Picturecentric - Coward, Sarah - Copyright Guide

This is a very brief guide to copyright.  Both I and Picturecentric take the subject of copyright very seriously indeed.  We have the tools with which to breach copyright law very easily but we control them fiercely.

This guide aims to do no more than to act as an introduction to copyright matters.  If you need more detailed or more authoritative information then please consult a copyright lawyer or the copyright office of the country in which you live and work.  Sadly, in spite of much good work being undertaken to harmonise copyright law internationally, it is different in the US from Canada and their laws are different again from the EU and Australia and New Zealand.

The bulk of the material included in this guide is derived from the website of the UK Intellectual Property Office to whom we are extremely grateful.

What is Copyright?

Copyright is the legal process that protects creative or artistic works from unauthorised copying. No one should copy or use a copyrighted work without the copyright owner's permission.

The following types of creative items can be copyright:

• literature, including novels, instruction manuals, computer programs, song lyrics, newspaper articles and some types of database
• drama, including dance or mime
• music
• art, including paintings, engravings, photographs, sculptures, collages, architecture, technical drawings, diagrams, maps and logos
• layouts used to publish a work, for a book
• recordings of a work, including sound and film
• broadcasts of a work

Copyright applies to any medium which means that you must not reproduce a copyright protected work in another medium without permission. So just because a book was written or printed, not only does it mean that you cannot copy it, for example by way of photocopying it but it also means that you cannot make a sound recording of somebody reading it.

Copyright does not protect the ideas for a work that come before the work is actually produced but when an idea is fixed, for example in writing, copyright automatically protects it. This means that the author or artist doesn't have to apply for copyright.

A copyright protected work can have more than one copyright, or another intellectual property (IP) right, connected to it.

For example, an album of music can have separate copyrights for individual songs, sound recordings, artwork, and so on. Whilst copyright can protect the artwork of your logo, you could also register the logo as a trade mark.

Copyright automatically arises when a work is created.

Copyright gives the creators of a wide range of material, such as literature, art, music, sound recordings, films and broadcasts, economic rights. It does not protect ideas, or such things as names or titles.

Creators are able to control the use of their material in a number of ways, such as:

• making copies themselves
• issuing copies to the public
• performing in public
• broadcasting and use on-line

It also gives moral rights to be identified as the creator of certain kinds of material, and to object to distortion or mutilation of it.

The purpose of copyright is to allow creators to gain economic rewards for their efforts and so encourage future creativity and the development of new material which benefits us all. Copyright material is usually the result of creative skill and/or significant labour and/or investment, and without protection, it would often be very easy for others to exploit material without paying the creator.

Most uses of copyright material therefore require permission from the copyright owner. However there are exceptions to copyright, so that some minor uses may not infringe copyright.

 

Out of Copyright

From time to time you may here the term, 'it's out of copyright'.  Copyright is not perpetual.  In the UK, copyright in an item lasts until the creator dies and then for a further 70 years.  After that time, he or she (or more accurately his or her estate) can no longer claim copyright.  So Bach's music is no longer copyright - apparently.  Well of course it isn't but there are traps for the unwary.  Bach's music itself is not copyright but if a music publisher creates a score of a Bach masterpiece and prints and publishes it, then because the original score may not be completely clear and it becomes open to interpretation, the newly transcribed score is considered to be a new 'creation' and therefore subject to a new copyright owned by the music publisher and lasting for 70 years from the date of publication of the new score.

Copyright applies to...Art

Copyright applies to original artistic works such as paintings, drawings, engravings, sculptures, photographs, diagrams, maps, works of architecture and works that involve artistic craftsmanship.  This concept may well go further than you might think.  For example, cartoon characters probably have copyright protection so if you want put one onto a cake or onto wallpaper and so on, you will almost certainly need a licence to do this to avoid infringing copyright.

In general, if you want to use or copy a copyright-protected artistic work you will need permission from the rights holder but there are some exceptions.  In general, the item in question needs to be a work of 'artistic craftsmanship'.  The meaning of 'artistic craftsmanship' is somewhat vague and the courts have attempted to define it so many times that we don't attempt it here.  If you would like to know more we suggest that you either consult a copyright lawyer or simply google 'artistic craftsmanship'.

Please note however that reproduction of Royal emblems such as Coats of Arms, you will need permission from the Lord Chamberlain's Office.

Duration of Copyright

The creator of the work is the first copyright owner and the copyright lasts for the life of the creator plus 70 years.  It is important to note however that copyright is a form of intellectual property which, like physical property, can be bought or sold, inherited or otherwise transferred, as a whole or in part so some or all of the economic rights may subsequently belong to someone other than the first owner.

Obtaining a licence from a copyright owner

If you want to use a work that is under copyright, you will almost certainly need to approach the copyright owner in order to obtain a licence. However, there are certain exceptions to copyright that may allow you to use a limited amount of the work.

