Copyright

Originally published in November 2013 on Journalism Now for my MA Journalism.

COPYRIGHT – LEGAL FRAMEWORK

The statute which governs copyright in the UK is The Copyright, Designs and Patents Act 1988. This was amended by the Copyright and Related Rights Regulations 2003 which served to implement an EU directive. These regulations, borne of the internet era and signifying a pan-European harmony of copyright protection, enable copyright holders to electronically trace breaches via embedding codes in the material.

Underpinning UK copyright law is a number of international regulations such as the Berne Convention 1886, the Rome Convention 1960 and the Act of Paris 1971. As with the 1956 Copyright Act and 2003 regulations, the law has had to react to technological developments that affect how people consume copyrighted material. The law continues to face this challenge given how so many people avariciously consume copyrighted material on the internet via You Tube, for example.

In fact, the Copyright Act 1911, in pioneering fashion, afforded protection to sound recordings as technology enabled mass production of music. That act also increased copyright protection to the author’s life plus 50 years, up from The Copyright Act 1842 which stipulated that protection would be for 42 years from publication or 7 years beyond the author’s death. This trend in lengthening copyright duration continues today.

WHAT IS COPYRIGHT?

Copyright is a legal intellectual property right to control who can copy work created by artistic and other intellectual endeavour. Such law exists to ensure that individuals and organisations can make money from their efforts by deterring those who plan to, and punishing those who do, infringe one’s copyright. Breach or infringement of copyright is making beneficial use or exploiting someone else’s intellectual work without permission. The UK law states that copyright does not have to be registered and comes into being once the work takes permanent form. Copyright does not cover ideas, facts, slogans, catchphrases, news or information, but exists in their expressed form.

The 1988 legislation says that copyright exists in these categories of work:

Original literary, dramatic, musical or artistic works. Refers to permanent texts such as newspaper articles, books, scripts, which have been created with ‘skill, labour and judgment’.
Sound recordings, films or broadcasts such as music CDs, cinema films and radio broadcasts.
Typographical arrangements of published editions
To avoid committing a criminal offence or civil wrong, a defence or exception is required for any unauthorised copying of the whole or ‘any substantial part’ of any of these works. Whilst not defined legally ‘substantial’ is measured qualitatively rather than quantitatively as set out in Ladbroke (Football Ltd) v William Hill (Football Ltd) 1964. For details of a recent case focussing on the issue of substantial see Meltwater v NLA on http://www.theguardian.com/media/2013/apr/17/web-browsing-copyright-supreme-court-meltwater

THE GRAVITY OF THE SITUATION

The gravitas of copyright infringement is exemplified by the Richard O’Dwyer case in which the Sheffield Hallam University student narrowly avoided extradition to the USA for establishing a website called TV Shack which purportedly included links to pirated copyrighted TV and film content. This internationally dynamic case is interesting as it shows the potential copyright perils in the internet era which can have significant geopolitical ramifications. See http://www.bbc.co.uk/news/uk-england-20636626 and http://www.theguardian.com/uk/richard-o-dwyer

Without copyright owner’s consent, a defence or an exception, copying material from the internet is an infringement. Whilst not a justification, consumers can often lack knowledge of copyright law. The free, easy and expeditious ease of downloading were cited as reasons behind online copyright infringement in a 2013 published Ofcom report http://stakeholders.ofcom.org.uk/market-data-research/other/telecoms-research/copyright-infringement-trackerw2/

The Copyright, Designs and Patents Act 1988 says a person can infringe copyright by:

copying the work in any way
issuing copies of the work to the public
renting or lending copies of the work to the public
performing, showing or playing the work in public
broadcasting the work or other communication to the public by electronic transmission
making an adaptation of the work.

LEGALLY, WHO OWNS COPYRIGHT UNDER THE 1988 ACT?

For works in category 1, the author as creator is ‘first owner’ and controls who can make copies of the work. Permitting usage of the work is known as licensing. Exemplifying, a freelance journalist who wrote an article is first owner but could assign their controlling copyright to another individual or organisation (such as the commissioning publications), typically for a fee. Other examples of first owners include the producer of a sound recording or a book’s publisher. The Act states that employers are first owners of any category 1 work produced as a matter of employment. Joint authorship means joint copyright ownership. The 1956 Copyright Act details copyright ownership for works created before August 1st 1989, when the 1988 Act was implemented in actuality.

