Copyright for Archivists and Records Managers [5 ed.] 9781856049290

Table of contents :
Title page
Contents
Acknowledgements
Preface
Key points
1 What is copyright?
1.1 The nature of copyright
1.2 The development of copyright
1.3 Copyright and records
2 Copyright protection
2.1 Protection for works
2.2 Literary, dramatic and musical works
2.3 Artistic works
2.4 Films
2.5 Sound recordings
2.6 Other works
3 Ownership
3.1 Qualification
3.2 First owner
3.3 Acquisition of copyright
3.4 Assertion of ownership
4 Publication, exhibition and performance
4.1 Publication
4.2 Exhibition and performance
5 Use
5.1 The copyright owner’s rights and infringement of them
5.2 Permission
5.3 Exceptions and limitations
5.4 Copying in archives, libraries and museums
5.5 Litigation and legal advice
6 Copyright in the electronic environment
6.1 Introduction
6.2 Internet
6.3 Electronic mail
6.4 Databases
6.5 Records in the electronic environment
6.6 Computers and computer programs
7 Special cases
7.1 British Isles outside the UK
7.2 Records of a repository’s parent institution or authority
7.3 Gifts and deposits of records
7.4 Public records
7.5 Records of local authorities
7.6 Records of ecclesiastical and religious bodies
7.7 Legal records
7.8 Electoral registers
7.9 Business records
7.10 Estate, manorial and personal records
7.11 Hospital and medical records
7.12 Transport records
7.13 Office-holders, members and unincorporated bodies
7.14 Maps, charts and plans, together with engravings and prints
8 Other intellectual property rights
8.1 Moral rights
8.2 Databases and database right
8.3 Publication right
8.4 Public Lending Right
8.5 Performers’ rights
8.6 Designs, patents and trade marks
8.7 Confidentiality
8.8 Artist’s resale right (droit de suite)
9 Appendix
9.1 Charts for the duration of copyright
9.2 Copyright declarations
9.3 Model licences
9.4 Model assignment to the record office
10 Bibliography
10.1 Documents
10.2 Publications
10.3 Useful websites
11 Authorities
11.1 Treaties and EU instruments
11.2 Statutes
11.3 Statutory instruments
11.4 Cases
Index

Citation preview

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Copyright for archivists and records managers Fifth edition

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Copyright for archivists and records managers Fifth edition

Tim Padfield

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© T. R. Padfield 2001, 2004, 2007, 2010, 2015 Published by Facet Publishing 7 Ridgmount Street London WC1E 7AE

Facet Publishing is wholly owned by CILIP: the Chartered Institute of Library and Information Professionals. T. R. Padfield has asserted his right under the Copyright, Designs and Patents Act 1988 to be identified as author of this work. Except as otherwise permitted under the Copyright, Designs and Patents Act 1988 this publication may only be reproduced, stored or transmitted in any form or by any means, with the prior permission of the publisher, or, in the case of reprographic reproduction, in accordance with the terms of a licence issued by The Copyright Licensing Agency. Enquiries concerning reproduction outside those terms should be sent to Facet Publishing, 7 Ridgmount Street, London WC1E 7AE.

First published 2001 by the Public Record Office as Copyright for Archivists and Users of Archives. Second edition published 2004 by Facet Publishing. Third edition 2007 Fourth edition 2010 This fifth edition 2015 British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library. ISBN: 978-1-85604-929-0 Text printed on FSC accredited material

Typeset from author’s files in 10/13pt Elegant Garamond and Humanist 521 by Flagholme Publishing Services. Printed and made in Great Britain by CPI Group (UK) Ltd, Croydon, CR0 4YY.

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Contents

Acknowledgements Preface

xi

Key points 1

6

17

Protection for works 17 Literary, dramatic and musical works Artistic works 43 Films 53 Sound recordings 58 Other works 61

34

67

Qualification 67 First owner 69 Acquisition of copyright 89 Assertion of ownership 98

Publication, exhibition and performance 4.1 4.2

5

The nature of copyright 1 The development of copyright Copyright and records 13

Ownership 3.1 3.2 3.3 3.4

4

1

Copyright protection 2.1 2.2 2.3 2.4 2.5 2.6

3

xv

What is copyright? 1.1 1.2 1.3

2

ix

Use 5.1 5.2 5.3 5.4 5.5

Publication 99 Exhibition and performance

99

106

111 The copyright owner’s rights and infringement of them Permission 124 Exceptions and limitations 141 Copying in archives, libraries and museums 164 Litigation and legal advice 181

111

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VI

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Copyright in the electronic environment 6.1 6.2 6.3 6.4 6.5 6.6

7

8

201

British Isles outside the UK 201 Records of a repository’s parent institution or authority 210 Gifts and deposits of records 211 Public records 216 Records of local authorities 216 Records of ecclesiastical and religious bodies 220 Legal records 222 Electoral registers 229 Business records 231 Estate, manorial and personal records 233 Hospital and medical records 235 Transport records 236 Office-holders, members and unincorporated bodies 237 Maps, charts and plans, together with engravings and prints 238

Other intellectual property rights 8.1 8.2 8.3 8.4 8.5 8.6 8.7 8.8

9

Introduction 183 Internet 187 Electronic mail 192 Databases 192 Records in the electronic environment 192 Computers and computer programs 197

Special cases 7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.8 7.9 7.10 7.11 7.12 7.13 7.14

243

Moral rights 243 Databases and database right 249 Publication right 258 Public Lending Right 261 Performers’ rights 262 Designs, patents and trade marks 266 Confidentiality 272 Artist’s resale right (droit de suite) 276

Appendix 9.1 9.2 9.3 9.4

183

277

Charts for the duration of copyright 278 Copyright declarations 302 Model licences 304 Model assignment to the record office 313

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CONTENTS

10

Bibliography

317

10.1 Documents 317 10.2 Publications 317 10.3 Useful websites 319

11

Authorities 11.1 11.2 11.3 11.4

Index

323

Treaties and EU instruments Statutes 324 Statutory instruments 328 Cases 332

345

323

VII

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Acknowledgements

This new edition has benefited greatly, as did its predecessors, from exchanges of views between members of the Libraries and Archives Copyright Alliance. This one has benefited too from the invaluable reporting and commentaries to be found on the 1709 copyright blog and the IPKat blog. With such assistance, I must be responsible for any error, whether legal or archival. More generally I feel that I should also acknowledge my debt to the officials of the UK Intellectual Property Office. They, and especially Robin Stout and Antoinette Graves, have listened to me and my colleagues from libraries and archives and have responded positively wherever they felt they could. I am most grateful for the help and advice that I have always received from the IPO and for the work they have done in the last few years to update the exceptions and limitations. Any Crown copyright material is reproduced with the permission of the Controller of Her Majesty’s Stationery Office under the terms of the Open Government Licence. Finally, my thanks and love, as ever, to Lucy, Clare, Emma and Poppy. Tim Padfield

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Preface

This book was written by a retired archivist who worked his entire career in one archival institution and who has had limited legal training. It does not constitute formal legal advice. Archivists and records managers should seek advice from a specialist intellectual property lawyer if they are in any doubt about their legal position or the legality of any action they might wish to take. Also, archivists and records managers themselves should always make abundantly clear to those who consult them that any advice they offer on copyright issues, including the subsistence and ownership of copyright in particular works, does not constitute legal advice or authority to use material protected by copyrights that they do not administer. As this book is aimed at archivists and records managers, and at researchers in archives, and not at lawyers, it contains a lot of legal references. Although the primary authority for the law as set out here is statutes and statutory regulations, the UK legal system relies heavily for the interpretation of statutes on the decisions of judges in cases they have heard, including the judges of the Court of Justice of the European Union. As a result, the advice in this book on how the law is applied in particular circumstances derives largely from reports of those cases. The statutes and regulations alone are not enough. The references to authorities (treaties, directives, statutes, statutory instruments, law reports) given in the footnotes to each paragraph are abbreviated; full citations appear in the table of authorities (see Chapter 11). Statutes are referred to simply by year (and, where necessary, a word), statutory instruments and regulations by their number and cases by title. There are also a few citations of legal opinions preserved in original documents; the full references are given at 10.1. It is now nearly a decade and a half since the first edition of this book and five years since the last edition. There has been a great deal of change to copyright since 2010, though not as much as I had hoped. When I first started studying copyright, I realized quickly that it contains some absurdities. Most preposterous of all is the duration of copyright until the end of the year 2039 in many unpublished materials, regardless of whether they were created in 1066 or 1966 (see 1.1.7). These provisions mean that all unpublished literary material, and much else too, in UK archives is protected by copyright. This imposes burdens on UK archivists and researchers that are unknown elsewhere in Europe, except perhaps Ireland. In 2013, the Government secured the power to make regulations that could have replaced 2039 with the standard term of life of the author plus 70 years, but sadly no such regulations have been made. Besides some significant restructuring to make the flow of text more coherent, some significant areas of change since the previous edition are:

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• a description of the major changes to copyright exceptions and limitations for libraries and archives. The most important of these are the changes to permit preservation copying and copying for users of any kind of work (thus now including artistic works, films and sound recordings) (see 5.4.10, 5.4.13, 5.4.16), combined with a simplification of the declarations required from users (see 5.4.12) and a new exception permitting on-site access to digital material (see 6.5.3) • a description and discussion of the new schemes (and the problems associated with them) for orphan works (copyright works whose owner is unknown or untraceable after a diligent enquiry) (see 5.2.17–20, 5.4.20) • a description of the other changes to exceptions for copyright and performers’ rights, notably education (see 5.3.20–21); quotation (see 5.3.11); caricature, parody and pastiche (see 5.3.14); text and data mining (see 5.3.15); disability (see 5.3.16–17); and private copying (see 5.3.30) • a revision of the views expressed on the exhibition of literary, dramatic and musical works in the light of expert commentary on the subject (see 4.2.2) • an attempt to explain why a digital photograph, consisting of a numerical file, is still an artistic work (see 2.3.2–3) • a description of the changes in duration for sound recordings and especially for sound recordings of performances (see 2.5.7, 8.5.5), and for copyright in songs (see 2.2.14) • analysis of new copyright legislation in the Channel Islands (see 7.1.6–8) and mention of other British overseas territories (see 3.1.2) • an explanation of the status in the UK of the King James Version of the Bible and the Book of Common Prayer (see 3.2.30) • some description of copyright in coats of arms (see 7.10.5) • more on acknowledgements (see 5.2.1), assignments (see 3.3.8) and liability (see 5.1.10) • an attempt to explain how national courts decide whether they have jurisdiction over the infringement of copyright on the internet (see 6.2.6) • a description of changes to Crown copyright licensing and the licensing of public sector information (see 5.2.7–8, 5.2.10) • a new section giving links to useful websites (see 10.3) • consideration of the many copyright cases that have come before the courts, in both the UK and EU, in the last few years that have provided help with the interpretation of many aspects of the legislation. Some notable examples are on the meaning of ‘transient and incidental’ (see 6.1.2), ‘scientific research’ (see 8.2.14), ‘parody’ (see 5.3.14) and ‘originality’ (see 2.1.6); whether hyperlinking infringes (see 6.2.5); the importance of a signature on an assignment (see 3.3.8); the terms that may be implied into a licence (see 5.2.3); and the relationship between the rights of a copyright owner and freedom of speech (see 5.3.26). There were also decisions, which come rarely, on the moral right of integrity in favour of the claimant (see 8.1.7)

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PREFACE XIII

and relating to the use of copyright works in libraries (and by extension in archives and museums) (see 6.5.3). In addition, lots of smaller changes have been made throughout to explain more fully or more clearly and to reflect judicial decisions. In substance this book is the same as its predecessors, but in detail it is very different. Every effort has been made to ensure that the advice given in this book, and the views expressed, accurately reflect the law, but the author and the publisher do not accept any liability for any damage, however caused, arising as a result of reliance on them. If in doubt, consult a lawyer. Tim Padfield

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Key points

There are some points about copyright which it might be helpful to set out in advance, though they are also covered in detail later in this book. Some of these points answer common, elementary questions about copyright, so it is worth studying them carefully first: • Copyright arises automatically: a work is in copyright as soon as it is created, and no registration or formality is required though an assertion of one of the moral rights is necessary (see 1.1.5, 8.1.5). • Copyright protects original works (see 1.1.6) of the mind or ‘authorial works’ (original literary, dramatic, musical and artistic works, and films) and ‘entrepreneurial works’ (sound recordings, broadcasts and typographical arrangements of published editions) (see 1.1.3–4). It does not protect ideas or facts (see 2.1.4–5). There are also separate but related rights, such as moral rights, database right and performers’ rights (see 1.1.3, 8.1, 8.2, 8.5). • More than one copyright may subsist in a single work, and frequently do so in an archival file (see for instance 2.1.2, 7.9.1). A primary question is, what work or works am I dealing with? If there is written material, might there be more than one work (an introduction by another author, for instance)? Is there a copyright in the typographical arrangement (see 2.6.15)? Identify each artistic work (maps, photographs, drawings). A film is bound to consist of many different works (see 2.4.6). • The first owner of copyright in an authorial work is usually the author, the creator (see 2.1.17–18, 3.2.1). The first owner of copyright in an entrepreneurial work is usually the person or body that financed it (see 1.1.6, 2.4.4, 2.5.4–5, 2.6.7–9, 2.6.12, 2.6.16, 8.2.8). • If the author of an authorial work is an employee and creates the work in the course of employment, the first owner of the copyright is the employer, whether an individual, a company or some other organization (see 3.2.12–16). • A volunteer worker is not an employee and so is the first owner of the copyright in his or her work (see 3.2.21). A record office would be well advised to obtain assignments of copyright (see 3.3.8) from all volunteers before they start work so that the copyright in the results of their efforts (for instance catalogues) belongs to the record office. • Even if the first owner of copyright is an employer, the standard term for the duration of copyright is still based on the individual author’s life (if the author is known), since it was his or her mind that created the work; the owner might not even know

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•

•

•

•

•

•

COPYRIGHT FOR ARCHIVISTS AND RECORDS MANAGERS

of its existence (see 2.1.17–18). Only if the author is unknown and unidentifiable (see 2.1.18) should the work be treated as anonymous. The death of the employer or the winding-up of a corporate body have no effect on duration (see 1.1.7). The ownership of the original document in which a work is recorded and the ownership of the copyright are entirely distinct (see 3.2.3). Letters and e-mails are the copyright of their authors or their authors’ employers, not of the recipient (see 3.2.4). However, the owner or custodian of the original document may have the right to forbid inspection or reproduction of it, irrespective of the permission of the copyright owner (see 3.2.5), and may authorize reproduction of the document itself though in doing so should make plain that permission from the copyright owner is also required (see 5.2). Copyright may be inherited by the author’s or other owner’s heirs; it may be acquired by a successor body; and it may be assigned to another person or body by the owner. In this process, ownership may be divided between two or more people, all of whom must give permission for use (see 3.2.8–9, 3.2.15), and knowledge of its ownership may become lost. Copyright does not lapse, however; there is always an owner (or owners) until the statutory term expires (see 3.3). In many cases, especially with unpublished works, the current owner of copyright is impossible to discover or trace. Works in this condition are termed ‘orphan works’ (see 5.2.17) and pose many problems. However, a work cannot be considered to be an orphan without a ‘diligent search’ to identify or trace the owner (see 5.2.18). A work of unknown authorship is not necessarily an orphan, since it is the identity of the owner not of the author that matters. A failure of a known owner to reply does not make his or her work an orphan (see 2.1.18 and 5.2.19). Licensing schemes may provide a solution in some circumstances (see 5.2.11–15). The standard term for the duration of copyright in authorial works is the life of the author plus 70 years. There are many variations to this standard term, including provisions for works whose author is unknown or unknowable by reasonable enquiry and provisions giving very lengthy terms (to 2039 at the earliest) for some works (see 2.1.19–25, 2.2.16–32, 2.3.12–32, 2.4.9–18, 9.1.1–2). The standard terms for entrepreneurial works are shorter and based on the date of creation or publication (see 2.5.7–10, 2.6.13, 2.6.17). The copyright owner has the exclusive right to do, or to allow others to do, certain things with the work (see 5.1). These ‘acts restricted by copyright’ are: copying; the issue of copies (‘distribution’) to the public (conventional publication); communication to the public (by broadcasting or by publication on the internet); rental or lending; performance (which includes exhibition); and adaptation. After copyright has expired, doing any of the restricted acts will not infringe (see 5.3.2), except in very rare cases (see 8.3). Doing something that is not a restricted act, such as reading, will also not infringe (see 1.1.9). The restricted acts are limited in time by the fixed duration of copyright and in application by a long list of limitations or exceptions. These are tightly defined and

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KEY POINTS XVII

allow others to use the work in specified circumstances without permission (see 5.3–5.4). • If no exception or limitation applies, the doing of any of the restricted acts to a substantial part (see 5.3.3–5) of a copyright work requires permission (a licence) (see 5.2). Without permission it is an infringement and should be done, if at all, only after careful assessment and acceptance (by senior management if appropriate) of the risks involved (see 5.2.19). The owner is not obliged to give permission for use or even to reply to a request for it. The absence of a reply should not be treated as permission to proceed without strong evidence to the contrary. Many rights owners allow bodies to represent them in granting licences for use, and in some cases the existence of licensing schemes offered by such bodies precludes the use of relevant exceptions (see 5.2.11–15). • The authorization of someone to do something that infringes copyright in a work, even if done innocently, is in itself an infringement of the copyright (see 5.1.9–12). • The availability of a document for public inspection and the supply of a copy of it (for instance under Freedom of Information Act provisions) do not imply that the works it contains or any copy of them are free from copyright restrictions (see 5.4.4–5). For checklists of things to consider when considering copyright questions and the publication of copyright material, see 1.3.5–6.

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1

What is copyright?

1.1

The nature of copyright

1.1.1 Introduction To quote the Oxford English Dictionary, copyright is ‘the exclusive right given by law for a certain term of years to an author . . . to print, publish or sell copies of his work’. Clearly, it is not merely the right to copy. Rather, the word ‘copyright’ derives from another meaning of copy, as in an advertiser’s ‘copy’, his or her material for the printer. In this context, a copy is, as Dr Johnson put it in his Dictionary (1810), ‘the autograph; the original; the archtype; that from which any thing is copied’. Copyright, then, is the right in the ‘copy’, the author’s original work. The right to enjoy copyright protection is regarded internationally as arising from natural justice, in accordance with the Universal Declaration of Human Rights of 1948, which says that ‘everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’. Copyright also exists in order to benefit society generally, by providing an incentive for creativity as an encouragement for learning and the arts. It originated, though, with the much more immediately practical purpose of giving printing monopolies as a form of government censorship. Then, in statutory form it replaced the individual monopolies with a regime designed to outlaw the piracy of publications. In the UK, therefore, it has always been regarded as primarily an economic property right: the right of the owner to benefit from the fruits of his or her skill, judgement and labour. This is the ‘common law’ approach exported from the UK to Ireland, the Commonwealth and the USA, as distinct from the ‘civil law’, ‘author’s right’ approach of most other European countries, which emphasizes the protection of the author’s personality as expressed in his or her work. In all jurisdictions, an attempt is made to limit the rights of copyright owners in the public interest. The countries that are parties to the World Intellectual Property Organization (WIPO) (see 1.2.6) Copyright Treaty recognize ‘the need to maintain a balance between the rights of the author and the larger public interest, particularly education, research and access to information’. Very little is entirely new so all authors use the works of their predecessors in one way or another: copyright must reward but it must not stifle creativity and innovation. For most practitioners copyright continues to mean copyright in published works. There are relatively few people, even among lawyers specializing in intellectual property law, who are much interested in the intricacies of copyright in unpublished material, but that is what is of most concern to archivists, records managers and the users of archival

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materials. Copyright law in itself can seem bad enough, but when combined with limited expert commentary and the tangled web of different copyrights that might subsist even in a single file of correspondence, it is not surprising that many fight shy. Archivists and records managers cannot afford to, however, and this book is an attempt to show them a way through the maze. Dr Johnson’s Dictionary, 10th edn, 1810; Universal Declaration of Human Rights art 27(2); WIPO Copyright Treaty, 1996, preamble; Nova Productions v Mazooma Games, 2007

1.1.2 The definition of copyright In very broad terms, and with exceptions as to details, copyright is: • • • • • • • • • •

a property right, one of a group of intellectual property rights (see 1.1.3) in certain types of work (see 1.1.4) that have been made in a certain way (see 1.1.5) that are original intellectual creations of the author, reflecting his or her personality (see 1.1.6) and whose duration is for a fixed period (see 1.1.7) which gives the owner (see 1.1.8) the power to control use (see 1.1.9) of a substantial part (see 1.1.10) but which does not give the owner a monopoly in facts or ideas (see 1.1.11) which is subject to certain defined exceptions (see 1.1.12).

1.1.3 Intellectual property rights Copyright is one of a group of rights known as intellectual (sometimes industrial and intellectual) property rights (IPRs) (see Figure 1.1.3). There is no distinct right called an ‘intellectual property right’. These rights fall, on the whole, into one of two categories. Rights in designs, trade marks and patents are monopoly rights, so that the owner of the rights may prevent anyone else using the design, mark or invention even if they thought of it independently. The other rights do not confer a monopoly; anyone else may create a work just the same so long as it is by their own effort, not by copying (see 2.1). This book is primarily about copyright, but gives some information about other intellectual property rights that are likely to affect archivists and records managers (see Chapter 8). Copyright, like these other rights, is an exclusive property right. Much as with property in things, such as land or a book, it may be owned, sold and bequeathed, and permission may be given to others to use it. It is effectively a negative right to restrain someone else from exploiting the property: the positive right to exploit the work may actually be

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WHAT IS COPYRIGHT? 3

IPRs

Copyright

Patents

Trade marks

Designs

Confidence

Copyright

Patents for invention

Registered trade marks

Registered designs

Know-how

Plant breeders’ rights

Passing off

Design right

Privacy

Geographical indications of origin

Semi-conductor topography right

Moral rights Database right Publication right Performers’ rights

Secrets

Rental and lending right Artist’s resale right

Figure 1.1.3 Chart of intellectual property rights

restricted in various ways. For instance, the author of a book may own the copyright in the text, and may therefore prevent someone else copying it, but he or she will not own every published copy of the book, the publisher will own the copyright in the typographical arrangement and an artist might own the copyright in the illustrations. The permission of the publisher and artist would be needed before the author could republish the book, and the owner of each published copy is at liberty to sell it or give it away. Moreover, the right is circumscribed by exceptions and limitations (see 5.3–5.4) in order to provide balance in the public interest (see 1.1.1).

1.1.4 The scope of copyright Copyright applies to individual copyright ‘works’. A work might be as long as a novel or as short as a headline, as large as an entire building or as small as a watercolour. It might be a list, a single entry in a diary, a sketch, a poem, a recording of a song or of a conversation, a symphony, a film or a broadcast of a football match. Copyright is extensive in scope, covering works of many kinds. It includes not only literary (written, see 2.2) and artistic (graphic, photographic or three-dimensional; see 2.3) works, but also dramatic works (such as plays, ballets, operas and ‘cinematographic works’; see 2.2), musical works (see 2.2), films (see 2.4), sound recordings (see 2.5), radio and television broadcasts (see 2.6.1–14), computer software and databases (as literary works, see 2.2, 8.2), and typographical arrangements of published editions (see 2.6.15–17). In effect it protects the expression of virtually any product of the mind (‘authorial works’: literary, dramatic, musical and artistic works and films) as well as many products of investment which have had little or no intellectual input (‘entrepreneurial works’: typographical arrangements, sound recordings and broadcasts), if the work is capable of

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being copied or imitated, regardless (for the most part) of the aesthetic or technical quality of the work. British Oxygen v Liquid Air, 1925; A v B, 2000

1.1.5 Subsistence of copyright Copyright is said to subsist in a work; it subsists, rather than exists, because it is intangible: it cannot be held and cannot exist independently of the work it protects. It does so automatically in all countries that have signed or that observe the Berne Convention (see 1.2.6, 3.1.4). While some countries (such as France) protect even an unrecorded work, in the UK copyright arises (in most cases) as soon as the work is recorded in some way (see 2.1.3). There is no need for any formality or registration before copyright subsists or before action may be taken against someone infringing copyright (but see 1.2.9, 9.1.4 (USA)). There is thus no need to ‘claim’ copyright, although some sort of assertion may be helpful (see 3.4). On the other hand, an assertion of moral rights is necessary for some purposes (see 8.1.5, 8.1.11).

1.1.6 Originality and authorship Literary, dramatic, musical and artistic works must be original, not in the sense of being unique but in the sense of not having been copied from another work. The author of a work must have ‘originated’ it by investing intellectual creativity in producing it (see 2.1.6). So long as a work is original, it may attract copyright even if someone else has produced the same thing previously (see also 2.1.8). So, for example, consider two individuals setting out to survey Hyde Park. All being well, the resulting maps will show the same features in the same relative positions. If the surveyors choose the same scale and use the same set of mapping symbols their maps may well look virtually identical, but each will be a copyright work without infringing the other because neither was derivative, each was created independently. In copyright terms, each is ‘original’ (see 2.1.8). It is also possible to create an original work that infringes copyright in a pre-existing work (see 2.1.12). Unfortunately for the author of the new work, the existence of a new copyright is irrelevant to a decision on whether there has been infringement of the copyright in the earlier one. A derivative work contains within it underlying copyrights in the source work or works, permission for the use of each of which must be obtained before the new work is used (see 2.1.7, and see also 2.4.6). The term ‘author’ applies to the creator of any literary, dramatic, musical or artistic work, including for instance, composers of music, photographers and painters, and to the producer of a sound recording, the producer and principal director of a film, the person making a broadcast and the publisher of a published edition. For the role of the author in relation to duration see 2.1.17.

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1988 (CDPA) s9; Wilkins v Aikin, 1810; University of London Press v University Tutorial Press, 1916; Geographia v Penguin Books, 1985; Scottish and Universal Newspapers v Paul Mack, 2003

1.1.7 Duration The duration of copyright depends on a number of factors, though which ones apply depends on the circumstances: • the type of work • the date of creation and (where applicable) when it was first made available to the public or first published • the date of the author’s death • ownership of the copyright (Crown and Parliamentary copyright (see 3.2.28–38), and copyright belonging to some international organizations (see 3.1.4) only). Until the passing of the 1988 Act (see 1.2.3), most unpublished literary works and engravings enjoyed a term of copyright that was unlimited until first publication, irrespective of whether the author died in 1066 or 1966. This perpetual copyright, a relic of pre-20th-century common law protection (see 1.2.2), has now been abolished, although the transitional provisions mean that unless the law changes the full effect of abolition will not be felt until the year 2040 (see 2.1.21). Perpetual copyright in unpublished works can be a problem in other common law (see 1.2.2) countries too (see 9.1.4). In all cases, the duration of copyright includes the remainder of the year in which the triggering event takes place followed by a fixed term running from the end of that year. Details of duration in different circumstances are given in Chapter 2. Flow charts to simplify the calculation of the duration of copyright in literary, dramatic, musical and artistic works are in the Appendix (see 9.1.1–2). Where duration is based on the life of the author, it is authorship, not ownership, that matters even if the author was an employee of the first owner (see 2.1.17). First or subsequent ownership of copyright by a person other than the author, or by a corporate body, does not affect duration. Where duration depends on the death of the author and there are joint or co-authors (see 2.2.14), it is the death of the last surviving author that matters. In some cases of course the identity of the author is unknown; the work is then an anonymous or pseudonymous work for which special provisions on duration apply.

1.1.8 Owner The first owner of copyright is normally the author, but where an author is an employee the first owner is the employer. Before 1989, the person who commissioned some kinds of artistic work was the first owner of the copyright in them (see 3.2.19). The owner may

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also assign the copyright to someone else (see 3.3.8–10) even, in some circumstances, before the work is created.

1.1.9 Use There is an exhaustive list of restricted acts, including copying, issue to the public, communication to the public (for instance on the internet), adaptation and performance, that may be done with a copyright work only by the copyright owner or with his or her permission (see 5.1.1–10). If a use of a copyright work, such as reading a book or looking at a website (see 6.1.2), is not prohibited by the legislation anyone may do it freely: it does not matter whether the owner of the copyright has authorized that use or not. Public Relations Consultants v Newspaper Licensing Agency, 2013

1.1.10 Substantial Copyright does not protect insubstantial parts of a copyright work, but ‘insubstantial’ does not necessarily mean ‘small’ (see 5.3.3–5).

1.1.11 Not a monopoly Copyright is not a monopoly right. Identical works may each be protected (see 1.1.6), and copyright does not subsist in a fact or a general idea. Not until a collection of facts has been gathered together so that the sum means more than the parts, or a general idea has been formulated in a way that particularizes it, can copyright arise, and even then the original facts and ideas taken individually remain unprotected. The setting of this boundary between unprotected ideas and protected expression is one of the trickiest problems facing commentators and courts (see 2.1.4). 1.1.12 Exceptions Parliament seeks to find a balance between the rights of copyright owners on the one hand and the interests of society in the ready exchange of information and ideas and the encouragement of creativity on the other. It therefore sets limits on the exclusive rights given to owners by allowing limited exceptions, which may apply to particular types of work or types of people, to particular circumstances, and to particular kinds of use (see 5.3–5.4).

1.2

The development of copyright

1.2.1 Monopolies and statutes before 1911 Copyright originated in the granting of monopolies to individuals to print and publish

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specified works, for instance in Venice in 1469 and in England in 1553. In England, the Stationers’ Company was given a charter by Mary I in 1556 allowing it to require that all works published be first registered and thus licensed by the Company. The refusal of Parliament to renew the Company’s charter in 1694 led to a publishing free-for-all that was found to benefit no one. The solution was a statute, the Copyright Act 1710 (or 1709: opinions differ), known as the Statute of Anne. It was the first time in any jurisdiction that the general law was used for this purpose. The next country to legislate was Denmark in 1741; the USA acquired copyright legislation in 1790 followed by France in 1793. The Act of 1710 and subsequent UK acts in the 18th and 19th centuries gave protection for a limited period to published works and also to certain categories of other material, including drawings and photographs, whether published or not. Some of these statutory copyrights (books and other written works, paintings, drawings, photographs, music) were enforceable only if they were registered with the Stationers’ Company at Stationers’ Hall. As had been the case under its earlier charters, the Company’s registration covered both the initial ownership of copyright and any subsequent assignments, so the records of the Company are a valuable source for the history of intellectual and artistic material. Other types of work (engravings, sculptures) were protected only if the work carried the name of the copyright owner on each copy (see 7.14). Each statute was limited in scope to a specific category of material, so that, for instance, the author of a novel gained no copyright protection against the performance of a play that was based on it, and each statute defined the terms and duration of the protection it gave. The statutory registers to 1842 are preserved at Stationers’ Hall. Statutory registers from 1842 to 1912 (and in some cases to 1923) are in The National Archives (TNA) (see 2.1.18). For documents relating to the early history of copyright, see 10.1. Goubaud v Wallace, 1877; Warne v Lawrence, 1886

1.2.2 The common law Unpublished works of every kind, including books, lectures, letters and photographs, were protected under the common law until the passing of the Copyright Act 1911, giving the author the ‘right to judge whether he will make his sentiments public or commit them only to the sight of his friends’. Common law protection was perpetual until the work was published, but until the late 19th century any action to enforce it had to be taken in two different courts: a court of equity such as Chancery to secure an injunction to prevent or stop the infringing use and a court of law such as King’s Bench to secure any damages due. In most cases the author seems to have been the first owner of the common law copyright but the position of copyright in works by employees was not at all clear (see

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3.2.16). Publication was taken to mean the distribution of copies to the public or the communication of the work to the public generally (for instance, by delivering a sermon in church), but the giving of a university lecture to a limited audience or the performing of a play to a ticketed audience, for instance, did not count as publication. Common law protection also extended to questions of privacy, protecting a person who commissioned photographs for private purposes from seeing them published by the photographer without permission. Similar protection is now provided by the statute (see 8.1.10). The common law is a creature of the English legal tradition, and its practices have been exported to many parts of the Commonwealth, to the USA and to Ireland, though not in the same way to Scotland. Scotland’s legal system owes more to the civil, or Roman, law traditions to be found elsewhere in Europe. The term ‘common law’ may be applied specifically to non-statutory law or more generally to a shared legal tradition distinct from the civil law. Yates J in Millar v Taylor, 1769 at 242; Donaldson v Beckett, 1774; Prince Albert v Strange, 1848–9; Mayall v Higbey, 1862; Pollard v Photographic Co, 1889; Stedall v Houghton, 1901; Mansell v Valley Printing, 1908

1.2.3 Copyright law since 1911 The Copyright Act 1911 came into force on 1 July 1912, replacing all common law copyright with statutory copyright and replacing almost all the existing statutory rights with a single, uniform code. It also gave protection, for the first time, to sound recordings. It was needed not only so as to simplify and improve the law of copyright in the UK, but also to allow the UK to ratify the amendments made in 1908 in Berlin to the Berne Convention of 1886 (see 1.2.6). Most of the 1911 Act was repealed by the Copyright Act 1956, with the exception of the provisions covering the legal deposit of publications (finally replaced by those in the Legal Deposit Libraries Act 2003 and the Non-Print Works Regulations 2013). The 1956 Act was also required so that the UK could ratify international conventions; it came into force on 1 June 1957. It gave protection for the first time to films and broadcasts as distinct types of work. Subsequent amendments gave protection to cable programmes and computer software. The 1956 Act as amended was repealed by the Copyright, Designs and Patents Act 1988, which was intended to be flexible enough to cope with changes in technology and again to allow adherence to new international conventions. This is the statute currently governing copyright in the UK. It came into force on 1 August 1989, but has been very significantly amended since then following initiatives in the European Union and to take account of the WIPO treaties (see 1.2.6, 10.3), themselves prompted by changes in communications technology. 1911 s37(2); 2003 (Libraries); SI 1957/863; SI 1989/816; SI 2013/777

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1.2.4 Continuity of the law Continuity of copyright protection has been a recurrent theme of UK legislation. The intention at each major revision has been to prevent works from suddenly losing copyright protection to which they had previously been entitled. From 1 July 1912, when it came into force, the 1911 Act substituted the new statutory rights for existing common law and statutory rights over materials created earlier and still protected on that date. For the most part, therefore, earlier statutes are relevant only to determine the first owner of copyright in works created when they were in force. Earlier case law continues to be relevant if the statutory provision it applies remains the same and it has not been disapproved by a higher court. The 1956 Act contained complex transitional provisions, which allowed for continuity of protection for works entitled to it at commencement on 1 June 1957. The 1988 Act also contains transitional provisions for works still entitled to protection on 1 August 1989 when it came into force. These transitional provisions limit or modify the extent to which the new legislation applies to existing works and specify that certain matters are to be determined in accordance with the law in force at the time when a particular work was made. This means that earlier statutes continue to be of significance and archivists must have some awareness of them. Where appropriate, such provisions are taken into account in this book. 1911 ss24, 31, Sch 1; 1956 Sch 7; 1988 (CDPA) Sch 1

1.2.5 National protection Very occasionally, the courts have to consider whether overseas law applies to an issue and whether the local (England and Wales, Scotland or Northern Ireland) courts have jurisdiction, but archivists and records managers working in the UK may safely assume that local law and jurisdiction applies to them. Sometimes problems arise where there is a conflict of laws, for instance, where it is unclear which country’s law applies. This book does not attempt to deal with such issues except in outline (see 6.2.6). The different jurisdictions within the UK are not bound by each other’s decisions (except in appropriate cases those of the House of Lords or its successor the Supreme Court) but normally follow them, as they also sometimes follow the decisions of courts in other Commonwealth countries. All UK courts are bound by decisions of the Court of Justice of the European Union (CJEU) when interpreting European treaties and directives (see 10.3). Qualifying material (see 3.1.1–4) held in a UK archive is protected by UK copyright law: the copyright laws of other countries may apply only in strictly limited ways (notably for the duration of copyright, see 2.1.27–28, 9.1.3–4). If a work does not qualify it has no copyright protection in the UK at all, regardless of the law of the country where it was made. Conversely, since UK law does not apply outside the UK (except in some Commonwealth countries, and in respect of some things done outside the UK whose

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effect is felt inside), protection and even ownership overseas may be entirely different (see 1.2.9, 6.2.6). Huston v Turner Entertainment, 1992; Abkco Music v Music Collection International, 1995; Blau v BBC, 2002; Sawyer v Atari Interactive, 2006

1.2.6 The Berne Convention and the World Intellectual Property Organization Until the later 19th century, UK copyright works were not protected in many foreign countries and the UK did not protect the work of a foreigner who was not, at the time of publication, resident in the UK or in a British colony or dominion. Reciprocal protection between individual countries began to become available as a result of bilateral treaties but this was not of great assistance to publishers who suffered from pirated copies printed elsewhere. Eventually the Berne Convention for the protection of literary and artistic works was signed in 1886, laying down a minimum standard of protection to be provided by countries that were members of the Berne Union. Under the Convention, the law that applies is the national law of the country in which protection is claimed, so the law applying to a copyright infringement is, except in rare cases, the law of the country in which the infringement occurs. There may though be associated infringements in the UK (for instance if an archivist has supplied a copy knowing that it is to be used for publication in the other country, see 5.4.13) and there may be consequences if an infringing copy made overseas is brought into the UK (see 5.1.17). The Berne Convention is administered by the World Intellectual Property Organization (www.wipo.int; see 10.3). This is a United Nations body that sponsored the WIPO Copyright Treaty agreed in 1996. The purpose of that treaty was to update and clarify the Berne Convention in the light of technological and social changes, avoiding the almost impossible task of amending the Berne Convention itself. When countries accede to the WIPO Copyright Treaty they are required to comply with the whole of the latest version (the Paris Act of 1971) of the Berne Convention. WIPO has also concluded the Marrakesh Treaty ‘to facilitate access to published works for persons who are blind, visually impaired or otherwise print-disabled’, but it will be a while before it comes into force and is implemented in the laws of ratifying states. Today, any country that is a member of the World Trade Organization must be a party to the Trade-Related Intellectual Property Rights elements (the TRIPS Agreement) of the World Trade Agreement (see 10.3). This is legally enforceable on member states and requires them to comply with almost all of the Paris Act of the Berne Convention even if they are not formally part of the Berne Union. Most countries of the world are now signatories of the Berne Convention, the WIPO Copyright Treaty or the TRIPS Agreement or all three (except notably Afghanistan), giving reciprocal rights to protection. The countries recognized by the UK as giving appropriate protection are ‘qualifying

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countries’ (see 3.1.1–4). They are listed in a ‘Copyright (Application to Other Countries)’ statutory instrument, which is updated from time to time; the current one dates from 2013 as amended in 2015. Berne Convention art 5(2); SI 2013/536, Sch; SI 2015/216; Jefferys v Boosey, 1854

1.2.7 Other conventions The Universal Copyright Convention (UCC) (see 10.3) was signed in 1952 under the auspices of the United Nations and amended in 1971; it is now administered by UNESCO. It guarantees a lower level of protection to copyright owners than does the Berne Convention, and is much vaguer about the exceptions allowed for users, but was significant for bringing many countries, notably the USA, into the international copyright system. This was important in itself, but has since proved even more valuable as a preliminary to the near-universal acceptance of the Berne Convention through the TRIPS Agreement. There are no longer any countries that are signatories only of the UCC and not of the Berne Convention, the WIPO Copyright Treaty or the TRIPS Agreement, so the specific provisions of the UCC are no longer of much practical application. Even so, the © symbol introduced by the UCC remains useful as a means of asserting a claim to copyright (see 3.4). The Rome Convention (1961), administered by WIPO (see 10.3), provides for performers, producers of phonograms (records and CDs) and broadcasters in a similar way to Berne, and almost all EU member states are signatories. Membership of the Rome Convention is not as widespread internationally as membership of the Berne Convention, and countries that are parties to the TRIPS Agreement are not obliged to apply it. The USA, for instance, is not a member. The TRIPS Agreement itself specifies only a limited range of rights for performers, record producers and broadcasters. Countries that were reluctant to give rights to performers subsequently agreed a more restricted Geneva Convention (1971), administered by WIPO (see 10.3), for record producers only. More recently, WIPO has sponsored two treaties, the Performances and Phonograms Treaty (1996) and the Beijing Treaty (2012), that provide protection respectively for sound-based performers and for audiovisual performers. The UK gives protection under its domestic legislation to performers, record producers and broadcasters from countries that qualify (see 3.1.1–4), and they are listed in the ‘application to other countries’ statutory instrument (see 1.2.6). The list of countries is much less extensive than that for literary, dramatic, musical and artistic works, films and typographical arrangements. By definition, the countries listed give reciprocal protection to equivalent creators, or equivalent creations, from the UK. SI 2013/536, Sch; SI 2015/216

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1.2.8 The European Union Copyright law in the UK has been significantly influenced in the years since the passing of the 1988 Act by developments in the European Union. Seventeen directives, including codified versions (see 11.1), have been passed as part of a programme to ‘harmonize’ aspects of copyright and related law that are thought to obstruct the free flow of goods and services throughout the EU’s internal market or that discriminate between citizens of different member states, and others have had an impact while not requiring amendment of the 1988 Act. It should be noted that some or all of these directives apply not only in the EU but throughout the European Economic Area (EEA: the EU plus Norway, Iceland and Liechtenstein) and Gibraltar (see 9.1.3), and to a limited extent to the UK Crown dependencies (see 3.1.2–3, 7.1.6–9, 9.1.3). They also apply, following bilateral agreements, elsewhere in Europe. Judgments of the CJEU (see 1.2.5) in the interpretation of EU law are binding on UK courts, and have been taken into account where appropriate in this book. A national of, or a person normally resident in, an EU member state enjoys the full protection of the local law in all other member states. It is not permissible to discriminate against an EU national or resident on grounds of his or her country of origin. This means, among other things, that the UK provisions for duration apply in the UK to all works of EEA origin (see 2.1.28). Directives 1986, 1991, 1992, 1993 (two), 1996, 2001 (two), 2003, 2004, 2006 (two codified versions), 2009 (codified version), 2011, 2012, 2013, 2014; Collins v Imtrat, 1994; Land Hessen v G Ricordi, 2003; Tod’s v Heyraud, 2005

1.2.9 Variations between countries Despite the international conventions and the European directives there are wide variations in protection between countries even within Europe, and still wider ones beyond Europe. The definition of the owner, for instance, can vary markedly, so that quite different people qualify as owners of copyright in the same work in different countries. Even the definition of a protected work can vary so that a work protected in the UK may not be protected at all in some countries and equally a work of overseas origin may not be protected in the UK (see 3.1). The possibility of such differences should be borne in mind if works are exploited overseas (for instance on the internet). The placing of copyright works on the internet is a particular problem internationally. If the copyright owner is giving permission, he or she should understand that the work will be accessible in places where UK law does not apply; it could even be that the law in the country of use does not recognize that the work qualifies for protection (see 3.1.1–4) or makes a quite different person the author or the owner of the copyright. There are special rules to cover variations in duration between different countries (see 2.1.27–28).