These are some forms of licences that you may be able to obtain from the copyright holder:

Exclusive licence

An exclusive licence enables the licensee to use the copyright work to the exclusion of all others, including the copyright owner. Any exclusive licence may be for just one of the rights eg. for poster reproduction only and can be limited in time or geography or any other way although such limitations tend to make it a Limited use licence rather than an Exclusive licence. Whatever the terms, it is a contractual agreement between the copyright owner and user.

Implied licence

This is when copyright work is subject to an implied licence even when there has been no agreement about a licence.

Limited use licence

Often a copyright owner will only give permission for some uses of a work, for example, publication of a photograph in a particular newspaper, and if you want to use the work in any other way, for example, by publishing the photograph in a magazine, you will need to seek further permission from the rights owner.

Collecting Societies

In some situations, copyright owners find it difficult to license use of their works by themselves and so they have formed organisations, called collecting societies or collective licensing bodies.  The best known of these in the UK are the collecting societies in the music industry who license restaurants to play music, concert venues and broadcasters whenever a piece of music is played on the radio.  The most active collecting society in the UK for artists is the Design and Artists Collecting Society (DACS).

Using and buying other people's copyright

Copyright is a type of intellectual property. Like physical property, intellectual property cannot usually be used without the owner's permission. Of course, the copyright owner may refuse to give permission for use of their work.

It is important to remember that just buying or owning the original or a copy of a copyright work does not give you permission to use it how you wish. For example, if you buy a copy of a book, or a CD, a video, or a computer program and so on, does not necessarily give you the right to make copies of it (even for private use), or to play it or to show it in public.

Other everyday uses of copyright material, such as photocopying, scanning, downloading from a CD-ROM or on-line database, all involve copying the work and you usually need permission to do any of these things.  Just because you have got permission to make a copy of something, it doesn't necessarily mean that you have the right to make many copies of it.

All of this is a potential minefield for you and for us and we simply cannot afford to get on the wrong side of the law so if we refuse to make a copy of something for you without seeing your written permission from the artist, or from the person who has the right to grant you permission, then please don't take offence - either don't ask us in the first place or, if you feel you have to ask us then make sure that you have written evidence of your right to have a copy made.

Getting a Licence

Some minor uses of a piece of art may fall within the scope of one of the exceptions to copyright, but to generalise (and to be safe), if you want to use a copyright work, you will need to approach the copyright owner and ask for a licence to cover the use you require.

A licence is a contract between you and the copyright owner and it is for both parties to negotiate the terms and conditions, including the payment or royalty for the use. There are no rules in copyright law governing what may be acceptable terms and conditions, but other law, particularly competition law, might be relevant to licence agreements.

Collective licensing

Sometimes copyright owners act collectively to licence certain uses and they do this through organisations which are known as collective licensing bodies who can be approached for a licence. There are many organisations that represent copyright owners and users.  The most active collecting society in the UK for artists is the Design and Artists Collecting Society (DACS).

Infringing other people's copyright

Infringement of copyright occurs where either the whole or a substantial part of a work is copied without permission, unless the copying falls within the scope of one of the copyright exceptions. The term substantial part is not defined under copyright law but has been interpreted by the courts to mean a significant part of the work.  This does not mean, however, that it needs to be a large part of the work.

Original works

A work can only be original if it is the result of independent creative effort. It will not be original if it has been copied from something that already exists. If it is similar to something that already exists but there has been no copying from the existing work either directly or indirectly, then it may still be considered to be original.

The term "original" also involves a test of substantiality - literary, dramatic, musical and artistic works will not be original if there has not been sufficient skill and labour expended in their creation. But, sometimes significant investment of resources without significant intellectual input can still count as sufficient skill and labour.

Ultimately, only the courts can decide whether something is original.

There is much case law indicating, for example, that names and titles do not have sufficient substantiality to be original and that, where an existing work is widely known, it will be difficult to convince a court that there has been no copying if your work is very similar or identical.

A work may be copyright even if it is not original

In order for a copyright to be established, certain works do not have to be original.  This is most true in the mass media in relation to sound recordings, films, published editions and broadcasts do not have to be original but they will not be considered to be new copyright works if they have been copied from existing sound recordings, films, published editions or broadcasts.

Visual works, similarly, do not have to be original to establish copyright, but there will be no copyright, if, or to the extent that, they infringe copyright in another visual work.

Exceptions to copyright

A number of exceptions allow limited use of copyright works without the permission of the copyright owner.  These uses are known as fair dealing and are listed below.

Please note that this list is not exhaustive and particular care should be taken if you are hoping to rely on an exception.

