Copyright Law

‘Websites, blogs, social networks and online newspapers, amongst other things, are challenging the effectiveness of UK copyright law. It is time to abandon this unenforceable law.’ Discuss.

The following assignment will outline the intricate details of UK copyright law; documenting who it applies to and why, and how the ever changing media landscape has caused the law to develop in order to stay relevant. With broadband internet recently becoming available to the masses, the very concept of media has shifted dramatically and communicative mediums such as blogs and social networking sites have become increasingly popular. This has obviously led to several disputes over copyright issues and is something that will be discussed in further detail later in the essay.

Copyright law comes under a segment of law known as ‘Intellectual property’ and ‘gives those who create something, from a magazine article, to a novel or a piece of music the power to protect the work they have done from being copied or used by other people….If you own the copyright on something, the law states that others cannot copy it or use it as if it were their own work, without your permission’, (Quinn, LFJ, 2011, page 347). The majority of English copyright law is filed under the Copyright, Designs and Patents Act 1988 which states that the following works qualify as protected against plagiarism so long as they are recorded in a tangible form e.g. in writing, or a tape recording:

• ·       Original literary, dramatic, musical or artistic works;
• ·       Sound recordings, films or broadcasts;
• ·       The typographical arrangements of published editions                                                                  

Literary works are defined as; ‘any work, other than a dramatic or musical work which is written, spoken or sung…’ thus including books, newspapers, magazine features, stories, interviews, speeches, song lyrics and also computer programs, databases and tables. Sound recordings are defined as exactly that; ‘Sound recordings include any recording of sounds, regardless of how it was made,’ unsurprisingly the same also applies to films in which ‘any recording of a moving image’ is covered under the act (Quinn, LFJ, 2011, page 348).  Typographical arrangement simply relates to the format of how a newspaper spread would be visually presented.  News and information aren’t subject to copyright as they are in the public interest and are merely facts; not somebody else’s work which has required great effort.  It’s worth noting though that words, spoken or written, will become liable if they are deemed a blatant imitation.     

                                                                                                           

The emergence of the internet has led to many trends; none more infamous than that of piracy. One of the biggest copyright settlements in history occurred last year when P2P Software giant ‘Limewire’ were forced to pay out over $105,000,000 in damages to Recording Industry Association of America for copyright infringement in the 2010 case Limewire Vs. RIAA.  It’s easy to see how this case would be a good example for arguing pro copyright law as Limewire were clearly caught and legal action was duly taken. However on the other hand you could still argue it as an unenforceable law as although Limewire perished, there is hundreds of similar software available at ease online. Piracy is still rife and is difficult to halt altogether because of its sheer scale and community; it is a sort of ‘cyber communism.’                

                                                                                                            

Documents published by or on behalf of the Government are covered by what is called Crown copyright so cannot simply be copied or reproduced without permission or the obtainment of a license.  Major publications, usually newspapers will be more often than not the ones who this would apply to.   

It’s all very well understanding what copyright is, however it’s pointless and impossible to enforce without determining with whom the actual ownership of the copyright lies. In line with the 1988 Act ‘the first owner of any work is the person who creates it, unless the work is created in the course of employment. In that case, unless you have agreed otherwise in your employment contract, the employer owns the copyright.’ The best and most pertinent example of this would be the contrasts between freelance and staff journalists; under the 1988 Act the former holds the copyright to all of their work unless they previously agree otherwise with the company who commissions it. A staff journalist doesn’t have this power as the copyright to their work will belong to their employer, usually the editor, who can then reproduce their work for any required purpose with no legal obligation.      