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1.3

Copyright and records

1.3.1 Context Files and archival documents consist almost exclusively of materials that are or have been protected by copyright. Infringement of that copyright can lead to civil damages and even to criminal prosecution. The administration of copyright is rarely entirely in the hands of the archivist or records manager, and its ownership is often obscure, not least because copyright persists for so long in unpublished works, which are what make up the bulk of files and archival collections. An archivist or records manager is often asked about copyright in a work, sometimes with the assumption that because the work is in a file or in the archive the institution holding it owns the copyright too. A knowledge of how copyright affects materials for which they are responsible, what they may do with them, and what could be the consequences of authorizing, or appearing to authorize, acts that could infringe, is thus of vital importance to the archivist and records manager.

1.3.2 The dangers of infringement Copyright infringement, if proved, is a tort, a civil, non-contractual wrong, and is unlawful. It has to be proved on the balance of probabilities: what a reasonable person would believe to be true. Many copyright owners, or their representatives, are increasingly assertive of their rights, particularly in the face of the growth of electronic media that can enable the mass distribution of perfect copies of copyright works (see 6.1.1). Universities, schools, companies and copy-shops have all discovered to their cost that unauthorized use of copyright works can prove to be an expensive option, even where the actual damage to the copyright owner has been very small. Most infringement cases are settled out of court, but even that can be expensive. When a case goes to court, infringement can result in costs of many tens of thousands of pounds plus substantial payments for damages. Scholarly purposes, even within a single institution, are not always sufficient to justify the unauthorized copying of works: the limits of fair dealing (see 5.3.7–14, 5.3.19) in copyright materials are quite narrow, and licences must be obtained for more extensive use (see 5.2.2). Copyright infringement can also, though rarely, be a criminal offence (see 5.1.9) but it is not the same as theft, whatever some rights owners might say. Theft deprives the owner of the thing stolen. A copyright owner’s interests are certainly damaged by infringement, but it does not deprive him or her of the rights nor prevent their continued exploitation. Some judges consider that infringement is more comparable to trespass (going onto someone’s land without permission). However viewed, criminal infringement can result in serious penalties and a criminal record. Moorhouse v University of New South Wales, 1976; Sony Music Entertainment v Easyinternetcafé, 2003; Twentieth Century Fox v Harris, 2014

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1.3.3 Archives and libraries All archivists, but especially those who are closely associated with library materials, including librarians who are working with special collections among a library’s holdings, need to ensure that they are fully aware of how copyright affects library materials and services. Much guidance is available for this purpose (see 10.2), and it should be studied carefully.

1.3.4 Digitization Archivists and records managers should be extremely wary of demands from users and superiors that their material be copied without authority, but especially of demands that they be digitized for remote electronic access (see Chapter 6). The ready availability of journals and other works on the web should not be accepted as evidence that archival works and electronic files can be similarly made available outside the archive without a lot of effort (and often cost) to secure the many permissions that are usually needed (see 5.4.18, and for a list of books giving detailed guidance see 10.2). Copyright must thus be considered at the very beginning of any project to make electronic records available remotely or to digitize archival material for that purpose (see 6.5.4). If digitization can be directed towards works in which copyright has expired (such as early photographs) or in which copyright is owned by the institution the difficulties are much reduced.

1.3.5 Checklist of copyright queries Archivists and records managers are likely to receive enquiries from colleagues and members of the public about copyright restrictions on particular documents. This checklist suggests an approach to the problem, but it must be emphasized that archivists and records managers should give advice on the answers to these questions only in general terms unless they are sure about what they are saying (see 5.1.9, 5.1.12): • Is it a work that qualifies to be protected by copyright (see 3.1)? Relatively few items in an archive or in files will not, but remember that a file or document may contain many separate copyright works, and that a copyright work can be as small as a single letter, a short poem or (perhaps) a signature (see 2.1.2, 2.2.1–5, 2.3.1–5, 2.4.1–2, 2.5.1–3, 2.6.15). Might other rights apply (see Chapter 8)? • Who was the author (see 2.1.17, 2.2.6–15, 2.3.6–11, 2.4.3–8, 2.5.4–6, 2.6.6–12, 2.6.16)? This can affect duration, ownership and moral rights. • Is it still in copyright (see 2.1.19–28, 2.2.16–33, 2.3.12–32, 2.4.9–18, 2.5.7–10, 2.6.13, 2.6.17)? • Is copying of the work allowed? Public records may be copied without formality (see 5.4.2) but non-public records may in many cases only be copied if they are out of copyright or if the purchaser has made a declaration (see 5.4.12–14). Records that are

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not yet in an archive may be copied under fair dealing if appropriate (see 5.3.7–14, 5.3.19), including for educational purposes (see 5.3.19), but in many cases require a licence (see 5.2.2). • Is what is being requested allowed without permission, because the use is insubstantial (see 5.3.3–5) or because a particular exception applies (see 5.3)? • Who was the first owner of the copyright (see 3.2) and who is the owner now (see 3.3)?

1.3.6 Checklist for publishing Following on from the basic checklist above, if publication is intended, depending on the answers to the initial questions, there may be some further things to think about when using a copyright work. The same considerations apply whether the prospective publisher is a member of the public or the institution itself: • Do I know the copyright owner, or is there a licensing body that can help (see 5.2.11–13)? • Should I do a diligent search for the copyright owner or do I need to bother (see 5.2.18–19)? • Do any other intellectual property rights apply and how do I trace the owners (see Chapter 8)? • Will one of the orphan works schemes assist (see 5.2.17–18, 5.4.20)? • Have I secured permission to cover everything that I want to do with the work? • Have I acknowledged the permission given, the author and title of the work (see 5.2.1) and the author’s moral rights (see 8.1.5)? • Have I acknowledged the custody of the institution holding the work and given its document reference? • Where what I am publishing is sufficiently original and substantial to qualify for protection itself (see 2.1.6–11), have I asserted my moral rights in it and announced in it that I have done so (see 8.1.5), and have I properly asserted my own copyright and all other relevant intellectual property rights in it (see 3.4)?

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2.1

Protection for works

2.1.1 Types of work Copyright law classifies works into defined types, for which the provisions differ. For archivists and records managers the most important are literary, dramatic, musical and artistic works, films and sound recordings. Other types of work (broadcasts and typographical arrangements) present problems less often. The definitions themselves have varied with successive legislative changes, but those in the 1988 Act (as subsequently amended) normally apply to all works created before and still in copyright at commencement and are thus the only ones that need be of concern for most purposes. Cases where earlier definitions still apply (notably pre-1912 maps, see 7.14.2–3, and pre1957 films, see 2.4.1) are set out in the descriptions of the appropriate categories. 1988 (CDPA) Sch 1 para 3

2.1.2 The nature of works A single item may consist of more than one work, of different types. An academic journal, for instance, might contain several articles, each of which could be a separate literary work, together with illustrations, each of which could be a separate artistic work, and some music, which could be a musical work. The journal as a whole might qualify for protection as a compilation (see 2.1.10, 2.2.3), and will certainly have protection for its typographical arrangement (see 2.6.15). Similarly a song consists of music and words; each has its own copyright and there is no distinct copyright in the song as a whole although the same person may be the author of both. Also, each separate entry in a diary is a separate copyright work while the diary as a whole is another. In an archive, deeds, for instance, are primarily literary works, but any plans in or on them are separately protected as artistic works. Likewise, a single file might contain minutes and papers produced by the creating body, letters, drawings and photographs received from private individuals or other bodies and companies, and published papers and maps including some in Crown copyright. Each separate item would qualify as a copyright work with its own authorship, duration and ownership, so the use of the whole file could require permission from many different people and bodies. A single item may also qualify for copyright under more than one description (see 2.2.2, 2.3.2). Thus a computer circuit diagram is an artistic work, but because it consists of notation identifying the various component parts it can also be a literary work. Similarly, Chinese calligraphy or a poem arranged on the page to form the shape of a cat

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could qualify under both heads. This can be significant because copying of the work (for example taking a list of components from the circuit diagram) could infringe copyright in one description of work but not the other. Note, though, that if a work is a dramatic or musical work it cannot also be a literary work (see 2.2.2). 1988 (CDPA) ss1, 3(1); Chappell v Redwood Music, 1981; Anacon v Environmental Research Technologies, 1994; Electronic Techniques (Anglia) v Critchley Components, 1997; Aubrey Max Sandman v Panasonic UK, 1998; Mackie Designs v Behringer, 1999; A v B, 2000

2.1.3 Material form Before a literary, dramatic or musical work can attract copyright, it must be recorded in a material form. Therefore there is no copyright in (say) an impromptu speech or improvised music unless someone writes it down or makes a recording (in which case there could also be a copyright in a sound recording, see 2.5). There is no equivalent requirement for other kinds of work. Some (artistic works, typographical arrangements, films and sound recordings) must in practice be in a material form because of the terms in which they are defined, so that (for instance) something which was fluid rather than static did not qualify (in Australia) as a work of artistic craftsmanship (see 2.3.5). Broadcasts do not have to be in a material form but must be transmitted or re-transmitted before they attract copyright. 1988 (CDPA) ss3(2), 4(1), 5A(1), 5B(1), 6(1), 6(5A), 8(1); Komesaroff v Mickle, 1988; Abraham Moon & Son v Thornber, 2013

2.1.4 Ideas In 1854, Mr Justice Erle said: ‘The subject of property is the order of words in the author’s composition; not the words themselves, they being analogous to the elements of matter, which are not appropriated unless combined, nor the ideas expressed by those words, they existing in the mind alone, which is not capable of appropriation.’ This has been an element of copyright law ever since: there can be no copyright in a general idea, but there can be copyright in the way the idea is developed and expressed. Exactly where the border lies between the idea and the expression is uncertain. The splendidly named American judge Learned Hand once said that ‘nobody has ever been able to fix that boundary, and nobody ever can’. It depends on the circumstances of any individual case, but it is clear that once a general idea is expressed or developed in a material form, so as to add something significant to the idea, that form of expression or development can be protected, whether the expression or development was by the originator of the idea or someone else. The courts often consider the ‘level of abstraction’ or of ‘generality’ in an idea to see whether it is sufficiently well developed to be protected.

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The more abstract the idea the less likely the protection. Thus, the making of a translation of a work does not merely use abstract ideas, so there can be a new copyright work (and also infringement even though not a single word of the source work is used, see 5.3.5). On the other hand, a general theme (for instance a historical theory, an outline for a play, the approach to be adopted in making a design, the message conveyed by a brochure, a technique) cannot be protected. As Lord Justice Jacob explained, ‘if protection for . . . general ideas . . . were conferred by the law, copyright would become an instrument of oppression rather than an incentive for creation which it is intended to be.’ Examples of unprotected ideas have included: • the former legal principle that a person may not be tried again for a crime for which he or she has already been convicted or acquitted, used in a play and a novel • a simple drawing of a hand holding a pencil, to show an illiterate voter where to put his or her cross; anyone was welcome to copy the idea so long as the new drawing was not identical to the earlier one • the thoughts and memories of the nominal author of ghost-written memoirs and articles; the ghost writer was author in both cases. There could be joint authorship only if the two parties have each ‘clothed the idea in form’ by contributing text (see 2.2.14) • the mood of a film and the techniques used in making it • the theme of a computer game • a mathematical formula, which is taken to be the only way the mathematical concept can be expressed; it might be that other kinds of formula, expressing relationships by means of symbols and numbers instead of words, could be protected; the distinction between these two types of formula is not especially clear so a decision would depend on the facts. Even harder to distinguish is the idea behind the ‘look and feel’ of something and the expression of that idea in the work. People have found it difficult to persuade the courts that the look and feel of a computer system or the manner in which it operates (as distinct from the actual software or the on-screen displays, see 6.6.1) can be protected, and the look and feel of works which use commonplace materials is likely in any case to be found to be unoriginal (see 2.1.6). Erle J in Jefferys v Boosey, 1854, at 702; Kenrick v Lawrence, 1890; Tate v Fulbrook, 1908; Byrne v Statist, 1914; Evans v Hulton, 1924; Judge Hand in Nichols v Universal Pictures, 1930, at 121; Wilmer v Hutchinson (Publishers), 1936; Farwell J in Donoghue v Allied Newspapers, 1938, at 109; Bookmakers Afternoon Greyhound Races v Gilbert, 1994; Designers Guild v Russell Williams (Textiles), 2000; Norowzian v Arks (No 2), 2000; IPC Media v Highbury-SPL Publishing, 2005; Navitaire v Easyjet Airline, 2005; USP v London General Holdings, 2006; Jacob LJ in Nova Productions v Mazooma Games, 2007 at para

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55; Baigent and Leigh v Random House, 2007; Allen v Bloomsbury Publishing, 2010; SAS Institute v World Programming, 2014

2.1.5 Facts There can be no copyright in an individual fact. For instance, facts taken from a diary or a letter, maybe about where a person was and what he or she was doing or thinking, are unprotected, as are facts about a historical event, individual facts about a person or place in a parish register (see 7.6.4) or in a directory, or the facts of an item of news. On the other hand, the precise words the person used in the diary or letter, an account of the historical event and a news article would all be protected and the contents of the diary might also be protected as confidential information (see 8.7.3). What the courts are looking for is ‘creative skill’ in the use of facts, leaving the facts themselves free for use by others (but they must then be careful about database right, see 8.2.7). So the use of creative skill in making a deliberately assembled collection of unprotected facts could result in protection of those facts as a compilation (see 2.2.3) and the legitimate use of such a compilation is limited. The taking of facts, amounting to a substantial part, from a map or a directory in order to make a rival map or directory would be an infringement, while the use of those facts to find a route to a place or to locate organizations would be legitimate. Walter v Steinkopff, 1892; Springfield v Thame, 1903; Philip v Pennell, 1907; Ravenscroft v Herbert, 1980; Geographia v Penguin Books, 1985; Express Newspapers v News UK, 1991; Waterlow Publishers v Rose, 1995; Jacob LJ in Football Dataco v Sportradar, 2011 at para 16

2.1.6 Originality in literary, dramatic, musical and artistic works Traditionally, in the UK, to attract copyright a literary, dramatic, musical or artistic work has to be original, which, as Mr Justice Peterson said in 1916, means that it must ‘originate’ with the author, rather than be copied from the work of someone else. In the common law tradition (see 1.2.2) this originality did not normally require creativity or original thought: ‘original’ does not mean ‘new’. Instead, for a work to be original the author had to use his or her own skill, knowledge, taste, judgement or labour to produce it. A Canadian judge has defined skill as ‘use of one’s knowledge, developed aptitude or practised ability’, and judgement as ‘use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options’. The position is different in civil law countries (see 1.1.1), including most member states of the EU, and also in the USA, and this is resulting in the development of a stricter definition of originality for copyright throughout the EU including in the UK. This comes largely not from political decisions but from decisions of the CJEU (see 1.2.5), which has decided that the definition of originality for photographs and databases (see

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8.2.4) that is contained in two directives should be applied to works of all kinds in the interests of ‘harmonization’ (see 1.2.8). In order to be considered to be original, a literary, dramatic, musical or artistic work, or the part of it that has been used by a defendant, must now ‘contain elements which are the expression of the intellectual creation of the author of the work’, ‘reflecting his personality’. The result of this is that mere labour in creation cannot lead to an original work. In some respects this test is more demanding than the old UK one, and it may be that some things that have always been accepted as copyright works, such as a simple business letter, might no longer be considered original because they do not reflect the personality of the author. On the other hand, some things that were previously regarded as too insubstantial, such as newspaper headlines, chapter headings and book titles, have been found capable of being original because they are capable of reflecting the author’s personality. They will not always do so, though, and each case depends on its own facts. The position has been helpfully summarized by one judge speaking of photographs: ‘The fact that the artist may have used commonplace techniques to produce his work is not the issue. What is important is that he or she has used them under the guidance of their own aesthetic sense to create the visual effect in question.’ Directive 2006 (Term) recital 16, art 6; Directive 1996 recital 15, art 3(1); Lamb v Evans, 1893; Walter v Lane, 1900; Peterson J in University of London Press v University Tutorial Press, 1916, at 608–9; McLachlin CJ in CCH Canadian v Law Society of Upper Canada, 2004, at para 16; Infopaq International v Danske Dagblades Forening, 2009 at para 39; Newspaper Licensing Agency v Meltwater, 2012; Painer v Standard Verlags, 2012 at para 94; HHJ Birss in Temple Island Collections v New English Teas, 2012 at para 34; SAS Institute v World Programming, 2014

2.1.7 Originality and material changes Because original does not mean new, the author may produce an original work which is not unique, using existing general ideas or by developing an earlier work, so long as he or she uses his or her own skill to express those ideas and is not simply copying. On the other hand, a slavish copy of another work cannot be original, so there can be no copyright in it. The copy must be sufficiently different from its source to make it a new work. Examples are a change of medium, a translation, a transcript of an old manuscript in an obscure or difficult language, or a performing edition of various different versions of old musical works (see also 4.1.10, 5.1.7). One judge said in 1923: ‘It is necessary that the labour, skill and capital expended should be sufficient to impart to the product some quality or character which the raw material did not possess, differentiating the product from the raw material.’ In 1988 another said that it did not follow ‘that that which is an exact and literal reproduction in two-dimensional form of an existing two-dimensional work becomes an original work simply because the process of copying it involves the

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application of skill and labour. . . . Whether it does so or not is a question of degree having regard to the quality rather than the quantity of the addition.’ Where a derivative work does qualify for copyright protection it is an entirely new work with its own author and owner. The author and owner of the source work have no rights in the new one. Nevertheless, the creation of the derivative work could be an infringement of the copyright in the source work unless the use was authorized. Subsequent use of the derivative work could also infringe that copyright. The owner of the copyright in the source work is thus likely to be entitled to a share in the royalties from the derivative work, in proportion to what has been taken, and permission from the owner of the source work is required when the derivative work is used: ‘An important point to appreciate about copyright is that there can be several different copyrights underlying a single work, and often anyone who wishes to exploit the last copyright to be created needs to own or to have authority (commonly called a licence) to use, not just the last copyright but all of the earlier ones as well.’ 1988 (CDPA) s1(1)(a); Tree v Bowkett, 1896; Walter v Lane, 1900; Evans v Tout, 1909; Byrne v Statist, 1914; Lord Atkinson in Macmillan v Cooper, 1923, at 188; Redwood Music v Chappell, 1982; Lord Oliver in Interlego v Tyco, 1988, at 371–2; Park J in Brighton v Jones, 2004 at 520; Gabrin v Universal Music Operations, 2004; Sawkins v Hyperion Records, 2005

2.1.8 Originality and independent creation Since original does not mean new and copyright gives no monopoly, it is possible for two independently produced works to be virtually identical (see 1.1.6). A photographer may take a photograph of a scene which almost exactly reproduces another photograph by someone else, and will still be entitled to copyright without any infringement because the photograph is a copy of the scene, not of the earlier photograph. 1988 (CDPA) s1(1)(a); Walter v Lane, 1900; Corelli v Gray, 1913; King Features Syndicate v O and M Kleeman, 1941; Bauman v Fussell, 1978; Creation Records v News Group Newspapers, 1997

2.1.9 Originality in copies Where a copyright work consists of material copied from elsewhere, those parts that are copies are unoriginal and can have no new copyright protection. Anyone wishing to copy the earlier material (for instance a poem in an anthology or a letter in a volume of collected works) needs permission only if it is still in copyright, and then only from the earlier copyright owner, unless the typographical arrangement is copied (see 2.6.15). Warwick Film Productions v Eisinger, 1969

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2.1.10 Originality in compilations Although gaining no new protection for the individual works it contains, a work which contains copies of earlier material can attract copyright as a compilation if the compiler has not merely collected the material (see also 8.2.7) but has used enough skill, judgement or ingenuity to select it, to ensure that it is comprehensive or to present it in a useful arrangement (see 2.1.6). A compilation that has required no skill in selection or arrangement (such as the information tables often found in diaries and the contents of parish registers, see 7.6.4) is unlikely to be sufficiently original. A compilation is a form of literary work, regardless of the nature of the material it contains (see 2.2.2–3), but many are likely now to be defined as databases (see 8.2). An abridgement or paraphrase, in the words of the editor using the ideas from the original, also attracts copyright, but a simple condensation or précis of an existing work is less likely to do so (see also 5.1.8). 1988 (CDPA) s1(1)(a); Macmillan v Cooper, 1923; BBC v Wireless League Gazette Publishing, 1926; Cramp v Smythson, 1944; Whitaker v Publishers Circular, 1946; Football League v Littlewoods Pools, 1959; Elanco Products v Mandops, 1980; Autospin v Beehive Spinning, 1995 2.1.11 Originality in photographic and digital copies, and photocopies Because of the requirement of originality there can be no copyright in a photocopy of an existing work, even if it has been enlarged or reduced (though there can of course be a copyright in an original work created by means of a photocopier). The level of skill and creativity required to produce any other form of copy, and possibly how far the medium has been changed, determines whether it can qualify for copyright. In the case of photographs or drawings of three-dimensional objects, such as wax seals or antique vases, the positioning of the object, the angle at which the picture is taken, the lighting and the focus are ‘all matters of judgment, albeit in many cases at a very basic level’. It is therefore probable that all such photographs would qualify. A photograph of a significantly faded and damaged two-dimensional original or a high quality photographic reproduction of a painting, using ‘great talent and technical skill’ with appropriate lighting and filtration techniques, almost certainly qualifies, but a simple photographic facsimile copy, a snapshot of the painting, a single frame from a microfilm, or an unmodified digitized image of a flat document would probably not. Quite where the borderline is between these two extremes is uncertain: ‘one has to consider the extent to which the “copyist” is a mere copyist – merely performing an easy mechanical function. The more that is so the less is his contribution likely to be taken as “original”.’ A US judgment found that there was no copyright in facsimile photographs of paintings, but it has had no influence in the UK which remains bound by a judgment in the 1860s and even more by one in the House of Lords in 1900 that leave the possibility open of there being copyright in such a case in the right circumstances.

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Even if there is no copyright in a particular copy, reproduction of the copy might infringe any copyright in the original document itself and might be contrary to any contract entered into when the copy was purchased (for instance, the conditions imposed by an archive on purchasers of copies of materials in the collection, see 5.2.25). 1988 (CDPA) s178 ‘facsimile’; Graves’ case, 1868–9; Walter v Lane, 1900; LB (Plastics) v Swish Products, 1979; Express Newspapers v News UK, 1990; Reject Shop v Manners, 1995; Bridgeman v Corel, 1997; Neuberger J in Antiquesportfolio.com v Rodney Fitch, 2001, at 59; Jacob LJ in Sawkins v Hyperion Records, 2005, at 827–8 2.1.12 Originality: infringing copying The question of originality inevitably becomes entangled with the question of infringement if one work copies a substantial part of another (see 5.3.3–5), unless the source work is no longer in copyright. The nature of the copying determines the result. A simple infringing copy of a work (one that duplicates an earlier copyright work, without permission) does not itself enjoy copyright protection because it is not original. On the other hand, something like a translation, or an arrangement of a piece of music, would normally qualify for its own protection even if unauthorized, because it will certainly be original. As a result, the use of the translation or arrangement would require permission from the copyright owners of both versions. The principles are similar with artistic works. If a photographer re-creates from an earlier photograph, painting or other copyright image a scene that did not exist in nature, for example by setting up afresh a still-life or portrait in a studio, the resulting image (depending on the circumstances) might not be original and will probably infringe. If one person produces a work that appears to the judge to be a copy of an earlier one, it is up to the author of the later work to prove that it was not produced by copying in order both to gain copyright protection for it as an original work (see 2.1.8) and to defeat an action for infringement (see 5.1.2). In rare cases a court might deny the owner of copyright in an infringing work the power to enforce the copyright if there are public interest issues involved (see 5.3.26). 1988 (CDPA) ss1(1)(a), 21(2), 171(3); Turner v Robinson, 1860; Wood v Boosey, 1868; Byrne v Statist, 1914; Gross v Seligman, 1914; Redwood Music v Chappell, 1982; Creation Records v News Group Newspapers, 1997; ZYX Music v King, 1997 2.1.13 Originality in sound recordings and films A sound recording or film does not have to be original as such, but any part of a recording or film that is a copy of a previous recording or film does not attract copyright. In this context, copy means a direct copy of the earlier work; so a new film can be a re-make of an earlier one and be protected by copyright. It is important to be aware though that a ‘film’ is what EU directives refer to as a ‘first fixation’ of a film, that is the recording itself.

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A ‘cinematographic’ or ‘audiovisual’ work embodied in the film is a dramatic work in UK terms and has to be original (see 2.1.6, 2.2.4, 2.4.2); a re-make of that could infringe. Directive 2001 (Information Society) art 2(d), art 3(2)(c); Directive 2006 (Rental) art 2(1), 7(1), 9(1); Directive 2006 (Term) art 3(3); 1988 (CDPA) s5A(2), 5B(4); Norowzian v Arks (No 2), 2000; Dramatico v BSkyB, 2012 2.1.14 Originality in broadcasts A broadcast or a repeat of a broadcast does not have to be ‘original’ to attract copyright, but the copyright in a repeat expires on the same date as the copyright in the first transmission. However, if the repeat also includes new material, that new material is entitled to its own copyright for the full term. There can be no copyright in a repeat of a broadcast in which the copyright has already expired, and there can be no copyright in a broadcast that infringes the copyright in another broadcast. 1988 (CDPA) ss6, 14(5); SI 1995/3297 reg 7 2.1.15 Originality in typographical arrangements There is no requirement of originality in the typographical arrangement of a published edition (see 2.6.15). However, there is no copyright to the extent that the edition reproduces the typographical arrangement of a previous edition. 1988 (CDPA) s8 2.1.16 Triviality The UK courts have decided that some works are too trivial to qualify for copyright; examples include the name of a company, a short title of a book, magazine or song, an advertising slogan and a simple form. However, some quite insubstantial things, such as newspaper headlines, chapter headings and titles, have been found capable of being original (see 2.1.6), and so capable of being copyright works in their own right. Whether they do in fact qualify depends on the level of creativity involved. Similarly, a form which has taken much skill to design might be protected, as might a suite of relatively simple forms. There is no copyright in a personal name: anyone may adopt another’s name without infringement of copyright. The courts have found that a signature is too trivial to qualify as a literary work, but that it might qualify as an artistic one (see 2.3.2). Du Boulay v Du Boulay, 1869; Dicks v Yates, 1881; Lamb v Evans, 1893; Libraco v Shaw Walker, 1913; Francis, Day & Hunter v Twentieth Century Fox, 1940; Capital Finance v Bowmaker, 1964; Ladbroke (Football) v William Hill (Football), 1964; Exxon Corporation v Exxon Insurance, 1982; Elvis Presley Trade Marks, 1997, at 558; Newspaper Licensing Agency v Meltwater, 2012

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2.1.17 The author In most circumstances, the author is the person who creates the work, and is the first owner of the copyright in it. The circumstances where the author is not the first owner are considered in Chapter 3. The definition of the ‘author’ depends on the nature of the work in question, as discussed for each category below (see 2.2.6–15, 2.3.6–11, 2.4.3–8, 2.5.4–5, 2.6.6–9, 2.6.14, 2.6.16), and can be more than one person (see 2.2.14, 3.2.7–9). The identity of the author is important, even if he or she is not the first owner and regardless of any assignments of ownership, since the term of copyright normally depends on the length of his or her life. There are some general difficulties with authorship and first ownership which should be recognized: • It is not always easy to determine who is the author or the first owner, because it depends on the particular circumstances as well as on the law in force at the time the work was made or completed. • When the author is an employee, there can be significant difficulties in discovering when he or she died, and thus the duration of the copyright. Since employees leave or retire and in many cases will be untraceable thereafter this can be a major problem not only for potential users but also for their former employers, who are the first owners of the copyright (see 3.2.12–16). The Master of the Rolls suggested in 1883 that employers should ensure that their employees were young and healthy, so as to prolong the period of copyright protection, but he offered no advice on how to discover when a former employee died. In most cases it is probably necessary to make assumptions about the age of the author at the time the work was created and his or her life expectancy (probably 100 years nowadays) and to take a risk. The risks would be either that the court would disagree with the assumptions made or that the date of death is subsequently discovered and the assumption is shown to be wrong. 1988 (CDPA) ss9(1), 11(1), Sch 1 paras 10, 11; Nottage v Jackson, 1883 2.1.18 Author of anonymous or pseudonymous works or works of unknown authorship Any sort of work may be of unknown authorship because the author is unidentified or used an impenetrable pseudonym. A work is of unknown authorship if it is not possible to ascertain the identity of the author, or of at least one of the authors if the work is of joint authorship (see 2.2.14, 3.2.7), by reasonable enquiry. If you were to undertake such an enquiry a reasonable test to use to decide whether the person identified was actually the author would seem to be the standard one in civil law: the balance of probabilities (see 1.3.2). If, before copyright expires, the identity of the author or one of the authors becomes known, the work can no longer be treated as one of unknown authorship. In some older works, the copyright could immediately lapse. There are special provisions

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for the duration of copyright in some works of unknown authorship (see 2.2.19–20, 2.3.15–19, 2.4.16–17). There is also a special provision allowing use of works of unknown authorship in some circumstances (see 5.2.21–22). Reasonable enquiry is not defined in the Act but must include contacting the owner of the copyright or the publisher, or their successors (if identifiable) (see 5.2.18–20). It would also be necessary to follow up any evidence given in the work itself as to who the author might have been, for instance initials or references to an office he or she held. For some pre-1912 works there are the statutory registers maintained by the Stationers’ Company under the 1842 and 1862 acts. These covered books (in a very wide sense, including maps, see 7.14.3), some dramatic and musical works, paintings, drawings and photographs, and some sculptures. They record the name and address of the copyright owner, the author and any assignor together with a description (and sometimes a copy) of the work. They are now preserved in TNA (registers in document reference COPY 3 and application forms with attached copies in document reference COPY 1). Some photographs were wrongly registered before 1883, incorrectly identifying the author, so these are anonymous despite registration. 1842 s11; 1862 s4; 1988 (CDPA) s9(4–5); Nottage v Jackson, 1883 2.1.19 Duration Establishing the duration of copyright is notoriously difficult, though some standardization has now simplified matters for recent works. The calculation of the duration of copyright in older literary, dramatic, musical and artistic works is especially difficult, particularly where expired copyrights have been revived (see 2.1.23–26) and where the duration provided by earlier statutes gives a later terminal date. For most literary, dramatic, musical and artistic works and films the basis is normally the life of the author. Duration of copyright in sound recordings, broadcasts and typographical arrangements and duration of performers’ rights (see 8.5.5) owe nothing to the life of the author. Details are given under ‘duration’ for each type of work. In all cases, duration includes the remainder of the year in which the triggering event takes place followed by a fixed term running from the end of that year (see 1.1.7). The charts in the Appendix (see 9.1.1–2) show how the rules are applied in the UK to literary, dramatic, musical and artistic works and the following notes seek to explain the principles. 2.1.20 Duration: standard rules for literary, dramatic, musical and artistic works The duration of copyright in the UK is governed by the Copyright, Designs and Patents Act 1988 as amended. The basic rule is that copyright is for 70 years from the end of the year of the author’s death, whether the work is published or not. If the author is unknown, the duration is either 70 years after the end of the year of creation or, if it is made available to the public (including by being published, see 4.1.11) within that

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period, 70 years after the end of the year in which it was made available. However, the Regulations also say that these standard rules do not apply if copyright would last longer under earlier provisions, either those of the unamended 1988 Act or those of earlier acts as set out in Schedule 1 to the 1988 Act. The durations given in this book thus reflect the standard rules and their possible variations. A duration longer than the standard one is likely to be longer than that enjoyed in many other countries. As a result, some of the lengthy terms summarized below do not necessarily apply to works from outside the EU (see 2.1.27 and 9.1.4). 1988 (CDPA) s12; SI 1995/3297 regs 5, 12, 15 2.1.21 Duration: the variations for literary, dramatic, musical and artistic works The three principal variations that apply are calculated as follows (remembering that in every case copyright expires at midnight on 31 December of the year in question): • In some works of known authorship (see 2.2.17, 2.3.13), copyright expires in 2039 (50 years after the 1988 Act came into force), provided the author died before 1969. If the author died after 1969, the standard rule (life plus 70 years) would give a terminal date after 2039. Death in 1969 would give a terminal date of 2039 whichever rule applies. • In some works of known authorship (see 2.2.18, 2.3.14), copyright expires 50 years after the year of publication, provided the author died more than 20 years before publication. If the author died at any time after the year 20 years before publication, the standard rule (life plus 70 years) would give a later date. Death precisely 20 years earlier would give the same terminal date whichever rule applies. • In some works of unknown authorship (see 2.2.20, 2.3.16, 2.3.18) copyright expires in 2039 (50 years after the 1988 Act came into force). If the work was created, first published or first made available to the public (see 4.1.11) after 1969, the standard rule (creation plus 70 years, or publication or made available to the public plus 70 years) would give a later date. Creation, first publication or first being made available to the public in 1969 would give the same terminal date whichever rule applies.

2.1.22 Duration: films Similar variations apply to some films, except that for the purposes of duration a film is anonymous when none of the ‘persons connected with the film’ (see 2.4.9) is known. The principal director is one of these persons, and also a joint author, but while the producer is the other joint author for the purposes of ownership (see 2.4.3–5, 3.2.1, 3.2.7–8) his or her life is irrelevant to duration.

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2.1.23 Extended and revived copyright Until 1 January 1996, the standard term of copyright in literary, dramatic, musical and artistic works and films in the UK was 50 years from the death of the author, or 50 years from the year in which the work was first made available to the public if the author was unknown. When this standard term was changed in 1995 to 70 years under the EU directive of 1993, not only were copyrights and moral rights still subsisting on 31 December 1995 extended but also some copyrights and moral rights that had expired before then were revived even if they had expired many years earlier. Archivists and records managers would be well advised to assume that, for most purposes, all works in their care are covered by the provisions as set out in this book, since those provisions cover works whose copyright has been extended or revived in the UK (though see 2.1.27, 9.1.4). They should, however, be careful if they wish to publish a work in another country which has even longer terms (such as Spain, which used to give life plus 80 years, and France, which gives extended coverage to some works, see 2.1.28). Until 31 October 2003, the term of copyright in a sound recording was 50 years from the end of the year of its creation or 50 years from the end of the year in which the recording was released, if it was released during the first 50 years after creation. Under the 2003 regulations, the concept of release was removed, and the term now starts at creation, publication or the first playing or communication to the public. This resulted in the extension of copyright in some unpublished sound recordings that were still in copyright in the UK on 31 October 2003 (see 2.5.8). A further change occurred in 2013, when the duration of copyright in a sound recording that has been published or made available to the public by being played in public or communicated to the public was extended to 70 years. This extension applied only to a sound recording that was still protected in the UK under the 50-year term on 31 October 2013; copyrights that had expired were not revived. From 1 November 2013, a composition consisting of a literary and a musical work that were written to go together (such as a song) is a work of co-authorship (see 2.2.2, 2.2.5, 2.2.14) in which the duration of copyright in the composition as a whole is based on the life of the last of the authors to die. The ownership of copyright in the two works comprising the work of co-authorship has not been combined (see 2.1.24). Directive 2003, codified 2006; 1988 (CDPA) ss10A, 12, 13(A), 13(B); SI 1995/3297 regs 16, 17; SI 2003/2498 reg 29; SI 2013/1782 regs 4–6, 14–17 2.1.24 Application of extended and revived copyright Copyright in a literary, dramatic, musical or artistic work or a film was extended or revived only if on 1 July 1995 (the date the directive came into force) the work qualified for and was protected by copyright somewhere in the EEA (see 1.2.8). The directive made elaborate provisions for revival, but three subsequent cases before the CJEU (see 1.2.5) have simplified matters. Thus:

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• Copyright was extended or revived, even if only for a few months, in any work whose author was a national of an EEA member state who died after 31 December 1924, no matter how many years earlier copyright had expired under the old provisions. This is because Germany and Spain both already had longer terms, and they are obliged to apply those terms to nationals of all member states, not merely their own nationals. • Where the author of a work was not an EEA national but copyright in that work subsisted in any member state on 1 July 1995, copyright subsists in all member states even if they did not previously give protection to that work or to works from that author’s country. • Where by 1 July 1995 copyright had expired in all member states of the EEA in a work whose author was not an EEA national, the copyright was not revived. • Copyright was extended in an anonymous work which was created or first made available to the public (see 4.1.11) in the UK after 31 December 1944. • Copyright in an anonymous work that had expired in the UK was revived if that work still qualified for copyright in another member state of the EEA on 1 July 1995. In Germany prior to the directive, literary, dramatic and musical works were protected for 70 years after publication or (apparently) perpetually if unpublished. Anonymous photographs were protected in Germany for only 25 years from creation or publication, but other anonymous artistic works were given no special term at all. The owner of the revived copyright in these works is the person (or body) who was the owner immediately before the copyright expired, unless that person has died in the meantime (or the body has ceased to exist). If the last owner has died (or ceased to exist) the owner of the revived copyright is: • for literary, dramatic, musical and artistic works, the author, or his or her heirs • for films, the principal director, or his or her heirs. Thus the rules about ownership by employers (except the Crown, which never ceases to exist) no longer apply in such cases. The owner of extended copyright in a sound recording was the person or body that was the owner immediately before the copyright was extended. Copyright in a work of co-authorship was extended or revived only if at least one of the works, literary or musical, of which it was composed was still protected in the UK or anywhere else in the EEA (see 1.2.8) on 31 October 2013. If only one was protected, copyright was revived in the other (see 2.1.25). If both were still protected on that date, copyright in the one whose author dies first will have been extended. The owner of the extended copyright was the person or body who owned it on 31 October 2013. The owner of the revived copyright was the person or body who owned it on the day before it expired, unless he or she had died or the body had ceased to exist before 1 November 2013 in which case the owner was the author or his or her heirs. Thus, again, the rules about

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ownership by employers (except the Crown) may not apply to a revived copyright. There are special provisions to protect people from infringement of revived copyright, if they legitimately started to exploit a work when it was out of copyright; to extend the term of licences granted for the full life of the original copyright (irrespective of whether the copyright owner has changed as a result of the death of the person who made the grant), and to ensure that assertions or waivers of moral rights continue unchanged (see 8.1.4–5). There is also, in effect, an orphan works provision for works in revived copyright whose rights owner cannot be found (see 5.3.29). Similar provisions apply to extended copyrights in sound recordings, to extended performers’ rights (see 8.5.5), and to extended and revived copyrights in works of co-authorship. 1965 (Germany) art 66; SI 1995/3297 regs 16, 17, 19, 21, 23; SI 2003/2498 regs 29, 38–39; SI 2013/1782, regs 15–26; Collins v Imtrat, 1994; Land Hessen v G Ricordi, 2003; Sony Music Entertainment Germany v Falcon Neue Medien Vertrieb, 2009 2.1.25 Works affected by revived copyright Revived copyright does not apply to the bulk of records, including: • literary, dramatic and musical works and engravings of any date that were unpublished on 1 August 1989, photographs taken and films made after 1 June 1957, and other artistic works of unknown authorship of any date that were unpublished on 1 August 1989, all of whose copyrights were set to expire later than 1994 • works in Crown copyright, whose duration and ownership is not dependent on authorship • copyright in broadcasts and typographical arrangements, whose duration was not extended by the 1993 directive • works of co-authorship where the authors of both the literary and the musical work had died before 1 November 2013. Works most clearly affected were (bearing in mind that some revived copyrights have since expired again) those whose copyright had expired under the old law but whose authors died sufficiently recently to be caught by the new. They include: • literary, dramatic and musical works of known authorship that were published and whose author had died between 1924 and 1944 (see 2.2.16) • photographs (including those taken before 1 July 1912) and most other types of artistic work of known authorship created by an author who died between 1924 and 1944 (see 2.3.12) • films (as sequences of photographs) of known authorship made by an author who died between 1924 and 1944 (see 2.3.12, 2.4.10).

