Copyright Law.

The Copyright, Design and Patents Act 1988 was implemented to protect the creator of an original work. Copyright prevents plagiarism and unfair exploitation of a person’s work and allows the creator to commercially exploit his/her work. The owner of the copyright has the exclusive right in the UK to: make copies of the work; issue copies to the public; perform the work in public; broadcast the work on terrestrial and cable programmes; to adapt or translate the work. (Copyright, Design and Patents Act 1988. S.16(1)) Copyright only exists if there is a connection between the work and the UK or a country that gives reciprocal rights through either the Berne Copyright Convention or the Universal Copyright Convention. Copyright regulation is not universal but dependant on the country’s individual set of laws.

The works protected by the Copyright Act are original: literary, dramatic, musical or artistic works; sound recordings, films, broadcasts or cable programmes; the typographical arrangement of published editions. (Copyright, Design and Patents Act 1988. S.1(1)) This includes works that are written, spoken or sung, tables and compilations, computer programmes, photographs, architecture, maps and diagrams. Copyright does not exist until the work is recorded in writing or otherwise. This means that you cannot copyright an idea or the dramatic format of a programme.

An original work is taken to be that which required some skill, labour and judgement or selection, judgment and experience or labour, skill and capital. (G. Robertson, 1992.Pg. 218.) There is no set requirement for quality of language or artistic quality, but there is a stipulation for length. The work has to be of some substance, although there is no legal length. A title or name of a work cannot be copyrighted as it is too short, advertising slogans are not covered either, but a poem of a few lines will be protected. There is an action of ‘passing off’ to protect product names and designs, but this only stands if the use of the same or a similar name would confuse or mislead the public. Neither copyright law nor passing off can be used to create a monopoly.

The copyright of a work is an incorporeal moveable property, which means that it is intangible, but can be transferred or assigned to another. In the UK you do not need to apply to register copyright as it automatically comes into existence as soon as the work is recorded. If two people were to create the same piece of work then the copyright would be shared. Often, there are multiple copyrights in a piece of work, for example: in a television programme there is copyright in the script, the music used, the film as a whole and the television broadcast.

The length of copyright is dependant on the type of work. In 1994, EU legislation harmonised copyright law throughout the European Union. Copyright in literary, dramatic, musical and artistic work exists for the lifetime of the author plus 70 years from the end of the calendar year in which the author dies. In the case of unknown authorship, copyright expires after 70 years from the end of the calendar year which it was first available to the public. For computer-generated work copyright expires 70 years after the work was made. In sound recordings and film copyright expires 50 years from the end of the calendar year that it was released or made if it is not released. The duration of copyright in broadcasts and cable programmes expires 50 years from the end of the calendar year in which the broadcast is made. Copyright in the typographical arrangement exists for 25 years from the end of the calendar year in which it was first published. (Copyright, Design and Patents Act 1988. S.12-15)

As well as providing protection for your work, the Copyright law also gives the author Moral rights, these are: the right to be identified as the author; the right to object to the derogatory treatment of work; the right to object to false attribution of work; right to privacy of certain photographs and films. (G.Robertson,1992.Pg.250) These rights cannot be transferred.

Case Study

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Case Study

In 1997 the Edinburgh Institute held an exhibition celebrating the centenary of sculptor, Berlusconi’s birth. This means they would be displaying pieces of his work to the public. In effect this act may be restricted by copyright law as at involves the showing of an artistic work in public. Although the sculptor is dead and his works had to be borrowed from public bodies and private collectors, it is still under copyright as this is valid for a period of seventy years after the creator’s death; therefore, permission has to be sought to display the work. As the works are being borrowed this would be agreed at the time of acquisition. If the lending body agrees to the use of the work then they may grant the Institute a licence to dislay the work for a period of time and can charge a fee for this licence. Not every work may incur a fee, it is dependant on the copyright holder, but permission must be sought for each individual piece of work. Once permission and licences have been obtained, the Institute can only display the works in accordance to the licence.

A catalogue for the exhibition was made. Two employees of the Institute were involved in this: Juliet who wrote the catalogue notes and David who photographed the works. The photographing of the works must have been agreed as part of the licences. These required some degree of skill, labour and judgement and are classed as literary and artistic works respectively; therefore, they are classed as works that are copyrighted. However, these were made as part of employment and the copyright does not lie with the individual creator, but the Institute, who employed them to create the works as part of their normal job. The Copyright, Designs and Patents Act 1988 states: where a literary, dramatic, musical or artistic work is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary. (Copyright, Design and Patents Act 1988. S.11(2)) The owner of the copyright to the totality of the catalogue as a whole belongs to the publisher, which happens to be the Institute. Hence, if somebody wants to make copies, sell or adapt the catalogue, permission must be sought from the Institute.

A graphic designer was commissioned to design posters, notices and the catalogue. Typographical copyright lies in the posters, notices and in the catalogue. Typographical arrangement is the way text and images are laid out. Hamish is not an employee of the Institute and, so, he is the copyright owner. In the case of commissioned works, it is the author or creator that owns the copyright. The creator provides the commissioner with a licence to use the work in an agreed way. The person who is commissioning the work is assigned some moral rights to protect the use of the work, although, a clause can be added to the contract, which transfers the copyright to the commissioning body.

The Institute also commissioned Richard Gourlay to design the lay out of the works within the exhibition. The display required some skill, labour and judgement and copyright lies with Richard. A licence will be provided to show the public and to photograph or record the display as laid out by Richard unless there is a clause in the contract transferring ownership of rights.

