be that of the author on copies of the work then, under S104(4), if the work otherwise qualifies for copyright protection by reference to the country of first publication, and a name purporting to be that of the publisher appears on copies of the work as first published, then that named publisher shall be presumed to have been the owner of the copyright at the time of publication.

If the author is dead...it shall be presumed in the absence of evidence to the contrary that the work is an original work and the claimants allegations as to what was the first publication of the work and as to the country of first publication are correct.

Rights in Performance

Twofold. Performers right and recording right. Performer has right to make copies, the issue of copies and the rental and lending of recordings of his performance rights. These may be assigned or licensed. Right lasts 50 years from the calendar year in which the performance took place. friendsinlaw@hotmail.com

Accurate as at 16.9.08