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Pre-1912 photographs have caused much confusion, since commentators used to be able to assert that all the copyrights had expired: the 1911 Act provided for their expiry at the latest 50 years after creation, with no reference to authorship. For photographs of known authorship at least, that simple assumption no longer holds good. Works comprising works of co-authorship that are most obviously affected by revival are: • published literary works whose author died before 1943, written to go with music that was composed for the same purpose and whose author died after 1943 • published musical works whose author died before 1943, composed to go with words that were written for the same purpose and whose author died after 1943. 1911 ss3, 21; 1956 Sch 2, Sch 7 paras 2, 16 2.1.26 An example of copyright revival For example, suppose a photographer took a graphic picture of the General Strike in 1926 for a UK newspaper. The photographer died in 1942 and the newspaper ceased to exist in 1993. Copyright in that photograph would have expired on 31 December 1976 (50 years after creation) under the terms of the Copyright Act 1911, and the owner of the copyright at that date would have been the newspaper. Copyright in the photograph would have revived on 1 January 1996, because although out of copyright in the UK it was still in copyright in Germany, where rights already lasted for 70 years from the author’s death. The owner of the revived copyright would be the author’s heirs and it would finally have expired on 31 December 2012 (70 years after the author’s death). 1911 s21; 1956 Sch 7 para 2; 1988 (CDPA) s12(2), Sch 1 para 12(2)(c); SI 1995/3297 regs 5, 16(1), 19(2)(b) 2.1.27 Duration: works of non-EEA origin and UK works outside the EEA Although UK law protects works that were created outside the EEA (see 1.2.8) and that qualify for protection (see 3.1), it does not give protection for any longer than would be given by the ‘country of origin’. The member states of the EEA, Australia, Brazil, Israel, Paraguay, Peru, Russia, Singapore, Switzerland, Turkey and the USA (among others) have a standard term of the life of the author plus 70 years, but this is more than in most countries. The standard (minimum) term under the Berne Convention is for the life of the author plus 50 years though there are further variations (100 years in Mexico, for instance, 60 years in India). In order to decide the term of copyright enjoyed in the UK by works of overseas origin it is necessary to know the term that would apply in the ‘country of origin’. This can then be compared to the UK term to discover which is shorter, and that shorter term applies. For the purposes of duration (but not of qualification, see 3.1), the ‘country of origin’ is:

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• an EEA member country if the work was first published there, even if also simultaneously published elsewhere • a country that is a party to the Berne Convention (but not, apparently, those countries that are parties to other international copyright treaties and thus only indirectly required to comply with Berne, see 1.2.6–7), if the work was first published there; if simultaneously published in several Berne countries, the country of origin is the one giving the shortest term • for a film that is unpublished or that was first published in a non-Berne country but whose maker lives in a Berne country, that Berne country • for a work of architecture or an artistic work incorporated in a building in a Berne country, that country • for any other work (an unpublished work or a work first published in a non-Berne country), the country of which the author is a national. For a table giving the range of possible terms of copyright in a selection of non-EEA countries see 9.1.4. Long terms, and in some cases perpetual terms, for certain unpublished works are to be found in some countries such as Australia, Brazil, Hong Kong and India. 1988 (CDPA) ss12(6), 13A(4), 13B(7), 14(3), 15A; SI 1995/3297, regs 5–8 2.1.28 Duration: the EEA, the British Isles and other territories Because of the rule preventing non-discrimination (see 1.2.8), the UK is obliged under EU law to extend the full term of protection given by UK law to all works of EEA origin, even if the duration in the country of origin is shorter. The same is true in reverse: in other EEA countries, a work of UK origin enjoys the full term of protection available to the nationals of those countries. It is worth noting that France and Spain give longer terms in some circumstances. In France, 30 years are added if the author was mort pour la France (killed on active service, as recorded on the death certificate). Also, extra periods are given for a musical work (but no longer for any other) to cover the two world wars: for the First World War (1914–19), an additional six years and 152 days if published before 1 January 1920 and still in copyright on 3 February 1919, and for the Second World War (1939–48), an additional eight years and 120 days if published before 1 January 1948 and still in copyright on 13 August 1941. In Spain, any work by an author who died before 7 December 1987 has a term of life plus 80 years. These extra periods apply respectively in France and Spain alone, but would apply there to any relevant work of EEA origin. Outside the UK, there are four principal jurisdictions in the British Isles and one other principal British territory in Europe: the Republic of Ireland (see 7.1.1–5), Guernsey, Jersey, the Isle of Man (see 3.1.2–3, 7.1.6–9) and Gibraltar (see 3.1.2–3). The Republic is a member of the EEA; the Isle of Man and the Channel Islands are qualifying countries

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(see 3.1.1–4); and Gibraltar is a dependent territory of the UK and thus EU law has direct effect there, so works by people from all these jurisdictions enjoy the full term of protection in the UK. For the duration of copyright within these jurisdictions, see 9.1.3. It is important to note that most countries do not offer the long duration enjoyed in the UK by some unpublished works (see 2.2.17). All other member states of the EEA except Ireland offer the standard term for such works. Nevertheless this lengthy term applies in the UK to works by EEA nationals, again because of the rule preventing non-discrimination. For British overseas territories, see 3.1.2–3. 1879; 1985 (France) art 8; 1988 (CDPA) ss12(6), 13A(4), 13B(7), 14(3), 15A; 1992 (France) arts L.123-8–10; 1996 (Spain) transitional provisions art 4; SI 1995/3297, reg 8; SI 2013/536; SI 2015/216; Collins v Imtrat, 1994; Land Hessen v G Ricordi, 2003; Société des Auteurs dans les Arts Graphiques et Plastiques v Editions Fernand Hazan, 2007; Enokia v The Royal Literary Fund, 2013

2.2

Literary, dramatic and musical works

2.2.1 Definition Although literary, dramatic and musical works are defined differently, they are treated in the same way for most purposes. In practical terms the main reason to take note of the distinctions is that a single composition can have separate authors and owners for each of the different copyright works of which it is composed. Thus an opera is both a dramatic work (the libretto) and a musical work (the music), and the words of an individual aria (a poem) might be a separate literary work. Moreover, when the opera is performed on stage the sets are artistic works.

2.2.2 Literary works A literary work is an original (see 2.1.6) work of any date that is not a dramatic or musical work, that may be written, spoken or sung and that has been recorded in writing or otherwise (see 2.1.3). Clearly, then, ‘literary’ does not mean something that has a high or erudite quality. Instead it means something ‘which was intended to afford either information or instruction, or pleasure in the form of literary enjoyment’. ‘Writing’ includes any form of notation or code, so a literary work does not have to be expressed in words, and can consist of numbers (as with some computer programs), ideograms (such as Chinese calligraphy, which will also be an artistic work, see 2.1.2, 2.3.2), messages in cipher, circuit diagrams (as notation of components) and stories told as strip cartoons without any words (though each picture will have a distinct artistic copyright). Most literary works consist of words, though. Those words individually are commonplace and unprotected. It is when they are put together in a particular order that they can form an original copyright work.

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Literary works can include: • letters, including business letters • tables, such as a list of document references or a railway timetable, unless it is a database (see 8.2) • compilations, but a work that is a database, such as a catalogue, is not a compilation (see 2.2.3, 8.2) • databases (see 8.2) • computer programs, which are a series of instructions controlling a computer (see 6.6) • design material for a computer program • the words, but not the music, of a song, but if the words and music were written to go together the combined composition is a work of co-authorship and the duration of copyright (but not ownership of the copyrights in the distinct literary and musical works) is affected (see 2.1.23–25, 2.2.5, 2.2.14). 1988 (CDPA) ss1(1)(a), 3(1), 10A, 178 ‘writing’; SI 2013/1782, regs 4; Davey LJ in Hollinrake v Truswell, 1894, at 428; University of London Press v University Tutorial Press, 1916; Exxon Corporation v Exxon Insurance, 1982; Anacon v Environmental Research Technologies, 1994; Aubrey Max Sandman v Panasonic UK, 1998; Cembrit Blunn v Apex Roofing Services, 2007; Budget Eyewear v Specsavers, 2010; Newspaper Licensing Agency v Meltwater, 2012 2.2.3 Compilations A compilation is a form of literary work, regardless of the nature of the material of which it is composed, so it may consist entirely of works that are not protected by copyright themselves at all, of non-literary works, such as pictures or samples of music (which themselves enjoy separate copyrights with their own durations and owners), or of a combination of such materials. So it may be, for instance, a collection of forms, a leaflet, a newspaper, a map or a poster. For a compilation to qualify it must of course be original (see 2.1.10). Productions that bring more than one work together are not compilations if the skill lies in creating those separate works rather than in bringing them together, so in all cases, a song consisting of words and music comprises two separate copyrights in those works but none in the song as a compilation (see 2.1.2, 2.2.14). The definition of a compilation made on or after 27 March 1996 has been curtailed by the wide definition of a database (see 8.2). The definition of a compilation made after that date probably includes a collection of forms, a map (as a compilation of various pieces of information), a newspaper or a poster including any pictures, but in some cases might no longer include a:

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collection of other works (such as a poetry anthology or a book of photographs) microfilm trade catalogue or directory printed catalogue of the documents in an archive.

1911 s35(1) ‘literary work’; 1956 s48(1) ‘literary work’; 1988 (CDPA) ss1(1)(a), 3(1)(a); Southern v Bailes, 1894; Whitaker v Publishers Circular, 1946–7; Elanco Products v Mandops, 1980; Chappell v Redwood Music, 1981; Geographia v Penguin Books, 1985; Kalamazoo v Compact Business Systems, 1990; Waterlow Publishers v Rose, 1995; Newspaper Licensing Agency v Marks & Spencer, 2001; Grisbrook v MGN, 2011 2.2.4 Dramatic works A dramatic work is an original work of movement or action, of any date, which is capable of being performed before an audience and that is recorded in writing or some other form (see 2.1.3). ‘Writing’ includes any form of notation or code. A dramatic work includes not only works of acting (plays, operas), dancing (choreography) or mime, but also many (probably most) films as ‘cinematographic’ or ‘audiovisual’ works (‘authorial works’, as distinct from the physical films themselves, which are ‘entrepreneurial works’, see 1.1.4, 2.1.13, 2.4.2). Administrators of copyright in films seem to regard only fiction films as dramatic works, but the law is not actually so restrictive so long as a film is a work of action, capable of being performed before an audience. It follows that the whole libretto of an opera (containing directions for action as well as words to be performed) is a dramatic work, but that the words of an individual aria are probably a literary work (a poem) since they do not comprise a work of action (the aria contains no directions for actions, merely the words to be sung). Similarly, a comedy film may be a dramatic work, but individual verbal jokes are probably literary works. Directive 2003, codified 2006 art 2; 1988 (CDPA) ss1(1)(a), 3(1), 178 ‘writing’; Creation Records v News Group Newspapers, 1997; Norowzian v Arks (No 2), 2000; Dramatico v BSkyB, 2012 2.2.5 Musical works A musical work is an original work consisting of or combining melodies and (where appropriate) harmonies, of any date, which is capable of being performed to produce sounds appreciated by the ear, and which is recorded in writing or some other form (see 2.1.3). Writing includes any form of notation or code, including musical notation, including the musical symbols indicating volume and so on. A musical work does not include any words that are to be performed with the music, such as those of an opera or song, nor any actions intended to be performed with the music, which have separate literary and dramatic copyrights, nor any elements of performing style, which have no copyright at all though they might be protected by

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performers’ rights (see 8.5). However, a composition consisting of words and music that were both created to go together is a work of co-authorship in which duration (but not ownership) is affected (see 2.1.23–25, 2.2.2, 2.2.14). Directive 2011 art 1(1); 1988 (CDPA) ss1(1)(a), 3(1), 10A, 178 ‘writing’; SI 2013/1782 reg 4; Coffey v Warner and Chappell Music, 2005; Sawkins v Hyperion Records, 2005 2.2.6 Author The person who creates a literary, dramatic or musical work is the author, in whatever manner the work is recorded in material form. In this context, the person who ‘creates’ means the person who originates the actual language, notes or collection of ideas used. See also 2.1.17. 1988 (CDPA) ss3(2), 9(1) 2.2.7 Nature of author In the case of literary, dramatic and musical works, as in artistic works (see 2.3.10), the author can normally only be a ‘natural person’ (a human) or persons. There is one exception. The author of a computer-generated work is the person who made the arrangements for its creation, and could be a company or some other ‘legal person’ (see 2.2.13). 1988 (CDPA) s9(1) 2.2.8 Author of an exact transcript of impromptu words or music The speaker or player is the author of a work first recorded word-for-word or note-fornote by someone else (for instance, shorthand notes of a letter or speech, a text dictated to a secretary or amanuensis, a tape recording of a song, or a tape recording of the interviewee in an oral history interview), whether or not the person making the recording is an employee and even if the speaker or player has not given permission or does not know that the recording is being made. 1988 (CDPA) ss3(2) and (3), 9(1); Donoghue v Allied Newspapers, 1938 2.2.9 Author of words spoken impromptu If a listener makes the first record of a work (such as an impromptu speech) in a material form by writing it down in his or her own words from general ideas expressed by a person speaking without notes, the person making that record is the author of the work. It does not seem that this could apply to a musical work, and could probably only apply to the outline theme of a dramatic work. 1988 (CDPA) ss3(2), 9(1); Walter v Lane, 1900

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2.2.10 Author of the recorded version Separately from the copyright in the work that has been written down or otherwise fixed (see 2.1.3), the person who makes the written version may (in appropriate circumstances) have a distinct right as the author of that version itself. Thus, a person giving a speech is the author of the speech if it is fixed in any way, but a person who writes the speech down may be the author of that report of the speech as a distinct literary work if there has been some use of skill in the making of it (even if it is verbatim). This is termed by the courts a ‘reporter’s copyright’. Similarly, the player of a new musical work, a person giving a speech or the people taking part in an interview for an oral history project which is first recorded as a sound recording would be the author of that musical work, speech or interview, while the producer of the sound recording of it would be the author of the sound recording (see 2.5.4–5). It follows that the interviewer and interviewee in an oral history recording would be authors of their respective parts of the interview, while the interviewer or the organization for which it is made would normally be the author of the sound recording. Because of the existence of copyrights in any works recorded, there may be restrictions on the use that the author of the sound recording may make of it (see 2.5.2). 1988 (CDPA) ss3(3), 9(1); Walter v Lane, 1900; Brown-Wilkinson VC in Express Newspapers v News (UK), 1990 at 366 2.2.11 Author of a composite work Where there is a composite work in which the contribution of each person is separately identifiable (such as a collection of essays, an encyclopedia, a CD-ROM), there are several authors, of the individual component parts and perhaps of the whole composite work (see 2.2.3, but see also 8.2). 1988 (CDPA) s9(1) 2.2.12 Author of computer-generated works before 1989 For computer-generated material created before 1 August 1989 for which there was no human author, there can be no copyright since this was not recognized as a distinct type of work. 2.2.13 Author of computer-generated works after 1989 For computer-generated works created on or after 1 August 1989 for which there was no human author, the author is taken to be the person by whom the arrangements necessary for the creation of the work are undertaken. In many cases this is the author of the computer program which generated it.

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1988 (CDPA) ss9(3), 178, ‘computer-generated’; Nova Productions v Mazooma Games, 2006 2.2.14 Joint and co-authors of works Where two people have collaborated to create a work and their contributions are indistinguishable, they are joint authors (see 3.2.7) and, in most cases but depending on the circumstances, joint owners (see 3.2.8–9). For the purposes of the duration of copyright only, the authors of words and music especially written to go together, for instance in a song, are co-authors (see 2.1.23–25, 2.2.2, 2.2.5). This is without prejudice to the distinct copyrights in the literary and musical works, so ownership of copyright in the literary and musical works remains distinct (see 3.2). It is not yet clear how duration is affected if the works are separated, for instance by setting the words to new music or treating them as a poem, or by using the music with new words or as an instrumental piece. It seems probable that duration would then be based solely on the life of the relevant author, which results in some anomalies. 1988 (CDPA) s10(1), 12(8); SI 2013/1782, regs 4–5 2.2.15 Author: Crown and Parliamentary copyright The significance of the author of a Crown or Parliamentary copyright literary, dramatic or musical work is merely to determine the copyright status of the work (see 3.2.28–38), though such authors can have moral rights (see 8.1.5, 8.1.7). 1988 (CDPA) ss163, 165 2.2.16 Duration: known authorship: standard term Copyright expires 70 years after the end of the calendar year of the author’s death, whether the work is published or unpublished, unless earlier provisions would give a later date (see 2.1.19–25). 1988 (CDPA) s12(2); SI 1995/3297 regs 5(1), 12(2), 15 2.2.17 Duration: known authorship: unpublished before 1989 Copyright expires on 31 December 2039, if the work was created, but had not been published, performed in public, offered for sale to the public in the form of records or broadcast, before 1 August 1989, and the author died before 1 January 1969 (see 2.1.21, 2.1.23). 1956 s2(3); 1988 (CDPA) Sch 1 para 12(4)(a); SI 1995/3297 regs 12(2), 15 2.2.18 Duration: known authorship: published before 1989 Copyright expires 50 years after the end of the calendar year in which the work was first

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published, performed in public, offered for sale to the public in the form of records (as sound recordings such as discs or tapes) or broadcast, provided that act took place before 1 August 1989 and the author died more than 20 years earlier (see 2.1.21, 2.1.23, 4.2.7). 1956 ss2(3), 48(1) ‘record’; 1988 (CDPA) Sch 1 para 12(2)(a); SI 1995/3297 regs 12(2), 15 2.2.19 Duration: unknown authorship: standard term Copyright expires 70 years after the end of the calendar year in which the work was made, or, if it is made available to the public (see 4.1.11) during that period, 70 years after the end of the calendar year in which the work was first made available. If the identity of the author becomes known before the expiry of copyright, the work is no longer regarded as of unknown authorship and the provisions for known authors apply (see 2.2.16–18). Earlier provisions apply if they would give a later expiry date (see 2.1.19–25). However, see 5.2.21–22. 1988 (CDPA) s12(3); SI 1995/3297 reg 5 2.2.20 Duration: unknown authorship: unpublished before 1969 Copyright expires on 31 December 2039 (see 2.1.21) for all works created before 1 January 1969 and unpublished before 1 August 1989, of which the identity of the author does not become known before copyright expires, if they: • are not made available to the public (see 4.1.11) before 1 January 2040; or • were first made available to the public but not published (see 4.1.3) before 1 January 1969. However, for some relief from these long terms see 5.2.21–22. 1988 (CDPA) Sch 1 para 12(3)(b); SI 1995/3297 regs 12(2), 15 2.2.21 Duration: Crown copyright: unpublished before 1915 For unpublished works created before 1 January 1915, copyright expires on 31 December 2039. 1988 (CDPA) s163(3)(a), Sch 1 para 41(3) 2.2.22 Duration: Crown copyright: created after 1914 but unpublished For unpublished works created on or after 1 January 1915, copyright expires 125 years from the end of the calendar year in which the work was created. 1988 (CDPA) s163(3)(a)

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2.2.23 Duration: Crown copyright: created and published before 1989 For works created and published before 1 August 1989, copyright expires 50 years from the end of the calendar year of first publication. 1956 s39(3)(b); 1988 (CDPA) Sch 1 para 41(2)(a) 2.2.24 Duration: Crown copyright: created before but commercially published after 1989 In the case of works created before 1 August 1989 but first published after that date, where they are published commercially (see 4.1.5) and such publication is less than 75 years from the end of the calendar year in which the work was created, copyright expires 50 years from the end of the calendar year of first publication. 1988 (CDPA) s163(3)(b) 2.2.25 Duration: Crown copyright: created before but non-commercially published after 1989 For works created before 1 August 1989 but first published after that date, where they are published non-commercially (see 4.1.5) and such publication is less than 75 years from the end of the calendar year in which the work was created, copyright expires 125 years from the end of the calendar year of creation or on 31 December 2039, whichever is later. 1988 (CDPA) s163(3)(a), Sch 1 para 41(3) 2.2.26 Duration: Crown copyright: created before but published after 1989 In the case of works created before, but first published on or after 1 August 1989, at a date more than 75 years from the end of the calendar year in which the work was created, copyright expires 125 years from the end of the calendar year of creation or on 31 December 2039, whichever is later. 1988 (CDPA) s163(3)(a), Sch 1 para 41(3) 2.2.27 Duration: Crown copyright: created and commercially published after 1989 In the case of works created on or after 1 August 1989 and published commercially (see 4.1.5) less than 75 years from the end of the calendar year in which the work was created, copyright expires 50 years from the end of the calendar year of first commercial publication. 1988 (CDPA) s163(3)(b)

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2.2.28 Duration: Crown copyright: created and non-commercially published after 1989 For works created on or after 1 August 1989 and published non-commercially (see 4.1.5) less than 75 years from the end of the calendar year in which the work was created, copyright expires 125 years from the end of the calendar year of creation. 1988 (CDPA) s163(3)(a) 2.2.29 Duration: Crown copyright: created and published after 1989 For works created on or after 1 August 1989 and published more than 75 years from the end of the calendar year in which the work was created, copyright expires 125 years from the end of the calendar year in which the work was created. 1988 (CDPA) s163(3)(a) 2.2.30 Duration: Crown copyright: acts and measures Crown copyright in Acts of the Westminster Parliament, the Scottish Parliament, the Northern Ireland Assembly and the Welsh Assembly, and in measures of the General Synod of the Church of England, expires 50 years after they receive royal assent. Crown copyright in measures of the Welsh Assembly expires 50 years after approval by the Privy Council. 1988 (CDPA) s164(2); 2006 (Wales) Sch 10 para 27 2.2.31 Duration: Parliamentary copyright Parliamentary copyright (including copyrights of the Scottish Parliament and the assemblies of Wales and Northern Ireland, see 3.2.34–38) in a literary, dramatic or musical work expires 50 years after the end of the calendar year in which the work was made. Parliamentary copyright in bills and measures subsists from the time the bills or measures are introduced until they receive assent (see 2.2.30). 1988 (CDPA) s165(3, 7), 166, 166A–D 2.2.32 Duration: computer-generated works Copyright expires 50 years after the end of the calendar year in which the work was made. 1988 (CDPA) s12(7); SI 1995/3297 reg 5 2.2.33 Duration: universities and colleges The Copyright Act 1775 gave perpetual copyright in books bequeathed or given to the two universities in England (Oxford and Cambridge), the four universities in Scotland

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(Aberdeen, Edinburgh, Glasgow and St Andrews) and the colleges of Eton, Westminster and Winchester. This copyright was curtailed by the 1988 Act, to end on 31 December 2039. However, according to the Whitford Committee, only Clarendon’s Rebellion and Life, published by Oxford, are now believed to be covered by it. 1911 s33; 1956 s46(1); 1988 (CDPA) Sch 1 para 13(1); Whitford Report (Board of Trade) para 648

2.3

Artistic works

2.3.1 Definition There are several different forms that an artistic work can take: a graphic work, photograph, sculpture or collage, a work of architecture or a work of artistic craftsmanship. 2.3.2 Graphic work A graphic work includes: • a painting, drawing, diagram (including a circuit diagram, but see 2.2.2), graph, map, chart or plan • an engraving, etching, lithograph, woodcut or similar work • a typeface, being a graphical image representing a single letter, numeral, character or ornamental motif. All such works are covered, irrespective of artistic merit, though what seems to characterize them is that they are things to be appreciated by the eye. Thus a logo is likely to be an artistic work even though the primary purpose is to identify the organization, since logos are also intended to be attractive. An artistic work can in some circumstances be composed entirely of text, such as a poem arranged on the page to form the shape of a cat (which will also be a literary work, see 2.1.2, 2.2.2). Less obviously, but still logically, a ‘ticket’ recording in words and numbers how a loom was to be set up to create a woollen fabric was found to be an artistic work since it was ‘visually significant’ to an experienced fabric designer. A digital file can similarly be the means of fixing a photograph (see 2.3.3). The courts seem to think that a person’s signature qualifies as a graphic artistic work, but probably only if it is more distinctive and personal than mere cursive writing, so the more artistic or even illegible it is the better, apparently. A map is an artistic work of which the written elements form an intrinsic and ‘visually significant’ part, and an advertisement or poster would similarly qualify as an artistic work if it is primarily graphic and any text is decorative and/or too insubstantial to qualify for copyright as literary material; otherwise it might be a literary work if it consisted only

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of text or (as a compilation, see 2.2.3) if it consisted of an assembly of elements not themselves substantial enough (see 2.1.16) to qualify alone. Technical information on engineering or architectural drawings is not part of the artistic work because, no matter how important it may be technically, it is not ‘visually significant’. In these sorts of case the nature of the work depends on the balance of the elements and the extent to which they are artistic in the relevant sense. An engraving or similar work is not merely the print taken from the plate but also the plate itself (for a definition of engraving prior to 1912, see 7.14.2, and for a definition since then, see 7.14.5). A typeface is the design of a single character in a font; there is no copyright protection for the font as a whole, and clearly a typeface is not the same as a typographical arrangement (see 2.6.15). For typefaces as designs see 8.6.2. 1988 (CDPA) ss4(1)(a), 4(2), 54(1), 178 ‘typeface’; Lord Oliver in Interlego v Tyco Industries, 1988, at 367; Whitford J in Rose Plastics v William Beckett (Plastics), 1989, at 123; Kalamazoo v Compact Business Systems, 1990; Anacon v Environmental Research Technologies, 1994; Elvis Presley Trade Marks, 1997, at 558; Anne Frank Trade Mark, 1998, at 389; Aubrey Max Sandman v Panasonic UK, 1998; Vermaat and Powell v Boncrest, 2001; Abraham Moon & Son v Thornber, 2013 2.3.3 Photograph A photograph is a recording of light or other radiation (including, for example, X-rays and heat) on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film (but see 2.4.1–2). It should be clear that this would include a digital photograph, which is made by the action of light on a light-sensitive cell. It is then recorded as a numerical file, but that file is still ‘visually significant’ and embodies an artistic work. This definition applies only to the negative image (or the slide or original digital file, as appropriate); a print from that original is merely a copy and attracts its own distinct copyright only if there is some degree of skill and judgement required to make it (see 2.1.6). A single frame of a motion-picture film qualifies as a photograph only if it was made before 1 June 1957 (see 2.4.1). Thanks to their quasi-mechanical nature, photographs have not always been treated as fully fledged artistic works, hence the variations in the definition of an author under successive acts (see 2.3.7), though they are now all protected in the UK irrespective of artistic merit. In much of Europe, the courts have to apply a test of artistic quality to a photograph: it might not be regarded as original, and thus as qualifying for copyright protection, if it was obvious and could have been taken by anyone or if the purpose was not artistic (see 2.1.6). An example might be a dentist’s photograph of a patient’s teeth. Such photographs may have a lower level of protection or none at all. A photo-lithograph has been treated by successive acts as a variety of photograph, not as an engraving (for which, see 7.14), and clearly it is in the creation of the source photographic image, not in the printing, that the originality usually lies for copyright purposes.

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Directive 2006 (Term) recital 16, art 6; 1911 s35(1) ‘photograph’; 1956 s48 ‘photograph’; 1988 (CDPA) ss4(1)(a), 4(2) ‘photograph’; Mayer & Pierson v Betbeder & Schwabbé, 1862; Courier Lithographing v Donaldson Lithographing, 1900; Apple Corps v Cooper, 1993; Blau v BBC, 2002; Abraham Moon & Son v Thornber, 2013 2.3.4 Sculpture, collage and architecture A sculpture is ‘a three-dimensional work made by an artist’s hand’, and can be a cast or model, including a medal or a seal. A collage must be formed of items stuck to a surface; a mere co-location of loose objects does not qualify. Both sculptures and collages are protected irrespective of artistic merit, but there must nevertheless be something about them that is ‘capable of appealing to artistic sensibilities’, which has some visual appeal and is not merely utilitarian. No building before 1 July 1912 was protected by copyright. Between then and 31 May 1957 protection was given to ‘architectural works of art’ and thereafter to all ‘works of architecture’. Despite the change of name, it seems that since 1912 only architectural works with some artistic merit have qualified. A work of architecture is a building, including any fixed structure, and a model for a building. The copyright in it is distinct from any copyright in design drawings from which the building was made. 1911 s35(1) ‘architectural work of art’; 1956 s3(1)(b); 1988 (CDPA) ss4(1)(a) and (b), 4(2); Reliance (Nameplates) v Art Jewels, 1953; Creation Records v News Group Newspapers, 1997; Laddie J in Metix (UK) v G H Maughan (Plastics), 1997 at 722; Lucasfilm v Ainsworth, 2011 2.3.5 Works of artistic craftsmanship A work of artistic craftsmanship is undefined by the Act, and the courts have failed to provide any consistent definition either. The term probably means a work that required skilled craftsmanship to make (so a machine-made item, a flimsy prototype or crude work by an unskilled amateur probably would not qualify), which was intended to have (and has) aesthetic appeal, and that gives emotional or intellectual satisfaction to a section of the community. Examples might be stained glass, bookbinding and needlework. A designer dress was found to qualify, but a poorly made baby cape, intended to protect the baby rather than to be appreciated by the eye, was not. An Australian decision defined the relationship between art and craftsmanship by concluding that a work was one of artistic craftsmanship if its artistic form or expression was unconstrained by functional considerations. If the function, not art, determined the form it could not be a work of artistic craftsmanship. This requirement of artistic merit is a notable and subjective hurdle that is not put in the way of most other kinds of artistic work. The courts seem to have decided that the artistry and the craftsmanship do not have to be combined in a single person, so there may be joint workmanship by an artist (designer) and craftsman.

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For works of artistic craftsmanship as designs see 8.6.2–6 and for works of applied art see 5.1.4. Works created before 1 July 1912 cannot qualify for protection as works of artistic craftsmanship. 1911 s35(1) ‘artistic work’; 1956 s3(1)(c); 1988 (CDPA) s4(1)(c); Radley Gowns v Costas Spyrou, 1975; Hensher v Restawile Upholstery, 1975; Merlet v Mothercare, 1986; Bonz Group v Cooke, 1994; Creation Records v News Group Newspapers, 1997; Vermaat and Powell v Boncrest, 2001; Burge v Swarbrick, 2007 2.3.6 Author The author of an artistic work (see also 2.1.17) other than some photographs (see 2.3.7) is the person who is responsible for the actual design. This means that both a painter who uses his or her own skill to paint a work under the general instructions of someone else, and an architect whose designs are realized as a building by a builder, are the authors. On the other hand, if a builder erects a building without reference to plans, he or she is the author of the resulting building. 1988 (CDPA) s9(1); Kenrick v Lawrence, 1890; Meikle v Maufe, 1941 2.3.7 Author of a photograph The identity of the ‘author’ of a photograph in the UK has varied over time, in line with the prevailing view of how truly ‘artistic’ a photograph is (see 2.3.3). The standard term for the duration of copyright in a photograph of any date by a known photographer (author) is now based on the life of that author, even if when it was created it was based on the date of creation or publication, and this is true regardless of the identity of the owner (see 1.1.7, 2.1.17). Authorship is the primary criterion for ownership as well as for duration, though (see 3.2.1). Since Parliament is loth to take away ownership rights from existing owners or their descendants, the rules for ownership of copyright in photographs are not standardized but vary depending on how the ‘author’ was defined by the Act in force at the time the photograph was taken. As a result, the ‘author’ of a photograph is defined differently for different purposes at different times: • Photographs, of any date: for the purpose of determining the duration of copyright (see 2.3.12–14) and for the purposes of moral rights (see 8.1.3), the author is the person who created the photograph (normally the photographer). • Photographs created before 1 July 1912: for the purpose of determining the first owner of the copyright, the author is the person who created the photograph (normally the photographer) (see 3.2.1, but see also 3.2.16). This rule does not apply to ownership if the photograph was commissioned for ‘a good or valuable consideration’ (see 3.2.19).

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• Photographs taken between 1 July 1912 and 31 July 1989: for the purpose of determining the first owner of the copyright, the author is the person who, at the moment when the photograph was taken, was the owner of the material (for instance, the negative) on which it was taken (see 3.2.1). Any subsequent transfer of ownership of the negative does not affect the ownership of the copyright without an assignment (see 3.3.8). This rule does not apply to ownership if the photograph was commissioned ‘for valuable consideration’ (1912–57) or for ‘money or money’s worth’ (1957–89) (see 3.2.19). • Photographs created since 1 August 1989: for the purpose of determining the first owner of the copyright, the author is the person who created the photograph (normally the photographer) (see 3.2.1, 3.2.12). Thus in photographs taken before 1912 and since 1989 the photographer is normally the author and first owner (see 2.1.17, 3.2.1), though if the photograph was taken in the course of employment, the employer is normally the first owner (see 3.2.12–16). Unfortunately, the courts have at times had difficulty in deciding who the ‘photographer’ actually is. In the context of professional studios, for instance, the person who presses the shutter release may be only an assistant, acting on the instructions of the photographer. It is not the mechanical act of taking the photograph that decides authorship but the work of ‘the inventive or master mind’ who decides what the image actually looks like. If the photograph is merely a reproduction of another work, there may well be no copyright at all (see 2.1.11). 1862 s1; 1911 ss5(1)(a), 21; 1956 ss4(3), 48(1) ‘photograph’, Sch 7 para 3; 1988 (CDPA) s9(1), Sch 1 para 11; SI 1996/2967 reg 19; Cotton LJ in Nottage v Jackson, 1883, at 635; Melville v Mirror of Life, 1895; Stackemann v Paton, 1906; Creation Records v News Group Newspapers, 1997 2.3.8 Author of computer-generated works before 1989 For computer-generated works created before 1 August 1989 for which there was no human author, there can be no copyright since these were not recognized as a distinct type of work. 2.3.9 Author of computer-generated works after 1989 For computer-generated works created on or after 1 August 1989 for which there was no human author, the author is taken to be the person by whom the arrangements necessary for the creation of the work are undertaken. Composite images made up of bitmap files, as in a computer game, are computer-generated, and the author is the author of the program who devised their appearance. 1988 (CDPA) ss9(3), 178; Nova Productions v Mazooma Games, 2007

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2.3.10 Nature of author In artistic works, as in literary, dramatic and musical works (see 2.2.7), the author can normally only be a ‘natural person’ (a human) or persons. There are exceptions: • a computer-generated work, since the author is the person who arranged for its creation, and this could be a company or other corporate body (see 2.3.9) • a photograph made on or after 1 July 1912 and before 1 August 1989, since under the 1911 and 1956 acts the author was the owner of the material on which the photograph was taken, which could also be a company or other corporate body (see 2.3.7) • a film made before 1 June 1957, since although it enjoyed no protection as such, individual frames were treated as photographs (see 2.4.3). Artistic works may also be works of joint authorship, and much the same considerations apply as to literary, dramatic and musical works (see 2.2.14). 1911 s21; 1956 s48 ‘photograph’, Sch 7 para 16; 1988 (CDPA) s9(1) 2.3.11 Author: Crown and Parliamentary copyright The significance of the author of a Crown or Parliamentary copyright artistic work is merely to determine the copyright status of the work (see 3.2.28–38), though such authors can have moral rights (see 8.1.5, 8.1.7). 1988 (CDPA) ss163, 165 2.3.12 Duration: known authorship: standard term Copyright expires 70 years after the end of the calendar year of the author’s death, whether the work is published or unpublished (see 2.1.19–24), except in the case of some photographs taken between 1 June 1957 and 31 July 1989 and some engravings created before 1 August 1989 (see 2.3.13–14). 1988 (CDPA) s12(2); SI 1995/3297 reg 5; SI 1996/2967 reg 19 2.3.13 Duration: known authorship: unpublished photographs and engravings created before 1989 Copyright expires on 31 December 2039 (see 2.1.21), if the work: • had not been published before 1 August 1989; and • the author died before 1 January 1969; and it was either

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• a photograph taken on or after 1 June 1957 and before 1 August 1989; or • an engraving made before 1 August 1989. For the revival of copyright in photographs of known authorship taken before 1957 and especially before 1912, see 2.1.25. 1988 (CDPA) Sch 1 para 12(4)(b) and (c); SI 1995/3297 regs 12(2), 15; SI 1996/2967 reg 19 2.3.14 Duration: known authorship: photographs and engravings published before 1989 Copyright expires 50 years after the end of the calendar year in which the work was first published (see 2.1.21), if the work: • was created and published before 1 August 1989; and • the author died more than 20 years before publication and it was either a photograph taken on or after 1 June 1957 or an engraving. 1956 s3(4)(a) and (b); 1988 (CDPA) Sch 1 para 12(2)(b) and (c); SI 1995/3297 regs 12(2), 15; SI 1996/2967 reg 19 2.3.15 Duration: unknown authorship: standard term Copyright expires 70 years after the end of the calendar year in which the work was made, or, if it is made available to the public (see 4.1.11) during that period, 70 years after the end of the calendar year in which the work was first made available (see 2.1.19–24). If the identity of the author becomes known before the expiry of copyright, the work is no longer regarded as of unknown authorship and the normal provisions apply. Earlier provisions apply if they would give a later expiry date (see 2.1.21). However, see 5.2.21–22. 1988 (CDPA) s12(3); SI 1995/3297 reg 5 2.3.16 Duration: unknown authorship: unpublished before 1969 Copyright expires on 31 December 2039 (see 2.1.21) for all works (except photographs) created before 1 January 1969 and unpublished before 1 August 1969, of which the identity of the author does not become known before copyright expires, if they: • are not made available to the public (see 4.1.11) before 1 January 2040; or • were first made available to the public before 1 January 1969. However, for some relief from these long terms see 5.2.21–22.

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1988 (CDPA) Sch 1 para 12(3)(b); SI 1995/3297 regs 12(2), 15 2.3.17 Duration: unknown authorship: photographs before 1957 For photographs of unknown authorship created before 1 June 1957, copyright expires 70 years after the end of the calendar year in which the photograph was taken, or, if it was made available to the public (see 4.1.11) during that period, 70 years after the end of the calendar year in which it was first made available, unless the identity of the author becomes known before copyright expires (see 2.1.19–24). However, for some relief from these long terms see 5.2.21–22. 1911 s21; 1956 Sch 7 para 2; 1988 (CDPA) s12(3), Sch 1 para 12(2)(c); SI 1995/3297 regs 5, 16 2.3.18 Duration: unknown authorship: unpublished photographs, 1957–69 Copyright expires on 31 December 2039 for photographs created on or after 1 June 1957 and before 1 January 1969, which were not published before 1 August 1989 and are not made available to the public (see 4.1.11) before 1 January 2040, provided the identity of the author does not become known before copyright expires (see 2.1.21). 1988 (CDPA) Sch 1 para 12(4)(c); SI 1995/3297 regs 12(2), 15 2.3.19 Duration: unknown authorship: published photographs 1957–89 Copyright expires 70 years after the end of the calendar year in which the work was published, for photographs created on or after 1 June 1957 and published before 1 January 1989, unless the identity of the author becomes known before copyright expires. 1956 s3(4)(b); 1988 (CDPA) s12(3)(b), Sch 1 para 12(2)(c); SI 1995/3297 regs 5, 16 2.3.20 Duration: Crown copyright: before 1989 For works other than engravings and photographs, created before 1 August 1989, whether published or unpublished, copyright expires 50 years from the end of the calendar year of creation. 1956 s39(4); 1988 (CDPA) Sch 1 para 41(2)(b) 2.3.21 Duration: Crown copyright: unpublished engravings before 1989 For engravings created but not published before 1 August 1989, copyright expires on 31 December 2039. 1988 (CDPA) Sch 1 para 41(4)(a)

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2.3.22 Duration: Crown copyright: published engravings before 1989 For engravings created and published before 1 August 1989, copyright expires 50 years from the end of the calendar year of first publication. 1956 s39(4); 1988 (CDPA) Sch 1 para 41(2)(c) 2.3.23 Duration: Crown copyright: photographs before 1957 For photographs taken before 1 June 1957, whether published or unpublished, copyright expires 50 years from the end of the calendar year in which the photograph was taken. 1956 s39(4), Sch 7 para 30; 1988 (CDPA) Sch 1 para 41(2)(d) 2.3.24 Duration: Crown copyright: published photographs 1957–89 For photographs taken on or after 1 June 1957, and published before 1 August 1989, copyright expires 50 years from the end of the calendar year of first publication. 1956 s39(4); 1988 (CDPA) Sch 1 para 41(2)(d) 2.3.25 Duration: Crown copyright: unpublished photographs 1957–89 For photographs taken on or after 1 June 1957 and before 1 August 1989, but not published before 1 August 1989, whether or not published thereafter, copyright expires on 31 December 2039. 1988 (CDPA) Sch 1 para 41(4)(b) 2.3.26 Duration: Crown copyright: created and unpublished after 1989 For unpublished works created on or after 1 August 1989, copyright expires 125 years from the end of the calendar year in which the work was created. 1988 (CDPA) s163(3)(a) 2.3.27 Duration: Crown copyright: created and published after 1989 For works created on or after 1 August 1989 and published more than 75 years after the end of the year in which the work was created, copyright expires 125 years from the end of the calendar year in which the work was created. 1988 (CDPA) s163(3)(a) 2.3.28 Duration: Crown copyright: created and commercially published after 1989 For works created on or after 1 August 1989 and published commercially (see 4.1.5) less

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than 75 years after the end of the calendar year in which the work was created, copyright expires 50 years from the end of the calendar year of first publication. 1988 (CDPA) s163(3)(b) 2.3.29 Duration: Crown copyright: created and non-commercially published after 1989 For works created on or after 1 August 1989 and published non-commercially (see 4.1.5) less than 75 years after the end of the calendar year in which the work was created, copyright expires 125 years after the end of the calendar year of creation. 1988 (CDPA) s163(3)(a) 2.3.30 Duration: Parliamentary copyright Parliamentary copyright (including copyrights of the Scottish Parliament and the assemblies of Wales and Northern Ireland, see 3.2.34–38) in an artistic work expires 50 years after the end of the calendar year in which the work was made. 1988 (CDPA) s165(3, 7) 2.3.31 Duration: computer-generated works Copyright expires 50 years after the end of the calendar year in which the work was made. 1988 (CDPA) s12(7); SI 1995/3297 reg 5 2.3.32 Duration: typefaces Legitimate purchasers of a typeface have an implied licence (see 5.2.3) to reproduce it in printing, and so need not worry about copyright and its duration for normal use. The general term of copyright in typeface designs is the same as for any other graphic works, but the effect is limited after a time. Once a typeface design has been used for the production of materials to reproduce that typeface (such as printer’s type, a computer font), and those materials have been marketed, it has full protection for only 25 years from the end of the calendar year in which it was first marketed. There is no infringement by the use of a typeface design first marketed over 25 years ago to make type or fonts, or as the basis of the design of new typefaces. However, it would be an infringement to copy the typeface for other purposes (for example, as an illustration in a book) until copyright expires after the normal term (see 2.3.12, 2.3.15–16, 2.3.20, 2.3.26–31 as appropriate). 1988 (CDPA) s55, Sch 1 para 14(5)

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2.3.33 Artistic works and design right Some artistic works qualify for design right protection as well as for copyright. This can have implications for the use that may be made of the work (see 8.6.3–6).