Channel X produced a programme filmed at the exhibition. The copyright for the totality of the programme lies with the producer of the show, however, the show included images of the works and an unscripted discussion about Berlusconi: the components that go together to make the programme are individually copyrighted. There are the sculptures themselves, where copyright lies with the public and private collectors and the layout of the sculptures within the exhibition where Richard Gourlay owns the copyright. To broadcast these without permission would be a breach of copyright as the programme is to be shown to the public. The broadcasting of the work or its inclusion in a cable programme is a restricted act by the copyright in artistic works. (Copyright, Design and Patents Act 1988. S.20)

The readings from the catalogue would be an infringement of the copyright owner, in this case the Edinburgh Institute, if permission were not sought. This is again due to the fact that public performance is an act permitted only to the copyright holder.

The programme includes an unscripted discussion amongst Berlusconi experts. Although there is no copyright in unscripted, spontaneous chat, if it is recorded in any form, copyright comes into existence. Copyright would lie with the speakers and they would have control over what was done with the recording.

Fair Dealing is a defence that allows for the use of copyrighted material if it is used to report current events. If the programme is seen as doing this, then it is exempt almost from copyright and can freely use the images and sounds without obtaining permission. However, the copyright owners still maintain their moral rights to avoid derogatory treatment of their work and to control its usage.

An unauthorised video has been made of the exhibition, which is an immediate infringement of copyright as the issue of copies to the public is an act restricted by the copyright in every description of copyright work. (Copyright, Design and Patents Act 1988. S.17(1)) The maker of the video is infringing copyright law and the distributor/seller is committing secondary infringement by distributing a work, which is known to be an infringement of copyright. The producer of the video should have sought the same permission and licences as stated above for Channel X, however, this video is not classified as reporting current events and therefore the video is not exempt from copyright. The individual copyright holders have three options available to them to remedy the situation: (i) seek damages, (ii) get an interdict to stop the distribution of the video, (iii) get an order for delivery up, where the videos can be seized and any other copies handed over. Channel X may also claim an action of passing off, as the video is likely to be similar to their programme and could deceive the public.

An art lecturer bought a copy of the catalogue from the exhibition and decided to translate it into Gaelic for her students. The translation of a piece of work is classed as an adaptation and therefore infringes copyright if no licence was obtained from the Institute who are the holders of the copyright for the publication as a whole. She gave copies to her students although it was not part of their course, which constitutes an infringement by issue of copies to the public, without permission the Institute could seek a remedy against Helen. If she kept the typographical arrangement the same, then she would also be infringing the copyright of Hamish as she is using his design and layout.

The translated work, however, required some degree of skill, labour and judgment to create it and therefore a new copyright for the translated work comes into existence. The owner of this copyright would be the lecturer, for, although she created the translation for her students it was out-with her normal duties of employment, she teaches Art not Gaelic.

The college sold copies to students and to the public; the act of doing so infringes the copyright not only of the Institute, but also of Helen the lecturer if no permission or licence was sought. Without a licence the actions of the college would constitute the following infringements: infringement of copyright by copying, the college made copies of the work to sell and this infringed Helen’s rights as she is the creator of the work; infringement by issue of copies to the public, they were selling Helen’s work; secondary infringement – possessing or dealing with infringing copies, the college was selling work which they knew was an infringement of copyright.

With all of the possible infringements of copyright above there are several remedies that can be sought by the aggrieved. There is an order of Delivery Up where all the infringing copies are delivered up to the copyright holder. The infringing articles can also be seized if they are for hire or sale. The copyright holder can ask for an Interdict or Injunction, which is an order from the court to stop the defendant from continuing to breech copyright. A court hearing is held and an Interim Interdict can be issued as a temporary measure until the court has reached a decision. The copyright holder can claim Damages and ask for the licence fee to be paid in return for a licence. Damages cannot be claimed if, at the time of the infringement, the defendant did not know or believe that copyright existed in the work. In court attention is paid to the flagrancy of the infringement.

There are very few acts that can be done without infringing the copyright of a work, however, these permitted acts, or Defences, fall mostly under the heading: Fair Dealing. Firstly, this allows a literary, dramatic, musical or artistic work to be used for the purposes of research or private study, e.g. you can photocopy a page from a textbook to read at a later point when writing an essay for college. Secondly, fair dealing allows the use of a work for criticism, review and reporting current affairs. There is no regulation over how long an event is current for and an acknowledgement should normally be given. If a copyright work is included incidentally then it is not an infringement of copyright. Thirdly, fair dealing allows for educational use. If a copy is made in the course of instruction then it is not an infringement of copyright. It allows for recordings of programmes to be made and there is a stipulation for photocopying works, not more than one percent of a work can be copied in any yearly quarter and multiple copying is only allowed in a limited way. The educational establishment must apply for a licence to copy in any other way.

In summary, copyright law is designed to protect the author and creator of a work so they can reap the commercial benefits of producing work and will be encouraged to create more. Unfortunately, this law is one of the hardest to police as many people keep recordings of programmes at home on video or audio tape and others will try and get away with reproducing works without permission. For extra protection, Authors’ can lodge their work with a lawyer or notary public or they can put their work in a safe deposit box or even send it to themselves with a wax seal over the flap. One area that is proving near impossible to police is the Internet. It is a worldwide technology that allows the fast relaying of information around the globe. With differences in International Copyright Laws the situation cannot currently be policed, it is far too easy for someone to copy and use information or works that belong to somebody else. Authorship can easily be lost and the creator could go without credit. Currently, though, there is no way to solve this problem.

Bibliography

B. McKain, A. Bonnington, G. Watt. Scots Law for Journalists, 6th Edition. (Great Britain, W. Green Sweet and Maxwell, 1995)

G. Robertson, QC, A. Nicol. Media Law, 3rd Edition. (England, Penguin, 1992)