PRIVATE AND DOMESTIC PHOTOS AND FILMS

The 1988 Act gives a (waivable) moral, or privacy right to the commissioner of the above. This means any copy of these photos or films requires the commissioner’s agreement, regardless of whether they hold the copyright.

COPYRIGHT DURATION

There are variances in the duration of copyright protection between different works. For example, copyright in a broadcast lasts 50 years from the December 31st of its production year while a civil servant’s work can be afforded up to 125 years protection. See http://www.ipo.gov.uk/types/copy/c-duration/c-duration-faq/c-duration-faq-lasts.htm and http://ec.europa.eu/internal_market/copyright/term-protection/index_en.htm The latter website details an increase in copyright protection for sound recordings. It is claimed that this trend in lengthening the duration of protection, whilst in the interests of the artists and their heirs, is not necessarily in the public interest.

LEGAL CONSEQUENCES OF INFRINGEMENT

Under the Copyright, Designs and Patents Act 1988 a person may be committing a crime, if they, without the copyright owner’s permission/license, are responsible for:

Making unauthorised copies of works e.g. burning films onto DVD-Rs for the purpose of sale or distribution
Distributing, selling or hiring out unauthorised copies of DVDs or other works
On a larger scale, distributing unauthorised copies as a commercial enterprise e.g. uploading films and making them widely available in the internet, using a company’s computer system
Whilst not dealing commercially, distributing unauthorised copies on such a scale as to have an impact on the copyright owner’s business
Possessing unauthorised copies with a view to distributing, selling or hiring these to other people.
The punishments depend upon the severity of the crime and the court in which they are meted out. In a magistrates’ court the penalty for selling pirate DVDs is a maximum fine of £50,000 and/or six months’ imprisonment. However, if the case is heard in the Crown Court (which requires the Director of Public Prosecution’s instigation) the penalty might be an unlimited fine and/or up to 10 years’ imprisonment as stipulated in The Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002. The relationship between copyright infringement and wider criminality is shown in this case http://www.microscope.co.uk/news/2240154030/Court-case-highlights-organised-crime-links-with-software-piracy

The civil law offers various remedies and cases can be brought before in both the High Court , the Patents County Court and the County Court. With potential infringements the first owner can obtain an injunction. With actual infringements, the same remedy can forbid further ones. For details of The UK High Court’s 2013 injunction requiring Internet Service Providers to block access to website streams showing live premier league football http://www.bristows.com/articles/fapl-v-bskyb-latest-s.97a-order-blocks-sports-streaming-website-by-flora-greenwood-and-tom-ohta Court orders can also require the handing in or destruction of copies. Search orders allow a rights holder to expeditiously seize, without a court order, infringing copies from public premises. Potential damages can be costly as we see with this photography infringement case http://www.bjp-online.com/british-journal-of-photography/news/2141623/photographer-wins-copyright-infringement

The copyright owner has exclusive rights to copy the work, issue copies to the public, perform, show or play the work in the public, communicate the work to the public or adapt the work. Primary copyright infringement of these restricted acts happens when a person commits any of them, or authorises another to do so. Secondary copyright infringement relates to dealing in infringed copies or enabling their production e.g. selling copied DVDs. This type of infringement requires an objective test which shows that the infringer had ‘reason to believe’ that s/he is dealing with an infringing copy. See the aforementioned Hoffman v Drug Abuse Resistance Education (UK) Ltd [2012] EWPCC 2 (19 January 2012) on http://besthancock.com/2012/01/recent-uk-case-emphasises-the-importance-of-rights-clearances-when-using-photographs-from-other-websites/

FAIR DEALING DEFENCE

Under section 28 of the 1988 Act, there are certain permitted acts which detail circumstances where a copyrighted work can be used without infringement. These include the fair dealing defence which is for the purposes of reporting current events and enables the thrust of a story and quotes to be lifted from rival publications. Such usage must be fair, in the public interest and attributed (credit given). Newspapers tend to acquiesce with the notion of fair dealing but in the knowledge that on one day they may be the beneficiary, yet on another they may have the gist of their story lifted. The recent use of The Guardian’s content relating to Edward Snowden in rival publications exemplifies. However there is a debate over how substantial the lifting of content can be. A debate played out in front of a judge.

EXCEPTIONAL CASES

In exceptional cases broadcasters may steal other broadcaster’s images. For example, the BBC lost a bidding war for pictures of the capture of two July 21st bombing suspects in the aftermath of the July 2005 London terrorist attacks. The BBC still ran the footage on news as they said under fair dealing they were in the public interest and a current event and they just showed a part of the images. They used a caption – ‘courtesy of ITN’ so attributed the images. The BBC probably would not use the images now as the events are not current.