2.4

Films

2.4.1 Definition: before 1957 Films as such did not appear in the Copyright Act 1911, so those made before 1 June 1957 do not qualify for copyright protection in their own right. However, the 1911 Act did provide that a ‘cinematograph production’ that consisted of arrangements, acting or a combination of incidents of an original character (an original fiction film) qualified for protection as a dramatic work (see 2.2.4). Also, since there was no other protection for non-fiction films from that period, the 1956 Act provided retrospectively that the individual frames of a film made before 1 June 1957 qualified for protection as photographs (see 2.3.3). A film of any date includes its sound track, although the sound track may also have a separate and independent existence as a sound recording, with a different author (see 2.5.3). Any original musical work included in the sound track also has its own distinct copyright (see 2.2.5). There may be distinct copyrights (‘underlying rights’, see 1.1.6) in the written screenplay of a fiction or non-fiction film and in the written script of a nonfiction film as original literary or dramatic works, as well as in such things as set designs (see 2.4.6) and performances by actors and musicians (see 8.5). 1911 s35(1) ‘dramatic work’; 1956 Sch 7 para 16; 1988 (CDPA) s5B(2), Sch 1 para 7; SI 1995/3297 regs 9, 26(1) 2.4.2 Definition: since 1957 A film made on or after 1 June 1957 is a recording on any medium (including film, video, computer disk, or a series of images assembled as a flick-book) from which a moving image may by any means be produced. Also note the following: • A film of any date includes its sound track, although the sound track may also have a separate and independent existence as a sound recording, with a different author (see 2.5.3). Since the film includes its sound track, any infringement of copyright in the film with its sound track by showing, copying, renting or lending the film does not result in a second infringement of the copyright in the sound track. • A film must exist as a recording: a sequence of moving images generated by a computer for example, but never fixed in a recording, cannot be protected by copyright. • The individual images of a film cannot be separately protected as photographs, so unauthorized reproduction of a single frame is an infringement of the copyright in

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the film as a whole (see 5.3.3). However, the equivalent restriction does not apply to non-photographic forms of ‘film’, so that, for instance, each cartoon making up a flick-book would be an artistic work. • A ‘film’ is distinct from the ‘cinematographic’ or ‘audiovisual’ work embodied in it. Copyright in the film is in the entrepreneurial work (see 1.1.4), the recording itself. The creative, authorial work embodied in it is protected in the UK as a dramatic work (see 2.2.4). In order to infringe copyright in the film, therefore, it is necessary to copy the actual footage. The making, say, of a new film using exactly the same story might infringe the copyright in the dramatic work embodied in the film but not the copyright in the film itself. As with earlier films, there may be distinct copyrights (‘underlying rights’) in the component parts of the film (see 1.1.6, 2.4.6), including any musical work used in the sound track (see 2.2.5). There are also the rights of performers, both actors and musicians (see 8.5). 1988 (CDPA) ss4(2) ‘photograph’, 5B, Sch 1 para 8(1); SI 1995/3297 regs 9, 26(1); SI 2006/18, Sch para 2; Norowzian v Arks (No 2), 2000; Dramatico v BSkyB, 2012 2.4.3 Author: before 1957 Films made before 1 June 1957 have no author, as they were not recognized as works in themselves. However, where a film was an original dramatic work (notably, a work of fiction, see 2.2.4), it qualifies for protection as such, and the author, who is (probably) the director, would be defined as the author of a dramatic work. The writer of the script or screenplay might share this authorship, and would in any case be the author of the written script as a dramatic work in its own right. At the same time, in any film before this date the author of the individual frames comprising the film would be defined as the author of each of them as photographs. For films made before 1 July 1912 the author of the photographic frames would probably have been the director, or perhaps the director and cinematographer jointly, while after 1 July 1912 the author for the purposes of duration is the director (and perhaps the cinematographer) and for the purposes of ownership is the owner of the material on which the film was shot (see 2.3.7), which in most cases was the production company. There could thus be one or two copyrights in film materials of this period, depending on whether the film was a dramatic work (in most cases a fiction film, see 2.2.4) or not, not to mention further ‘underlying rights’ in works used in the film (see 2.4.6). In many cases, the director, screenplay writer, designer and others would have been employees of the production company, so that company would be the first owner of all the copyrights in a film (see 3.2.12), but this would not always be true; the director in particular could have been working on commission (see 3.2.17–18). In the case of amateur films, the person making the film would normally be the author of a film made before 1 July 1912,

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and the same person would normally have owned the film stock and would thus also be the author of a film made after that date. 1862 s1; 1911 ss21, 35(1) ‘dramatic work’; 1956 Sch 7 paras 15–16; 1988 (CDPA) Sch 1 para 7(1), (2) 2.4.4 Author: 1957–94 The author of films made between 1 June 1957 and 30 June 1994 (in the 1956 Act, the ‘maker’) is the person or body who made the (normally financial) arrangements necessary for the making of the film (the producer). In identifying this person or body, it might help to identify who initiated the project and was responsible for ensuring that the necessary arrangements were made. In the case of amateur films and videos, this person is likely to have been the person who paid for the equipment and the film or tape. 1956 s13(10); 1988 (CDPA) s9(2)(a); Century Communications v Mayfair Entertainment, 1993 2.4.5 Author: after 1994 The author of films made on or after 1 July 1994 is the producer and the principal director jointly unless the producer and principal director are the same person in which case that person is sole author (see 3.2.7–9). It seems that it is possible for the producer, though presumably not the director, to be a company. In the case of amateur films and videos, it would be possible for the producer to be one person (the person who paid for the equipment and the film or tape) and the director another (the person wielding the camera or recorder), but in many cases they are likely to be the same person. 1988 (CDPA) ss9(2)(ab), 10(1A), 178 ‘producer’; SI 1996/2967 regs 18, 36; Century Communications v Mayfair Entertainment, 1993 2.4.6 Author: underlying rights A film is always a complex composite of works. Early films may be sequences of photographs and later ones are works in their own right, and any fiction film (and perhaps some others) can be a dramatic work (see 2.2.4, 2.4.1–2), each with its own author. However, any film is likely to involve copyrights and other rights in material besides the film itself. If the sound track is removed from the film, it is protected as a sound recording (see 2.5). The composers of music used for the film, the authors of poems (the words of songs), and the writers of the script or screenplay may be the authors of those parts as musical, literary and dramatic works respectively (see 2.2.6–15). The designers of sets, costumes and other visual aspects of the film may be authors of them as artistic works (see 2.3.6–11). The performers, both actors and musicians, may have performing rights in the recording of their performances (see 8.5). The necessity for clearing all these and other rights may

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depend on the extent of the permissions and rights obtained by the producer. 2.4.7 Author: component elements Where no recording, in any form, of a literary, dramatic or musical work previously existed, and a recording is made as a film, the author of the literary, dramatic or musical work so recorded is normally the speaker, player or director (see 2.2.6). However, the producer and principal director of the film may have a separate right as the authors of the film (see 2.4.5), and the director might have another copyright in the film as a dramatic work (see 2.2.4, 2.2.6, 2.4.1–2). 1988 (CDPA) ss3(2), 9(1); Norowzian v Arks (No 2), 2000 2.4.8 Author: Crown and Parliamentary copyright The identity of the author of a Crown or Parliamentary copyright film determines the copyright status and (unlike with literary, dramatic, musical and artistic works) the duration of copyright, and is decided as for other films. However, Parliamentary copyright may subsist only in a film made on or after 1 August 1989, so the authorship of an earlier film made by an employee of Parliament determines its first ownership in accordance with the normal provisions (see Chapter 3). 1988 (CDPA) ss163, 165, Sch 1 para 43(1) 2.4.9 Duration: standard term Copyright in the film as such expires 70 years after the end of the calendar year in which the last of the following individuals, described in the literature but not the regulations as ‘persons connected with the film’, where they are known, dies: • • • •

the principal director the author of the screenplay the author of the dialogue the composer of music specially created for and used in the film.

The standard term applies to all films made since 1 June 1957, with some variations (see 2.4.11–18). However, this term applies only to the film as such; each of the other copyrights that might subsist in aspects of the film (see 2.4.6) has its own duration. 1988 (CDPA) s13B; SI 1995/3297 regs 6, 12(2), 15 2.4.10 Duration: before 1957 The duration of copyright in films made before 1 June 1957 depends on the nature of the rights that subsist in it (see 2.4.1, 2.4.3). These are the copyright in the photographs comprising the film (see 2.1.25, 2.3.12ff) and in the dramatic work (see 2.2.16–29).

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2.4.11 Duration: 1957–89 The 1956 Act gave copyright protection to films as such for the first time. Films could fall into three categories: registered, unregistered but published, and unpublished. 2.4.12 Duration: registered films 1957–85 Starting on 1 January 1928, under the Cinematograph Films Acts 1927–57 and the Films Acts 1960–80, the showing of British films in cinemas was encouraged by a requirement that cinemas show a minimum quota of British films. This called for a scheme of registration for all films shown to the public in cinemas, run by the Board of Trade. Registration under this scheme ceased on 23 May 1985. Copyright in registered films made on or after 1 June 1957 is for the standard term. Films shown after 23 May 1985 but before 1 August 1989 have duration as unpublished films (see 2.4.14). 1956 s13(3)(a); 1960 s8(1); 1985 (Films) s1(1); 1988 (CDPA) Sch 1 para 12(2)(e); SI 1995/3297 regs 12(2), 15 2.4.13 Duration: unregistered published films 1957–89 For films not shown in public, but published (copies were issued to the public, as smallformat films or as videos for home viewing, for instance, see 4.1.3), copyright is for the standard term unless the last to die of the ‘persons connected with the film’ (see 2.4.9) died more than 20 years before publication, in which case it expires 50 years after the end of the calendar year of publication. 1956 s13(3)(b); SI 1995/3297 regs 12(2), 15 2.4.14 Duration: unpublished films 1957–89 For films made but not shown or published (see 4.1.3, 4.1.6) between 1 June 1957 and 31 July 1989, copyright is for the standard term unless either: • the last of the ‘persons connected with the film’ (see 2.4.9) died before 1969 and the film remains unpublished until 31 December 2039, in which case copyright expires on that date, or • the film is published between 1 August 1989 and 31 December 2039 and the last of the ‘persons connected with the film’ died more than 20 years before publication, in which case copyright expires 50 years from the end of the calendar year of publication. 1988 (CDPA) Sch 1 para 12(5)(b); SI 1995/3297 regs 12(2), 15

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2.4.15 Duration: 1989–95 For films made between 1 August 1989 and 31 December 1995, copyright is for the standard term unless the last of the ‘persons connected with the film’ (see 2.4.9) died more than 20 years before the film was made or released, in which case copyright expires 50 years after the end of the calendar year in which the film was made or released (see 4.1.13). 1988 (CDPA) s13(1) before amendment; SI 1995/3297 regs 12(2), 15 2.4.16 Duration: anonymous films: standard term If the identity of none of the ‘persons connected with the film’ (see 2.4.9) is known, copyright expires 70 years after the end of the calendar year in which the film was made, or, if it is made available to the public before that period has expired, 70 years after the end of the calendar year in which the film was made available to the public (see 4.1.11). If no such people worked on the film at all, copyright expires 50 years after the end of the calendar year in which the work was made, whether it is made available to the public or not. 1988 (CDPA) s13B(4, 9); SI 1995/3297 reg 6 2.4.17 Duration: anonymous films: variations If an anonymous film had been made and was still unpublished by 31 July 1989, copyright is for the standard term for anonymous films unless either: • it was made or released before 1969 and it remains unpublished until 31 December 2039, in which case copyright expires on that date, or • it is published between 1 August 1989 and 31 December 2039 and it was made or released (see 4.1.13) more than 20 years before publication, in which case copyright expires 50 years after the end of the calendar year of publication. 1988 (CDPA) s13(1) before amendment; SI 1995/3297 regs 12(2), 15 2.4.18 Duration: Crown and Parliamentary copyright Duration is as for other films except in the case of Crown copyright films made between 1 June 1957 and 1 August 1989 that were unpublished and unregistered at the latter date (see 2.4.12, 2.4.14). In these, copyright expires on 31 December 2039 unless they are published before that date, in which case copyright expires 50 years after the end of the calendar year of publication. 1988 (CDPA) s163(5), Sch 1 paras 41(2)(f), 41(5)

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2.5

Sound recordings

2.5.1 Definition A sound recording is either: • a recording of sounds, from which the sounds may be reproduced, or • a recording of the whole or any part of a literary, dramatic or musical work, from which sounds reproducing the work or part may be produced, regardless of the medium on which the recording is made or the method by which the sounds are reproduced or produced. The copyright in a sound recording is thus an entrepreneurial (or ‘signal’) copyright (see 1.1.4), explicitly in the recording itself, and not in the work (if any) recorded. In order to infringe the copyright in a sound recording (by copying, for instance), the actual sounds must be copied. A transcription of words spoken in the recording might infringe copyright in a literary work, but would not infringe the copyright in the sound recording. 1956 Sch 7 paras 11, 12; 1988 (CDPA) s5A; SI 1995/3297 reg 9(1); Dramatico v BSkyB, 2012 2.5.2 Definition: variations It should be noted that: • there might (if it is still in copyright) be a separate copyright (as a literary, dramatic or musical work) in a work recorded in a sound recording • a recording of signals that were not originally sounds (for example, on a computer tape) cannot be a sound recording under the first part of the definition • under the second part of the definition an object would qualify as a sound recording if it was created to reproduce a literary, dramatic or musical work even if it did not consist of a recording of actual sounds, such as a musical box roll carrying the pins to play a musical work • a recording of an oral history interview is likely to involve at least three distinct copyrights (see 2.2.8, 2.2.10) and also attracts performers’ rights (see 8.5) for interviewer and interviewee, and might attract moral rights (see 8.1) in the works if the people involved were alive on or after 1 August 1989, and in the performances if they gave them on or after 1 February 2006. 1988 (CDPA) s5A(1), 77, 205C, Sch 1 para 25; SI 1995/3297 reg 9(1); SI 2006/18 regs 1, 6 2.5.3 Film sound tracks The sound track of a film of any date is treated as part of the film, with the same

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authorship, ownership and duration as the rest of the film. The sound track can also be a distinct work in its own right once separated from the film, and is then treated as a sound recording. Its authorship, ownership and duration as a sound recording might be quite different from that of the film (see 2.4.1–2). Any infringement of copyright in the film including its sound track is a single infringement; there is not at the same time a further infringement of copyright in the sound track itself. 1988 (CDPA) s5B(2, 3), Sch 1 paras 5(1), 8; SI 1995/3297 regs 9(1), 26; SI 2006/18 Sch para 2 2.5.4 Author For a sound recording of any date, the author is the producer (who may be a company). The producer is the person who instigated the recording and made the necessary (normally financial) arrangements. 1988 (CDPA) ss9(2)(aa), 178 ‘producer’; SI 1996/2967 regs 18, 26(1); A&M Records v Video Collection International, 1995; Bamgboye v Reed, 2004 2.5.5 Author: recording and work recorded Where no recording, in any form, of a literary, dramatic or musical work previously existed, and a sound recording is made, the author of the literary, dramatic or musical work so recorded is the creator of the words or music recorded, who is normally the speaker or player (see 2.2.9). However, the person making the recording has a right in the recording as the author of the recorded version itself. Thus, for instance, the composer or player of a new musical work first recorded as a sound recording would be the author of that musical work while the person who made a sound recording of it would be the author of the sound recording. 1988 (CDPA) ss3(3), 9(1) 2.5.6 Author: Crown and Parliamentary copyright The identity of the author of a Crown or Parliamentary copyright sound recording determines the copyright status of the work, and is decided as for other recordings. However, Parliamentary copyright may only subsist in a sound recording made on or after 1 August 1989, so the authorship of an earlier recording made by an employee of Parliament determines its first ownership in accordance with the normal provisions (see Chapter 3). 1988 (CDPA) ss163, 165, Sch 1 para 43(1) 2.5.7 Duration: standard term Copyright in a sound recording expires at the end of the calendar year 50 years after it was made, or, if it is published or made available to the public during that time, 70 years

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after the end of the calendar year in which it was published or made available (see 4.1.3, 4.1.11, 4.1.13), except as noted below (see 2.5.8–9). If however the sound recording is of a performance, the performer has certain rights once 50 years have passed since it was published or made available to the public that can result in early termination of the copyright in the sound recording (see 8.5.5). 1988 (CDPA) s13A, 191HA; SI 1995/3297 reg 6(1); SI 2003/2498 reg 29; SI 2013/1782, regs 6, 9; SI 2014/434 2.5.8 Duration: unpublished before 1989 Copyright in a sound recording made before 1 June 1957 and not published within 50 years of being made has expired. Copyright in an unpublished sound recording made between 1 June 1957 and 31 July 1989 that has never been made available to the public (see 4.1.11) expires on 31 December 2039. 1988 (CDPA) s13A, Sch 1 paras 12(5)(a), 12(6); SI 1995/3297 regs 12(2), 15; SI 2003/2498 reg 39; SI 2013/1782, reg 13 2.5.9 Duration: Crown copyright Duration is as for other sound recordings (see 2.5.7–8) except for unpublished sound recordings made between 1 June 1957 and 31 July 1989. In these, copyright expires on 31 December 2039 unless they are published before that date, in which case copyright expires 50 years after the end of the calendar year of publication. 1988 (CDPA) Sch 1 para 41(5) 2.5.10 Duration: Parliamentary copyright Duration in recordings made since 1 August 1989 is as for other sound recordings (see 2.5.7–8). 1988 (CDPA) s165(6)

2.6

Other works

2.6.1 Broadcasts: definition before 1957 Broadcasts made before 1 June 1957 had no copyright protection, but: • any work included in such a broadcast could be protected, for example as a literary, dramatic or musical work (see 2.2) • any broadcast made before 1 June 1957 but repeated on or after that date could have copyright protection as from the date of the re-broadcast. 1956 Sch 7 para 17–18; 1988 (CDPA) Sch 1 paras 5(1), 9(a)

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2.6.2 Broadcasts: definition after 1957 The definition of a broadcast in the 1956 and 1988 acts has been superseded by the definition in the 2003 Regulations. Only the latest definition is thus of any practical relevance. A broadcast is an electronic transmission of visual images, sounds or other information which is transmitted for simultaneous and lawful reception by members of the public or at a time determined by the broadcaster for presentation to members of the public (for instance, big screen relays of operas from Covent Garden). The definition thus includes: • • • •

conventional terrestrial television and radio broadcasts satellite broadcasts cable programmes material made available by means of the internet which is also being simultaneously broadcast by other means, is showing a live event, or is transmitted at scheduled times set by the broadcaster.

The important elements in the definition are that the broadcaster controls the start and stop times, and the broadcast is ultimately received or seen by the public (see 4.1.2). A re-transmission is now regarded as a distinct broadcast from the original one which is being re-transmitted, although authorship remains with the author of the original work (see 2.6.8). It is important to remember that while a ‘broadcast’ is a type of copyright work, ‘broadcasting’ is no longer a distinct right belonging to the copyright owner. Broadcasting is now a part of ‘communication to the public’ (see 5.1.6). 1988 (CDPA) s6; SI 2003/2498 regs 4, 5, 31 2.6.3 Internet The definition of a broadcast does not cover any internet service or website unless what the user receives is equivalent to a conventional broadcast (see 2.6.2). A website is thus not of itself a copyright work, although it consists of copyright works including, for instance, computer programs (see 6.6), databases (see 8.2), literary and musical works (see 2.2), and artistic works (see 2.3). Judgments which found that internet websites were cable programme services are no longer relevant. 1988 (CDPA) s6; SI 2003/2498 reg 4 2.6.4 Cable programmes Cable programmes and cable programme services are no longer a separate category of copyright work, but have been subsumed in the definition of broadcasts (see 2.6.2). There is no copyright in a broadcast made by cable before 1 January 1985. 1988 (CDPA) Sch 1 para 9(b); SI 2003/2498 reg 5(1)

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2.6.5 Protection for the signal In all broadcasts, it is the actual signal that is protected by the copyright. There may be a separate copyright in the content (for example a dramatic copyright in a production such as a drama, a play or film being broadcast, see 2.2.4, or a literary copyright in a news broadcast, see 2.2.2). The copying down by hand of the words of the play might be an infringement of the dramatic copyright but not of the broadcast copyright, since the actual signal has not been copied. A recording of a broadcast is not itself a broadcast but is instead either a film (a recording of a television broadcast, see 2.4) or a sound recording (a recording of a radio broadcast, see 2.5). 2.6.6 Person making the broadcast before 1957 Broadcasts made before 1 June 1957 have no author as they were not recognized as works in themselves. 1988 (CDPA) Sch 1 para 9(a) 2.6.7 Body or person making the broadcast 1957–89 A broadcast made between 1 June 1957 and 31 July 1989 was made by the body which broadcast the visual images or sounds, or both together, which comprised the broadcast. This body could be either the British Broadcasting Corporation or the Independent Television (later Broadcasting) Authority, but no other. The Independent Broadcasting Authority was dissolved and its assets divided between the Independent Television Commission, the Radio Authority and National Transcommunications Ltd. The first two of these have now been absorbed into the Office of Communications (Ofcom). Copyright in recordings of original broadcasts presumably passed with the rights to the use of the broadcasts. 1956 s14(1) and (10); 1988 (CDPA) Sch 1 para 9(a); 1990 (Broadcasting) s127; 2003 (Communications) ss1, 405; SI 1990/2540 2.6.8 Person making the broadcast after 1989 Broadcasts made on or after 1 August 1989: the author is the (legal) person (normally a company or corporation) making the broadcast, who is: • the person or organization transmitting the broadcast, if he, she or it has responsibility to any extent for its contents, and/or • any person providing the programme, who makes with the person transmitting it the necessary arrangements for its transmission • in the case of a broadcast which relays another broadcast, the person making the original broadcast.

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Many original broadcasts are the joint authorship of the person transmitting and the person providing the programme, but some may be the sole authorship of the second. 1988 (CDPA) ss6(3), 9(2)(b), 10(2) 2.6.9 Place of satellite broadcasting and person making a satellite broadcast since 1996 In the case of satellite broadcasts made on or after 1 December 1996: • If a satellite broadcast is made from outside the UK and the EEA (see 1.2.8), and from a country that does not provide adequate protection (so that the broadcast would not qualify for protection under UK law, see 3.1.1), the definition of the place of broadcasting is re-defined so as to give it qualification under certain circumstances. • If the programme-carrying signal is transmitted to the satellite from a place (‘the uplink station’) within an EEA state, that place is the place from which the broadcast is made, and the person operating that station is the person making the broadcast. • If the uplink station is not within an EEA state, but the broadcast has been commissioned by a person established in an EEA state, the place where he or she is established is the place from which the broadcast is made, and that person is the person making the broadcast. 1988 (CDPA) s6A; SI 1996/2967 regs 6, 28 2.6.10 Broadcasts: place of broadcasting For broadcasts made at any date, the place from which a broadcast is made is the place where, under the control and responsibility of the person making the broadcast, the programme-carrying signals are introduced into an uninterrupted chain of communication. In the case of satellite broadcasts, this chain of communication includes the parts between the ground and the satellite in both directions. 1988 (CDPA) s6(4); SI 1996/2967 reg 5 2.6.11 Place of satellite broadcasting 1989-1996 For broadcasts made between 1 August 1989 and 30 November 1996, the place from which a satellite broadcast is made is the place from which the signals carrying the broadcast are transmitted to the satellite. 1988 (CDPA) s6(4); SI 1996/2967 reg 28 2.6.12 Person making a satellite broadcast 1984–96 For broadcasts made on or after 1 January 1985 but before 1 December 1996, a satellite

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broadcast was made by the body by which the visual images and/or sounds were transmitted to the satellite. 1984 Sch 5 para 6(7) 2.6.13 Broadcasts: duration Copyright expires 50 years from the end of the calendar year in which the broadcast was made. However, where the author is not a national of an EEA state (see 1.2.8), the duration is determined by the country of which the author is a national, provided it is not longer than the duration set out above. For a repeat of a broadcast see 2.1.14. 1988 (CDPA) s14, Sch 1 para 12(6); SI 1995/3297 reg 7 2.6.14 Author and duration of Crown and Parliamentary copyright broadcasts Crown and Parliamentary copyright broadcasts have authors and durations as other broadcasts (see 2.6.7–9, 2.6.12–13). 1988 (CDPA) ss163(5), 165(6) 2.6.15 Typographical arrangement: definition There is a distinct copyright in the typographical arrangement of a published edition of the whole or part of one or more literary, dramatic or musical works, a right recognized by the courts long before it became statutory. In this context ‘published edition’ means a hard copy edition that has been issued to the public (see 4.1.3). Note the following: • The copyright protects the skill and creativity involved in designing the edition: the appearance of an individual page (use of elements such as pictures, fonts, margins, columns, and the relationship between the various elements) and the distinctions between different parts of a published edition (such as the front page and the leader page of a newspaper). • There can be no copyright in the typographical arrangement of a published edition of an artistic work. • There can be no copyright in the typographical arrangement of a published edition if, or to the extent that, it reproduces the typographical arrangement of a previous edition. • It is possible to have copyright in the typographical arrangement of an edition of a work that is itself out of copyright, but this does not create a new copyright in the work itself. • The copyright relates to the whole of the edition as published, whether the edition consists of a single literary, dramatic or musical work, part of such a work, or several such works. The published edition is what the publisher issues to the public, and the

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courts do not appear to believe that the typographical arrangement of a published edition can refer to anything less than a whole page. • The copyright may be infringed by copying and issue to the public but not by any other restricted acts (see 5.1), so for instance the placing of a digitized copy of a published edition of an out of copyright work on the internet does not infringe as a communication to the public, though there may be an infringement through making the copy in the first place. 1956 s15; 1988 (CDPA) ss1(1)(c), 8, 17(5), 18(1), 20(1); Lamb v Evans, 1893; Newspaper Licensing Agency v Marks & Spencer, 2001 2.6.16 Typographical arrangement: author The author of the typographical arrangement of a published edition is the publisher. If the Crown publishes a work it is the publisher, and if a parliament or assembly publishes a work the publisher is the relevant Westminster House or both houses together as joint publishers, the Scottish Parliament or the relevant assembly, as appropriate. However, it seems clear from the wording of the statute that if a publisher publishes a work on behalf of someone else, even if the creating body does the design, it is the publisher, not the creating body, that acquires the typographical rights. 1956 s15; 1988 (CDPA) s9(2)(d) 2.6.17 Typographical arrangement: duration Copyright in the typographical arrangement of a published edition expires 25 years after the end of the calendar year in which the edition was first published. 1956 s15(2); 1988 (CDPA) s15

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Ownership

3.1

Qualification

3.1.1 Definition Although a work might otherwise be eligible for copyright protection, by reason of such things as its originality and the date of its creation or publication or the date of the author’s death, it only ‘qualifies’ for protection under UK law if particular conditions are fulfilled at the time of creation or publication. In practice, most works in UK archives that are eligible for copyright also fulfil the qualification requirements and are therefore protected by the terms of UK law. There are two grounds for qualification of all works except broadcasts, only one of which needs to be satisfied for the work to qualify, and both relate to the source country. They are the status of the author of the work and the place of publication. By definition, an unpublished work can qualify only under the former. A broadcast qualifies if the place of transmission is a qualifying country (defined as for publication, see 3.1.3, but see also 2.6.9–12). 1988 (CDPA) ss153–162 3.1.2 Author of the work A work qualifies for protection under UK copyright law if, at the time the work was made or published, the author was a British citizen, a British Dependent Territories citizen, a British national (overseas), a British overseas citizen, a British subject or a British protected person, an individual living in the UK or in one of the countries currently recognized as providing qualification (see 3.1.3–4), or a body incorporated under UK law or the law of one of the countries currently recognized as providing qualification. However, if a literary, dramatic, musical or artistic work was published before 1 June 1957 in one of the countries not then recognized as providing qualification, it cannot qualify on grounds of authorship even if the author is from a qualifying country now. An unpublished work of any date qualifies for protection now if the author was from a country that is now a qualifying country. Works by people of the Channel Islands, the Isle of Man and the British overseas territories – Anguilla, Bermuda, British Antarctic Territory, British Indian Ocean Territory, British Virgin Islands, Cayman Islands, Cyprus Sovereign Bases, Falkland Islands, Gibraltar, Montserrat, Pitcairn, St Helena (with Ascension and Tristan da Cunha), South Georgia (with the South Sandwich Islands) and Turks & Caicos Islands

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– all qualify in the UK on the basis of authorship. Works by British citizens are protected in all these places. 1988 (CDPA) s154; SI 2013/536 art 2; SI 2015/216 3.1.3 Place of publication UK copyright law protects literary, dramatic, musical and artistic works, films and typographical arrangements that were published in countries that provide copyright protection to a similar standard to that provided in the UK. For the most part this means countries that are members of the Berne Union or signatories of the UCC, the WIPO Copyright Treaty or the TRIPS Agreement, or (for sound and broadcast works) the Rome Convention (see 1.2.6–7). The latest order in council has a table listing all these countries, and may be seen online on the UK Legislation website (see 1.2.6, 10.3). It also provides that if a work was published in a country which is now a qualifying country it qualifies for protection even if it did not qualify at the date of publication. Works published in the British overseas territories (see 3.1.2) all qualify on the basis of publication. Gibraltar has its own act, (a modified version of the 1988 Act, see 9.1.3) and there is reciprocal protection. In each of the other territories, either the 1911 Act or the 1956 Act continues to apply. Works originating in the UK are protected in those territories under the terms of the relevant act, but works from those territories are protected in the UK under the terms of the 1988 Act. Works published in the Isle of Man, Guernsey and Jersey (as parties to the Berne Convention) (see 7.1.6–9) qualify on that basis, with reciprocal qualification there for works published in the UK and in member states of Berne. 1956 Sch 1 para 45(1); 1988 (CDPA) s155, Sch 1 paras 35–36; 2005 (Gibraltar); R&O 152/2012; SI 2013/536; SI 2014/5; SI 2015/216 3.1.4 Qualification in practice The application of the qualification rules may be summarized as follows: • There is reciprocal protection, using the local law with few exceptions, between the UK and countries that are signatories of the Berne Convention, the WIPO Copyright Treaty or the TRIPS Agreement. Those countries are listed in the current (2013) ‘application to other countries’ statutory instrument, as amended in 2015 (see 1.2.6). • If a literary, dramatic, musical or artistic work was first published before 1 June 1957 it qualifies in the UK only if the country is now a qualifying country, even if the author was or is a qualifying author. • Unpublished works, by an author who would qualify now, qualify for protection in the UK regardless of their date of creation.

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• Works created by a few international organizations qualify, regardless of other criteria. They are the United Nations and its agencies and the Organization of American States. Copyright in these works lasts for 50 years after the year of creation. • Even if a work qualifies for protection, it does not necessarily have protection for the full term provided for in UK legislation. The duration of copyright depends on its ‘country of origin’. The country of origin for the purposes of duration is not defined in the same way as is the source country for the purposes of qualification (see 2.1.27): what matters for duration is the nationality, not the country of residence, of the author. 1988 (CDPA) ss12(6), 15A, 153ff, 168; SI 1989/989; SI 2013/536; SI 2015/216; Peer International v Termidor Music Publishers, 2003

3.2

First owner

3.2.1 Author Laurence Sterne wrote in Tristram Shandy (1760), ‘the sweat of a man’s brows and the exsudations [sic] of a man’s brains, are as much a man’s own property, as the breeches upon his backside’. The law agrees, so in the majority of cases, but with important exceptions, the author of the work (see 2.2.6–15, 2.3.6–11, 2.4.3–8, 2.5.4–6, 2.6.6–9, 2.6.14, 2.6.16) is the first owner of the copyright in it (see also 2.1.17–18). The copyright passes to the author’s legal heirs, unless it is explicitly bequeathed (see 3.3.1–6) or assigned (see 3.3.8–14) otherwise. If it is not possible, by reasonable enquiry, to ascertain the author’s identity the work is of ‘unknown authorship’, but that unknown author is still normally the first owner. To deal with some cases of uncertainty, the law makes certain assumptions about authorship, which apply unless they are shown to be wrong (see 3.2.39). Care is needed with photographs: the definition of the author has varied significantly (see 2.3.7). 1988 (CDPA) ss9(4) and (5), 11; Laurence Sterne, Tristram Shandy III c34 3.2.2 Applicable law The first owner of the copyright in a work is determined by the law in force at the time when the work was made or completed, and the title then descends from that person. However, in some circumstances, when copyright has been revived (see 2.1.23–26), ownership reverts to the author or his or her heirs even if someone else (for instance an employer, see 3.2.12, or a person commissioning an artistic work, see 3.2.19) was first owner (see 2.1.24). 1988 (CDPA) Sch 1 para 11(1) 3.2.3 Ownership of the original documents The owner of an original document is not necessarily the owner of the copyright in it. The

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law recognizes a clear distinction between the common law ownership of the physical object containing the work (the ‘chattel’) and the statutory ownership of the copyright in the work. As one judge said in 1907, the law ‘contemplated a property in a composition independently of the property in the manuscript in which that composition was to be found’. However, there are special presumptions about the ownership of both chattel and copyright when a work has been bequeathed by the copyright owner (see 3.3.1–6). An author may sell or give the manuscripts of his or her work to one person but may assign the copyrights to quite a different person, or retain them him or herself, and may bequeath them separately in his or her will, in which case the presumptions do not apply. The sending of the manuscript of a book to a publisher for publication does not in itself transfer ownership of the manuscript, even if the copyright is assigned to the publisher, though if the manuscript of a published work is left with the publisher without being reclaimed the ownership of it could be found to have been abandoned. The owner of the physical object has rights in that object that have nothing to do with copyright: he or she may allow or refuse access to it (subject to the law of freedom of information, see 5.4.4–5), may refuse to allow it to be reproduced, may charge a fee for its reproduction (see 5.2.24–25), and may destroy it, for instance. Fletcher-Moulton J in Macmillan v Dent, 1907, at 120; Dickens v Hawksley, 1935; Moorhouse v Angus & Robertson, 1980 3.2.4 Original letters and ownership Letters raise special problems because they are treated differently by their authors from other manuscript materials. The author of a letter is normally the owner of the copyright, while, since the purpose of a letter is to send it to someone else, the recipient is normally the owner of the original document. The courts have decided, in a succession of cases starting with one brought by Alexander Pope, that although the recipient may sell, give away or even destroy the original letter, because he or she is not the copyright owner he or she may not reproduce it or do any of the other acts restricted by copyright without permission (see 5.1). There may be an implied licence to the recipient (see 5.2.3) or the copyright may have been assigned to the recipient or someone else, though assignments are more likely of copyrights owned by companies and other bodies than by private individuals (see 3.3.8). The presumptions about the ownership of copyright in works bequeathed (see 3.3.1–6) are unlikely to apply to collections of letters since the testator who owns them is rarely the copyright owner, and the copyright owner does not own the original letters and so cannot bequeath them. Similar considerations apply to the copyright in e-mails, but there is no ‘original’ document in that case (see 6.3). Pope v Curl, 1741; Perceval (Lord and Lady) v Phipps, 1813; Gee v Pritchard, 1818; Macmillan v Dent, 1907

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3.2.5 Original documents There are major implications in this for archivists and records managers. They might find themselves responsible for four different categories of material, even within a single collection or file series: • Material owned by the archive or authority (as creators or by gift or sale), in which the archive or authority also owns the copyright (as employers of the author, see 3.2.12, or by bequest, see 3.3.2–6, or assignment, see 3.3.8): In such cases, the archivist, records manager or authority may do anything with the material, so long as moral rights are not infringed (see 8.1). • Material owned by the archive or authority (for example by gift or sale, or as a result of a commission), in which the copyright is owned by someone else: In such cases, the archivist, records manager or authority may care for (or destroy), make available to the public and exhibit the original material (see 4.2.2–6), but may not make copies except within the prescribed limits (see 5.4). The archivist, records manager or other authorized officer may also give (or refuse) permission for reproduction of the documents (they being the institution’s property), so long as it is made clear that permission is also required from the copyright owner (see 5.4.1) and so long as moral rights are not infringed (see 8.1). If the artefact were something like a photograph, there would be nothing to prevent a person obtaining a copy, with the copyright owner’s and relevant custodian’s permission, from another original print held elsewhere. • Material owned by someone else (such as a depositor) in which copyright is owned by the same or another person: In such cases, the freedom of the archivist, records manager or authority is limited. The copyright exception allowing copying of unpublished works for users of libraries and archives (see 5.4.13) does not apply if the owner of the copyright has refused permission to copy, but the copyright owner cannot prevent the making of preservation copies (see 5.4.10–11). What the owner of the artefacts may prevent or allow depends on the terms of any contract with him or her. • Material supplied by a person or body, the ownership of which is uncertain, for example exhibits found among court records or items lent to a company but not reclaimed: Even if the copyright position is clear, the freedom to do things with the work might be limited. 1988 (CDPA) s43(2)(b) 3.2.6 Original documents: ownership of the artefacts It is worth remembering that even without owning the copyright an archivist or records manager with the appropriate rights of control over artefacts in his or her custody may still refuse to allow the copying of the documents on preservation grounds, and may if

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desired impose conditions on their use, such as the payment of fees for publication. Such conditions have nothing to do with copyright; they would normally be stated on any order form completed by the purchaser of copies and thus would be enforceable as a contract (see 5.2.25), though freedom of information legislation (see 5.4.4–5) and legislation regulating use of public sector information (see 5.2.10) needs to be taken into account. 3.2.7 Joint authorship and co-authorship A work is in joint authorship if it was produced by the collaboration of two or more authors and either the contribution of each author is not distinct from that of the other author or authors (see also 2.2.14) or the second author’s contribution could not stand alone (as for example with a violin part to a song, which was meaningless alone). Thus when someone writes an article based on an interview with someone else, and both interviewer and interviewee contribute text to the resulting work, they may well be joint authors of the resulting work. Similarly, a solicitor and his or her client could be joint authors of a will drafted on the basis of the client’s precise instructions (but see 7.7.5). However, there must be ‘joint labouring in the furtherance of a common design’ by all authors, and each must make a genuinely significant and original contribution of skill and creativity (see 2.1.6–14). The contributions do not need to be equal in quantity, quality or originality, but a slight contribution does not qualify, nor does the wrong kind of contribution. For instance, the director and actors who have contributed to a play merely by their manner of performing it have not done enough to qualify as joint authors, and similarly the reminiscences of a person talking to a ghost writer, the specification of the results to be achieved, or proof-reading and correction of a text would also not be enough. The author of a work used by someone else as the basis for a new derivative work (see 2.1.7), such as a translation, is not a joint author of the new work since the contribution of each author is quite distinct. However, if the author of the source work was actively involved in the process of adaptation (see 5.1.7) there is collaboration and thus joint authorship. Where the principal director and producer of a film are different people they are always joint authors of the film (see 2.4.5). The duration of copyright in a work of joint or co-authorship is based on the last to die of the known authors (any unknown authors are ignored). If all the authors are unknown, it is treated as an anonymous work (see 2.1.18). Co-authorship (see 2.2.14) has no relevance to ownership of the copyright in the literary and musical works comprising the composite work. It affects only the duration of copyright in the composition. 1988 (CDPA) s10, 12(8); Keating J in Levy v Rutley, 1871, at 529; Evans v Hulton, 1924; Donoghue v Allied Newspapers, 1938; Cala Homes (South) v Alfred McAlpine Homes East, 1995; Creation Records v News Group Newspapers, 1997; Fylde Microsystems v Key Radio

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Systems, 1998; Robin Ray v Classic FM, 1998; Hadley v Kemp, 1999; Beckingham v Hodgens, 2003; Brighton v Jones, 2004; Gabrin v Universal Music Operations, 2004; Fisher v Brooker, 2009 3.2.8 Joint ownership Each joint author is normally also a joint first owner of the copyright (but the normal rules apply, for employees for instance, see 3.2.12), and each joint author has a share in the ownership in the same proportion as his or her share in the authorship based on their respective contributions. Joint owners, whether or not they are also joint authors, have the legal status of tenants in common. This means that: • each joint owner’s share is separate from the other shares, and may be owned, assigned, bequeathed or inherited under the normal rules • the exploitation of the work by one joint owner infringes the copyright of the other if permission was not first obtained, and the giving by just one owner of permission to a third party to reproduce the work similarly infringes because it authorizes an infringement (see 5.1.12) • any one joint owner may sue for infringement without involving the others, but is likely only to be able to obtain the appropriate proportion of any damages awarded. 1988 (CDPA) ss10, 173(2); Prior v Landsdown Press, 1977; Mail Newspapers v Express Newspapers, 1987; Robin Ray v Classic FM, 1998; Fisher v Brooker, 2009; Slater v Wimmer, 2012 3.2.9 Joint authorship: Crown and Parliamentary copyright If a work is in joint authorship, and one or more but not all of the authors is an officer or servant of the Crown acting in the course of his or her duties or is acting under the direction or control of either House of Parliament, the work is partly Crown (see 3.2.28–33) or Parliamentary (see 3.2.35–38) copyright, as appropriate and in accordance with their contribution to the whole. 1988 (CDPA) ss163(4), 165(5) 3.2.10 Anonymous and pseudonymous works, and works of unknown authorship If the first owner of an anonymous or pseudonymous work (see 2.1.18) is not the author (but is for example the employer, see 3.2.12) then that owner is normally identifiable. If however the first owner of an anonymous or pseudonymous work is the author, there are considerable difficulties securing permission to do anything with it, which is partly what the orphan works schemes are for (see 5.2.17). There are also some special provisions allowing the publication of older unpublished works (see 5.4.15) and of