• Non-commercial research and private study
• Teaching in educational establishments
• Not for profit playing of music
• Help visually impaired people
• Time shifting
• Sufficient acknowledgment
• Publicly situated works
• Legal proceedings

Non-commercial research and private study

It is allowed to make single copies or take short extracts of works when used for research that you do not make any money from or are for private studying, an educational course or even as a hobby.

Fair dealing

Fair dealing only relates to literary, dramatic, musical, artistic and the typographical arrangement of published editions.  It does not apply to visual art works.

Fair dealing has been interpreted by the courts on a number of occasions by looking at the economic impact on the copyright owner of the use; where the economic impact is not significant, the use may count as fair dealing.  So, it is probably within the scope of the above fair dealing exception to make single photocopies of short extracts of a copyright work for certain purposes, that is, non-commercial research or private study, criticism or review, reporting current events, and so on.

Limited use or fair dealing is only permitted for non-commercial research and private study when using literary (written work), dramatic (theatre), music, artistic work (art, photographs, and so on) or the layout of a publication (the font size, font style, and so on).

The purpose of this exception is to provide students and non-commercial researchers more access to copyright works.  In assessing whether your use of the work is permitted or not you must assess if there is any financial impact on the copyright owner because of your use; where impact is not significant, the use may be acceptable.  Therefore, it is fair dealing.

If your use is for non-commercial research and/or private study you must ensure that the work you reproduce is supported by a sufficient acknowledgment.

Criticism or review, reporting current events

Fair dealing for criticising or review and reporting current events is allowed for any type of copyright work (except a photograph) as long as it is with a sufficient acknowledgment.

As stated, a photograph cannot be reproduced for the purpose of reporting current events. The intention of the law is to prevent newspapers or magazines reproducing photographs for reporting current events which have appeared in competitor's publications.

Teaching in educational establishments

A number of exceptions apply to schools, universities and other educational establishments.  These are:

• Copying a literary (written work), dramatic (theatre, performances), music or artistic work (art, photographs, etc) in the course of teaching as long as a reprographic process is not used.  Reprographic process means using a fax machine, photocopier or any appliance which makes multiple copies.  Therefore, this exception could cover teachers writing material on the board or an overhead projector and students making their own copies by writing, painting, typing, etc.
• Anything done for setting or answering examination questions (this does not include photocopying music that is to be performed in an exam)
• Performing, playing or showing copyright works in a school, university or other educational establishment for educational purposes.  However, only teachers, pupils and others directly connected with the activities (does not generally include parents) of the establishment are in the audience.  Examples of this are showing a video for English or drama lessons and the teaching of music.  It is unlikely to include the playing of a video during a wet playtime purely to amuse the children.

• Recording a TV programme or radio broadcast for non-commercial educational purposes in an educational establishment where there is no licensing scheme
• Making copies by using a photocopier, fax, and so on, on behalf of an educational establishment for the purpose of non-commercial instruction generally requires a licence from the Copyright Licensing Agency.

In many cases however, use of the work must be accompanied by a sufficient acknowledgment.

Help visually impaired people

The exception for visually impaired people removes the need to seek permission from the copyright owners before you make an accessible copy for your personal use. It is sometimes known as the one-for-one exception and it applies to you when:

• You cannot read a book, magazine, newspaper or other text based copyright material that you loaned or bought
• You cannot read the material in a reference library.

The exception applies if you:

• Are visually impaired, blind or partially sighted
• Have a physical disability such as arthritis, meaning that you cannot hold a book
• Cannot focus or move your eyes

The copyright material does not have to be published for the exception to apply.

This exception also makes it possible for others such as teachers, parents, friends, carers and librarians to help you make an accessible copy of a lawfully obtained copyright work in order to convert it into a format that enables you to read the material. For example:

• Braille
• large print
• audio tape
• a digital copy compatible with screen-reading technology.

Not for profit playing of music

Generally, playing music or a sound recording in public, normally requires a licence from the copyright owner or owners. In the UK, there are two representative bodies or collecting societies that issue a licence on behalf of their members (the copyright owners), for the use of music and sound recordings, respectively:

MCPS-PRS Alliance   - represents the songwriters, the composers and the music publishers

Phonographic Performance Limited (PPL)    - represents record companies and performers

However, under UK legislation, the following activities fall within the scope of certain exceptions to copyright, so, although a licence from MCPS-PRS Alliance is still necessary, a PPL licence will not be required;

• Playing sound recordings for the benefit of a not-for-profit club, society or other organisation having charitable purposes as its main objective, or for religion, education or social welfare. Any charges made or proceeds must be just for the organisation.  Furthermore, the person playing the sound recording must be purely for the benefit of the organisation.
• Playing broadcasts that include sound recordings in a public place where the public have not paid for admission and the playing forms part of the activities of a not-for-profit organisation or it is necessary for the purposes of demonstrating or repairing televisions and radios. (This also does not infringe copyright in the broadcast and any film included in these). Note that paying for admission includes paying for goods or services at premium rates due to the playing of the broadcast and so on.