Once the work has been created the initial copyright holder can nevertheless give over their ownership in one of two ways.  The first way of transferring copyright ownership is through an ‘assignment’, which is simply the equivalent of selling the rights of a work or part of one.  Once an assignment has been completed the previous copyright owner has no power and has essentially handed their work over. Another way is by obtaining a license, in other words giving permission for your work to be used in a previously agreed way for a certain amount of time. The license is only temporary and the ownership remains with the creator. Assignments and licenses are dealt with in s.90, an assignment is a transfer of ownership (a so-called “property right”), a license merely constitutes an arrangement between two or more persons for the use of a copyright work for a certain duration (a “contractual right”) (Media Law, 2010, Carey, Pages 78-99).                                                                                                          

It isn’t all as black and white as said prior though because the ownership of photographs law differs.  Photos taken before the 31^st July 1989, when the Copyright, Designs and Patents Act came into force wouldn’t actually legally belong to the photographer, but to whoever commissioned them.  All photos taken after this date, including this present day, are the photographer’s property and it’s with them the ownership lays.                                                                                                                                  

When it was introduced the 1988 Act developed copyright law further by altering the durations for which copyright ownership lasts. Before the act’s introduction, copyright could last forever but now its length depends on the relative work.  Here below are the new copyright lengths in according to the 1988 Act; (Quinn, LFJ, 2011, page 355).

• ·       Literary, dramatic, musical and artistic works: 70 years from the end of the calendar year in which the author/composer/artist dies.
• ·       Sound Recordings: 50 years from the end of the calendar year in which they were made.
• ·       Broadcast: 50 years from the end of the calendar year in which it was made
• ·       Film: 70 years from the end of the calendar year which sees the death of the last amongst the principal director, screenplay writer, writer of the dialogue or composer of music created especially for the film.
• ·       Published Editions (layouts, designs etc.): 25 years from the end of the calendar year in which it was first published.

Once the copyright expires the work becomes completely free of copyright and becomes known as ‘in public domain’. It’s therefore feasible somebody could produce a very similar piece with no legal repercussions, after expiry. It’s also worth noting that the above table is only relevant for pieces of work created after the Act had been passed and that any other work will come under different laws, dependent upon the situation.        

                                                                                                                                                                 In accordance with the UK Intellectual Property Office, copyright infringement occurs for:

·       

• Copying the work in any way
• ·       Issuing copies of the work to the public
• ·       Renting or lending copies of the work to the public. (However, some lending falls within the Public Lending Right Scheme and therefore doesn’t infringe copyright).
• ·       Performing, showing or playing the work in public.
• ·       Broadcasting the work or other communication to the public by electronic transmission. This includes putting copyright material on the internet or using it in an on demand service where members of public choose the time that the work is sent to them
• ·       Making an adaptation of the work, such as by translating a literary or dramatic work or converting a computer program for example.                   

‘In order to count as an infringement of copyright, the 1988 Act provides that there must be use of a substantial part of the original work’, (Quinn, LFJ, 2011, page 351-2). Each case will be judged on its merits, determining whether the defendant has contributed a significant degree of work and effort into their piece or whether it can be deemed an obvious breach of copyright.  A good example, cited from Law for Journalists would be the Warwick Film Productions V Eisinger (1969) case, a case referring to copying.  The courts were asked to decide whether the compiler of one anthology of quotations had breached the copyright of another, published earlier. Although some of the quotations were the same, the court ruled no breach of copyright had occurred and that the material had been arranged differently and been sufficiently sourced using other materials.     

There are two other methods that come under copyright infringement in the UK and they are parodies and embargoes. Parodying relates to a piece of work being humorously imitated and if deemed sufficiently similar to the original, it can be a breach of copyright. Quinn does state however that courts tend to be a lot more lenient about parodies created for political or topical comment than they do of those made for commercial purposes. An embargo refers to a work which has been previously licensed being used after or outside of the agreed times.  For example if a freelance journalist licensed their work to a paper for a time period of two months yet the work was published in the paper three months later, an embargo would have occurred and the journalist has the right to take legal action for breach of copyright.      