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works in revived copyright (see 5.3.29) and some assumptions about the expiry of copyright that may be made about older works (see 5.2.21–22). 3.2.11 Collective works The expression ‘collective works’ comes from the Copyright Act 1911, summarizing some lengthy drafting in the Literary Copyright Act 1842, which gave to a publisher who employed staff to write works to be used in a composite literary work such as an encyclopedia, magazine or periodical a right to exploit the whole work, with reservation to the employees of their various copyrights in the component parts (see also 3.2.25). The term has been replaced by ‘compilation’ (a type of literary work, see 2.2.3), so it now applies only to works created before 1 July 1912. It appears in the 1988 Act only in connection with reversionary rights (see 3.2.25, 3.3.13). 1842 s18; 1911 ss24(1)(a)(ii), 35(1); 1988 (CDPA) Sch 1 para 27 3.2.12 Employer (contract of service) The employer is the first owner of the copyright in a literary, dramatic, musical or artistic work made on or after 1 July 1912, or a film (including its sound track) made on or after 1 July 1994, when made by an employee in the course of his or her employment under a contract of service or apprenticeship (which is different from a contract for services, see 3.2.17). The author, the employee, owns none of the copyright, though he or she may still have any moral rights (see 8.1). For Crown employees see 3.2.28–33 and for Parliamentary employees see 3.2.34–38. However, for artistic works to which the provisions giving ownership to the person who commissioned the work (see 3.2.19) applied: • when the work was commissioned between 1 July 1912 and 31 May 1957 the title of the person who commissioned it took precedence over the claims of both author and employer under all circumstances • when the work was commissioned between 1 June 1957 and 31 July 1989, the title of the person who commissioned it took precedence over the claims of the author and the employer except when the work was made for publication in a newspaper (see 3.2.27). Typographical arrangements have no creative author who might be an employee. Instead, a typographical arrangement copyright belongs to the publisher as its author (see 2.6.16). In some circumstances, ownership of a revived copyright can revert to the author (see 2.1.24). 1911 s5(1); 1956 s4(2–4); 1988 (CDPA) ss11(2), 178 ‘employed’; SI 1996/2967 regs 18(3), 36(1); Massine v De Basil, 1938

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3.2.13 Employer (contract of service): general exceptions The express statutory provisions seem clear enough and in the majority of cases they can be applied without problems, but there are circumstances in which the copyright in a work produced by an employee but outside the terms of his or her contract (even if the work was produced in working time) could belong to the author. It seems that an employee will be deemed to be acting in the course of employment when some or all of the following conditions apply: • How and what he or she does is subject to the supervision and control of the employer. • The individual is personally responsible for doing the employer’s work, with little or no opportunity for substitution by someone else. • The work is an integral part of the business of the employer. • The employer provides all of the materials. • The employer has the opportunity for gain but also bears the costs and the risk of loss. Judges have said that the author (not the employer) was the copyright owner when the author was: • a doctor on a hospital’s staff who wrote a book in his or her own time but using skills and specialist knowledge gained as a result of the work he or she did at the hospital • a teacher or lecturer who made written notes for the series of lectures or oral lessons he or she was employed to give; the notes were made for the teacher’s own convenience though it would have been different if they were explicitly required by the contract of employment (but see 3.2.22–23) • an accountant who was asked to give a series of lectures in his employer’s time, a duty outside his normal area of work, even though the lectures were prepared in the employer’s time and using the employer’s facilities (such as a library and typing) • the director of a company (in some cases, see 7.9.2). It is not possible to give precise guidance in this area because each case depends on its own facts, but it seems fair to summarize the position by saying: • A document which an employee would be expected or required by an employer to produce, whether it is created in the employer’s or the employee’s time, will be copyright of the employer. • A document produced for the employee’s own purposes and which the employer does not expect or require the employee to produce (for instance it is not specified in a job description or prescribed objectives and is not routinely required of similar staff), whether it is created in the employer’s or the employee’s time, will

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(irrespective of the possibility of disciplinary issues with the former) be copyright of the employee. The same would be true in the case of such a work (for instance a diary or photograph) created for personal purposes when travelling on the employer’s business. The fact that the employee was there only because of his or her employment is irrelevant: what matters is whether the activity itself was conducted in the course of employment. Montreal v Montreal Locomotive Works, 1947; Stephenson, Jordan and Harrison v MacDonald and Evans, 1952; Beloff v Pressdram, 1973; Noah v Shuba, 1991; HRH the Prince of Wales v Associated Newspapers, 2007; Dragonfly Consulting v HM Revenue & Customs, 2008 3.2.14 Employer (contract of service): agency and casual staff A decision on whether a contract of service exists at all depends on the evidence in each case. In the case of agency staff, the contract of employment is between the individual and the agency; the agency has a contract with the employer to provide a member of staff but there is normally no contractual relationship between the individual and the employer. The question can be more awkward with casual staff, the evidence for whose conditions of employment may be both written and oral, contained in such things as a letter of appointment, letters offering and accepting or declining particular jobs, and the conduct of the parties. Criteria for deciding whether casual work is being performed under a contract of service appear to include whether: • there is some obligation on the employer to provide work and on the employee to take it when offered • regular payments are made for services performed • the employee is in business on his or her own account and takes the financial risk. In the absence of cases specifically looking at the issue from a copyright point of view, though, it is not possible to be certain how a contract of service for casual staff might be defined (see also 3.2.21). O’Kelly v Trusthouse Forte, 1983; Carmichael and Leese v National Power, 1999; Eastbourne Borough Council v Foster, 2001; James v London Borough of Greenwich, 2008 3.2.15 Employer (contract of service): joint authorship In some circumstances joint authorship and thus joint ownership might be found by a court to apply (see 3.2.7–9), so the employer might be part owner, even if not sole owner, of the copyright. 1911 s5(1)(b); 1956 s4(4); 1988 (CDPA) ss11(2), 178 ‘employed’; SI 1996/2967 regs 18(3), 36(1); Stephenson, Jordan and Harrison v MacDonald and Evans, 1952

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3.2.16 Employer (contract of service): before 1912 There was no general provision for employers to own the copyright in their employees’ works in legislation before the 1911 Act and the employment provisions in that Act were not retrospective. The circumstances in which the employer certainly owned the copyright prior to 1912 include: • employment of the author to write literary works for publication in encyclopedias, magazines, periodicals and part-works, but in most cases the employer’s copyright extended only to publication in that form and the author was entitled to retain the right to publish the work separately • production of a graphic artistic work (painting, drawing or photograph) made for or on behalf of another for a good or a valuable consideration, which certainly included creation in return for a salary (see 3.2.19). Under the common law, the normal position was that the author was owner of an unpublished work he or she had created (see 1.2.2). Unfortunately, various 19th-century judgments came to differing conclusions about employees. In one, the judge did not reach a decision but he ‘entertained the strong impression’ that a work written by an agent or servant would be copyright of the employer. However, two senior judges both seem to have concluded, rather earlier, that an employer was ‘author and proprietor’ only if he or she had taken a significant part in specifying what was to be created. One influential commentator on copyright, Thomas Scrutton, himself a lord justice of appeal and basing his comments on the judgment of two others, said that ‘as a general principle, an agent, servant or apprentice has no right to employ against his former principal or master materials obtained for his principal in the course of employment’, but this cannot be said to be a clear statement in favour of outright ownership by the employer. On the other hand, the Treasury certainly believed that the Crown owned the copyright in ‘any document’ created by a servant of the Crown or created by a person ‘specially employed and paid by the Crown for the purpose of composing any document’. In 1887 all Crown-owned copyrights were assigned to the Controller of Her Majesty’s Stationery Office (HMSO) (see 3.2.30), and in 1911 the Crown copyright provisions of the Act of that year were made retrospective (see 3.2.28) so that for the Crown at least there can be no dispute about ownership. Except in respect of Crown copyrights, this means that in many cases the employed author might have been the first owner of copyright in a work created before 1 July 1912. It is especially important for archivists to understand this, since this possibility applies to unpublished literary works created by employees, and many published ones. It could have unexpected consequences for, for instance, poor law and estates’ records where a large proportion of the documents created was produced by employed clerks, stewards and bailiffs (see 3.3.19, 7.5.2, 7.10.2). All these rights were replaced by the rights under the Copyright Act 1911, which left

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ownership in the same hands (except in the case of some assigned rights, see 3.3.13). Scrutton, 54; Treasury minute, 2; 1842 ss3, 18; 1862 s1; 1911 ss18, 24, Sch 1; Harfield v Nicolson, 1824–6; Shepherd v Conquest, 1856; Nottage v Jackson, 1883; Kekewich J in Hildesheimer and Faulkner v Dunn, 1891, at 454; Lamb v Evans, 1893 3.2.17 Commission (contract for services) Where a literary, dramatic or musical work of any date was created under an implied or express (written down) contract for services (not to be confused with a contract of service, see 3.2.12) or commission, the author is normally the first owner of the copyright in it, unless there is written agreement (normally in the original contract) to the contrary. In this context, the general law of contract becomes as important as copyright law, and that defines what is and is not a ‘commission’ (since the word is not defined or used for copyright purposes in the 1988 Act). For the meaning of ‘commission’ in the context of moral rights, see 8.1.10, and in earlier statutes see 3.2.19. One obvious type of commissioned material is produced by consultants (see also 6.6.1). An archivist or records manager entering into a contract with a consultant should ensure that it contains clear clauses covering all possible uses to which the material might be put, besides simple implementation of the consultant’s recommendations, including such things as publicity, publications and sharing the material with partners. If appropriate it should also contain a confidentiality clause, to prevent unauthorized disclosure by the consultant to others (see 8.7). Ownership normally lies with the author of any artistic work commissioned after 1 August 1989, but only of some commissioned earlier (see 3.2.19). In the case of a film made on or after 1 July 1994, the principal director is a joint author and thus first owner of the copyright jointly with the producer, so there is no question of one being commissioned by the other. There are other contexts too where a court might decide that joint authorship rather than a straight commission applies (see 3.2.7–9). Although in most cases it is fairly clear when a work has been commissioned and who is the author, there can be difficulties. 3.2.18 Commission (contract for services): possible variations A contract for services is generally regarded as being one in which the work is performed by someone who is acting in a material sense on his or her own account so that the way the work is carried out is not controlled by the person who commissioned it. It may be too that the work is to some extent incidental to the normal functions of the business commissioning it. A self-employed person such as an architect, lawyer, doctor, management consultant or newspaper contributor (as distinct from staff reporter) would normally be thought to be self-employed and thus working on commission. However, much depends on how a judge applies the principles laid down in earlier cases (see 1.2.2, 3.2.13). Under some circumstances, for instance, the person

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commissioning the work might have equitable rights in the copyright, such that the copyright owner is regarded as being merely the trustee for him or her (see 3.3.17–18). The longer a contractor has worked exclusively or almost exclusively for the person commissioning him or her the more likely it is that he or she will be found by the court to be an employee, not self-employed. An express intention of the two parties not to create a relationship of employment only rarely carries much weight: it is the actual facts of the relationship that matter. Almost whatever happens, the person who commissioned the work, or his or her heirs and assigns, have the right to use the work for purposes falling within the contract (whether implied, see 5.2.3, oral or written), regardless of copyright, so it is up to the person giving the commission to ensure that the contract covers all uses for which the work might be required (and see 3.3.18). It is worth noting that a work commissioned by the Crown before 1 August 1989 might be Crown copyright, not the copyright of the author (see 3.2.28). If the person giving the commission needs to prevent the author, as well as other people, from using the work, an assignment or exclusive licence will be needed, preferably as part of the original contract (see 3.3.8, 5.2.6). For a contract to be enforceable it must (except in Scotland) be in return for a consideration (such as payment in money). If no assignment was made in the commissioning contract (see 3.3.10), any assignment made later should be in return for a new consideration; the original fee for the work itself is not enough. Byrne v Statist, 1914; Stephenson, Jordan and Harrison v MacDonald and Evans, 1952; Blair v Osborne and Tomkins, 1971; Robin Ray v Classic FM, 1998; Dragonfly Consulting v HM Revenue & Customs, 2008 3.2.19 Artistic works commissioned before 1989 Where an artistic work was produced to commission and was created after the commission was agreed, the person commissioning it was the first owner of the copyright in: • an engraving made between 1734 and 30 June 1912, if the design was originated by the person who commissioned it and his or her name was on the engraving and each print • a painting, drawing or photograph made between 29 July 1862 and 30 June 1912 for or on behalf of the person giving the commission for a good or valuable consideration, unless the rights were expressly reserved in writing; a good or valuable consideration could include payment (or an intention to pay) or for instance the granting of access to private premises to take photographs, but not merely allowing portraits to be taken • an engraving, photograph or portrait (in any medium) made in pursuance of an

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order (that is, after the order had been received) and in the absence of any agreement to the contrary, for valuable consideration (that is, in return for payment), if the work was commissioned between 1 July 1912 and 31 May 1957, even if the work was created after the latter date • an engraving, photograph or portrait (painted or drawn) for which the person giving the commission paid or agreed to pay money or money’s worth, if the work was commissioned and in the absence of any agreement to the contrary between 1 June 1957 and 31 July 1989, even if the work was created after the latter date. An engraving includes an etching, lithograph, woodcut, print or similar work that is not a photograph (see 7.14.1, 7.14.5). Some of these provisions clearly required payment in some form before a work was considered to have been commissioned. That payment had to be sufficiently large to pay for the intellectual property in the work created: it had to be more than would have been paid merely for the supply of a painting itself or of prints of a photograph. The ownership by the person giving the commission may have reverted to the author and his or her heirs in some circumstances if the copyright has been revived (see 2.1.24). 1734 s1; 1766 s1; 1862 s1; 1911 s5(1)(a); 1956 s4(3), Sch 7 para 3; 1988 (CDPA) Sch 1 para 11; Jefferys v Baldwin, 1753; Ellis v Horace Marshall, 1895; Ellis v Ogden, 1895; Boucas v Cooke, 1903; Davis v Baird, 1904; Stackemann v Paton, 1906; Sasha v Stoenesco, 1929; Leah v Two Worlds Publishing, 1951; Apple Corps v Cooper, 1993 3.2.20 Commissioned sound recordings Where a sound recording was produced to a commission made between 1 June 1957 and 31 July 1989 for which the person giving the commission paid or agreed to pay money or money’s worth and the recording was created after the commission was agreed, the person who commissioned it is the first owner of the copyright, even if the work was created after the latter date. However, the 1988 Act did not make much practical difference because a person who is commissioned since 1 August 1989 to make a sound recording is unlikely to be the author or the owner of the copyright in the recording unless he or she can show that he or she is also the producer, that is the person who made the arrangements for the recording (see 2.5.4). Doing all the work of arranging the musicians and the recording session is not enough for this purpose; the person or body arranging or providing the money is really the producer. 1956 s12(4); 1988 (CDPA) ss9(2)(aa), 178 ‘producer’, Sch 1 para 11(2)(b); A&M Records v Video Collection International, 1995 3.2.21 Voluntary or honorary service The author is the first owner of copyright in a literary, dramatic, musical or artistic work

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created when working in a voluntary or honorary capacity, whether for an individual or an institution, including a statutory body or public institution (except the Crown before 1 August 1989, see 3.2.28), unless there is express written agreement to the contrary. This would cover, for instance, volunteer officers of societies and volunteer workers on an archaeological dig or in a record office (but see 7.13, and see also 3.2.14). Archivists should therefore ensure that before volunteer and casual staff start work they have signed an assignment of copyright (and perhaps a waiver of moral rights, see 8.1) covering anything they produce for the record office (see 3.3.8–9), otherwise there could be difficulties with, for instance, catalogues. Similarly, if work is performed for the record office by a friends’ organization or similar body, which is constitutionally separate from the record office, either: • the friends’ organization should secure assignments of copyright to it, and perhaps waivers of moral rights, from its members before they do any work and the record office should secure a non-exclusive licence (see 5.2.5) from the friends’ organization, allowing both parties to use the material; or • if the friends’ organization is not interested in publishing, it should require assignments directly from its members to the record office.

3.2.22 Universities The position in universities is particularly uncertain. Clearly the work of administrative staff is carried out in the course of employment, as are the administrative duties of many academic staff such as professors, heads of department and chairs of committees. Some teaching materials are also likely to be created in the course of employment, such as lesson plans, handouts and e-learning materials. On the other hand, lectures, articles and books, which are the products of academic research, are almost certainly not created by academics as employees unless perhaps they have been explicitly directed to create them. There is a great deal of variation in the policies of universities on this issue, and the solutions adopted are not necessarily ones that the universities would actually find it easy to enforce. Some universities allow some or all rights to belong to academic staff. Most universities reserve to themselves commercially valuable rights, such as copyrights in software (see 6.6), and rights in databases (see 8.2) and patentable inventions (see 8.6.7), while agreeing to share the royalties. Some universities go to the opposite extreme and assert their rights to ownership of all copyrights, even requiring students to assign their copyrights (see 3.2.23). If a case ever came to court, these universities might well find a policy of this sort difficult to enforce, but even the more generous policies raise issues because of a lack of awareness among university administrators of the complexities of copyright law. For the policy of a particular university, try searching on its website for ‘copyright policy’ or ‘intellectual property policy’.

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Stephenson, Jordan and Harrison v MacDonald and Evans, 1952; Noah v Shuba, 1991; Monotti and Ricketson, 2003; Rahmatian, 2014 3.2.23 Teachers and students The copyright status of teachers’ notes and publications depends largely on the precise terms of the individual’s contract with his or her employer and on the conduct of employer and employee (but for university lecturers see 3.2.22). If the individual is employed to teach, the employer is in almost all cases the first owner of the copyright in material for the classes (but see 3.2.13). If publication is not a specified part of the contract but it is left to the initiative of the individual to write articles and books and to have them published, the individual is likely to be the first owner of copyright in them. The work of employed research assistants would have to be assessed in the same way as that of other staff (see 3.2.22). Research students, working with but not paid by a supervisor within a university, are likely to be the first owners of the copyright in their work, except that in some cases there is overlap between their work and that of other members of a research group and the supervisor, so there might be joint authorship (see 3.2.7). Undergraduates are normally the first owners of the copyright in their material (but some are under 18 and so much the same as schoolchildren, see below). Some students, though, pursue their studies as part of a period of apprenticeship or employment (for instance as engineers or army officers). Since apprentices are treated in the same way as employees for the purposes of copyright ownership, copyright in their work belongs to the person to whom or the body to which they are apprenticed or by which they are employed (see 3.2.12). Some universities require students of all kinds to assign their copyrights or have introduced policies asserting their ownership of the rights. Either approach appears unnecessary and improper, and seems unlikely to succeed if it were ever legally challenged. Schoolchildren are the owners of copyright in their work, though their rights are usually administered by their parents or guardians until they reach adulthood. The work of schoolchildren should only be used in the classroom context (including the context of a record office’s training room), and should not for instance be included in a publication, unless permission has been obtained from the parents or guardians. 1989 ss3, 5; Stephenson, Jordan and Harrison v MacDonald and Evans, 1952; Noah v Shuba, 1991 3.2.24 Employed journalists Before the 1988 Act, there were special provisions for the first ownership of copyright in the work of journalists who were employees. They changed with successive acts, but the provisions of each act still apply to works made when they were in force except in some cases of revived copyrights (see 2.1.24). There are no special provisions for journalists in the 1988 Act.

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1988 (CDPA) Sch 1 para 11(1) 3.2.25 Employed journalists: before 1912 Before 1 July 1912 the publisher of a collective literary work (encyclopedia, magazine or periodical, see 3.2.11) written by his or her employees was the owner of the copyright in the whole work. However, the publisher had to have the consent of the authors to publish the works separately. The authors could themselves, by express contract, have the right to publish the works separately, and 28 years after first publication (in whatever form) the right to publish the works separately reverted to the authors entirely. If that reversion had not happened by 1 July 1912 it could not happen at all and the publisher of the collective work retained the right to publish until copyright expired under the provisions of the 1911 Act. 1842 s18; 1911 s24(1)(a)(ii) 3.2.26 Employed journalists: 1912–57 Between 1 July 1912 and 31 May 1957 the employer was the first owner of the copyright in a literary, dramatic, musical or artistic work produced by an employee in the course of his or her employment, but where the work was a contribution to a newspaper or periodical the author had the right to prevent its publication in any other form, unless the terms of his or her contract said otherwise. However, see 3.2.12 for the exclusion of the employer in the case of a commissioned artistic work. 1911 s5(1)(b) 3.2.27 Employed journalists: 1957–88 Between 1 June 1957 and 31 July 1988 the publisher was the first owner of the copyright in a newspaper or periodical published by him or her, and in works produced by his or her employees in the course of their employment so long as they were published in a newspaper or periodical. However, the journalist employee-author was the first owner of the copyright in his or her individual literary, dramatic and artistic (but not musical) works for all other purposes, unless his or her contract said otherwise. The employee’s (but not the employer’s) rights were over-ridden by the rights of a person who commissioned an artistic work (see 3.2.12). 1956 s4(2), (5) 3.2.28 Crown copyright before August 1989 The Crown is the owner of the copyright in: • any work prepared or published by or under the direction or control of His or Her

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Majesty or any government department at any time (see 3.2.16) before 1 June 1957, subject to any agreement to the contrary • any work made or first published by or under the direction or control of Her Majesty or a government department between 1 June 1957 and 31 July 1989, subject to any agreement to the contrary. These provisions can be difficult to apply, and an Australian judge described the pre1957 one as a ‘legislative monstrosity’ but it survives with little change in Australian law. In both, the publication provision gave to the Crown the copyright in a work that it published (after 1957, only that it first published), apparently in both its manuscript and printed forms, regardless of who the author was or who had previously owned the copyright. ‘Under the direction or control’ has a fairly broad meaning. When applied to a publication it included works issued for publication subject to an embargo as well as works actually published by the Crown such as Hansard until 1989 (see also 3.2.35). When applied to creation it covered works produced not only by such people as civil servants, diplomats, members of the armed forces and government ministers, but also by the officers and members of bodies over which the Crown exercised some direction or control of what work was done and how, including many advisory or executive nondepartmental public bodies (NDPBs or quangos) and royal commissions. It certainly applied to anything done under a statutory duty (when the person doing it was required to do it by statute, such as complete a census return). Evidence submitted to a royal commission was not covered unless there was power to compel the giving of evidence. Works commissioned by the Crown over which the Crown exercised direction or control are Crown copyright but a work commissioned by the Crown and prepared thereafter independently of supervision was the copyright of the author, unless the form of publication gave copyright to the Crown. A body, such as the BBC, that was merely licensed by the Crown was not acting under its direction or control. Acts of Parliament and measures of the General Synod of the Church of England are all Crown copyright. 1911 s18; 1956 s39; BBC v Wireless League Gazette Publishing, 1926; Long Innes CJ in Attorney General for New South Wales v Butterworth, 1938, at 258; Ironside v Attorney General, 1988; TNA: STAT 7/6; STAT 14/44; Copyright Law Review Committee, Crown Copyright 3.2.29 Crown copyright since 1989 The Crown is the owner of the copyright in any work made on or after 1 August 1989 by Her Majesty or by an officer or servant of the Crown (including civil servants, diplomats, members of the armed forces, police officers and government ministers) in the course of his or her duties. This is much narrower than earlier definitions (see

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3.2.28), and might not cover a work produced by a non-departmental public body. Much as with ordinary employees (see 3.2.13), a work, such as a diary or photograph, created for personal purposes by an officer or servant of the Crown when travelling on the Crown’s business will be personal copyright of that individual. The fact that the individual was there only because of his or her employment is irrelevant: what matters is whether the work was created in the course of his or her duties. On the other hand, a work (such as an e-mail or a report) that is created at home but for official purposes is Crown copyright. All acts of Parliament (including local and personal acts and acts of the Scottish Parliament and of the Welsh and Northern Ireland assemblies) and measures of the General Synod of the Church of England, after they have received royal assent, and all measures of the Welsh Assembly after they have been approved by the Privy Council, are also Crown copyright. 1988 (CDPA) ss163(1), 164, Sch 1(40)(1)(a), (42); 2006 (Wales) Sch 10 para 27; HRH the Prince of Wales v Associated Newspapers, 2007 3.2.30 Administration of Crown copyright and Crown-owned copyright Crown copyright is administered in England, Wales and Northern Ireland on behalf of the Crown by the Queen’s Printer and Controller of HMSO, who, with the Office of Public Sector Information (OPSI), is now at TNA (see 10.3). The Controller publishes all statutes and statutory instruments together with guidance on Crown copyright and public sector information licensing issues (see 5.2.7–8, 5.2.10) online. Personal copyrights of monarchs, past and present, are excluded from the scope of the letters patent to the Controller. Instead they are administered on behalf of the Queen by the Royal Household, as are other copyrights she might own personally such as those of her mother. Enquiries from archivists and records managers about such things as personal letters and diaries of the Queen, her ancestors and her predecessors, or about works created by her personal staff, including staff of the Royal Collection, should be sent initially to the Royal Archives in Windsor. Where copyrights have been assigned to the Crown they do not become Crown copyright (see 3.3.12), and duration is as for other copyrights (see 2.1.19). Crown-owned copyrights are administered by the Controller along with Crown copyrights. If the Controller assigns a Crown copyright to a new owner the work remains subject to the provisions for Crown copyright, notably duration, and continues to be called ‘Crown copyright’. Crown copyright in countries outside the UK, including the Crown dependencies (see 7.1.6), British overseas territories (see 3.1.2) and those Commonwealth countries that still have Crown copyright is administered locally, not by the Controller. The Crown’s rights in respect of the King James Version of the Bible and of the Book of Common Prayer have nothing to do with copyright since copyright in both works has

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expired (if it ever subsisted). They are based instead on the royal prerogative, arising from the monarch’s role as Supreme Governor of the Church of England and protector of the Church of Scotland. Under this prerogative power, only the recipients of letters patent have ever had the right to publish the texts in the UK; there are no restrictions outside the UK. Letters patent have been issued to: • the university presses of Oxford and Cambridge, since 1629 for the King James Version of the Bible and since 1662 for the Book of Common Prayer, with authority to print and publish • the Queen’s Printer in England, Wales and Northern Ireland of the King James Version of the Bible and of the Book of Common Prayer, with authority to print and publish and to license others to do so; since 1990, the Cambridge University Press has held this office • the Queen’s Printer for Scotland of the King James Version of the Bible, with authority to print and publish and to license others to do so; the Scottish Bible Board is the holder of this office and since 1841 has licensed William Collins, now part of HarperCollins. 1988 (CDPA) ss163(2), 171(1)(b); Manners v Blair, 1828 3.2.31 Crown copyright: Welsh Assembly Government Records of the Welsh Assembly Government, proceedings of the Welsh Assembly between 1 April 1999 and 3 May 2007, and acts and measures of the Welsh Assembly are Crown copyright. Crown copyright in Wales is administered by the Controller (see 3.2.30). 1988 (CDPA) ss163(1A), 164, 178 ‘Crown’; 1998 Sch 12 para 28; 2006 (Wales) Sch 10 paras 26(2), 27, 29 3.2.32 Crown copyright: Scotland Records and publications of the Scottish administration and acts and subordinate legislation of the Scottish Parliament are Crown copyright. Crown copyright in Scotland is administered by the Queen’s Printer for Scotland (who is also, in 2015, the Queen’s Printer and Controller of HMSO, see 3.2.30). 1988 (CDPA) ss164, 178 ‘Crown’; 1998 (Scotland) s92, Sch 8 para 25(5) and (7) 3.2.33 Crown copyright: Northern Ireland Records and publications of Northern Ireland departments are Crown copyright, as are any acts of the Northern Ireland Assembly. The copyright is administered by the Controller (see 3.2.30). 1988 (CDPA) ss164, 178 ‘Crown’; 1998 (Northern Ireland) s23, Sch 13 para 8(5)

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3.2.34 Parliamentary copyright: Westminster Parliament Bills Parliament, that is the House of Lords and the House of Commons jointly or severally as appropriate, is the first owner of copyright in all bills from the date they are introduced until they receive royal assent (when they become Crown copyright acts, see 3.2.28–29) or are withdrawn (when copyright expires). Bills introduced before 1 August 1989 are subject to the normal rules for authorship (for instance by an individual MP), ownership (by the MP or the Crown) and duration. Parliamentary copyright at Westminster is the responsibility of the Speaker for the House of Commons, and the Clerk of the Parliaments for the House of Lords, but is administered on their behalf by the Controller of HMSO (see 3.2.30). 1988 (CDPA) ss166 3.2.35 Parliamentary copyright: Westminster Parliament, other works Parliament, that is the House of Lords and the House of Commons jointly or severally as appropriate, is the first owner of copyright in works made by or under the direction or control (see 3.2.28) of either House, including: • any literary, dramatic, musical or artistic work or any sound recording, film or broadcast, or any typographical arrangement made on or after 1 August 1989 by an officer or employee of either House in the course of his or her duties, including, for instance, Hansard • any sound recording, film or live broadcast of the proceedings of either House made on or after 1 August 1989 • any literary, dramatic, musical or artistic work created and unpublished before 1 August 1989 by an officer or employee of either House in the course of his or her duties. ‘Under the direction or control’ does not in this case include works that were merely commissioned by either House. Hansard published before 1 August 1989 is Crown copyright (see 3.2.28). 1988 (CDPA) s165, Sch 1 para 43(1) 3.2.36 Parliamentary copyright: Welsh Assembly Proposed bills and measures of the Welsh Assembly (until they receive royal assent are approved by the Queen in Council or are withdrawn), proceedings of the Assembly and its committees since 3 May 2007 (for earlier proceedings see 3.2.31), and records made under the direction or control (see 3.2.28) of the Assembly by such people as presiding officers, members of the Assembly Commission and staff of the Assembly, are all copyright of the National Assembly for Wales Commission. Much the same

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considerations apply to these records as under other Parliamentary copyright (see 3.2.35), save that anything made before 3 May 2007 qualifies instead under the normal rules for authors and employees. 1988 (CDPA) ss164, 165, 166C–D, 178 ‘Parliamentary Proceedings’; 2006 (Wales) s27(7), Sch 10 paras 27–29; SI 2007/1116 3.2.37 Parliamentary copyright: Scottish Parliament Bills of the Scottish Parliament, until they receive royal assent or are withdrawn, and proceedings and records made under the direction or control (see 3.2.28) of the Parliament, are the copyright of the Scottish Parliamentary Corporate Body. Much the same considerations apply to these records as to other Parliamentary copyright (see 3.2.35), save that anything made before 6 May 1999 qualifies for protection instead under the normal rules for authors and employees. Copyright in at least some of the material of the Scottish Parliament is administered on its behalf by the Queen’s Printer for Scotland (see 3.2.32). 1988 (CDPA) ss165(1), (7), 166A, 178 ‘Parliamentary Proceedings’; 1998 (Scotland) Sch 8 para 25(6); SI 1999/676 3.2.38 Parliamentary copyright: Northern Ireland Assembly Bills of the Northern Ireland Assembly until they receive royal assent or are withdrawn, the proceedings of the Assembly and its committees since 2 December 1999, and records made under the direction or control (see 3.2.28) of the Assembly by such people as presiding officers and staff of the Assembly are the copyright of the Northern Ireland Assembly Commission. Much the same considerations apply to these records as to Parliamentary copyright (see 3.2.35), save that anything made before 2 December 1999 qualifies for protection instead under the normal rules for authors and employees. 1988 (CDPA) ss166B, 178 ‘Parliamentary Proceedings’; 1998 (Northern Ireland) Sch 13 para 8(6); SI 1999/3146 3.2.39 Presumptions about subsistence and ownership Successive acts have allowed certain presumptions to be made by the courts about the subsistence and ownership of copyright. Those in the 1911 and 1956 acts have now been replaced by those in the 1988 Act, regardless of the date when the work in question was created, unless the infringement itself occurred before 1 August 1989. Some key points of these presumptions are given below. Unless the contrary is proved: • if a name of an author is on copies of a published work or on the original of a work, that person is presumed to be the first owner of the copyright

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• if there is no author’s name but the name of the publisher is on copies of a published work, the publisher is presumed to have been the copyright owner at the time of publication • if the author of an unpublished work is unknown, and there is evidence that the author was a qualifying person (see 3.1.2), the work is presumed to qualify for protection • statements on sound recordings and films as to such things as ownership, the identity of the producer or ‘persons connected with the film’ (see 2.4.9), or about publication are presumed to be correct. 1911 s6(3); 1956 s20; 1988 (CDPA) ss104, 105(1, 2, 5, 6), 169(1), Sch 1 para 31(1, 4)

3.3

Acquisition of copyright

3.3.1 Inheritance Unless otherwise assigned or bequeathed, copyright in most works descends to the residuary beneficiary (the one who receives ‘everything else’) or beneficiaries under the will of the owner or to the next of kin if the deceased person died intestate. Intestacy rules are complex, specifying the categories of beneficiary, starting with a surviving spouse and children and ending with any surviving cousins. Where there is more than one beneficiary in a category, all assets are divided equally between them (see 3.2.8). If there was no survivor in any of the categories the assets, including copyright, of an intestate person become bona vacantia (see 3.3.20). The standard rule is varied by successive statutes, which have set out presumptions about copyright when copyright works have been bequeathed by will, as explained below (see 3.3.2–6). However, if the testator explicitly bequeaths his or her copyright in any work or works, that bequest takes precedence over the presumptions. A common recipient of such an explicit bequest is a literary executor. This person (or body) is an executor of the estate with the general executors, but has responsibility only for the literary estate – the testator’s written works, including private papers (such as letters and diaries) unless they are assigned elsewhere – and is normally responsible for the handling of the artefacts themselves as well as of those copyrights in them that the testator owned. A literary executor may sell the literary estate and pass the proceeds to the beneficiaries (after normal payment of debts and duties) or, if the testator has established a trust, be a trustee of the literary estate and exploit it for the benefit of the beneficiaries. For copyright in the will itself see 7.7.5. 1925 ss45–52; 1952 (Intestates); 1988 (CDPA) s90(1); Dickens v Hawksley, 1935 3.3.2 Bequest The following provisions apply where artefacts embodying copyright works have been left by bequest in a will; they do not apply in cases of intestacy (see 3.3.1). Since the

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testator does not own the copyright, the provisions do not apply to letters received by him or her, nor indeed do they apply to copyrights in artefacts that the testator did not own and so could not bequeath, such as in letters sent to other people (see 3.2.4). In each case, the significant date is the date of death of the testator, not the date of creation of the work. 3.3.3 Bequest: until 1957 If a testator who died before 1 June 1957, and who was the author of a work, bequeathed to a particular person or institution (for instance, a record office or company) a manuscript of that work, and it had neither been published nor performed in public at the time of his or her death (or, if he or she died before 1 July 1912, it had not been published before that date), the ownership of the manuscript as a result of the bequest was taken to be prima facie proof of ownership of the copyright in it. A manuscript was taken to mean only a literary, dramatic or musical work on paper or similar material. Since under this provision the testator had to be also the author of the work bequeathed, the presumption cannot apply to works of which the testator was merely the assignee of the copyright, or which the testator had him or herself received by bequest. 1911 s17(2), 24(3); 1988 (CDPA) Sch 1 para 30(2); Dickens v Hawksley, 1935 3.3.4 Bequest: 1957–89 If a testator who died between 1 June 1957 and 31 July 1989 bequeathed to a particular person or institution (such as a record office or company) an original document embodying the manuscript of a literary, dramatic or musical work, or an artistic work, that had not been published at the time of his or her death, the bequest was taken to include any copyright which the testator owned in the work. An original document was taken to mean most literary, dramatic, musical or artistic works, but not those recorded in non-documentary forms such as computer disks. This is a wider provision than that under the 1911 Act and applies to any bequest, including one of works bequeathed to the testator or whose copyright had been assigned to him or her, or whose copyright he or she owned as (for instance) the employer of the author. 1956 s38; 1988 (CDPA) Sch 1 paras 25(1), 30(1)(b) 3.3.5 Bequest: since 1989 If a testator who dies on or after 1 August 1989 bequeaths to a particular person or institution (for example, a record office) an original document or other material thing (such as a computer disk) recording or embodying a literary, dramatic, musical or artistic work, or an original material thing containing a sound recording or film, that had not been published at the time of his or her death, the bequest is taken to include any copyright or database right which the testator owned in the work.

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1988 (CDPA) s93; SI 1997/3032 reg 23 3.3.6 Bequest: to more than one person Where assets (including copyright) are bequeathed to more than one beneficiary under a will (whether the bequest is explicit or to the residuary legatees), they are divided equally between the beneficiaries (see 3.2.8). It appears that if an author made several bequests covering various identical, or substantially identical, versions of the same work, the copyright in these variant versions or recensions would pass to different owners, but it is not clear how this would work in practice. The most likely outcome is joint ownership (see 3.2.8). In some contexts, such a distribution of more than one copy might constitute publication of the work. 3.3.7 Succession If the first owner of copyright is a corporate body, and the body is taken over or purchased, ownership passes with other rights and assets to the successor body unless otherwise assigned. 3.3.8 Assignment Copyright is a property right and so may be assigned – the ownership of the copyright may be transferred to someone else, whether for payment or free of charge. An assignment (assignation in Scotland) must be in writing and it must be signed by or on behalf of the owner of the copyright. An assignment that is unsigned is worthless. An assignment can be as simple as a single sentence. In that case it might say something like this: I hereby assign to [name of the assignee] all my copyright and other related rights in [name or description of the work or works] for the whole of the remaining term.

A more formal document should preferably take the form of a binding and enforceable contract, which requires the making and acceptance of an offer and an intention to create a legal relationship. It must (except in Scotland) also be in return for a consideration, so a contractual assignment outside Scotland cannot be a gift. The consideration could be a payment of money or some non-financial return such as a benefit in kind like free membership. The consideration (even if only £1) must actually be given, and receipt of it should be acknowledged (see also 3.2.18). The assignment may be of all of the rights owned by the person making the assignment or of only some of them, for instance to perform a play but not to publish it, and may be for the whole of the term of copyright or for only a specified period (see also 7.3.6). In the latter case, the assignee will need some reassurance, for instance about what he or she may do with any remaining stock. It must also be clear and unambiguous.

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Although the courts can accept later evidence as an indication of the intention of the parties to an oral contract, only in very rare cases do they decide that an assignment was implied in a contract and they add only the bare minimum to make the contract workable (see 5.2.3). The assignment must therefore set out precisely what both sides intend. Once an assignment is made, it is possible for the person making it to infringe copyright in his or her own work, except that the author of an artistic work may copy that work in making a new artistic work, so long as he or she does not repeat or imitate the main design of the earlier work. An archivist or records manager seeking an assignment should give thought to moral rights (see 8.1). Should you encourage the assignor (if that person is also the author) to assert the moral right of attribution, so that their authorship must continue to be acknowledged? Should you ask for a waiver of the moral right of integrity, so that you can re-model or adapt the work in future? These are ethical as well as legal issues. Assignments made before 1 July 1912 of copyright in some kinds of work had to be registered at Stationers’ Hall (see 2.1.18); there is no official registry of assignments made since that date. Assignments made by an author between 1 July 1912 and 1 June 1957 reverted to the author’s heirs 25 years after his or her death (see 3.3.14), which can have serious consequences for archivists and records managers holding their records. For the effect of an assignment on licences see 5.2.2. See also 9.4. 1842 s13; 1911 ss2(1)(ii), 5(2); 1956 ss9(9), 36(3); 1988 (CDPA) ss64, 90, Sch 1 paras 25(1), 27; Power v Walker, 1814; Gross v Seligman, 1914; Hadley v Kemp, 1999; Maggs v Marsh, 2006; Meridian International Services v Richardson, 2008; Fresh Trading v Deepend Fresh Recovery, 2015 3.3.9 Assignment: who can sign? It is essential when receiving an assignment that you ensure that the person making it is entitled to do so. An assignment by someone without the necessary authority is likely to be worthless to the recipient. Equally, if you are called upon to make an assignment, make sure that you have the necessary authority. It could be damaging to you or your employer if the recipient takes action and spends money in reliance on it, especially if it was reasonable to assume that you did have the necessary authority. If the owner is an individual, he or she (or a duly authorized agent) must sign, and if there is more than one owner they must all sign unless one has been duly authorized to act as agent for all the others. This can be especially complex with family copyrights, where the rights might have been divided once or many times through the generations (see 3.2.8, 3.3.1); it is not necessarily safe to assume that the ‘head of the family’ owns the copyrights of the family’s ancestors. In England and Wales and in Northern Ireland, an assignment made by a corporate body between 1 August 1989 and 5 April 2008 could be signed by two directors or a

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director and the company secretary, or by the fixing of the company’s seal. Since 5 April 2008, the same options have continued to apply but it has also been possible for only a single director to sign so long as it is done in the presence of a witness who attests the signature. It is also possible for a company to appoint an attorney to sign for it. In Scotland, there is no need for a company to have a seal. An assignation may be signed here by a director, the company secretary or a person authorized to act for the company, so long as the signature is witnessed. A minor (a person under the age of 18 in England, Wales and Northern Ireland; under the age of 16 in Scotland) may sign an assignment and it will be valid. However, if the assignor does not receive a personal benefit from the assignment (such as would be received, for instance, from a publisher who will pay royalties), he or she could repudiate it when or soon after he or she reaches the age of majority. It would be better to have such an assignment signed by the parent or guardian instead of or in addition to the minor. 1985 (Companies) s36A; 1988 (CDPA) s176(1); 1995 Sch 2 para 3; 2006 (Companies) ss44, 47–48; Chaplin v Leslie Frewin (Publishers), 1966; Beloff v Pressdram, 1973 3.3.10 Assignment of future copyright Copyright in a work created after 1 June 1957 may be assigned prospectively, before the work is created. When the work is created (if it is), the person who received the assignment is the copyright owner. An example of such an assignment would be one included in a contract commissioning someone to do some work, when the person commissioning the work needs to own the copyright in the results (see 3.2.17–18). Much the same requirements for signing apply as to other assignments, but for a prospective assignment there needs to be an agreement between the parties, so the assignee as well as the assignor should sign, and it should if possible take the form of a contract (see 3.3.8). The important clause can still be quite simple, something like this: I hereby assign to [name of the assignee] the whole of any copyrights and related rights that will or may subsist and that I own in works that I create on behalf of [name of the person or body commissioning the work] [or the name or some other description of the work or works], for the whole of the remaining term.

Such an assignment transfers ownership immediately (even though there is nothing yet to own), so a later assignment by the same person of copyright in the same work would be ineffective because the rights had already been transferred. A prospective assignment made before 1 June 1957 was only an agreement to assign if the work was created. To become effective another assignment was required after the work had come into existence. 1956 s37(1); 1988 (CDPA) s91; Performing Right Society v B4U Network (Europe), 2014

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3.3.11 Waiver, abandonment and the public domain The legal authorities are doubtful about whether it is possible entirely to abandon a copyright or to assign it into the public domain. However, instead of assigning copyright to someone, a rights owner can waive it or declare that the copyright will not be enforced. A waiver of copyright must be in writing and be signed by the copyright owner. It could take the following form: I declare that where I am the owner of the copyright in material in [specify the works], I have waived all my copyright and that no permission is required for the reproduction and use of such material.