Time-shifting

• A recording of a broadcast can be made in domestic premises for private and domestic use to enable it to be viewed or listened to at a more convenient time.

• This time-shifting exception does not cover the making of recordings for placing in a collection for repeated viewing or listening; and use of recordings other than to time-shift a programme for yourself or your family is likely to be illegal.

Sufficient acknowledgment

• Acknowledgment is not required when used for reporting of current events by means of sound recording, film, broadcast or cable programme.

• Thus, a photograph cannot be reproduced for the purpose of reporting current events.The intention of the legislation is to prevent newspapers or magazines reproducing photographs for reporting current events which have appeared in competitor's publications.

Publicly situated works

Drawing, taking a photograph or making a film of buildings or sculptures and works of artistic craftsmanship in a public place or in premises open to the public.

Legal proceedings

Copyright is not infringed in any material when used in legal proceedings.

Enforcing copyright abroad

Most countries of the world are members of one or more international agreements.  This means automatic protection in all member countries for works created in the United Kingdom (UK).

The most notable agreement is the Berne Convention, which the World Intellectual Property Organisation (WIPO) administers; others include the Universal Copyright Convention (UCC).

Copyright material created by UK nationals or residents and falling within the scope of one of these conventions is automatically protected in each member country of the convention by the national law of that country.

All the Western European countries, the United States of America (USA) and Russia offer automatic protection.  For a full list please see the WIPO or United Nations Educational, Scientific and Cultural Organization (UNESCO) websites.

In order to benefit from the UCC it is essential to mark your copyright work with the © symbol, followed by the name of the copyright owner and year of publication.  This is not essential under UK law but it is still advisable to mark your work in this way and take the other precautions suggested regarding copyright in the UK.

Implementation of Artist's Resale Right

Artist's resale right came into force in the United Kingdom (UK) on 14 February 2006. This right entitles authors of original works of art (including for example paintings, engravings, sculpture, ceramics) to a royalty each time one of their works is resold in a sale involving an art market professional.

The right only applies to sales for €1,000 or more and is calculated on a sliding scale (see below table). The maximum royalty payable on any single sale is €12,500.

The royalty is subject to compulsory collective management so artists cannot claim their royalty independently but must receive it through a collecting society.

In the UK the right only applies to sales of works by living authors. However, after 2010 the right will be extended to cover sales of works which are still in copyright; that is the author has been dead for less than 70 years.

 

Royalty	For the portion of the resale Price (in EUR €)
4.00%	Up to 50,000
3.00%	Between 50,000.01 and 200,000
1.00%	between 200,000.01 and 350,000
0.50%	between 350,000.01 and 500,000
0.25%	in excess of 500,000

 

The Artist's Resale Right: The Derogation for Deceased Artists

The UK Intellectual Property Office consultation to assess the likely impact of Artist's Resale Right and the derogation for deceased artists on the UK art market closed on 29 September 2008 after a week's extension to accommodate late responses.

The consultation sought views on whether to maintain the existing derogation, which applies to works by a living artist for a further two years until 1 January 2012, or to allow the derogation to lapse. If the derogation is allowed to lapse works by deceased artists which are still in copyright will become eligible for resale right.

There were some 400 responses to the consultation from a wide variety of interests.  The UK Intellectual Property Office has done some initial analysis and around 90% answered no to the first question in the consultation, which was "Should the UK maintain the derogation for an additional 2 years?"

All of the artists and artists' estates who expressed an opinion on the derogation have said that they thought that it should be allowed to lapse. All bar two of the, often detailed, responses from the art trade were in support of extending the derogation until 2012.

Two UK collecting societies for resale right, supported by some of their overseas counterparts, argued that the derogation should be allowed to lapse. Several UK collecting societies and representatives of other rights made submissions saying that the derogation should be allowed to lapse in order that resale right is brought into line with the other types of copyright.

The UK Intellectual Property Office will now be analysing in detail all of the responses. If the Government decides it is necessary to extend the derogation it has to make a case to the European Commission by the end of 2008.

Editor notes

• Artist's resale right came into force in the United Kingdom (UK) on 14 February 2006. It was brought in to enact Directive 2001/84/EC. This right entitles authors of original works of art (including for example paintings, engravings, sculpture, ceramics) to a royalty each time one of their works is resold in a sale involving an art market professional.
• The right only applies to sales for €1,000 or more and is calculated on a sliding scale. The maximum royalty payable on any single sale is €12,500.
• The royalty is subject to compulsory collective management so artists cannot claim their royalty independently but must receive it through a collecting society.
• At this stage the artist's resale right only applies to works created by artists who are still living. From 2010 the right will also apply to works created by artists who have been dead for less than 70 years. This would result in a significant number of additional sales qualifying for payment.