                                                                                                                                        

The 1988 Act ensured that along with the right to prosecute for infringement, there were also fair defences. ‘The Copyright, Designs and Patents Act 1988 allows a person to undertake certain activities in relation to copyright works without obtaining prior permission from the copyright owner’, (Media Law, Carey, 2010). There are five main defences against copyright infringement and are as follows; (Quinn, LFJ, 2011, page 355)  

• ·       Fair dealing
• ·       Incidental inclusion
• ·       Public Interest
• ·       Reproduction of speeches and interviews
• ·       Acquiescence                                                                                                                                          

   The most common defence is fair dealing and it is this law that structures so much of our media. Fair dealing allows parts of copyrighted works to be quoted, reproduced or used for the purposes of criticism or review or in the course of reporting current events.  The defence only applies to written or spoken words, film clips and artistic works but doesn’t apply to photographs. It’s also only relevant when:

• ·       The material is used for the purpose of criticism or review; or in reporting current events;
• ·       The copyright holder receives significant acknowledgement;
• ·       The amount of material used is fair;
• ·       The material used has already been made available to the public                                             

Incidental inclusion is a defence that falls under section 31 of the 1988 Act and provides a defence where copyright material is used incidentally in an artistic work, sound recording, film, broadcast or cable programme. For example a local news report which may incidentally feature a billboard in the distance. It is merely a coincidence and not an advertisement or breach.        

      Reproduction of speeches and interviews come under ‘spoken words’ and the Act acknowledges that once spoken words are recorded (on tape, film or in writing), copyright applies and belongs to the speaker. However where the media records spoken words for the purpose of reporting current events, broadcasting or inclusion on a cable programme service, the material can be used, provided five conditions are met; (Quinn, LFJ, 2011, page 360)

• ·       The record was made directly from the speech or interview, not taken from a previous recording
• ·       The speaker hasn’t said that a recording shouldn’t be made
• ·       The words themselves do not breach any existing copyright
• ·       The speaker hasn’t prohibited the use that is made of the words, before they were recorded
• ·       The person who has lawful possession of the record consents to the use made of the words           

      Public interest doesn’t actually fall under the 1988 Act, however over the years courts have recognised its significance and began to enforce it when required. It’s simply when a body of information is of interest to the public and deemed important enough to override copyright protection. Acquiescence is a much rarer defence and is one that usually fails in court. It’s when a copyright owner is aware of their work being used unlawfully but doesn’t take any legal action until a much later date.               

      The most common penalties for copyright infringement are interim injunctions, permanent injunctions, damages and accounts of profits.                    

      Knowing what merits an infringement and gives you a good defence however is not the full story in the 21^st century. There are billions of websites that are infringing copyright every day and it’s simply not plausible or possible to prosecute all those responsible.  Stronger measures are being taken and the most recent legislation to affect broadcasting was the Digital Economy Act 2010, part of a government backed initiative known as 'Digital Britain', an initiative aimed at propelling Britain to the forefront of technological innovations and web security, (Halsbury’s Laws of England, PNUK). The act is regulated by OfCom and they have the power to remove internet accessibility completely from sentenced offenders.  It is fair to say that the Act has been met with some staunch criticism with Jim Killock, executive director of the Open Right’s group calling the bill; “an utter disgrace… an attack on everyone’s right to communicate, work and gain an education’. Two of Britain’s largest ISP’s TalkTalk and BT also opposed the Act and sought a judicial review, citing that the Act wasn‘t in line with EU Law. It passed in April 2011 with all appeals being denied.                                      

     The declining profits of the music and film industries are by no means a co-incidence; a direct result of the growing online availabilities. Professor Robin Mansell of the London School of Economics and Political Sciences argues the difficulty of enforcing copyright online. He argues that the new legislations allowing ISP’s to track individual users offline will merely act as ‘deterrents, not enforcements’ and that ‘thus, efforts to curtail peer to peer file sharing are likely to spark an arms race between those seeking to identify infringing behaviour and those seeking to protect themselves from surveillance,’ (Ekblom 2005).                                 

                                                                    

      Looking at the evidence it’s clear that progress is being made in the enforcement of copyright law online with massive companies such as Limewire recently becoming extinct as regulations tighten and new bills are announced. It seems to be heading in the right direction but it’s fair to say there’s a long way to go before it can be eradicated completely. If the law stopped being enforced original pieces of work wouldn’t carry as much credit and plagiarism would be openly promoted. The online boom has completely revolutionised the world and just as the media has developed, so will its copyright laws with many more prosecutions for online infringement on the horizon.