This might be adapted as follows if the material is given to an archive but is to be closed to public access for a period, so as to provide some ability to control unauthorized use before it is open: All the copyright of which I am the owner in material in [specify the works] is hereby assigned to [the archivist] and successors until such time as such material shall become open to public inspection, from which time my copyright in such material shall be waived and no permission shall be required for its reproduction and use.

Other options for a rights owner who chooses not to enforce his or her copyright are simply to allow infringing use (see 5.2.23) or to put it in the public domain through a Creative Commons CC0 licence (see 6.2.4). 3.3.12 Copyright owned by the Crown and Parliament Although copyright previously owned by another person or institution may be acquired by the Crown or by Parliament (such as by assignment, inheritance or bequest, see 3.3.1–10), such copyright does not become ‘Crown copyright’ or ‘Parliamentary copyright’ as a result, and the expiry of copyright is determined by the appropriate general provisions for duration. On the other hand, although Crown or Parliamentary copyright in a work may be assigned by the Controller or Parliament to another person or body, it continues to be called ‘Crown copyright’ or ‘Parliamentary copyright’, and its expiry is still determined on that basis (see 3.2.28–38). 1988 (CDPA) ss163(2), 165 3.3.13 Reversionary interests: assignments made before 1912 The 1911 Copyright Act significantly extended the duration of copyright for existing works that were still in copyright on 1 July 1912 and provided for the reversion back to the author of rights that had been assigned. If the author had assigned copyright in a work for the whole of its term before that date, the assignment was to have effect only

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for the period of copyright that applied at the time the assignment was made (for instance, 28 years from publication for engravings, 14 years from ‘putting forth’ for sculptures, the longer of life plus seven years or publication plus 42 years for books, life plus seven years for paintings, drawings and photographs). The rights for any extended period created by the new Act were given to the author, with only limited rights remaining to the assignee in return for royalties, unless the author made a new assignment after the passing of the Act. Despite this, if the assignment had been of a contribution to a collective work (see 3.2.11), the proprietor of the collective work could continue to publish it in the collective work without any need to pay royalties. 1766 s7; 1814 s1; 1842 s3; 1862 s1; 1911 s24; 1956 Sch 7 para 34; 1988 (CDPA) Sch 1 para 28 3.3.14 Reversionary interests: assignments 1911–57 The 1911 Copyright Act tried to protect the interests of the heirs of ‘improvident’ authors who had made ‘imprudent dispositions’ of their copyrights. Any assignment (other than one made by will) or licence made between 16 December 1911 (the date the 1911 Act was passed) and 31 May 1957, by the author as first copyright owner, of the copyright in any work other than a collective work (see 3.2.11), ceased to be effective 25 years after the death of the author, and the rights (the ‘reversionary interests’, including all licences granted by the author or assignee) reverted to his or her heirs, who could retain them or assign them as they wished. The author could not prevent this reversion and any provision in the assignment that sought to prevent it was ineffective. Since 1 June 1957 the author, while he or she was still alive, has been able prospectively to assign the reversionary interests. There could of course be no reversionary interests in a work produced during the course of employment (see 3.2.12) or as a result of some types of commission (see 3.2.20), since the author was not then the owner and had no rights to assign. Record offices and other institutions that received assignments of copyright between 1911 and 1957 should therefore be aware that those assignments are not permanent and if possible need to be confirmed before the author dies. 1911 s5(2); 1956 Sch 7 para 28(3); 1988 (CDPA) Sch 1 para 27; Greene MR in ColeridgeTaylor v Novello, 1938, at 514; Redwood Music v B Feldman, 1979; Lord Salmon in Chappell v Redwood Music, 1981, at 344; Peer International Corporation v Termidor Music Publishers, 2003; Novello v Keith Prowse Publishing, 2005 3.3.15 Bankruptcy of individuals When an individual is declared bankrupt, the copyrights in all his or her works, including unpublished works, pass to the trustee as soon as one is appointed. The trustee may then either sell the copyrights or exploit them, in order to secure the best return for the creditors. 1986 s306

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3.3.16 Insolvency and winding-up of companies When a company becomes insolvent, the administrator or administrative receiver may take possession of all its copyrights, and exploit, sell or otherwise dispose of them, in order to secure the best return for the creditors. When a company is wound up, the liquidator has the power to sell the copyrights. 1986 Sch 1 paras 1, 2, Sch 4 para 6 3.3.17 Equity and implied licences Although the statute is clear about the identification of the first owner of copyright at law, the courts have recognized that there are cases where someone else is entitled to ownership, part ownership or the means to exploit the work. Their solution has been to decide either that the legal owner has implied a licence to the other person (see 5.2.3) or is the owner in trust for the equitable owner. This equitable ownership could have implications for some works held in archives, as discussed below. 3.3.18 Equity It is possible for the court to find that the author holds the copyright in trust for the equitable owner (the person or body who, in fairness, should be the owner of the copyright), and the latter is entitled to call for an assignment if necessary. A finding of equitable ownership depends on the particular circumstances, but cases include works created by partners and company directors who were not employees but who nevertheless created the work on behalf of the partnership or company and so own the copyright only in trust. In these circumstances, the author of the work is obliged when called upon to assign the copyright to the equitable owner. Other cases concern individuals commissioned and paid to produce specified products. The distinction from other commissioned works (see 3.2.17–18) appears to arise from a range of possible circumstances: • The equitable owner has specified the contents of the work quite precisely or has supplied the materials for the work’s preparation. • The author has no intention or expectation of owning the copyright. • The legal owner has received ‘valuable consideration’ from the equitable owner. • The equitable owner needs to own the copyright in order to be able to exploit rights in other related material (such as the owner of a ballet company who needed the rights in all aspects of a ballet he had commissioned in order to stage it) or to prevent others using the work. Equitable owners may use the material, seek an injunction to prevent infringement, and perhaps give permission to others to use it (at least non-commercially), but may not sue for infringement without making the legal owner a party to the suit or obtaining an assignment from that person. An equitable owner is well advised to seek an assignment

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of the copyright (to acquire the ‘legal’ as well as the ‘equitable’ title) as soon as possible (see 3.3.8). If the legal owner sells his or her title to someone else who does not know of the equitable owner’s interest, the equitable title is likely to disappear. Despite attempts by some claimants to the contrary, a copyright owner has no equitable claim to own the copyright in an infringing work that was based on his or her original work, nor any claim to ownership of the fruits of the infringement. The remedy is through a normal order by the court granting damages or an account of profits (see 5.1.9). Massine v De Basil, 1938; Antocks Lairn v I Bloohn, 1972; Roban Jig and Tool v Taylor, 1979; Acorn v MCS Microcomputer Systems, 1983–5; Attorney General v Blake, 1998; Robin Ray v Classic FM, 1998; Griggs v Evans and Raben Footwear, 2005; Vitof v Altoft, 2006; Twentieth Century Fox v Harris, 2014 3.3.19 The application of equitable ownership to archives The concept of equitable ownership could be of particular value to archivists, and perhaps to records managers, but it is important to remember that equitable solutions are available to the court and are not rights granted by statute. In applying the principles of equity as suggested, archivists should be aware that others might disagree that they apply. However, the types of circumstance considered below involve relatively obscure authorship and ownership, in relatively old material, so that any claimant would have grave difficulty in proving a case. For archivists, equitable ownership might be applicable in works created by unpaid office-holders (for instance, an honorary secretary of a society or a parochial church council) and in works created on behalf of a body or group by office-holders who, while perhaps paid, are not strictly employees (for instance, parochial material by an incumbent clergyman) (see 7.6). It might also apply to some works created by employees before the coming into force of the 1911 Act (see 3.2.16), such as estate, poor law union and workhouse records (see 7.5.2, 7.10.2). Such people are likely to be working under instruction from the body they represent or in accordance with the law, and are unlikely to expect to be owners of the copyright or to have asserted their ownership of it. Unless, therefore, it is known that an author has explicitly asserted his or her rights to the copyright in material produced, archivists will not go far wrong if they take the practical approach and regard the executive committee (or equivalent), the current national or local officers of the body (or a successor body), the current office-holder or the modern local authority as the equitable owners of the copyright and the people to whom to refer enquiries (see 7.13). Any such referral should be unspecific: ‘it appears likely that you are the person to whom enquiries should be made’. It will then be up to those people to decide whether they have authority to give permission for use of the material. Equity also appears to be relevant in the cases of wills (see 7.7.5) and of some business records (see 7.9). Merchant Adventurers v M Grew, 1973

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3.3.20 Bona vacantia Sometimes there is no one left to own the copyright in a work, and in certain limited circumstances the Crown may step in to claim it as bona vacantia (‘vacant’ or ‘ownerless goods’). Copyrights may become the property of the Crown as bona vacantia when: • an individual dies intestate with no known kin • a company is dissolved with all debts discharged and the copyrights are among the remaining assets • a corporation is dissolved • a friendly society or club that is not a charity becomes defunct because it has no members • a trust fails and there are no remaining beneficiaries. This is not a common outcome: a solvent company is not often dissolved with no successors interested in the assets. Copyrights that are bona vacantia pass to the Crown, which may sell the rights or retain them to receive royalty payments. Enquiries as to whether the rights of a particular owner have passed to the Crown as bona vacantia should be addressed, for England and Wales (except the Duchies of Cornwall and Lancaster), to the Treasury Solicitor (BV), 1 Kemble Street, London WC2B 4TS. Bona vacantia for the two duchies is handled by the solicitors Farrer and Co at 66 Lincoln’s Inn Fields, London WC2A 3LH. In Scotland it is handled by the Queen’s and Lord Treasurer’s Remembrancer, Crown Office, 25 Chambers Street, Edinburgh EH1 1LA, and in Northern Ireland by the Crown Solicitor’s Office, Royal Courts of Justice, Chichester Street, Belfast BT1 3JY. It is necessary to name the last owner, whether an individual or a body of some sort. There is guidance online on how the Treasury Solicitor handles bona vacantia, how claims may be made and how copyrights may be purchased (see 10.3).

3.4

Assertion of ownership

Copyright subsists automatically as soon as a work is created, but it is helpful nevertheless to make some statement about it and related rights. This is normal when a work is published, but it is definitely advisable also with unpublished material when it is leaving the control of the author or being made available to the public, in order to remind the user and to establish ownership. This can most conveniently be done by using the © symbol, together with the year and the name of the copyright owner. Nothing more is needed for copyright. However, the addition of the statement ‘all rights reserved’ makes sure that the owner is also claiming any other intellectual property rights that might subsist. Finally, if the author has the moral right of attribution in the work and has asserted it in writing (see 8.1.5), some statement to that effect is also needed, such as ‘X has asserted her moral right to be identified as the author of this work’ (but this does not apply to works in Crown or Parliamentary copyright, see 8.1.6).

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Publication, exhibition and performance

4.1

Publication

4.1.1 Significance and nature The terms ‘publication’ and ‘published’ need to be approached with care because they are applied to different aspects of copyright law in rather different ways: • Whether a work has been published or not is a matter that can affect its qualification for copyright protection (see 3.1). • The act of publication, which is irrevocable, may have consequences for the duration of copyright (so long as publication was authorized by the copyright owner). It also ‘exhausts’ the copyright owner’s rights in that particular copy of the work, so that a book may be sold second-hand for instance (see 5.1.3). • Unauthorized publication of a work, whether previously published or not, is an infringement (see 5.1.3), but perhaps oddly does not result in an unpublished work becoming, for copyright purposes, a published one (see 4.1.9). • First publication of an unpublished literary, dramatic, musical or artistic work or a film in which copyright has expired creates a new publication right for the publisher (see 8.3). However, if such a work is first published while still in copyright, publication right can never be applied to it. The definition of publication contained in the 1988 Act as altered by regulations made in 1996 applies to all copyright works, whether they were made under earlier legislation or not. Previous definitions of publication, therefore, have little practical relevance. Besides the issues outlined above, an archivist or records manager needs to be able to distinguish between published and unpublished works because the legal provisions concerning copying by libraries and archives differ between published and unpublished material, which affects how much of a work may be copied, by whom and for what purposes (see 5.4). One of the quirks of copyright is that a work of architecture commenced on or after 1 August 1989 is published when it is constructed. Any building commenced before that date remains unpublished (but see 2.3.4). Directive 2006 (Term) art 4; 1911 s1(3); 1956 s49(2)(a); 1988 (CDPA) s175(3), (6), Sch 1 para 45; SI 1996/2967 regs 16–17, 26(1)

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4.1.2 ‘The public’ ‘The public’ has tended to be given quite a wide meaning by the UK courts, and could probably be taken to include a fairly restricted group of people so long as it was possible in principle for anyone, or anyone eligible (such as all women in the context of the Women’s Institute), to join the group. The members of a reasonably large club, the staff of a fairly large office, or the staff and students given access to a university library would all be ‘the public’, but the members of a family would not be. Wherever the term is used in the context of law deriving from Europe, ‘the public’ must be defined in accordance with the decisions of the CJEU (see 1.2.5), which itself has referred to the WIPO (see 1.2.6) glossary. That defines ‘the public’ as persons in general, not restricted to specific individuals belonging to a private group. There has been no CJEU judgment specifically defining ‘the public’ in a copyright context; in a broadcasting context it refers to an ‘indeterminate, but fairly large, number of people’ but not a limited group of specialists or experts. The UK definitions seem to fit reasonably well with the definitions of WIPO and the CJEU. A single person sitting at a computer terminal in an archive or library, for instance watching a film, is clearly not ‘the public’, but if several people can see the screen at the same time they might constitute ‘the public’. The archive or library might then be giving a public performance (see 4.2.8), which would require a licence (see 5.2.11–13). Viewing should therefore be limited to only one person. Harms and Chappell v Martans Club, 1926; Jennings v Stephens, 1936; Ernest Turner Electrical Instruments v Performing Right Society, 1943; Ficsor, 2003; Lagardère Active Broadcast v Société pour la perception de la rémuneration équitable, 2005; Sociedad General de Autores y Editores de España v Rafael Hoteles, 2007 4.1.3 Issue to the public Publication of a work, in the context of copyright, means the issue of copies to the public (by sale or some other transfer of ownership), including (in the case of a literary, dramatic, musical or artistic work) making it available to the public by means of an electronic retrieval system (including one containing, say, archival databases in a record office). This means that any archivist wishing to include digitized images of original documents in a publicly available electronic catalogue must ensure either that those works are out of copyright or that he or she has permission to publish them. The internet involves use of a computer (an electronic retrieval system), so placing a work on a website publishes it as well as communicates it to the public (see 4.1.8, 5.1.6). The issue of copies to the public does not have to be by the sale of copies, as with normal publication of a book. It might be by the issue of copies of the matrix of a seal on sealed documents or the handing out of publicity leaflets. However, unauthorized issue does not result in publication (see 4.1.9), which is significant in connection with the providing of copies of documents to records users.

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One significant change made by the 1996 Regulations means that the issue of copies now (apparently) includes the issue of the original, of any date, though there are differences of opinion as to whether this change affects publication. There is no direct impact on most material in archives since allowing public access to an original work does not constitute ‘issuing’ it to the public, which is taken to mean putting the work into circulation or transferring possession of it from one person to another. It could possibly mean, though, that a manuscript offered for sale by auction and bought by an archive has been published in the process, and there might be an impact on electoral registers (see 7.8.5). It is now clear, as has always been accepted in practice, that the issue of letters patent has the effect of publishing them. The Berne Convention requires that publication must satisfy the ‘reasonable requirements of the public’. For the nature of ‘the public’ see 4.1.2. For means of making works available to the public which do not involve publishing them, see 4.1.11, and for infringement by these means see 5.1.3. Berne Convention art 3(3); 1988 (CDPA) ss18(4), 175(1), Sch 1 para 3; SI 1996/2967 regs 9(3), 26(1); Peek and Cloppenburg v Cassina, 2008 4.1.4 Publication right There is a different definition of publication for the purposes of publication right (see 8.3), and care must be taken to ensure that they are not confused. 4.1.5 Commercial publication Commercial publication, in relation to literary, dramatic, musical and artistic works only, means: • issuing copies of a work to the public at a time when copies made in advance of the receipt of orders are generally available to the public • making the work available to the public by means of an electronic retrieval system. The first part of this definition means that a work is not a commercial publication if it is published only after subscriptions have been received for it, which is an arrangement occasionally used for academic or limited-edition works. The second part of the definition is the same as for publication generally. This means that any electronic publication, such as on the internet (see 4.1.8), qualifies as commercial publication even if no charge is made for use. Commercial publication is a concept that is directly relevant to Crown copyright (see 2.2.24–29, 2.3.28–29, 9.1.2) and to moral rights (see 8.1.5, 8.1.7), rather than to copyright generally, but there are significant implications in the categorization of internet publication as inherently commercial that are reflected in the approach of picture libraries and others in granting reproduction rights (see 5.2.25). 1988 (CDPA) s175(2)

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4.1.6 Exceptions The following acts do not constitute publication or commercial publication: • for literary, dramatic and musical works, performance in public or communication to the public (unless it is by an electronic retrieval system, for instance the internet); presentation by means of a sound recording or a film are forms of performance, so the issue to the public of a sound recording of a performance or the showing of a film featuring a performance of a literary, dramatic or musical work do not publish that work (see 4.2.7) • for artistic works, public exhibition or communication to the public • for sound recordings and films, being played or shown in public or communication to the public • issue to the public that is what the law calls ‘colourable’: inadequate to satisfy ‘the reasonable requirements of the public’, perhaps because too few copies are made available (though there would have to be very few) or because the means of distribution is inadequate; this might be done as a tactical ploy, or might include, say, the issue of underground (‘samizdat’) copies which most members of the public would not be able to obtain • the issuing of copies to readers by archivists (see 4.1.9). However, the fact that these acts do not constitute publication does not necessarily mean that doing them is not an infringement of copyright (see 5.1). 1988 (CDPA) ss19(2), 175(4 and 5); Francis, Day & Hunter v Feldman, 1914; Bodley Head v Flegon, 1972 4.1.7 Exceptions: announcements In some legal contexts the terms ‘publish’ and ‘publication’ are used to mean the announcement or supply of information to members of the public, whether or not in written form and whether or not copies are issued. This applies, for example, to banns of marriage and electoral registers. Banns of marriage are published only in this sense so would not normally be published for copyright purposes, but electoral registers are published in both senses (see 7.8.5). 4.1.8 Internet It appears certain that if a literary, dramatic, musical or artistic work is made available to the public on a website it will be published in the process (although the courts in the UK have not yet had to decide the issue definitively) (see 6.2.1–2). The making available to the public of a literary, dramatic, musical or artistic work by means of an electronic retrieval system is publication, and a website must be an electronic retrieval system. Placing one of these types of work on a website also communicates it to the public (see

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5.1.6), but while sound recordings and films are communicated to the public they are not published by these means. This question of publication on the internet is distinct from the question of whether the act is an infringement (see 5.1.6). For internet publication as a commercial act, see 4.1.5. 1988 (CDPA) ss175(1)(b), 175(4)(a)(ii), 175(4)(b)(iv), 175(4)(c)(ii); Shetland Times v Wills, 1997 4.1.9 Authorized In all references to publication, it should be understood that the action was lawful and authorized. Making pirate editions and other infringing copies, or the theft and subsequent sale, of an original work do not have the effect of publishing it, though the former are infringements if they are made without permission (see 5.1.3). More to the point for an archivist, the issuing of copies of documents to readers under the library and archive provisions or the provisions for public records (see 5.4) does not cause the original documents to be published. Publication cannot occur as a result of an unauthorized act, and the issuing of copies by archivists, while legitimate, is not ‘authorized’ for this purpose. 1988 (CDPA) ss175(6), 178 ‘unauthorized’ 4.1.10 Published works: versions Successive UK copyright statutes have made the tacit assumption that a work as published differs only in typography from its manuscript form (or in the case of a film, say, an unedited take is merely a step leading to the final film) and have not tackled directly the problem of variant versions and recensions, whether published or not. Some doubt will always exist as to the degree of variation which is possible between a manuscript (or other draft) version and a published or final version of ostensibly the same work before they can be regarded as distinct original works for copyright purposes, since each case will have to be decided on its merits (see also 2.1.7). It is clear, though, from several court cases that such a distinction can be made. For separate copyrights to subsist, one of two things must have happened: • The published or final version has been edited or altered using sufficient independent skill and effort to give it some quality or character (apart from mere typography) that distinguishes it from the original. An edition of a manuscript, where great skill and creativity were required to interpret and transcribe the text and skill has been used in the process of selection and editing, might well be counted as a new work with a new copyright in the edition (but not in the original manuscript itself, see 2.1.9). Similarly, an edition of a musical work, involving skill in creating a usable performing edition, is a new copyright work, though a performance that does

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not use the editor’s material will not infringe. However, the change of a single word in a poem by Sir Walter Scott, even though this altered the meaning, was not found (admittedly as long ago as 1870) to be enough. In many cases, the published text of a new book might be little different from the author’s draft, but it certainly can be. Every one of James Joyce’s corrected drafts, including printer’s proofs, for Ulysses has been found to be a separate copyright work. Only the final proof was found to be the same work as the text published from it. In the case of a film, the differences between takes and the changes made during the editing of the selected takes to assemble the edited film may often be enough to leave distinct copyrights in the finished film and each take. In the case of artistic works, successive revised versions of drawings may be sufficiently different to be distinct original works, but the revisions must be ‘visually significant’ (not, for instance, new textual annotations). • The manuscript or first version has been amended substantially after the published or final version was taken from it, so that it is materially different from the published version. Black v Murray, 1870; Evans v Tout, 1909; Hyperion v Warner, 1991; Drayton Controls v Honeywell Control Systems, 1992; Biotrading and Financing v Biohit, 1998; Robin Ray v Classic FM, 1998; Norowzian v Arks (No 2), 2000; Sweeney v Macmillan Publishers, 2002; Sawkins v Hyperion Records, 2005 4.1.11 Available to the public Making available to the public is a term that is confusingly used in the Act, being employed in different contexts with varying meanings. The term is defined by examples in the context of anonymous literary, dramatic, musical and artistic works and films, and of sound recordings, where it seems there was a need for a concept with a wider scope than that given to publication in order to fix the starting point for the calculation of the duration of copyright. In this context, no work has been made available to the public for any of the purposes set out below if the act concerned was restricted by copyright (such as copying or the issue of copies to the public) and copying was carried out without the permission of the owner of the copyright. A work is made available to the public for this purpose when it is: • • • • • •

communicated to the public (all works, see 5.1.6) performed in public (literary, dramatic and musical works only, see 4.2.7) exhibited in public (artistic works only, see 4.2.3–5) included in a film shown to the public (artistic works only) shown in public (films only) played in public (sound recordings only).

It is important to note that none of these acts will publish the work unless, in the case

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of a literary, dramatic, musical or artistic work, it involves making it available by means of an electronic retrieval system (see 4.1.3). On the other hand, the publication of a work does make it available to the public. This list is not comprehensive, since the Act gives only examples not a definition. The term has a similar but broader meaning when applied as a condition for fair dealing for the purposes of criticism, review or quotation (see 5.3.10–11). Here it includes all the acts listed above plus making available to the public by means of an electronic retrieval system (see 4.1.3) and rental and lending (see 5.1.4). For fair dealing purposes all the acts listed apply to all types of work, including broadcasts (see 2.6.2) and typographical arrangements (see 2.6.15), and to performances (see 8.5.6). This same extended list of acts also applies to publication right in any type of work (see 8.3.2). In publication right, though, the term ‘making available to the public’ is prefaced by the word ‘any’, which appears to mean that it should be interpreted as widely as possible. In database right (see 8.2.9) there is no definition but the term ‘available to the public’ is followed by ‘in any manner’, which again suggests a very wide interpretation that might include availability in a record office. In the definition of publication (see 4.1.3), making available applies only to making available to the public by means of an electronic retrieval system; all other meanings of making available are explicitly excluded. In the context of the EU scheme for orphan works (see 5.4.20), ‘making the work available to the public’ must be interpreted in accordance with the source directive, where it means a communication to the public (see 5.1.6). Thus in this context the term means available online or by broadcasting. Despite this, in the statutory definition of communication to the public itself (see 5.1.6, 6.2.6) the same term is used but is limited to meaning by electronic transmission to members of the public where and when they choose. This very limited meaning also applies to the ‘making available right’ of performers (see 8.5.3). In rental and lending (see 5.1.4) the term ‘available to the public’ is not used, but ‘making available’ is an expression used in several different contexts with differing meanings. 1956 s2(3); 1988 (CDPA) ss12(5), 13A(2)(c), 13B(6), 18A, 20(2)(b), 30(1A), 175, 182CA, Sch ZA1 para 1(1)(a), Sch 1 para 12(2)(a), Sch 2 para 2; SI 1995/3297 regs 5, 6; SI 1996/2967 reg 16(2); SI 1997/3032 regs 12(1), 19, 20; SI 2003/2498 regs 10, 29, Sch 1 para 27; SI 2014/2861, Sch 4.1.12 Available to the public: application to archives Although it is important to archivists, making available to the public is not a term that has attracted much judicial or academic attention in relation to copyright. Even if

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availability in a record office counts as ‘available to the public’ for the purposes of publication and database rights (which is far from certain, see 4.1.11), it would certainly not include: • the making available of descriptions of documents that are themselves not available to the public, for instance in a file list included in a freedom of information publication scheme or an archival catalogue • the preservation in a registry or archive of documents that are not producible, whether because they are as yet uncatalogued or because they are subject to confidentiality restrictions or closure (as under a Freedom of Information Act) • the allowing of privileged and discretionary access for certain individuals, particularly if the individuals are subject to conditions of confidentiality.

4.1.13 Release, publication and availability to the public of sound recordings, films and performances Under the 1911 and 1956 acts, the concept of ‘publication’ was thought sufficient to cover sound recordings and films. It was not used in the original text of the 1988 Act, where originally the term ‘release’ was applied to both. Subsequently, the term ‘made available’ has been used for films and the terms ‘publication’ and ‘made available’ have been used for sound recordings, but the duration of copyright in some films made between 1989 and 1995 and in some sound recordings until 2003 may depend on their ‘release’. The definition of ‘release’ is wider than that of ‘publication’, so that a film released between 1989 and 1995, and a sound recording released between 1989 and 2003, was ‘released’ when it was first published, played in public or broadcast. A recording of a performance is ‘released’ when it is first published, played or shown in public, or communicated to the public, with the approval of the owner of the rights. 1988 (CDPA) ss13 (before amendment), 13A, 13B, 191(3); SI 1995/3297 regs 6, 9, 10; SI 2003/2498 regs 29, 39 Sch 1 para 8 4.1.14 Transmission: broadcasts The concept of publication is not applied to broadcasts. Instead they may be transmitted. 1988 (CDPA) ss6, 6A, 7, 14(2); SI 1995/3297 reg 7; SI 1996/2967 regs 5, 6

4.2

Exhibition and performance

4.2.1 Importance to archives Archivists on occasion wish to place originals or copies of documents in their care on

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temporary or permanent display on the institution’s own premises or elsewhere. They might also wish to quote a copyright work in a speech, show a film or video, play a sound recording, or show a broadcast, as a part of an exhibition or conference, or as a separate event. Similarly, members of staff may ask records managers about such uses and other organizations may wish to make use of material for these purposes. In some cases, if what is planned would infringe copyright it should be possible to obtain a licence from the appropriate body (see 5.2.11–13). 4.2.2 Exhibition of originals: literary, dramatic and musical works The UK Intellectual Property Office (IPO, formerly the Patent Office, see 10.3) has advised in a published advisory notice that in its view the unauthorized public exhibition of copyright literary, dramatic and musical works does not infringe. It also does not count as publication (see 4.1.3, 8.3.2). The Act appears to be quite clear: ‘any mode of visual . . . presentation’ is an infringement. However, under the rules of statutory interpretation, those words are taken only to apply to use in sound recordings, films, broadcasts and similar things such as (probably) websites. The work may not, of course, be reproduced in a catalogue of an exhibition without permission, since that involves issue to the public (see 4.1.3). The Government of Ireland had to make hasty changes to Irish law to ensure that the organizers of an exhibition to celebrate the centenary of Bloomsday (the day in 1904 when the events in James Joyce’s Ulysses occurred) did not infringe by exhibiting Joyce’s letters. Oddly, though, it made provision only for literary works; the exhibition in Ireland of dramatic and musical works would be an infringement. 1956 s48 ‘performance’; 1988 (CDPA) s19(1, 2(b)); 2000 (Ireland) s40(6(b), 7A); 2004 (Ireland) s1 4.2.3 Exhibition of originals: artistic works The public exhibition of copyright artistic works of any sort is not an infringement of copyright, and does not count as publication (see 4.1.3). However, if the author was alive on or after 1 August 1989, he or she has a moral right to be identified as the author of an artistic work on public exhibition (see 8.1.5). This is normally simply accomplished on the caption to the work, but infringement of the right could be just as serious as infringement of copyright. The work may not be reproduced in a catalogue of the exhibition without permission, except in the case of a work being exhibited for sale when it may be reproduced in the sale or auction catalogue. 1988 (CDPA) s19(1), 63 4.2.4 Exhibition of originals: photographs In the case of a photograph taken on or after 1 August 1989 in response to a commission

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for private and domestic purposes (such as wedding photographs and family portraits), the person who commissioned it (not necessarily the person portrayed) has the moral right not to have the work exhibited in public (see 8.1.10). A similar right existed before 1989, but it was as part of common rather than statutory law. 1988 (CDPA) s85, Sch 1 para 24; Pollard v Photographic Co, 1889; Stedall v Houghton, 1901 4.2.5 Exhibition of originals: buildings, models and sculptures It is not an infringement of the copyright in any building or in a model of a building, a sculpture or a work of artistic craftsmanship (such as stained glass, perhaps) that is on permanent display in a public place or in premises open to the public to paint, draw, photograph or film it, or include it in a broadcast. The resulting image would almost certainly be a new copyright work, and may be reproduced and sold, still without infringement of the original copyright. This provision would thus apply to an archive building, and to any relevant works permanently displayed inside it, but not to works in a temporary exhibition. If access to the building were given on the basis that such copying was not permitted, any copies nevertheless made would be covered by the provision but the person making them might be in breach of contract. 1988 (CDPA) ss28(1), 62 4.2.6 Exhibition of copies: literary, dramatic, musical and artistic works Copies made for preservation purposes (see 5.4.10–11) stand in place of the original, so the use of them in an exhibition would not infringe if the use of the original would not. It is unclear whether the exhibiting of copies of literary, dramatic, musical and artistic works made for other purposes would infringe. Public exhibition cannot reasonably be considered to be covered by any of the categories of fair dealing (see 5.3.7–14, 5.3.19). However, it does not seem very likely that a rights owner would seriously object to the use of copies if the exhibition of the original would have been legitimate. In Ireland, the exhibition of copies of literary and artistic works does not infringe, so presumably there would be no infringement by the making of copies for that purpose. 1988 (CDPA) s42; 2000 (Ireland) s40(7A); 2004 (Ireland) s1; SI 2014/1372 reg 5(2) 4.2.7 Performance of literary, dramatic and musical works The performance in public before 1 August 1989 of a copyright literary, dramatic or musical work could affect the duration of copyright (see 2.2.17–18). This included the delivery of a lecture, speech or sermon, the performance of a dramatic or musical work, and the presentation of such a work in a sound recording or broadcast. The public performance of a literary, dramatic or musical work does not publish it (see 4.1.6). Since ‘performance’ includes presentation by means of a sound recording,

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film or broadcast, inclusion of a literary, dramatic or musical work in a sound recording, film or broadcast will also not publish it. If done without permission, public performance will normally infringe. However, it is permissible for one person to read in public a reasonable extract from a published literary or dramatic copyright work, so long as the source is acknowledged (by giving the title and the name of the author), and such a reading may be recorded in a sound recording (including the soundtrack to a film), or included in a broadcast so long as it forms only a small part of the whole recording. A ‘reasonable extract’ is not defined, but it would seem that it would depend not only on the size and nature of the extract but also on the circumstances of the reading and the effect on the copyright owner (whether, for instance, the use would be in competition with the copyright owner). The public performance of a dramatic work is the exercise of what is termed a ‘grand right’. Why that particular right should be grander than any other is unclear. 1988 (CDPA) ss5A and B, 19, 59(1), 175(4)(a), 178 ‘sufficient acknowledgement’ 4.2.8 Films and sound recordings The unlicensed showing or playing in public (see 4.1.2) of a copyright sound recording, or of a film made on or after 1 June 1957, is an infringement. The unlicensed showing of a fiction film made before 1 June 1957 is an infringement in the film as a dramatic work (see 2.2.4). It may be that the showing of non-fiction films from the same period does not infringe since many, and perhaps most, are protected only as a sequence of photographs which, being artistic works, may be shown without infringement (see 2.4.1, 4.2.4). The exception that used to permit clubs and societies to play sound recordings has been ended. Instead Phonographic Performance Ltd (PPL) and PRS for Music (see 5.2.12) offer special licences at reduced rates for charities, voluntary groups, community buildings and community events, to cover the playing of recorded music or the public playing of radio and television broadcasts. For licences for the showing of films contact the British Film Institute (BFI), Filmbank or Motion Picture Licensing Corporation (MPLC) (see 5.2.12). 1988 (CDPA) ss16(1)(c), 19(3) 4.2.9 Broadcasts The showing or playing in public of a copyright broadcast is not an infringement of the copyright in the broadcast or in any film included in it, if the audience has not paid for admission. However, the making of a copy of a broadcast would be an infringement, as would any subsequent playing of the recording. The exception covers a sound recording included in the broadcast only if:

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• the author of the broadcast and the sound recording are the same and it is not a recording of music • the playing or showing of the broadcast forms part of the activities of an organization that is not established or run for profit, or was necessary for demonstrating or repairing equipment. There are special new provisions for licensing schemes to license the playing of sound recordings not covered by this exception. For details contact one of the relevant licensing bodies (see 5.2.12). Also, while the exception covers the broadcast, film and sound recording, it does not cover any other work, such as a piece of music, being performed so permission is likely still to be required. 1988 (CDPA) ss16(1)(a), 17(1), 19(3), 72, 128A, 128B; SI 2003/2498 reg 21; FA Premier League v QC Leisure, 2013 4.2.10 Rights in performances For performers’ rights see 8.5.

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5.1

The copyright owner’s rights and infringement of them

5.1.1 Introduction The law of copyright gives certain rights to the owner of the copyright in a work, but users of a copyright work do not themselves have rights. Rather, in accordance with the common law tradition of the public having liberties rather than rights, they can exercise certain freedoms granted to them by the law, which limit the rights of the copyright owner in various ways. The copyright owner has the exclusive right for the limited term of copyright to do the things set out below with his or her copyright work, and to allow other people to do them (see 5.2.2). These rights are subject to the exceptions and limitations that set out the freedoms available to users (see 5.3 and 5.4) and are subject also to the rights of others (see 1.1.3). Some of these rights, known as ‘acts restricted by copyright’, are dealt with in more detail elsewhere, as shown. Carrying out any of these acts without permission and outside the scope of the exceptions and limitations is an infringement (see 5.1.9–17). 5.1.2 Copying The copyright owner has the exclusive right (see 5.1.1) to copy or authorize the copying of a work of any type (but see 5.3, 5.4). This includes any form of copying including, for instance, manual transcription, tracing, photocopying, digitization and the saving of a copy within a computer (see also 2.1.3, 5.1.8). A transient copy made by a computer simply in order to display a work on screen should not infringe (but see 6.1.2), nor does a copy made by an internet service provider in innocently transmitting a work. There is no infringement by making a similar, or even identical, work independently, but if the author of the new work had access to the earlier one he or she is assumed to have copied in the absence of evidence to the contrary (see 2.1.8, 2.1.12). The unauthorized copying of a three-dimensional work in two dimensions (and vice versa) is certainly an infringement only if it is an artistic work. It would therefore be an infringement to make a topographical model from a map. In the case of threedimensional copying of a literary work, there could be infringement by making an object using precise dimensions contained in, say, a computer data file or by making a circuit from a circuit diagram (each of which can be both a literary work and an artistic one, see 2.1.2, 6.2.1). There is no infringement by simply following instructions, for instance a cookery recipe or a knitting pattern, since the finished article does not reproduce the instructions, it merely carries them out.

