Copyright protects any literary, artistic, or musical work, sound recordings,
films, broadcasts, pictures and graphics. The layout and the content of
newspapers and magazines is also protected as is material published on the
internet.

BUT

There is no copyright in facts, news, information or ideas expressed
verbally.

AND

Parts of copyright works can be reproduced by the media in the course
of reporting current events or for the purposes of criticism or review, although
this “fair dealing” concession does not extend to photographs of current
events.

The test to establish copyright is simple: All that is needed is proof that the work is original and the product of one’s own skill and labour and has not been copied from some other body of work. It does not need to be of any high literary standard nor to be strikingly original.

Scope of protection

The following applies only to work created after the Copyright, Designs and Patents Act came into affect on July 31, 1989.

The Act gives protection to three categories of original work:

1. Literary, dramatic, musical or artistic works.

Literary covers books, newspaper comment, features and stories, interviews and reports of speeches - anything written down, anywhere.

Artistic covers pictures, graphics and all types of art work.

2. Sound recordings, films or broadcasts

Sound recordings is any recording of sound regardless of how it is made.

Film is the recording of a moving image.

Broadcast is the electronic transmission of images, sounds and information to the public - it does not include the internet unless it is a live event transmitted on the net at the same time as it is being broadcast.

3. Typographical arrangements of published editions

Typographical arrangements refers to the way a printed page is designed and also protects against unauthorised photo-copying.

Length of copyright

The following applies only to work created after the Copyright, Designs and Patents Act came into effect on July 31, 1989.

* Literary, dramatic, musical and artistic works - 70 years from the end of the year in which the creator of the work dies.

* Sound recordings - 50 years from the end of the year in which they were made.

* Broadcasts - 50 years from the end of the year in which they were made.

* Typographical arrangements - 25 years from the end of the year in which first published.
.
* Films - 70 years from the end of the year in which the last among the director, screen writer or music composer died.

 

Commercial rights

The first owner of the copyright is the author except when the work has been done in the course of employment. Then the employer becomes the copyright holder, unless there is an agreement to the contrary.

This means that articles written by staff writers or pictures taken by staff photographers can be sold by the employer to whom he pleases.

The case is different with freelances. The key date is July 31, 1989, the day the Copyright Act went in to force.

Freelance articles or pictures commissioned by a newspaper before 31.7.89 belong to the newspaper. After 31.7.89 the copyright has been retained by the freelance writer or freelance photographer.

The publisher has no automatic right to copyright of work done by freelances even if the work was ordered. If the publisher wishes to acquire the copyright it has to be via a written assignment by the copyright holder and signed by him.

The copyright holder can license the publisher to use his work but if it is an exclusive licence this must also be in writing.

Moral rights 1

The author of copyright work in general also has moral rights as follows:

1. Right to be identified as the author

2. Right not to have his work subjected to derogatory treatment

3. Right not to have work falsely attributed to him

BUT the right (1) to be identified and (2) not to have his work subjected to derogatory treatment does not apply to work created for publication in a newspaper, magazine or periodical nor to any work made available for such publication with the consent of the author.

For the media this means the work can be subjected to the ruthless attention of the sub-editors.

The right (3) not to have work falsely attributed to a person does apply to newspapers,

Moral rights 2

Anyone who commissions a picture for private and domestic purposes is protected by the moral right not to have copies of the picture issued to the public even if he does not own the commercial copyright.

Let us say there has been a family occasion – a wedding – and the groom commissions a commercial photographer to cover the celebrations. Years later the groom is in the news and a relative supplies the media with a copy of a picture of the groom and his bride on their wedding day.

If the original photograph was taken before 31.7.89 the commercial copyright belongs to the person who commissioned the picture – the bridegroom.

If taken after 31.7.89 the commercial copyright belongs to the person who takes the picture – the photographer, unless there is an agreement to the contrary.

But the groom has another right – the moral right not to have copies of the picture issued to the public.

The relative who lends the picture is unlikely to own the copyright (unless he took it). Therefore, if the media used the picture, two rights may have been infringed.

1. The commercial copyright which belongs (after 31.7.89 ) to the photographer.

2. The moral right not to have it made public - which belongs to the bridegroom.

Breach of copyright

If the owner of the copyright considers that his work has been used in a way that has been unfair to him he must show that copying has taken place and that a ‘substantial’ part had been copied. There is no percentage figure of what constitutes a substantial part.

Example ( actual). Journalist Julie Birchill took a tiny percentage - just 200 or 300 words - from a 300-page biography to complete a profile she was writing but they were the juicy bits, interviews with school friends of the subject which the interviewer had created by her skill and labour. Birchill was found to have infringed the copyright.

Example (hypothetical). A group picture of the Michael Douglas - Zeta Jones wedding and the picture is cropped so that all the guests are discarded and all that remains are Douglas and Zeta Jones. Isolating that newsworthy part of the picture, even though it may have been, say, just 10pc of the area of the whole picture, would count as substantial.

Practical points

Lifting stories: There is no copyright in facts but persistent lifting of facts from another media, even if the stories are rewritten each time, may still be an infringement because of the skill, labour and judgment that went into the researching of the stories. In the early days of local radio, for example, when some stations were starting on a shoestring, it was noticeable that the content of their news bulletins improved dramatically after the first edition of the local evening paper landed at the station.

Outside contributors: The copyright of work submitted by outside contributors (unpaid or paid) will normally be held by the contributor who can withdraw the facility and impose charges as he wishes. There are numerous examples ranging from reports of amateur sports to syndicated TV and radio programming.

Readers Letters: There is an implicit licence from the writer to use this copyright material freely for one occasion but the copyright is still retained by the author. The same principle would not apply to a freelance journalist whose work was used without any prior negotiation over a fee.

Screen Grabs: Publication, without permission, of the whole or a substantial part of a TV image is an infringement of copyright.

Fair Dealing

The concept of Fair Dealing gives the media the opportunity to use a fair portion of copyright work provided there is:

1. Sufficient acknowledgement of the work from which it was taken.

2. Acknowledgement of the author of the work.

There is no need to approach the copyright holder in advance but Fair Dealing is restricted to two specific areas.

1. Current events: Pictures are excluded from this area of Fair Dealing.

2. Criticism or review: Pictures are included and can be used under Fair Dealing.

An important provisio is that - when used for the purposes of criticism or review - the work has been lawfully made available to the public which rules out confidential material such as private letters.

One of the tests by which the law measures whether the copyright infringement constitutes fair dealing is the degree to which the use competes with that of the copyright holder.

Example: David Beckham published a book which contained a large number of exclusive pictures. Had a newspaper reprinted 20 of the pictures on the pretext of reviewing the book this would probably hit sales of the book and would not be fair dealing.

If one picture, maybe two, were used this might be fair dealing - but if one of the pictures was the most sensational ever taken of Beckham and was a major part of the book’s attraction, it might not be fair dealing.

If the book was released for review on condition, say, that only the front cover be used as an illustration this would be a matter of contract between the book publisher and the newspaper.