WHAT DOES FAIR DEALING ALLOW?

Wider reporting of stories in public interest. This defence is exemplified with cases including a Princess Diana one on http://www.lawdit.co.uk/reading-room/copyright-defence-in-the-public-interest
Criticism and review of sufficiently acknowledged publicly available copyrighted material e.g. Film 2013. In Fraser-Woodward Ltd v BBC & Brighter Pictures Ltd 2005 the fair dealing defence was raised http://www.5rb.com/case/Fraser-Woodward-Ltd-v–BBC–Brighter-Pictures-Ltd
Broadcast obituaries of film stars. Journalists can use famous films clips as reporting on a current event i.e. the death.
WHY CARE?

Without copyright law journalism would never have flourished
Copyright maintains exclusivity which gives a journalist’s product value. It is argued that there is a social benefit to the dissemination of cultural endeavours to the population.
Moral reason i.e. that an author has a natural ownership right. This links to auteur theory.
Mutual copyright respect
The cost, stress, embarrassment and reputational damage. A journalist’s career could be curtailed or stymied by a lack of editorial trust. Check especially with archived material. The BBC news library has a colour coded system.
POINTS TO REMEMBER FOR JOURNALISTS

Journalists can access copyrighted material but one needs to know the defences and exceptions
Recognise issues early – spot copyright dangers and navigate.
Contact rights holders – takes time
Tell others if you have cleared copyright
Do not lift material without referring up
Consult lawyer and refer up to editor
IF IN DOUBT, LEAVE IT OUT
WHAT DOES THE FUTURE HOLD?

ITunes, YouTube, Facebook, Kindle, file sharing, downloading, streaming; the lexicon of today. The copyright landscape is truly changing at an unparalleled rate. Consumers often wish to watch, read or listen for free, contrary to an artists’ or organisations commercial desire and, arguably, right. The Hargreaves Review of Intellectual Property and Growth, commissioned by the Prime Minister, was published in 2011. It examined this question:

Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth?

Its ten recommendations were broadly agreed by the Government. They included:

any Intellectual Property System should be developed based upon evidence and that a balance should be struck between economic objectives and social goals
a balance should be struck between benefits to rights holders and the impact on consumers
the UK should immediately prioritise the achievement of an economically advantageous unified EU patent court and EU patent system
to boost UK firms’ access to transparent, contestable and global digital markets, the UK should establish a cross sectoral Digital Copyright Exchange.
Government should legislate to enable licensing of orphan works i.e. a copyrighted work for which the copyright owner cannot be determined or contacted. Controversy ensued http://www.bbc.co.uk/news/technology-22337406
Government should firmly resist over regulation of activities which do not prejudice the central objective of copyright, namely the provision of incentives to creators.
Significant recent developments that emanated from the review included:

A 2011 law created a clearer definition of which disputes involving copyright and trade mark claims should be heard in the Patents County Court (PCC) and which ones should go to the High Court.
In November 2011 former Deputy Chairman of OFCOM, Richard Hooper (CBE), was appointed to lead a feasibility study on developing a Digital Copyright Exchange in the UK. One of its central questions for stakeholders was whether the current copyright licensing system
was fit for purpose in the digital era. It reported initially in March 2012.
In late 2011 the government launched a consultation seeking views on their proposals for implementing a number of the review’s copyright related recommendations. In June 2012, the Government published a summary of responses with a policy statement announced the following month.
An Intellectual Property Report, focussing on digital copyright threats, was launched in summer 2011.
An Intellectual Property Bill was tabled in May 2013 and moved to the Commons in July 2013. The purpose of this Bill was to enabled UK businesses to better understand copyright law.
Extensive details on the implementation of the review, elucidating these developments, can be read on http://www.ipo.gov.uk/types/hargreaves.htm

Further reading:

http://www.legislation.gov.uk/uksi/2003/2498/contents/made the Copyright and Related Rights Regulations 2003

http://ec.europa.eu/dgs/legal_service/arrets/08c005_en.pdf a digital era case concerning Newspaper article copyright

http://www.copyrightservice.co.uk/copyright/copyright_myths top 10 copyright myths

http://www.cps.gov.uk/legal/h_to_k/intellectual_property_crime/#a02 Crown Prosecution Service details

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