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Copying of a film or a broadcast includes making a copy of the whole or part of an image forming part of the film or broadcast (see 5.3.4). Copying does not have to be directly from the copyright work for there to be infringement. Indirect copying of, say, a drawing may be from other copies of the drawing, from a three-dimensional object made using it, or of the salient features of several drawings (such as cartoons of Popeye). The copying of a typographical arrangement of a published edition is an infringement only if it is a facsimile copy (even if reduced or enlarged in scale). For copying of a film sound track when part of the film, see 2.4.2, 2.5.3. 1911 s35(1) ‘infringing’; 1956 s48(1) ‘reproduction’; 1988 (CDPA) ss16(1)(a), 17, 28A, 178 ‘facsimile copy’; SI 2002/2013 regs 17–19; SI 2003/2498 reg 8; King Features Syndicate v O and M Kleeman, 1941; LB (Plastics) v Swish Products, 1979; Brigid Foley v Elliott, 1982; Interlego v Tyco, 1988; Ibcos Computers v Barclays Mercantile Highland Finance, 1994; Autospin v Beehive Spinning, 1995; Cala Homes (South) v Alfred McAlpine Homes East, 1995; Canon Kabushiki Kaisha v Green Cartridge (Hong Kong), 1997; Aubrey Max Sandman v Panasonic UK, 1998; Lambretta Clothing v Teddy Smith (UK), 2005 5.1.3 Issue of copies to the public or distribution The copyright owner has the exclusive right (see 5.1.1) to issue or authorize the issuing of copies of a work of any type to the public (see 4.1.2). It is noteworthy that the statute does not mention ‘publication’ in the definition of this right, although earlier statutes did. The definition of publication (see 4.1.3) is such that some unauthorized publications could be infringement by communication to the public instead (see 5.1.6). There is no requirement that an unauthorized publication be commercial for it to be infringing, nor that the publication cause harm (see 5.1.9). Multiple copies issued free of charge could comprise an infringement. This right is called the right of distribution to the public elsewhere in Europe. The CJEU (see 1.2.5) has ruled that the rights owner has the right to authorize the first making available to the public of the original or a copy of the work by sale or some other transfer of ownership. Mere public display of the work or allowing of the public to use the work on site do not infringe this right. Also, the right is ‘exhausted’ in respect of the original or any particular copy, in its original form, once it has been distributed to the public within the EU with the approval of the copyright owner (see also 5.1.17). For example, the right of distribution does not prevent the sale of second-hand books, but it could perhaps prevent the re-binding of those books and their sale in their new bindings. Directive 2001 (Information Society) art 4; 1988 (CDPA) ss16(1)(b), 18; Novello v Sudlow, 1852; Merck v Stephar, 1981; Peek and Cloppenburg v Cassina, 2008; Art & Allposters International v Stichting Pictoright, 2015

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5.1.4 Rental and lending: definition The copyright owner has the exclusive right (see 5.1.1) to rent or lend, or authorize the rental or lending of, certain types of work to the public. This right applies to: • all literary, dramatic and musical works • any artistic work except a building or model for a building or a work of applied art • all films (including their sound tracks, see 4.2.8) and sound recordings (for example, videos and CDs). In summary, rental means making the original or a copy of the work available for borrowing commercially. Lending means making the original or a copy available for borrowing non-commercially through an establishment that is open to the public. There are explicit exceptions and exclusions to the right (see 5.3.18). Works of applied art appear nowhere else in the 1988 Act and are defined neither there nor in the source directive. They do however appear in the Berne Convention (see 1.2.6) and the term is defined in the WIPO glossary as ‘an artistic work embodied in or applied to an object for utilitarian purposes, whether handicraft or produced on an industrial scale’. It would therefore include surface decoration used on china or the shape of an ornamental candlestick and would also include an artistic bookbinding. Works of artistic craftsmanship (see 2.3.5) would appear to be a sub-set of works of applied art. Ficsor, 2003; 1988 (CDPA) ss5B(3), 16(1)(ba), 18A, 36A, 40A; SI 1996/2967 regs 10, 11, 35; 2006/18, Sch para 2 5.1.5 Performance The copyright owner has the exclusive right (see 5.1.1) to perform or authorize the performance of a literary, dramatic or musical work, or to play or show, or to authorize the playing or showing of, a sound recording, film or broadcast in public (see 4.2.7–10). 1988 (CDPA) ss16(1)(c), 19 5.1.6 Communication to the public The copyright owner has the exclusive right (see 5.1.1) to communicate to the public, or to authorize the communication to the public, of a literary, dramatic, musical or artistic work, a sound recording, film (including its sound track) or broadcast. This right was introduced following an EU directive of 2001, and it replaced the right to broadcast a work. A communication to the public in this sense is an electronic transmission, including one by broadcasting (by terrestrial or satellite television, wireless or cable). A re-transmission of a broadcast signal received and then distributed to receivers, such as televisions or loudspeakers, accessible to the public (see 4.1.2) infringes. There is no infringement if the relevant members of the public are all present at the place where the

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communication originates. The display on screens in a record office of copyright works stored on a local server should therefore not infringe this right. A communication to the public is also an electronic transmission by which users may access a work when and where they wish, so it includes a communication by means of the internet (see 6.2.2). The unauthorized use of a copyright work by making it available (see 4.1.11) on a website therefore infringes. For the place where that infringement occurs, see 6.2.6. It is important to understand that communication to the public is a right belonging to the copyright owner; it is not a type of copyright work. On the other hand, a broadcast (see 2.6.2) is a type of work, but ‘broadcasting’ is not a distinct right. Instead it is a part of communication to the public. Directive 2001 (Information Society) recital 23; 1988 (CDPA) ss5B(3), 16(1)(d), 20; SI 2003/2498 reg 6; SI 2006/18, Sch para 2; Sociedad General de Autores y Editores de España v Rafael Hoteles, 2007 5.1.7 Adaptation The copyright owner has the exclusive right (see 5.1.1) to make or authorize the making of an adaptation of a literary, dramatic or musical work, or to do or authorize the doing of any of the other acts restricted by copyright in connection with such an adaptation. An adaptation is: • for most literary works and for dramatic works, a translation, a conversion of a literary work to a dramatic work (for instance, into a screenplay for a film) or vice versa, and a conversion of a work into pictorial form, such as a strip cartoon (with or without words) • for a computer program, an arrangement or altered version, or a translation into a different computer language • for a database, an arrangement or altered version or a translation • for a musical work, an arrangement or transcription. Clearly the definition of an adaptation is quite narrow. Many uses of a work that might in general be thought of as adaptations, such as abridgements, are instead infringements by copying (see 5.1.2, 5.1.8). An adaptation normally qualifies as a new copyright work if it is fixed (see 1.1.5, 2.1.3, 2.1.7). Note though that there can be no infringement by adaptation of any other kind of work: artistic works, films, sound recordings, broadcasts or published editions. If an adaptation of a work exists, any non-infringing use of the adaptation does not infringe the copyright in the original. When using an adaptation, while there must in appropriate circumstances be a ‘sufficient acknowledgement’ (see 5.2.1) of the adaptation itself, there is no need for any acknowledgement of the source work. On the other hand,

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infringing use of an adaptation, whether fixed or not (including by making a new adaptation), infringes the copyright in the source work and in the adaptation. 1988 (CDPA) ss16(1)(e), 21, 76, 178 ‘sufficient acknowledgement’; Wood v Boosey, 1868; Byrne v Statist, 1914 5.1.8 Indexes, translations, tracings, summaries and transcripts The making of indexes, translations, summaries and transcripts of copyright literary, dramatic and musical works is or may be an infringement by copying (see 5.1.2) unless prior approval is obtained: • An index probably does not constitute an infringement if it merely reproduces single words or short passages and provides an indication of where to find the relevant text or passage in the original work. If, however, it reproduces the whole or a substantial part of the content, but in a different order, it counts as a copy of the original work and thus is an infringement. • A translation into another language counts as an adaptation and thus is an infringement (see 5.1.7). • A transcript of a literary or dramatic work or a tracing of an artistic work (such as a map) is a manual copy and, unless it is of an insubstantial part of the work, is an infringement (see 5.1.2). A transcription of a musical work is an adaptation, and thus again is an infringement (see 5.1.7). • A précis of a literary or dramatic work, using a selection of the author’s own words, is almost always an infringement. A paraphrase or abridgement, summarizing the work in the paraphraser’s own words, raises more difficult issues. To be an infringement it would have to be shown that the paraphrase used a substantial part (see 5.3.3–5) of the author’s skill and creativity in creating the source work, rather than merely using his or her general ideas (see 2.1.4). In some cases, the resulting indexes, translations, summaries and transcripts themselves qualify as new copyright works (see 2.1.6–15), but use of them could indirectly infringe any copyright still subsisting in the original works (see 2.1.7, 5.1.2). 1988 (CDPA) ss17, 21; Anon, 1774; Valcarenghi v Gramophone, 1931 5.1.9 Primary infringement and the civil and criminal consequences It is an infringement of copyright to do, or to authorize someone else to do (see 5.1.12), any of the acts restricted by copyright (see 5.1.1–8) without the permission of the copyright owner, unless one of the exceptions applies (see 5.3–5.4). If copyright is infringed, the copyright owner may sue to prevent any further infringement (by securing an ‘injunction’; ‘interdict’ in Scotland), to seize copies of offending works and to seek civil damages (discounting any loss arising from, say, legitimate competition or use only of

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ideas, see 2.1.4) or an account of the infringer’s profits. The rights owner has unconditional rights and so can take action against infringing use, for instance to protect privacy, even if he or she has no intention of exploiting the work and regardless of whether the infringement has caused harm or has brought economic benefit to the infringer. The Act does not allow damages to be awarded if the defendant was unaware that the work was protected, but ignorance of the law is no defence so it might be quite difficult, as it has proved in the past, to satisfy the court that a belief that there was no copyright was genuine. Further, following a European directive, damages are only to be awarded against a defendant who had actual or constructive knowledge (see 5.1.16) that he or she was infringing. Note though that even without any knowledge the defendant can still be sued and found liable for other remedies and costs. Damages must be appropriate to the actual prejudice suffered by the rights owner, including loss of profit, unfair profits of the infringer, moral prejudice (such as damage to reputation) and loss of royalty fees: the purpose is to compensate the claimant, not to punish the defendant. Where there has been no actual profit for the infringer or direct loss for the claimant, the normal measure of damages is the court’s assessment of the going rate for a licence or royalties that might have been agreed between willing parties at the time of the infringement. There is also the possibility of ‘additional damages’ if the court decides that further recompense is needed because the infringement was flagrant or the conduct of the defendant or the general circumstances increased the injury by, for instance, humiliating or distressing the claimant, but they are rarely awarded. It is no defence for a defendant to claim that he or she intended to obtain a licence after the event. One judge was forthright about a newspaper in such a case, quoting the Duke of Wellington: ‘With its eyes wide open to the risk of proceedings for infringement it decided to publish and be damned. In the circumstances it can have no basis for complaint that it is now damned.’ If an infringement has occurred in the course of business (including a trade or profession, such as that of archivist or records manager), the infringer may also be liable to criminal prosecution. This could result, for instance, from the making of an infringing copy (see 5.1.14) for sale, which could possibly cover the supply of copies by an archivist who wilfully disregards the special provisions for copying (see 5.4), and causes actual damage to the copyright owner’s interests (an unlikely result for most archival materials but not an impossible one for more recent files). This book does not attempt to deal with the complexities of civil and criminal legal action; if an archivist or records manager finds him or herself in need of advice in this area a visit to a solicitor is called for (see 5.5). Directive 2004; 1988 (CDPA) ss16(2), 96, 97, 99–100, 107, 178 ‘business’; SI 2003/2498 reg 26; SI 2006/1028 reg 3; Novello v Sudlow, 1852; General Tire and Rubber v Firestone Tyre and Rubber, 1975; Work Model Enterprises v Ecosystem, 1996; Lightman J in Banier v News Group Newspapers, 1997, at 816; Blayney v Clogau St David’s Gold Mines, 2003;

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USP v London General Holdings, 2006; HRH the Prince of Wales v Associated Newspapers, 2007; Lilley v Euromoney, 2014 5.1.10 Liability There is strict liability for a copyright infringement, so an infringer’s motives are irrelevant. It is, for instance, possible to infringe after obtaining permission or a licence from the wrong person (see 5.2.2); it is up to the user to ensure that the permission or licence is valid by requesting proof of the other person’s rights or proof that the other person’s work does not itself infringe a third party’s rights. A licence from a collecting society (see 5.2.11–15) carries an implied indemnity from the society if the society did not in fact have authority to issue the licence, but this covers copying only, not any other use such as communication to the public. It is also possible to infringe unconsciously, for instance by using material from a work previously studied but not consciously remembered, but the rights owner first has to show that the infringer had access to the work. A so-called ‘innocence defence’ is often put forward by defendants. It rarely works because it tends to be used when the defendant has permission from the wrong person. In fact it is available only when the defendant can reasonably claim that he or she thought there was no copyright in the work at all. Even then, it protects only against an award of damages. The individual who is responsible for an infringement is always personally liable even if the infringement was committed as an employee or an agent. The employer or principal is jointly liable with the employee or agent if the infringement was entirely in the course of employment, but the principal is not liable for things that were done outside the scope of employment or ‘beyond the scope of the agency’ unless the employer or principal has ‘expressly authorised them to be done or he has subsequently adopted them for his own use and benefit’. The employer or principal, such as a director of a company, is liable for any infringing acts of the company if he or she authorized or promoted the acts, even if he or she had no knowledge that doing them would infringe. It is common practice in licences to include an indemnity clause, under which the licensor accepts responsibility for the costs of an infringement arising from a licensed use. This is sensible, and the courts uphold such indemnities, but the licensee should be aware that an indemnity is likely to cover the financial side only. It does not prevent the licensee being a party to the action nor does it prevent the court issuing an injunction stopping the infringing use from continuing. 1988 (CDPA) ss97, 136; Blackburn J in McGowan v Dyer, 1873 at 145; Mansell v Valley Printing, 1908; Byrne v Statist, 1914; Hawkes & Son v Paramount Film Service, 1934; Francis, Day & Hunter v Bron, 1963; Lady Anne Tennant v Associated Newspaper Group, 1979; Evans v Spritebrand, 1985; Credit Lyonnais Bank Nederland v Export Credits Guarantee Department, 2000; Codemasters Software v Automobile Club de l’Ouest, 2010; Nintendo v Playables, 2010; Hoffman v Drug Abuse Resistance Education, 2012

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5.1.11 Primary infringement by archivists and librarians: the declaration An archivist who, in good faith, provides a copy of a copyright work to a user on the basis of the exceptions for librarians and archivists (see 5.4.13, 5.4.16) is safe from primary infringement. Therefore, if the user has made a false statement in the declaration (see 5.4.12), and there is no reason for the archivist to know that it is false, the user is liable for any infringement as if he or she had made the copy him or herself. However, if an archivist fails to obtain a declaration from the user before making a copy of most copyright works, or if an archivist is aware that such a declaration is false, he or she is liable for primary infringement. 1988 (CDPA) ss23–24, 37(2)(a), 37(3) 5.1.12 Primary infringement: authorizing infringement It is also a primary infringement of copyright, without the permission of the copyright owner to authorize someone else to do any of the acts restricted by copyright, and the same penalties apply to the person giving the authority as to the actual infringer. It is not necessary to know that the act authorized is an infringement, and it is no defence to plead that it was believed not to be. However, the House of Lords, repeating the formula used by an earlier judge, has made plain that authorize means ‘sanction, approve or countenance’, so an authorization is one that grants or appears to grant permission to do the infringing act. The person giving the authorization is liable in the UK for the infringement if the infringing act that has been authorized occurs in the UK, even if the authorization was actually given overseas. However, there is no liability if the authorized infringement never actually happens. This is quite a risky area. It is almost certain, for instance, to be taken as authorizing infringement in an architect’s drawings for an archivist to instruct a builder to use the plans for one record office in order to construct another. Archivists and records managers must be very careful about giving, or even appearing to give, authority for copyright works to be used by someone else. Advice given on copyright should thus be in general terms, and where appropriate qualified by a comment that it is not legal advice and does not constitute authority to do anything. If you are giving permission to make a copy of a document that is fragile, make plain that your permission relates to the conservation issue, not to copyright. Self-service copiers (see 5.4.22–23) should carry very obvious notices about the limits of permitted copying, with a warning that the institution accepts no responsibility for copying of copyright material beyond those limits. An Australian university suffered severely for its failure to do this, but a Canadian law library’s notices were found to be sufficient. So long as there are clear notices, the mere provision of equipment which might (rather than will inevitably) be used to infringe is legitimate. The taking of photographs of works displayed in exhibitions is likely to infringe. The organizers of exhibitions would therefore do well to be seen to be discouraging

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photography so as to make plain that they are not authorizing any infringement by those means. It is possible that merely making available copyright works on the internet could infringe under this heading (as well as by a communication to the public, see 5.1.6) because the person making the material available is effectively giving the user authority to copy the work: it is impossible to view a document on the internet without making a copy of it (see also 6.2). 1988 (CDPA) s16(2); Tomlin J in Evans v Hulton, 1924; Bankes LJ in Falcon v Famous Players, 1926 at 491; Moorhouse v University of New South Wales, 1976; Lord Templeman in CBS Songs v Amstrad, 1988, at 604; Abkco Music v Music Collection International, 1995; Pensher Security Doors v Sunderland City Council, 2000; CCH Canadian v Law Society of Upper Canada, 2004; Softlanding Systems v KDP Software, 2010; Twentieth Century Fox v Newzbin, 2010 5.1.13 Non-infringement In some limited circumstances it is possible to ask the court to make a declaration of non-infringement, in order to prevent harassment from a rights owner. The necessary preconditions are that: • there has been an accusation of infringement • the accusation has caused damage • there is sufficient evidence to show that the work that is alleged to infringe the claimant’s copyright was actually created independently. In these circumstances, the court has the authority to order the defendant to stop making allegations of infringement. Point Solutions v Focus Business Solutions, 2006 5.1.14 Secondary infringement It is possible to infringe copyright without doing or authorizing any of the acts restricted by copyright; this is called secondary infringement. A person committing a secondary infringement must have ‘knowledge’ (see 5.1.16), but may then be liable to civil and criminal action in the same way as a person committing a primary infringement. Secondary infringement includes: • importing an infringing copy into the UK for purposes other than private and domestic use (see 5.1.17) • possessing, exhibiting or distributing an infringing copy either in the course of business or in such a way as to prejudice the interests of the copyright owner • providing equipment specifically designed or adapted for making infringing copies

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• providing the means for giving an infringing public performance • permitting the use of premises for an infringing public performance. An ‘infringing copy’ is one the making of which was an infringement; the use of which falls outside the purposes of an exception under which it was made; or which has been imported into the UK and the making of which in the UK would have been an infringement. Copyright law in the EU has not been fully harmonized so there is nothing in EU law, or indeed in international law, giving a person the right to import into the UK a copy legitimately made under an exception in another member state but which is an infringing copy in the UK (see 5.1.17–18). 1988 (CDPA) ss22–27, 107ff. 5.1.15 Secondary infringement: archivists and records managers Some actions qualify as secondary infringements only if they were done ‘in the course of business’, but ‘business’ is defined as including a trade or profession such as that of archivist or records manager. If an archive or document registry holds infringing copies of copyright works the copies would almost certainly be considered to be in the possession of the archivist or records manager in the course of his or her business, which would amount to a secondary infringement if there is also the necessary knowledge (see 5.1.16). Secondary infringement could also occur if an archive accepted work to repair or bind infringing copies not actually deposited (the conservator or bookbinder is a professional), or put infringing copies on display in an exhibition, again if the necessary knowledge existed. An archivist should thus be careful about accepting the deposit or loan of copies of copyright works, and would be well advised to require clear assurances from the depositor that the copies have been legitimately made (see 5.4.25). For instance, copies made under the library and archive copying provisions are for the use of the individual researcher who has declared that they will not be passed to anyone else; passing them on makes them into infringing copies. They should therefore not be accepted for deposit in another record office or library (see 5.4.12). Records managers should check that their parent body has policies in place to ensure that material obtained in the course of business is obtained legitimately. If an archivist or records manager is unfortunate enough to receive notice from a copyright owner that material held or displayed in the archive consists of infringing copies, no time should be lost before: • assessing the evidence supplied to ensure that it identifies the particular items that are said to be infringing and gives reasonable grounds for belief that there has been infringement (see 5.1.16) • removing the items from display and/or public access • seeking legal advice (see 5.5). 1988 (CDPA) ss23, 178 ‘business’; Van Dusen v Kritz, 1936

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5.1.16 Knowledge In each case, to prove secondary infringement it has to be shown that the infringer knew (‘actual knowledge’, see also 6.2.5), or had reason to believe or ought to have known (‘constructive knowledge’), that the copies or the acts concerned were infringements or that the equipment was to be used for infringing purposes. It has been said that ‘reason to believe’ ‘involves the concept of knowledge of facts from which a reasonable man would arrive at the relevant belief ’. Merely suspecting that a copy might be an infringing one is not knowledge, and nor is knowing that the question of infringement is in dispute but so far undecided between two other parties. If, though, it is apparent from comparison of two works that one has been copied from the other, or if the copyright owner has provided evidence that the copies or activities are infringing, it would be difficult to justify a claim of lack of the necessary knowledge. In the face of such facts, simply thinking that a copy or act is not infringing, relying on a licence without checking that the licensor is entitled to grant the rights, or relying on advice (including legal advice from a lawyer), is of no help. Once a secondary infringer has been served with reason to suspect, for example in a letter from the copyright owner which identifies the particular copies that are infringing, he or she must then investigate the source of the materials at issue to see whether they are likely to be infringing copies. Failure to investigate would mean that it would be very difficult to resist a claim of infringement. The secondary infringer then has a period of grace (likely to be a maximum of 14 days, but possibly much less) to assess the evidence and arrive at the necessary belief, and to take action so as to avoid liability. Knowledge is also necessary before damages can be awarded for a primary infringement, but lack of knowledge does not remove the liability in other respects (see 5.1.10). 1988 (CDPA) ss22ff., 107ff.; Lady Anne Tennant v Associated Newspaper Group, 1979; Sillitoe v McGraw Hill Book Co, 1983; LA Gear v High Tech Sports, 1992; ZYX Music v King, 1997; Nouveau Fabrics v Voyage Decoration and Dunelm Soft Furnishings, 2004 5.1.17 Infringement overseas and import If an unauthorized copy or adaptation of a copyright work is brought into the UK from outside the EEA (see 1.2.8), and the creation of it would have infringed under UK law, it counts as ‘pirated goods’. Pirated goods are liable to be detained at Customs and the rights owner may then, within ten days of being told of the seizure, request that they be destroyed. If the importer or another ‘interested person’ cannot be traced or fails to respond when given the opportunity to object, within the same ten-day period, the goods may be destroyed without the need for a court order. An infringing copy is not considered to be pirated if it is in a traveller’s personal luggage and does not appear to be destined for commercial use (see 5.3.8). If a rights owner suspects that specified pirated goods might be imported, he or she can ask HM Revenue & Customs to look out for and detain them.

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Once infringing copies are in the UK, whether imported from within or outside the EEA, UK law applies to them, use of them may be a primary infringement (see 5.1.9–12) and mere possession may amount to secondary infringement (see 5.1.14). So far as infringing use within the UK is concerned, the laws of the source country, of the country from which they were imported or of the country from which the rights owner or author comes are all likely to be irrelevant (see 1.2.5) unless the work has been made available to the public in an EEA country (see 1.2.8) by or with the consent of the copyright owner. In that case, the owner’s right to object to movement of the published copies anywhere in the EEA has been exhausted (see 5.1.3). Regulation 2003; 1988 (CDPA) ss27, 111; SI 2004/1473; SI 2010/324; SI 2010/992; Merck v Stephar, 1981; Lucasfilm v Ainsworth, 2011 5.1.18 Export of copies While there are many legitimate ways to make and supply copies of copyright works within the UK, whether under licence (see 5.2) or under an exception (see 5.3–5.4), the transmission of those copies to users overseas might be a different matter. If you are making a copy under licence, you should make sure before transmitting it overseas that the licence authorizes you to do so. If it does not, you should go back to the licensor to find out whether export is permitted and to where. If you are making the copy under an exception, there is no certainty that you may export it to a user outside the UK. The difficulty is caused by copyright laws that are national in nature and the general absence of international harmonization of exceptions. The Marrakesh Treaty (see 1.2.6) will one day facilitate cross-border transmission of ‘accessible’ copies for the use of people who are blind or visually disabled. Attempts are being made by the library and archive communities to secure a similar treaty in favour of librarians and archivists, but if they are ever successful it will be many years before it is in force. The representatives of developed countries assert that no treaty is required, which implies that they believe that national laws can provide for the legitimate export of copies or alternatively that licensing is sufficient. Unfortunately, licensing is not often a solution for archival materials (see 5.2.15). In the UK, the legislation is silent about export of lawfully made copies. There is inevitable demand for copies of copyright archival materials from users in other countries, so the following observations might help in a decision about supply: • Publishers are firmly of the opinion that the supply of copies of published works to overseas users is not permitted by the library copying exceptions (see 5.4.16–18). Wherever possible therefore it would probably be sensible to seek licences for this purpose (see 5.2.11). • There is no one to represent or to issue licences on behalf of most rights owners of unpublished works so licensing is not a simple solution for archivists, though the

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agreement of known rights owners could usefully be sought. • If a copy is sent overseas and an infringement occurs in the user’s country the difficulty for the UK rights owner of obtaining redress might be significant. At present it is not clear what action a rights owner might be able to take against the librarian or archivist in respect of the export since export is not a statutory restricted act (see 5.1.1–8) and there appears never to have been any litigation about the subject. However, if a court decided that the purpose of making the copy was export rather than, say, the final user’s non-commercial research, the terms of the exception under which the copy was made might be found to have been infringed. • The exception for the copying of unpublished works in libraries and archives (see 5.4.12–13) permits the making of copies in return for a declaration in writing. Liability for infringement by making the copy is transferred from the librarian or archivist to the user so long as there is no reason to believe that the declaration was made falsely. In principle therefore there is no reason not to supply to an overseas user whom the librarian or archivist believes to be trustworthy. Careful preservation of the user’s declaration, and any related documentation to justify faith in its veracity, would be a sensible precaution. • Copies of public records (see 5.4.2) have been sent overseas for many years without any problems, and archivists with responsibility for public records should continue to provide copies to anyone who requests them, wherever they are. • One might hope that the making of an accessible copy for an overseas disabled person (see 5.3.16) would not raise objections. • The exception permitting educational establishments to make copies available to students and staff off the premises by means of a secure network (see 5.3.20) appear to permit transmission through such a network to overseas students and staff, but any related licensing scheme should be studied carefully to check whether this is permitted or not. • Freedom of information (see 5.4.4–5) requests can come from any part of the world and, in the absence of a relevant exemption, the information requested must be supplied by a public body. The making of a copy of that part of a document that contains the information and the export of that copy are legitimate for this purpose. For the copying of original works that are to be exported, see 5.4.28. Information Commissioner’s Office, Freedom of Information Good Practice Guidance No 6: Consideration of Requests Without Reference to the Identity of the Applicant or the Reasons for the Request 4; Scottish Information Commissioner, Your Right to Know: A guide to freedom of information in Scotland 12

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Permission

5.2.1 Acknowledgement When giving permission for use, most rights owners require an acknowledgement. This should acknowledge the work (by its title or a suitable description), the author if known (to ensure compliance with moral rights, see 8.1.5) and the copyright owner. In some circumstances it might be best to acknowledge the owner impersonally, as for instance ‘the heirs and successors of William Shakespeare’, ‘the literary executors of Jane Austen’ or ‘the personal representatives of Thomas Tallis’. Most exceptions permitting the use of copyright works (see 5.3–5.4) do not apply in the absence of a ‘sufficient acknowledgement’. A sufficient acknowledgement is one that identifies the work by its title or some other description (which, in an archival context, must include its document reference) and identifies the author. In most cases, if an acknowledgement is impossible for reasons of practicality or otherwise then the requirement disappears, but ‘impossible’ is not the same as ‘troublesome’ or ‘awkward’ or even ‘difficult’: a self-service copy made by a member of the public should be annotated with the appropriate acknowledgement. There is no requirement of acknowledgement of the author if the work was published anonymously or it is unpublished and it is impossible to identify the author by reasonable enquiry (see 2.1.18). It is worth noting that a ‘sufficient acknowledgement’ does not need to mention the owner of the copyright. 1988 (CDPA) s178 ‘sufficient acknowledgement’ 5.2.2 Licences If anyone other than the copyright owner wishes to do any of the acts restricted by copyright (see 5.1) with a copyright work beyond what is permitted by the exceptions and limitations (see 5.3–5.4), he or she needs either to gain ownership of the copyright (see 3.3.8) or to obtain permission in the form of a licence. A licence does not in most cases have to be written (though it is much better if it is), and some may be implied, for instance by an author sending a manuscript of an article to the editor of a journal (see 5.2.3). An implied licence that is given gratuitously can be cancelled, but if payment has been made for it in some form it is irrevocable. It is the responsibility of the person who claims that a licence was granted to satisfy the court that it was. A licence may be for the whole term of the copyright or for a limited period. If it is to be for the whole term it should say so: it is best to avoid use of the word ‘perpetual’, which does not necessarily mean what you might expect. If it is desired that the term be unstated the licence could say that it is without limitation of time, but in that case it should have a separate termination clause giving either party the right to terminate the licence after giving reasonable notice. In order to be valid, a licence must be issued by the actual rights owner or someone authorized to act for the rights owner (see 5.1.10). A licence is worthless if issued by the wrong person, and the ostensible licensee could be sued by the rightful owner. It is most

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important therefore to check before relying on a licence. A licence remains in force even when the original grantor dies and so is automatically binding on the grantor’s heirs (see 3.3.1) and normally on his or her assigns (see 3.3.8). However, if the copyright is sold (assigned in return for payment), any licence will terminate if the purchaser of the copyright is not told about it and has no other reason to know about it, so the licence could become ineffective without warning. Any type of written licence may be assigned or sub-licensed if the terms of the licence permit, and the licence normally states whether it applies to the licensee’s agents (such as a commercial publisher publishing on behalf of a record office) when acting for the licensed purpose. Because of the restrictions that are otherwise imposed on the licensor, an archivist or records manager who is in a position to grant a licence would be well advised never (or at least rarely) to issue an exclusive licence. A non-exclusive licence is almost always suitable (see 5.2.5–6). Otherwise, licences mostly affect archivists and records managers in three ways: controlling what they may do with documents in their care; what they say to members of the public who wish to make use of documents; and what they may do with material created for them by other people such as volunteers (see 3.2.21, 7.13.3) and consultants (see 3.2.17). For Creative Commons licences see 6.2.4. For model licences from a depositor to an archive and from an archive and/or depositor to a user, see 9.3. 1988 (CDPA) s90; Mansell v Valley Printing, 1908; Byrne v Statist, 1914; Blair v Osborne and Tomkins, 1971; Lady Anne Tennant v Associated Newspaper Group, 1979; Godfrey v Lees, 1995; Brighton v Jones, 2004; BMS Computer Solutions v AB Agri, 2010; Hudson Bay Apparel Brands v Umbro International, 2010; IT Human Resources v Land, 2014 5.2.3 Implied licences Not all licences are written down. For instance, the person who commissioned the making of a copyright work is almost always entitled to use it for the intended, or a closely related, purpose (see 3.2.18) if the contract does not set out the position precisely. In some cases a court may decide that a licence is implied simply as a result of the author’s actions or behaviour or because the fee paid was large enough to cover the cost of a licence. For example, a licence to publish is always implied when a person writes a letter to the editor of a newspaper, unless the letter is clearly marked ‘not for publication’. An implied licence that is given gratuitously is revocable and can be cancelled, but an implied licence for which payment has been given is irrevocable (see also 5.2.2). An implied licence can only permit things that were reasonably foreseeable at the time the licence was given and does not allow the licensee ‘to take advantage of a new unexpected profitable opportunity’. For instance, online publication has been normal since about 2000 and an implied licence to publish given since then would probably be taken to include it, but one given earlier might not.

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If a contract is unclear, it is possible for a court to decide that certain terms were implied, to deal with issues or events that the words of the contract failed to address. However, the court only inserts the minimum required to enable the contract to work so that it means what a reasonable person, knowing the facts, would expect it to mean. A licence can be implied into a contract if that is necessary to give a purpose for the contract, but an exclusive licence or an assignment is unlikely to be required. Archivists and records managers should therefore note that implied licences are only of limited extent. They are given, for instance, to a person commissioning a work for the purpose of the commission, and to their agents acting for the same purpose. So, if an archivist commissions the creation of a cataloguing system, but fails to mention copyright, the record office has an implied licence to use the system for its internal purposes but not to license others’ use of it. Similarly if the archivist commissions a photographer to take pictures of a new record office for the purpose of publicity, there will be an implied licence (if the contract does not mention one) to use the images for relevant purposes such as in advertisements and the annual report, so long as (normally) the photographer is acknowledged (see 8.1.5). The archivist’s printer will be covered by the same licence. However, the implied licence would probably not extend to the use of the images in a history of archival services in the county. If a person commissions a work and then deposits a document containing it in a registry or record office, any implied licence to use it is unlikely to extend to the records manager or archivist. If an archivist finds him or herself in a position where there is any doubt as to whether a licence to use a work has been implied, it would be sensible to contact the rights owner or seek legal advice (see 5.5). Perceval (Lord and Lady) v Phipps, 1813; Blair v Osborne and Tomkins, 1971; StovinBradford v Volpoint, 1971; Solar Thompson Engineering v Barton, 1977; Robin Ray v Classic FM, 1998; Durand v Molino, 2000; Brighton v Jones, 2004; Attorney General of Belize v Belize Telecom, 2009; Grisbrook v MGN, 2011; Jackson v Dear, 2012; HHJ Birss in Wilkinson v London Strategic Health Authority, 2012 at para 88; Marley v Rawlings, 2014 5.2.4 Contractual licences The rights covered by a licence may cover the same range as those granted by assignment, and it may be ‘bare’ or contractual (see 3.3.8). A bare licence is (outside Scotland) one granted without payment, which is likely to include many if not all implied licences (see 5.2.3); it may be revoked by the licensor at will or after reasonable notice and so is not very satisfactory for the licensee. A contractual licence is one for which a consideration (as little as £1) has been paid (except that in Scotland no consideration is needed) and which both parties have entered into freely with knowledge of the terms. Either party can then sue the other for breach, and it is irrevocable except under the terms for termination or expiry set out in it. It is worth giving careful thought to whether consideration should be paid for a licence. In many circumstances there are benefits from making it contractual.

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It is an unfortunate fact that there is little to prevent a licensor offering licensing terms that are unfavourable to a licensee. The Unfair Contract Terms Act 1977 does not apply to contracts relating to intellectual property rights, including copyright licences. Collective licensing bodies (see 5.2.12) are subject to the jurisdiction of the Copyright Tribunal, so there is some source of help for licensees who think the terms of one of their licences are unfair. 1977 (Contracts) Sch 1 para 1(c) 5.2.5 Non-exclusive and sole licences A licence may be non-exclusive, sole or exclusive. The non-exclusive form is the most likely to come to the attention of archivists and records managers: it gives permission to do something, but allows the copyright owner to give licences to any number of other people too. A sole licence gives the licensee permission to do something, and allows the licensor to continue to do it too, but prevents the licensor from granting a similar licence to anyone else without breach of contract (assuming that the licence is contractual). This form is rare. A non-exclusive or sole licensee may not normally bring an action for infringement of copyright in the licensed work. Bodley Head v Flegon, 1972 5.2.6 Exclusive licences If a written licence, signed by or with the authority of a copyright owner, says that it is exclusive, the rights of the recipient while the licence is in force are very similar to the rights of an assignee of the copyright (see 3.3.8). The copyright owner may not grant similar rights to anyone else, and may not normally even exploit the rights him or herself without being in breach of contract (assuming that the licence is contractual). The licensee can even initiate action against third parties for infringement of the copyright in order to get an injunction to stop the infringement continuing. The court would have to give consent for an action to continue beyond that without the owner being involved, since otherwise the defendant might be sued again by the owner. The licensee can take action against the copyright owner only for breach of contract, if, for example, the copyright owner continues to exploit the work or licenses someone else to do so. Such a breach could be significant, since a grant of a new licence gives the new licensee a defence against an infringement action by the original licensee. If after issuing an exclusive licence the copyright owner assigns the copyright to someone else, the new owner is bound by the licence unless he or she was not informed about it and had no other reason to know that it had been granted (see 5.1.16). In that case, the licence lapses. 1988 (CDPA) ss90, 92(1), 101ff.; Bodley Head v Flegon, 1972; JHP v BBC Worldwide, 2008; Media CAT v Adams, 2011

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5.2.7 Crown copyright: Open Government Licence Most Crown and Crown-owned copyright (see 3.2.28–29) and database right (see 8.2.7−8) works of all kinds are available for re-use under the terms of the Open Government Licence, which is part of the UK Government Licensing Framework and is compatible with a Creative Commons Attribution licence. The licence permits use of all but excluded material (see 5.2.8) so long as it has been published or is accessible to the public by some other means, for instance because it is available under freedom of information legislation (see 5.4.4–5). All Crown copyright material in public records (see 5.4.2) that are open to public inspection is therefore re-usable under the licence. Details of the Licensing Framework together with the terms of the Open Government Licence are available online on the website of TNA (www.nationalarchives.gov.uk; see 10.3). These are the principal features of the licence: • It is worldwide, free, perpetual and non-exclusive. • Use of any kind, commercial or non-commercial, is permitted. • The information provider (usually a government department or agency) and the Licence must be acknowledged wherever possible. • The manner of use must not imply official status or endorsement. • The Licence does not apply to re-use of the Royal Arms, official logos or insignia unless they are integral to the material being used; other Crown intellectual property rights (see 1.1.3); personal data; identity documents; or third party material. A record office holding public records is entitled still to require acknowledgement of its custody of an original document containing Crown material, to require that the document reference be given, and to request that a copy of any publication using the material be supplied free of charge. Record offices may still control the type of copy that they supply, may still refuse to supply copies on conservation grounds, and may exercise control of the commercial exploitation of images of documents (as distinct from the information which such documents contain) (see 5.2.24–25). Some bodies holding Crown material have been given authority to permit use only of the Non-Commercial Government Licence. This is much the same as the Open Government Licence but it permits only non-commercial re-use. The licence terms may be consulted online. Follow links to the UK Government Licensing Framework. 5.2.8 Crown copyright: commercially licensed material Some government departments and agencies create commercially valuable material on which they depend for significant proportions of their income. These bodies are given delegated authority by the Controller of HMSO (see 3.2.30) to license re-use of their Crown copyright and Crown database right material, and the Open Government

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Licence does not apply. The licensing activities of these bodies are regulated by the OPSI within TNA through the Information Fair Trader Scheme. Information about the scheme, and the Crown bodies that operate under it, are available on the website of TNA (www.nationalarchives.gov.uk; see 10.3). Members of the scheme include the UK Hydrographic Office, HM Land Registry, Ordnance Survey and Registers of Scotland. The Information Fair Trader Scheme is consistent with the Re-Use of Public Sector Information Regulations, to which all Crown bodies under the scheme are also subject (see 5.2.10). 5.2.9 Parliamentary copyright licences The Westminster Parliament and the Scottish Parliament both allow re-use of most Parliamentary copyright (see 3.2.34–38) and database right (see 8.2.7) material under the Open Parliament Licence and the Open Scottish Parliament Licence. Similarly the Northern Ireland Assembly offers the Open Northern Ireland Assembly Licence. The terms of these are broadly similar to those of the Open Government Licence. These various licences are available at: • Westminster: www.parliament.uk/site-information/copyright/open-parliamentlicence/ • Scotland: www.scottish.parliament.uk/Fol/OpenScottishParliamentLicence.pdf • Northern Ireland: http://data.niassembly.gov.uk/license.aspx. The National Assembly for Wales has no formal licence but permits free use of its own copyright material so long as it is used accurately and not in a misleading context, and so long as the source and copyright are acknowledged. 5.2.10 Public sector information Under the original Re-Use of Public Sector Information (PSI) directive of 2003, and the regulations implementing it in the UK in 2005, most public sector bodies, including parliaments and assemblies, national and local government bodies and public corporations, must be willing to license the use of their own publicly available information by commercial and other users. A public sector body may decline only if no one, including itself, is permitted to use the information for any purpose outside its ‘public task’ (the task given to it by statute or the equivalent). There were some exclusions to information: • that is the copyright of a third party • held by public service broadcasters • held by educational and research establishments, such as schools, universities, archives, libraries and ‘research facilities’ • held by cultural establishments, such as museums, libraries, archives and theatres

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• that is not accessible to the public, for instance that is exempt information under freedom of information legislation. The original directive was revised in 2013 and the changes apply in member states from July 2015. The principal changes mean that: • public sector archives, libraries (including university libraries) and museums are within scope, on the same basis as the original scheme: they are required to permit re-use of any material in which they own the rights that has been re-used by themselves or by someone else; the other bodies that were out of scope remain out of scope • all other public sector bodies covered by the scheme are required to permit re-use, even of material that they have not chosen to license or to re-use themselves • charges for re-use must be at marginal cost (the cost of creating and providing copies) unless higher charges have been justified and approved. The PSI regulations are administered by TNA, and the activities and licensing of public sector bodies are regulated by the OPSI within TNA (see 10.3). Directive 2003; Directive 2013; SI 2005/1515 regs 3–5 5.2.11 Collective licensing The 1988 Act gives statutory backing to collective licensing arrangements for the use of copyright works, which allow users to copy or perform copyright works in return for a fee without having to secure permission from individual copyright owners, and which benefit copyright owners by giving them a better chance of preventing infringement and of receiving an income from royalties. The details of these arrangements vary over time, and are outside the scope of this book, but the summary given at 5.2.12–15 may be helpful. 1988 (CDPA) ss116–144 5.2.12 Collective licensing: licensing bodies The bodies that grant collective licences are known as licensing and collecting societies or reproduction rights organizations or collective management organizations. One way to find out where to obtain a licence is to use the Copyright Hub (www.copyrighthub. co.uk, see 10.3) as a guide. It also gives general advice on copyright and advice to rights owners about protecting their works. Some of these bodies are listed below: • Authors’ Licensing and Collecting Society (ALCS), representing authors, and a coowner of the Copyright Licensing Agency (CLA) (13 Haydon Street, London EC3N 1DB, or www.alcs.co.uk)

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• British Equity Collecting Society (BECS), representing actors and other stage performers, circus artists, and theatrical and film producers (Guild House, Upper St Martin’s Lane, London WC2H 9EG, or www.equitycollecting.org.uk) • British Film Institute (BFI), representing many British feature and documentary film makers, and with a substantial collection of film of its own (21 Stephen Street, London W1T 1LN, or www.bfi.org.uk) • Copyright Licensing Agency (CLA), representing the authors and publishers of published literary works (6–10 Kirby Street, London EC1N 8TS, or www.cla.co.uk); the CLA has agreements with other collecting societies in Europe and elsewhere to share licensing services and revenues • Design and Artists Copyright Society (DACS), representing visual artists, including photographers, but not (on the whole) the authors of documentary photographs (33 Great Sutton Street, London EC1V 0DX, or www.dacs.org.uk) • Directors UK (formerly DPRS), representing directors and producers in film and television (8–10 Dryden Street, London WC2E 9NA, or www.directors.uk.com) • Educational Recording Agency (ERA) for recordings of broadcasts, including Open University ones, by educational establishments (see 5.3.20) for non-commercial educational use, including off-site use by students and teaching staff (60 Grays Inn Road, London WC1X 8LU, or www.era.org.uk) • Filmbank, representing the major film studios including Disney, Fox, Paramount, Studio Canal, Sony, Universal and Warner, for the licensing of the showing of their films outside cinemas and the home (98 Theobalds Road, London WC1X 8WB, or www.filmbank.co.uk) • Motion Picture Licensing Corporation (MPLC), representing mostly independent film producers and distributors for the licensing of the showing of their films outside cinemas and the home (4 Saffrons Road, Eastbourne BN21 1DG, or www.themplc.co.uk) • Music Publishers Association (MPA), representing music publishers in relation to the reproduction of scores (26 Berners Street, London W1T 3LR, or www.mpaonline.org.uk) • Newspaper Licensing Agency (NLA Media Access), representing the publishers of newspapers and journals, licensing use by press cuttings and media monitoring agencies (Wellington Gate, Church Road, Tunbridge Wells, Kent TN1 1NL, or www.nla.co.uk) • Phonographic Performance Ltd (PPL), representing record companies and performers of recorded music (1 Upper James Street, London W1F 9DE, or www.ppluk.com) • PRS for Music, representing composers and publishers of music and the owners of copyright in recordings for the licensing of live performances, the recording of performances and the public playing of recordings (including the music in films) (29–33 Berners Street, London W1T 3AB, or www.prsformusic.com); PRS for Music

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works with other collecting societies in Europe to provide pan-European licensing services • Publishers’ Licensing Society (PLS), representing publishers and the other co-owner of the CLA (55–56 Russell Square, London WC1B 4HP, or www.pls.org.uk). Information about other licensing and similar bodies may be obtained from the British Copyright Council at the same address as PRS for Music or from www.britishcopyright.org. There is currently very limited provision for pan-European licensing, though there are agreements between some societies. A new directive on collective management of rights in musical works, which is intended to encourage the growth of cross-border licensing, will be implemented across the EU in April 2016. The societies may have schemes of licensing for particular categories of user (such as schools, universities, industry, government) using materials in its sector whereby any user within the category may take out a licence under standard terms and conditions. Where there is no scheme the licensing body usually arranges a tailored licence for the particular use required. The monopoly control of the various societies is subject to the authority of the Copyright Tribunal, which may hear appeals against the terms and costs of licences and refusals to grant licences. A notable case brought to the Tribunal by Universities UK against the CLA resulted in a re-drafting of the licence and a new fee structure. A collecting society must now have a published code of conduct, setting out the standards it aims to meet in providing services to members, licensees and potential licensees. The British Copyright Council has issued a model code and the IPO (see 10.3) has issued a set of minimum standards for a code. Among other things, the codes explain how to complain. Directive 2014; 1988 (CDPA) ss116ff, Sch A1; 2013 Sch 22 para 1; SI 2014/898; Universities UK v Copyright Licensing Agency, 2002 5.2.13 Collective licensing: electronic works Licensing bodies now offer licences to cover electronic uses. The CLA schemes allow for the digitization of paper-based materials and for the copying of digital material to digital and paper. CLA educational licences and the ERA licence permit the online communication of digital material by secure networks to students and staff of educational establishments (see 5.3.20), on and off the premises. PRS for Music has a licence for the podcasting of musical works. The NLA provides an electronic database of newspaper clippings, to which clippings agencies may provide links for their clients but which is not otherwise directly accessible by users. 5.2.14 Extended collective licensing Hitherto, collecting societies have been able to offer licensing schemes only for works for which they have received suitable authority from the rights owners. ‘Extended

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collecting licensing’ regulations now give the IPO (see 10.3) the power to authorize a society to extend a collective licence to the works of non-members. This is controversial as rights owners might find their works being used against their wishes. If it would like to extend its licensing, a collecting society therefore needs to have in place a scheme of collective licensing for a particular category of work and for specified uses, to be able to demonstrate that its membership includes a significant proportion of rights owners of works in the selected category, then to secure the votes of a substantial proportion of its members in favour of extending the scheme to non-members. Any scheme submitted for approval to the IPO must provide a simple mechanism for rights owners, whether they are members or non-members, to opt out. 1988 ss116B–116D, Sch 2A; 2013 s77; SI 2014/2588 5.2.15 Collective licensing: significance for archives Collective licensing schemes, whether extended or not, are unlikely to have much impact on archivists and records managers. No collecting society could claim to represent a significant proportion of rights owners in the kinds of unpublished works usually found in traditional archives and registries: letters, minutes of meetings, documentary photographs. Extended licensing schemes are most likely to be designed for published books and journals and for distinct types of published artistic material such as, perhaps, illustrations, maps or posters. Unpublished works create special problems because a high proportion of them are ‘orphans’ (see 5.2.17). DACS offers to license the use of unpublished photographs and other artistic works, including orphan works, but is primarily concerned with materials that are artistic in the conventional, not the copyright, sense and so might not be able to help with, for instance, documentary photographs or building plans. PRS for Music will no doubt license the performance of unpublished music, though this is likely to be outside the scope of most archivists professionally. However, the CLA and NLA Media Access deal only with published material. Note also the following points: • In some cases the existence of a licensing scheme limits the application of exceptions to copyright provided by the Act. This is true for instance of the exception allowing multiple copying by educational establishments (see 5.3.20). The licensing schemes for educational establishments are well established and archivists and records managers should ensure that any copying of published material that they do for an educational establishment is covered by its licence or is strictly within the terms of the exception if the licence does not apply. • The existence of licensing arrangements does not invalidate the normal provisions for insubstantial parts of a work or fair dealing and other limited exceptions. Copying which falls within the generally accepted limits (see 5.3.4, 5.3.7) does not therefore

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need a licence, but an archivist or records manager who needs to exceed the limits for official purposes, either routinely or as a one-off, should seek a licence from the appropriate society if there is one or tell the person requesting the copies to obtain suitable licences. • Collecting societies do not necessarily have authority to license all works by copyright owners they represent nor do they necessarily represent all copyright owners in their sector. Any lists they supply of works or owners excluded from a licence should be studied carefully. Except as notified by the society in such a list, a licensee is entitled to rely on the comprehensiveness of the licence for the whole sector and the society is liable for any costs arising from an inadvertent infringement by copying but not by any other use (see 5.1.10). 1988 (CDPA) s136 5.2.16 Obtaining permission: responsibility An archivist should never appear to give permission for the use of copyright material unless he or she has clear authority to do so. The consequence of appearing to authorize use could be liability for any infringement committed on the basis of that implied permission (see 5.1.12). Any advice to a prospective publisher must make abundantly plain that no authorization to publish is given, that the responsibility for any infringement lies solely with the publisher and that he or she would be well advised to seek legal advice (see 5.5). It is primarily the responsibility of the person wishing to publish a copyright work to seek to identify, and to obtain permission from, the current owner or owners of the copyright (see 5.2.2). The archivist is under no obligation to the intending publisher to identify or contact copyright owners unless specific arrangements have been made with a known copyright owner (in which case the institution is likely to have a duty to the copyright owner but not to the potential publisher). Even if a depositor has given the archivist a licence or assignment, there is likely to be material in the deposit which is the copyright of someone else (see 2.1.2). Where an archivist wishes to publish, the same requirements apply to him or her as to any other publisher. 1988 (CDPA) s16(2) 5.2.17 Orphan works Most archival materials in private copyright are unpublished and many are anonymous. It can be very difficult, or impossible, to identify and trace the copyright owner of material of this nature. Almost all archives and registries therefore contain many ‘orphan works’, a term used to describe works that are, or may be, still in copyright but whose owner is impossible to identify or trace. Examples include many letters and

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documentary photographs and many anonymous and pseudonymous works (see 2.1.18, 3.2.4). It is important to recognize, though, that an anonymous work is not necessarily an orphan: even if the author is unknown, the copyright owner may not be. On the other hand, if the author was the first owner, proof of the descent of the title to the current owner is only possible if the author is identified. If a copyright work is truly orphan, it is in a sort of limbo: a substantial part of it cannot be used without permission but there is no one available to give that permission. There has for many years been some help from an exception for older unpublished literary, dramatic and musical works and from certain assumptions that may be made about the termination of copyright (see 5.2.21–22, 5.4.14–15), and there is also a useful exception in relation to revived copyrights the revival of which has effectively created orphan works (see 5.3.29), but now two new schemes dealing explicitly with orphan works are available. They are closely related in some respects, but are quite distinct: • The EU scheme is appropriate if the user is an archive; a publicly accessible library, educational establishment (see 5.3.20) or museum (see 5.4.7); a film or audio heritage institution; or a public service broadcaster that wishes to make an orphan work in its collections, other than a standalone artistic work, available to the public online or to broadcast it for a non-commercial purpose (see 5.4.20). • The UK licensing scheme is appropriate for any user, including those listed above, who wishes to use an orphan work of any kind for any commercial or noncommercial purpose solely within the UK (see 5.2.20). Before embarking on a project involving orphan works under either scheme, archivists and records managers would be well advised to study the appropriate regulations with care. Directive 2012; 1988 (CDPA) s116A; 2013 s77; SI 2014/2861; SI 2014/2863 5.2.18 Orphan works: diligent search Common to both orphan works schemes is a requirement to conduct a ‘diligent search’ for the rights owner of every work that might be an orphan that it is wished to use, before that work can be considered an orphan. In Schedule ZA1 of the 1988 Act there is a list of the sources that must be consulted as a minimum in a search including the orphan works databases held by the Office for Harmonization in the Internal Market (OHIM) and by the IPO, but more extensive guidance is available from the IPO (see 10.3). The search must be conducted in good faith using all appropriate sources in the most appropriate country, such as the country of publication or the country from which a letter was sent, and detailed records must be kept. Since few sources are available for most unpublished works, a diligent search for their rights owners is likely to require the user to trace descent of title from the first owner through wills and other probate records. One invaluable

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source for photographs, though, is the register of copyrights maintained by the Stationers’ Company and now preserved in TNA (COPY 3). It ends in 1912, but for photographs taken between 1862 and 1912 it is an essential (if far from comprehensive) source. One important source will be WATCH, a voluntary register of copyright owners, primarily of works held in libraries and archives in the UK and North America although in time it hopes to cover the whole of Europe, North and South America and Englishspeaking countries in other parts of the world. It covers, in descending order of completeness: • literary authors in the English language • other English-language authors in the humanities • British and American artists, including photographers, painters, film makers, performers and others in the visual and performing arts, a category much expanded in recent years • British and American politicians and public figures • literary authors in other European languages • English-language authors outside the humanities. WATCH is accessible online at www.watch-file.com. A related database, also run by the WATCH project, is Firms out of Business (www.fob-file.com). It aims to provide information about the successors to and the rights formerly belonging to defunct companies. Other sources of information might be the Library of Congress, and its website at www.copyright.gov (searchable for items registered only since 1978); licensing agencies (see 5.2.12); relevant professional, academic or sectoral bodies (such as the British Association of Picture Libraries and Agencies, BAPLA, see 5.2.24, or the Society of Authors at 84 Drayton Gardens, London SW10 9SB, www.societyofauthors.org); literary agents (try contacting the Association of Authors’ Agents at www.agentsassoc.co.uk or consulting the Writer’s Handbook); press agencies; and image libraries. If a work has more than one rights owner, the diligent search must be for all of them. If one or more rights owners is known or discovered, permission is required from them in the normal way. The orphan works schemes then apply only to the rights of the rights owners who have not been identified or traced. Any known rights owners must be properly acknowledged. Through the directive, the EU has recognized the importance of access to the collections of cultural sector institutions and has set out to assist where they ‘are engaged in large-scale digitisation of their collections or archives’ so as to preserve and disseminate European cultural heritage. In light of this, the ostensible purpose of the EU orphan works scheme was to create ‘a legal framework to facilitate the digitisation and dissemination of [orphan] works’. Despite this, it seems very likely that neither of the schemes will assist much large-scale digitization because of the burden of diligent searches. The schemes seem most likely to assist large projects that involve many works

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by a few rights owners, since a search for one rights owner can be applied to all of individual’s works, and to assist relatively small scale projects, such as subject-based web pages and published monographs. For other issues relating to rights clearance see 6.5.4. Directive 2012 recitals 1, 3; 1988 (CDPA) s116A, Sch ZA1; SI 2014/2861, Sch; SI 2014/2863, reg 4; TNA: COPY 3/104–199 5.2.19 Tracing the copyright owner: risk management If the orphan works schemes and other exceptions (see 5.2.17–18) are found to be inappropriate or excessively demanding, rights clearance becomes a matter of risk management. The publisher or other user, who may of course be the archivist, must balance the risks of infringement against the benefits of going ahead. In assessing those risks, the availability of orphan works schemes should be a significant factor. It is now permissible to conduct a diligent search and then use a work that has been identified as an orphan. A deliberate choice not to use one of the orphan works schemes must therefore involve greater risk now than it did when no such schemes were available. A court is less likely to be impressed by a simple disclaimer and any damages awarded by a court may be expected to be higher. The principal issue to consider is the likelihood of a rights owner knowing that his or her work is being used and objecting. If he or she never comes forward, a court is never involved. Other questions to think about might include: • • • • • • •

Is my use likely to be seen as complementary or competing? Is my use commercial or is someone making a profit from it? Is this the sort of material or use for which I should expect to have to have a licence? How many people will see my new work? How well known is the material I wish to use? Have other people apparently used it without problems? Is the use of the work ‘incidental’, for instance in a photograph or a scene in a film where its inclusion is not deliberate, is it merely in the background?

In many cases with archival works the likely risk is small, but it should all the same be assessed carefully since it will still exist. It would be wise where appropriate to secure senior management approval before it is decided to accept the risk and go ahead. In all cases, give credits to authors where known. For archivists (and others wishing to use unpublished works), the EU orphan works scheme (see 5.4.20) has created a new risk. For an unpublished work to be covered by the scheme it must have been made publicly accessible by the archive or other body with the consent of the rights holders. Such a condition can only be applicable to works deposited by or with the approval of the rights owner, which makes them rather less likely to be

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orphans. Further, even if such an unpublished work is found to be an orphan, the use of it under the scheme is permissible only if it is reasonable to assume that the rights owner would not oppose the planned use. It remains to be seen what a court will make of this requirement for a reasonable assumption, but it is worth noting the way it is expressed: there is no need for a reasonable assumption of support so if it is reasonable to assume mere indifference on the part of the rights owner, that is sufficient. Until judicial guidance is available it would seem best to consider any known behaviour and views of the rights owner. One might ask, for instance: • Did he or she protect his or her privacy actively, or alternatively did he or she seek publicity? • Did he or she express opinions opposing or in favour of the internet or online access to information? These provisions should always now be considered when archivists are accepting the deposit of unpublished materials (see 7.3.1). 5.2.20 Orphan works: UK scheme The UK orphan works scheme is much more flexible than the EU scheme (see 5.4.20), but is based on licensing so there are costs involved. It is also restricted to use within the UK. Great care should be taken when making orphan works available online (see 6.2.6), but the licence can permit this. After conducting a diligent search (see 5.2.18), anyone may apply to the IPO (see 10.3) for a non-exclusive licence to use an orphan work for a commercial or non-commercial purpose, giving evidence of the adequacy of the search. A licence may be refused if the IPO considers it inappropriate, for instance because the use would amount to derogatory treatment (see 8.1.7). Fees are charged to cover the IPO’s costs and for the licence; the licence fee for commercial use is calculated on the basis of normal commercial rates so as not to undercut the market or encourage use of orphan works when similar nonorphans are available. Licence fees for non-commercial uses are low. Both a diligent search and a licence are valid, under this scheme, for seven years. This means that another user may rely on a diligent search that is recorded at the OHIM or on the IPO’s register and obtain a licence for the remainder of the term. A licence may be renewed for a further seven year term so long as a further diligent search is carried out. The licence may contain conditions, including ones specifying a notice period after which it terminates if the rights owner comes forward. The licence treats moral rights in an orphan work as having been asserted (see 8.1.5), so the author must always be acknowledged if known. If the rights owner comes forward, and satisfies the IPO of his or her identity and ownership of the rights, the work ceases to be an orphan. The licence then runs to its end or to the

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end of any notice period specified in it, and the IPO pays the licence fee to the rights owner. SI 2014/2863 5.2.21 Publication of anonymous or pseudonymous works There is a special exception for anonymous or pseudonymous works – works whose authors are unknown (see 2.1.18). This is not the same as works of known authorship whose first or current copyright owners are unknown, so these are not orphan works (see 5.2.17). It is not an infringement to do any of the restricted acts (see 5.1), to a literary, dramatic, musical or artistic work or a film (but not a sound recording), whether published or unpublished, where the author (literary, dramatic, musical and artistic works) or any of the persons connected with a film (see 2.4.5) cannot be ascertained by reasonable enquiry; and it is reasonable to assume that: • copyright has expired (but see 5.2.22); or • the author (or all the authors, if it is a work of joint authorship) or all the persons connected with a film died 70 years or more before the beginning of the calendar year in which the act was done. The purpose of the use is unrestricted, so a copy may be made by an archivist, librarian or records manager for purposes of commercial research or publication, but there are limitations (see 5.2.22). 1988 (CDPA) ss57, 66A, Sch 1 para 15; SI 1995/3297 reg 6(2); SI 2003/2498 Sch 2 repeal of 1988 (CDPA) Sch 1 para 15(3)

5.2.22 Publication of anonymous and pseudonymous works: limitations For literary, dramatic, musical and artistic works created before 1 August 1989 the reasonable assumption about the expiry of copyright (see 5.2.21) does not apply to any photograph or any work covered by the Copyright Act 1775 (see 2.2.33). The assumption about the death of the author does apply to photographs but it does not apply to any works or films in Crown copyright or in the copyright of certain international organizations (see 3.1.4), since authorship is irrelevant to duration of copyright in them. 1988 (CDPA) ss57, 66A, Sch 1 para 15; SI 1995/3297 regs 5(2), 6(2) 5.2.23 Acquiescence If a copyright owner does nothing to prevent someone else infringing his or her copyright, the result might be that he or she would be found by a court to have

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acquiesced in the infringement so that no action could be taken against the infringer. There is a limit of six years (in England, Wales and Northern Ireland) or five years (Scotland) during which a rights owner may bring a claim for infringement or for the payment of royalties (see 5.1.9). If the infringement was a continuing one rather than a single event, the limitation period starts to be counted when the infringement stopped: all of that infringing use is actionable for the five or six years from it ceasing. In effect the limitation period defines what is necessary for acquiescence: the rights owner cannot object to any use which occurred earlier. The limitation periods do not apply, though, if the infringement was deliberately concealed; they start to run instead from when the claimant knows about it or could have found out about it with reasonable diligence. For waiver of copyright see 3.3.11. A popular tactic for a user to adopt is to write to ask for permission to use a copyright work, stating that it will be assumed that permission is granted unless a reply is received. The result could be that the copyright owner acquiesces in the use if no reply is sent, but it is a risky tactic for the user to adopt. He or she must be sure that the letter has been received, that the recipient of the letter is the copyright owner, and that sufficient time has passed. There is no case law on this type of implied licence (see 5.2.3), but the user can be sure that the rights owner has acquiesced in the initial use only after at least the limitation period has passed. The simple rule when applying for permission should always be: no reply means ‘no’. An archivist receiving such a letter should always reply. If he or she has no authority to give permission, the user should be informed. Moreover, it is conceivable that a failure to notify the user that the archivist does not control the copyright could be interpreted as authorizing infringement (see 5.1.12). If the archivist does control the copyright, a reply is still needed to explain what is and is not granted: a written licence (see 5.2.2) is much easier to enforce than an implied one (see 5.2.3). Limitation acts do not place any limit on the time during which a claim to ownership of the copyright may be brought; that is determined solely by the term of copyright for the type of work in question (see 2.1.19). 1973 (Scotland) ss6, 11; 1980 (Limitation) s2; Redwood Music v Francis, Day & Hunter, 1978; Redwood Music v Chappell, 1982; Farmers Build v Carier Bulk Materials Handling, 1997; Godfrey v Lees, 1995; ZYX Music v King, 1997; Ludlow Music v Robbie Williams, 2001; Fisher v Brooker, 2009; IT Human Resources v Land, 2014 5.2.24 Fees An archivist or records manager who has authority to levy copyright royalty fees, for instance for the use of material in the copyright of the employing body or under the terms of a licence or assignment from the copyright owner, should make available to users a scale of fees that will be charged. Indications of the appropriate level of such fees may be obtained from the charges recommended by the BAPLA (18 Vine Hill, London

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EC1R 5DZ, or www.bapla.org), from the fees charged for licences by the licensing and collecting societies (see 5.2.12) and by the IPO (see 5.2.20, 10.3). For public sector material, fees are likely to be limited to marginal cost recovery (see 5.2.10). 5.2.25 Image library An archive is entitled to exercise some control over the use of material in its custody irrespective of any copyright in the material, and this may be a useful source of income (see 3.2.6). If reproduction rights are to be exercised, it should be made clear to users: • which categories of material are subject to control and the payment of fees • the scale of fees levied, including a clear statement of the uses that attract fees, including a definition of those regarded as commercial (such as use on the internet, see 4.1.5) and any provision for remission or waiver of fees, for instance for noncommercial uses • the terms and conditions of use that apply • that they also need to obtain permission from the copyright owner for the use of copyright material. Advice on terms, conditions and fees may be obtained from BAPLA (see 5.2.24), and any record office contemplating exploiting its collections should consider becoming a member.

5.3

Exceptions and limitations

5.3.1 Introduction There are some limits on the copyright owner’s exercise of his or her rights (see 5.1). These exceptions and limitations allow the use of copyright works for particular purposes, in particular circumstances or in particular quantities. Where these do not apply and there is no licence there is infringement. The Berne Convention, the TRIPS Agreement, the WIPO Copyright Treaty (see 1.2.6) and the Information Society Directive (the most far-reaching element in the EU’s package of copyright legislation, see 1.2.8) all contain a test to assist in deciding on the scope of an exception. The ‘three-step test’ is not written into UK law because its purpose is to assist legislators in drafting copyright statutes, but it is helpful to be aware of it when considering whether an exception applies in particular circumstances. The test specifies that exceptions may apply only: • in certain special cases (as defined in statute) • when the use does not conflict with the normal exploitation of the work by the rights owner • when the use does not unreasonably prejudice the legitimate interests of the author

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or other rights owner. In some cases, noted below, it is possible for a copyright owner to forbid the use of an exception, whether through a licence, a contract or some other means. For most exceptions, however, contractual provisions of that sort are void. The terms of many exceptions specify that they apply only if there is a ‘sufficient acknowledgement’ identifying the work and the author (see 5.2.1). Use under a licence, rather than under an exception, might involve different forms of acknowledgement. Berne Convention art 9(2); TRIPS art 13; WIPO Copyright Treaty art 10(1); Directive 2001 (Information Society) art 5(5)

5.3.2 Out of copyright If copyright no longer subsists in a work (see especially 2.2.16–33, 2.3.12–32, 2.4.9–18, 2.5.7–10, 2.6.17, 9.1.1–2) it is commonly said to be in the ‘public domain’. No permission on copyright grounds is then needed to use it in any way, although care should be taken to ensure that there is no new copyright that might be infringed, for instance in the typography of a recent published edition or in a skilfully executed photograph of a medieval seal (see 2.1.6–15), or because a new publication right subsists in it (see 8.3). It is important to be careful about this, because it is rarely a viable defence to a claim of copyright infringement to say that you thought that copyright no longer subsisted, although this might affect the size of any damages awarded. However, if a literary, dramatic, musical or artistic work is anonymous (see 2.1.18) and it is reasonable to assume that the author or authors died more than 70 years earlier, it may be possible in some limited circumstances to use it without infringement (see 5.2.21–22). 1988 (CDPA) s57

5.3.3 Substantial Copyright protects only the whole or a substantial part of a work, so an insubstantial part may be reproduced. Successive acts have not defined substantial, and the Government’s Stationery Office sought legal advice on the subject when the concept appeared in the Copyright Act 1911. It was told that ‘it is impossible to define what a substantial part is. The words exclude mere trivial extracts, but anything of serious value would no doubt fall within it.’ The judges have taken a similar line, and recent case law has made plain that while individual words are not a substantial part just a very few of them can be, which effectively means that any test based on quantity is now of only minor importance. Also, in some cases the purpose and circumstances must be taken into account. Use in one context might be regarded as unimportant to the interests of the copyright owner, but use of the same material in another might justify the payment

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of fees; a music student quoting from a musical work in a new piece of music would be rather different, for instance, from a major composer using the same quotation. It must be remembered that the test of what is substantial relates to what has been taken from the source work: it does not matter whether the new work attracts copyright, nor whether the extract forms an insubstantial part of the user’s work, nor (for instance) that the final visual effect is different. From this, it should be clear that it is rarely possible to say with any safety that only an insubstantial part of a work has been used, unless the use consists of nothing but a few words expressing little meaning. In 1916 one judge went so far as to suggest that ‘what is worth copying is prima facie worth protecting’. Recently it has been pointed out that this focuses too much attention on the significance of the extract to the new work in which it is used, which is irrelevant, but two law lords in 1964 commended the dictum and certainly if an extract is worth quoting it is all but certain to be sufficiently creative to be a substantial part. Peterson J in University of London Press v University Tutorial Press, 1916 at 610; Ladbroke (Football) v William Hill (Football), 1964 per Lord Reid at 279 and Lord Pearce at 293; Waterlow Publishers v Rose, 1995; Designers Guild v Russell Williams (Textiles), 2000; Scottish and Universal Newspapers v Paul Mack, 2003; JHP v BBC Worldwide, 2008; Infopaq International v Danske Dagblades Forening, 2009; Newspaper Licensing Agency v Meltwater, 2012; TNA: OS 1/6/2 5.3.4 Substantial: quantity The proportion of a copyright work that would be regarded as substantial depends entirely on the nature of the extract, which is why quality is the primary test. What is certain, though, is that what is measured is the proportion that is taken from the source work; the proportion that the extract makes up in the copier’s work is irrelevant. Four lines out of 32 from Kipling’s poem If were found to be substantial, but the quality of what was taken, and the use to which it was put, were probably more decisive. More recently, the use of a few seconds of footage from a broadcast of a football match as ‘action replays’ and the taking of many small parts of a computer game, amounting to a fraction of a second each, by copying them to the memory of a computer, were both uses of a substantial part. Also, the taking of a mere 11 words from a newspaper report was found to be potentially infringing because they were the intellectual creation of the author: it is the creativity in what is taken that matters, not the quantity. The CJEU (see 1.2.5) said: Words . . . considered in isolation, are not as such an intellectual creation of the author who employs them. It is only through the choice, sequence and combination of these words that the author may express his creativity in an original manner and achieve a result which is an intellectual creation . . . The possibility may not be ruled out that certain isolated sentences, or even certain parts of sentences . . . may be suitable for conveying to the reader the original-

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ity of a publication.

Each separate entry in a diary is a distinct copyright work, so an extract using an entry for one day must be a substantial part. It is not yet clear whether a thumbnail image of a photograph is a substantial part. In 2012, a claimant asked for damages for use of both full-sized reproductions and thumbnails, but damages were actually awarded as if these uses were a single use. The judge implied that thumbnail use alone would require a licence but the question was not decided. A substantial part of the typographical arrangement of a published edition is likely to be a whole page (see 5.3.5). A substantial part of a film means a substantial part of any image forming part of the film. The reproduction of a whole still from a film is thus always a reproduction of a substantial part of the film (see 5.1.2). 1956 s13(10) ‘copy’; 1988 (CDPA) s17(4); Kipling v Genatosan, 1920; Spelling Goldberg Productions v BPC Publishing, 1981; Bleiman v News Media (Auckland), 1994; A v B, 2000; Newspaper Licensing Agency v Marks & Spencer, 2001; FA Premier League v QC Leisure, 2008; R v Higgs, 2008; CJEU in Infopaq International v Danske Dagblades Forening, 2009 at paras 45, 47; R v Gilham, 2009; Hoffman v Drug Abuse Resistance Education, 2012 5.3.5 Substantial: quality The quality of an extract used has links with the question of originality (see 2.1.6–15) since it is that which is the basis of copyright protection in a literary, dramatic, musical or artistic work. To take the essence or the words embodying the central idea of the original creation is likely to be to take a substantial part, even if few words are involved, since that is likely to be much of what made the source work original in the first place. Further, if an extract that has been taken is original in itself or has required considerable skill and effort on the part of the author to create, it is likely to be considered to be a substantial part of the whole work. It is even possible to take a substantial part without directly copying a single word: the use of the plot of another person’s novel and the translation of a work into another language (see also 2.1.4) would both infringe. The CJEU (see 1.2.5) has said that copyright prevents use of parts of a work that ‘contain elements which are the expression of the intellectual creation of the author of the work’. This is not terminology that a UK judge would have used in the past but it is now the basis of every decision on whether a substantial part has been taken. Some examples may help: • The CJEU concluded that the taking by an agency, which provided a service to clients by searching for specified words in newspapers, of a word and the five before

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•

• • •

•

•

•

•

•

•

and after it (11 words in all), could be infringing because they might be sufficient for an expression of creativity. It was left to the national court in Denmark to decide. A quotation of a couple of sentences from a book would certainly be substantial if it contained one of the book’s main themes or showed how the author was thinking. Scattered lines taken from an early manuscript version of James Joyce’s Ulysses were found to be a substantial part of that version because of their significance as passages omitted from the published text; four lines from Kipling’s If ‘formed an essential part of the crescendo of the poem’; and a few lines from the lyrics of a song used in another song were found to be substantial because they embodied the source song’s central idea. The playing of a short extract from the march Colonel Bogey was substantial because the extract included the principal theme. A quotation of a few words from a commonplace letter could become substantial if, say, those words constituted evidence of a relationship between the writer and the recipient. The taking of a single name and address from a directory (or, say, from census records) would be the use of unprotected information (see 2.1.5), but the taking of a larger number, especially for the purpose of creating a rival product, is likely to be use of a substantial part (but see 8.2 for databases). If Leonardo’s painting Mona Lisa were in copyright, an area of a few square inches of background would probably not be substantial but the same area including her smile certainly would be, because a substantial part of an artistic work is that which is ‘visually significant’. The use of a photograph to create a much simplified version might not be use of a substantial part if the simplification was such that none of what made the source photograph original remained. If the author has quoted from an earlier work which is out of copyright, an extract taken by someone else which consists of just this quotation is not a substantial part of the author’s work (no matter how large the quotation) because there is no originality in it (it did not originate with the author, so he or she cannot claim copyright in it, see 2.1.6, 2.1.9). Since every part of a computer program might be essential for its operation, greater weight than usual might have to be given to the quantity taken and the level of skill required to create it. However, to take the architecture of a program is likely to be akin to taking the plot of a novel and thus a substantial part. A facsimile copy (see 5.1.2) of a whole page of a published edition is likely to be a substantial part of the typographical arrangement, since the skill and creativity involved in creating that arrangement is in the design of the whole page through the relationships between its parts (fonts, layout, use of columns, margins, use of pictures and so on). An extract which does not show how the part taken relates to the rest of the page cannot be a substantial part. A headline or title consisting of several words is capable of being a substantial part of

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the work to which it relates, or even of being a distinct work in itself. For this to be the case, the headline or title must not be ‘merely a commonplace arrangement of unoriginal words’ but rather be ‘the expression of the intellectual creation of the author’. They ‘provide the tone of the article and generally have the special function of drawing the reader in to the work as a whole.’ This creates problems with catalogues, which could infringe every time they use the title of a work, but a new quotation exception applicable only to published works is available to prevent problems for librarians (see 5.3.11). Archivists cataloguing unpublished material would do well to describe documents in their own words, not by quotations. 1988 (CDPA) s16(3)(a), 30(1ZA); SI 2014/2356, reg 3; Peterson J in Kipling v Genatosan, 1920, at 205; Hawkes & Son v Paramount Film Service, 1934; Warwick Film Productions v Eisinger, 1969; Lord Oliver in Interlego v Tyco, 1988, at 367; Whitford J in Rose Plastics v William Beckett (Plastics), 1989, at 123; Waterlow Publishers v Rose, 1995; Cantor Fitzgerald v Tradition, 2000; Newspaper Licensing Agency v Marks & Spencer, 2001; Sweeney v Macmillan Publishers, 2002; CJEU in Infopaq International v Danske Dagblades Forening, 2009 at para 39; Newspaper Licensing Agency v Meltwater, 2012; SAS Institute v World Programming, 2014 5.3.6 Incidental inclusion Copyright in almost any work is not infringed by its incidental inclusion (whether deliberately or not) in an artistic work, sound recording, film or broadcast, and the resulting work may be published, shown or broadcast also without infringement. However, this exception does not apply to the deliberate inclusion, no matter how incidental, of a musical work or words spoken or sung with music, nor of a sound recording or broadcast containing such music or words. If the use of the work is essential to the purpose of the work in which it appears the use cannot be incidental, so that for instance because the showing of authentic team kit including the Football Association logo (an artistic work) in photographs of footballers sold to collectors was essential to the purpose of the images, copyright in the logo was infringed. The temporary making of a copy by a computer in order to transmit a document electronically, for instance by fax or as an attachment to an e-mail, would in most circumstances be incidental so long as the copy in the computer was deleted automatically once the transmission had been made. For transient use on computers generally, see 6.1.2. 1988 (CDPA) s31; Hawkes & Son v Paramount Film Service, 1934; FA Premier League v Panini, 2003 5.3.7 Fair dealing: is it fair? Once it has been decided that a substantial part of a copyright work is being used, the question which most commonly then arises is whether the use of it is ‘fair dealing’: is

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the use ‘fair’ and is it for a permitted purpose? Although the American term ‘fair use’ actually appeared first in an English case in 1839 it has no meaning in UK law, and it is important to note that fair dealing has a much narrower scope. Fair dealing first appeared explicitly in UK law in 1911, but fairness has never actually been defined by a statute. Instead, each individual use has to be looked at in the specific circumstances, bearing in mind that it is otherwise an infringement. The first issue to consider is whether the quantity being used is excessive in the circumstances. What proportion of the source work has been used? In general, for any kind of work, 5% should always be fair. For literary works, the Society of Authors continues to stand by the suggested quantities once agreed with the Publishers’ Association, and dramatic works would probably be much the same. They considered that extracts could be fair dealing if they amounted to no more than: • up to 400 words in a single quotation; or • up to a total of 800 words in a series of short quotations, none of which is longer than 300 words. In some cases these quantities could encompass the whole work, and it might be possible to justify the use of an entire work even if much more than these quantities are used. In the case of musical works what is copied should not be performable. Artistic works present more of a problem because often a part of the work is meaningless. Use of the entire work may then be legitimate for instance when studying a photograph or criticizing a painting. Just a detail should be used whenever possible, such as for maps an area equivalent to an A4 sheet. For films, 5% of the total duration and for sound recordings, the greater of 5% or a single track would probably be appropriate. If large quantities, including a whole work, are to be used it is important to consider whether this is justifiable for the intended fair dealing purpose and each case must be assessed on its own merits. Use only as much as is reasonably required (that a reasonable person would consider is required) and be willing to justify the quantity used. Consider the following questions: • What is the motive for the use? Does the use compete with the copyright owner’s exploitation, for instance by evading purchase of a legitimate copy or by providing a substitute for others? Is the motive really simply to save effort by the user? Is the user benefiting commercially? • Might it have been possible to achieve the same or a similar result without using the material? • Has the material been published? Some fair dealing exceptions apply only to the use of published works. • What is it that is being copied? The making of a copy of a copy provided under the library or archive copying exceptions (see 5.4.13, 5.4.16) would not be fair dealing.

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• Does the use fit within one of the categories of fair dealing: private study or noncommercial research (see 5.3.8–9), criticism or review (see 5.3.10), quotation (see 5.3.11), current news reporting (see 5.3.12–13), parody (see 5.3.14) and education (see 5.3.19)? If not, no matter how ‘fair’ the use is, it is not fair dealing. • Has a ‘sufficient acknowledgement’ been given (see 5.2.1)? Most, but not all, fair dealing exceptions require one. • Has the copyright owner made the work freely available to the public (see 4.1.11, 5.1.3, 5.1.6), or could the use be seen as a breach of confidence (see 8.7)? • Is this use necessary in the circumstances? For instance, is direct quotation of the author’s own words necessary or would use of the information but not the actual form of expression be enough? Freedom of speech is not a sufficient justification. Society of Authors, Quick Guide to Permissions, 2009; 1911 s2(1)(i); 1956 s6; 1988 (CDPA) ss29–30, 178 ‘sufficient acknowledgement’; SI 2003/2498 reg 9; Lewis v Fullarton, 1839; Hubbard v Vosper, 1972; Beloff v Pressdram, 1973; Associated Newspapers Group v News Group Newspapers, 1986; Pro Sieben Media v Carlton UK Television, 1999; Ashdown v Telegraph Group, 2001; CCH Canadian v Law Society of Upper Canada, 2004; Fraser-Woodward v BBC and Brighter Pictures, 2005 5.3.8 Fair dealing: non-commercial research or private study Fair dealing for the purposes of private study or research for a non-commercial purpose does not infringe copyright in a work of any kind, so long as there is ‘sufficient acknowledgement’ of the work and the author (see 5.2.1). A term in a contract (including a licence) that seeks to prevent or restrict the use of this exception is unenforceable. The term ‘non-commercial’ to describe research must be interpreted to mean ‘not for direct or indirect economic or commercial advantage’, which is what the source directive actually says, but the precise scope of the term is still far from clear. It is important to remember that it is the purpose at the time that the possibly infringing act was done that matters. If, for instance, a researcher is working for personal interest but subsequently decides to publish, fair dealing would apply to his or her original activities but would cease to apply when the purpose changes and any copies would become infringing copies (see 5.3.7). So, commercial research probably includes: • research for a book for which payment of any kind will be received • research for paying clients of any sort (e.g. by a record agent, a consultant) • research that is intended to assist the creation of any commercial product or directly assist the operation of a commercial service, including one by, for instance, a charity • research for a television or radio programme (including the BBC) • study that might also assist personal development but which is prompted immediately by, for instance, the needs of paying clients

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• research for training materials to be used in a commercial training course. Private study must be solely for the benefit of the individual concerned; it is not fair dealing to publish material so that others may use it for private study. No use that is for a commercial purpose qualifies, since private study cannot by definition be commercial. In practice there is little point in seeking to distinguish private study from noncommercial research, since they are much the same and both qualify as fair dealing. Non-commercial research or private study might thus include: • study by a student for an educational course, or by an archivist or other professional for personal development with no other specific aim in mind • study by an amateur historian or genealogist for personal purposes or for an article to appear in a society’s journal • background research even if it might later be used for a commercial purpose, though such later use would not be fair dealing and could itself be an infringement • research for charitable purposes, even if the funding comes from a commercial source • personal or family history research that results at most in distribution of the results (but not of copies of the copyright work) free of charge to a limited circle. For databases, and further consideration of the meaning of ‘research’, see 8.2.14. Directive 2001 (Information Society) art 5(2)(c); 1988 (CDPA) ss29, 178 ‘private study’; SI 2003/2498 reg 9, Sch 1 para 15(3); SI 2014/1372 reg 3; University of London Press v University Tutorial Press, 1916; Sillitoe v McGraw Hill Book Co, 1983 5.3.9 Fair dealing: non-commercial research or private study: copying on behalf of others Copying by a person acting on behalf of the user, as well as by the user him or herself, may be fair dealing for the purposes of research or private study. This would cover, for instance, a professional researcher or record agent making a self-service copy for a client, but he or she must be satisfied that multiple copies will not be supplied for similar purposes to the same client or anyone else. However, there are special provisions for copying on behalf of a researcher by an archivist or librarian (see 5.4.13, 5.4.16). It therefore seems that the defence of fair dealing would not for the most part be available to a librarian or archivist who supplied copies outside the terms of those special provisions. Librarians, though, are explicitly allowed to make copies under fair dealing so long as they do not do anything that is not permitted by the library copying exception (see 5.4.16). 1988 (CDPA) ss29(3), 37–43

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5.3.10 Fair dealing: criticism and review Fair dealing with any type of published work for the purpose of criticism or review of that work or another work is not an infringement, provided there is ‘sufficient acknowledgement’ of the work and author (see 5.2.1). However, this form of fair dealing does not apply to works that have never been made available to the public (see 4.1.11), on the grounds that it would be unfair to the author, so the use of an unpublished work can never be fair dealing for these purposes. The criticism or review must be of the same or another work or works (something falling within one of the statutory categories of works, see 2.1.1, whether actually protected by copyright or not) and the thoughts or themes underlying it or them, including the social and moral implications. It is not fair dealing to use extracts from a copyright work to criticize, say, the general conduct of the author. However, the Court of Appeal has said that criticism and review are of wide scope and the expression should be interpreted liberally. It is therefore worth considering whether an act that is excluded from fair dealing for non-commercial research or private study on the grounds that it is for a commercial purpose is instead covered by criticism or review. In deciding whether the use is fair, a court considers what proportion of the user’s work consists of quotation, and what proportion consists of comment and analysis. There must be a preponderance of comment and analysis. It will not consider, though, whether the criticism itself is fair: ‘What is in issue is not whether the criticism is fair . . . but whether the extent of copying is fair in all the circumstances so as to support or illustrate the criticisms being made.’ A work that is the subject of the criticism or review may be copied for that purpose. Care should be taken if access to the work being criticized or reviewed is under licence, as it is possible for the licence, or other contractual, terms to prevent the use of this exception. Directive 2001 (Information Society) art 5(3)(d); 1988 (CDPA) ss30(1, 1A), 178 ‘sufficient acknowledgement’; SI 2003/2498 reg 10; SI 2014/2356 reg 3(3); British Oxygen v Liquid Air, 1925, at 393; Hubbard v Vosper, 1972; Beloff v Pressdram, 1973; Time Warner Entertainment v Channel 4 Television, 1994; Pro Sieben Media v Carlton UK Television, 1998 (Laddie J at 52) and 1999 (Robert Walker LJ at 620); Fraser-Woodward v BBC and Brighter Pictures, 2005 5.3.11 Fair dealing: quotation The use of a quotation from a work of any kind (including an artistic work) that has been made available to the public (see 4.1.11) does not infringe if the use is fair dealing (see 5.3.7), so long as no more is quoted than is required for the purpose and provided there is ‘sufficient acknowledgement’ of the work and the author (see 5.2.1). A term in a contract (including a licence) that seeks to prevent or restrict the use of this exception is unenforceable. Just as with fair dealing for criticism and review (see 5.3.10), this

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exception does not permit quotation from unpublished works. For quotation in archival catalogues, see 5.3.5. 1988 (CDPA) s30; SI 2014/2356 reg 3 5.3.12 Fair dealing: news reporting Fair dealing with any type of work except a photograph (and except a film or a still from a film made before 1 June 1957, since a film of that period is classified as a sequence of photographs, see 2.3.3, 2.4.1) for the purpose of reporting current events is not an infringement. In all cases of news reporting by written means (in the press or online) there must be ‘sufficient acknowledgement’ giving the title and author, but it is not required in the case of news reporting by sound recordings, films or broadcasts if it is impractical (see 5.2.1). The work itself need not be current (for example it may be 30 years old but newly released under freedom of information, see 5.4.4–5) but the news must be of current concern to the public, and the use of the quotation from the work must be reasonably necessary to the reporting of the current events. The reporting involved must be reporting to the public, not reporting to, for instance, the management of an archive or the directors of a company. It has been found not to be for the purpose of reporting current events to use extracts from the private letters of the Duchess of Windsor in reporting her death, nor to copy newspaper cuttings in order to make senior staff aware of current events. Unlike with fair dealing for criticism and review (see 5.3.10) there is no statutory authority for the principle that the exception does not apply to works which have never been made available to the public. The judges have decided, though, that there must be an over-riding public interest in disclosure (see 5.3.26) or alternatively that a work must have been published or at least communicated to a wide audience with the approval of the copyright owner before it may legitimately be used for current news reporting. A contract or licence may restrict a user’s freedom to use a work for this purpose. 1988 (CDPA) ss30(2 and 3), 58, 178 ‘sufficient acknowledgement’; Distillers (Biochemicals) v Times Newspapers, 1975; Associated Newspapers Group v News Group Newspapers, 1986; Pro Sieben Media v Carlton UK TV, 1999; Hyde Park Residence v Yelland, 2000; Ashdown v Telegraph Group, 2001 5.3.13 Fair dealing: news reporting: recordings The making and use of written notes or a tape or other recording of spoken words for the purposes of reporting current events or broadcasting is not an infringement, provided the: • record is a direct record of the words spoken, not a copy from an earlier record • speaker did not forbid the making of the record, and the record did not infringe any

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existing copyright in the words spoken (if the words came from another copyright work) • use made of the record was not forbidden by the speaker or other copyright owner before the record was made • use is approved by the person who is lawfully in possession of the record. This exception could help oral history projects that are aimed at the making of broadcasts. It might also apply, for instance, to interviews that are connected with the reporting of the release of historical material relating to the same topic. 1988 (CDPA) s58 5.3.14 Fair dealing: caricature, parody and pastiche Fair dealing with any kind of work for the purposes of caricature, parody or pastiche does not infringe. The IPO (see 10.3) has issued guidance on what it thinks the different terms mean: • Caricature portrays its subject in a simplified or exaggerated way, which may be insulting or complimentary and may serve a political purpose or be solely for entertainment. • Parody imitates a work for humorous or satirical effect. • Pastiche is a composition made up of selections from various sources or one that imitates the style of another creator or period, usually with the aim of celebrating, not mocking, the source work or style. The CJEU (see 1.2.5) has not considered caricature or pastiche, but has held that ‘the essential characteristics of parody are, first, to evoke an existing work while being noticeably different from it, and, secondly, to constitute an expression of humour or mockery’. The humour or mockery does not have to be directed at the work copied but there must be a fair balance between the right to freedom of expression of the user and the interests of the author of the work parodied, so the parody should not, for instance, give the impression that the author subscribes to views, such as on discrimination, that are not his or hers. There is no requirement to acknowledge the source work and a term in a contract (including a licence) that seeks to prevent or restrict the use of this exception is unenforceable. Care must be taken when relying on this exception to remember the moral rights, especially the right of integrity (see 8.1.7), of the author of a source work and to avoid defamation (libel). Remember too that this is a fair dealing exception, so it does not apply if the use is not fair to the author of a source work (see 5.3.7). There is no need, though, to be fair to a person caricatured. 1988 (CDPA) s30A; SI 2014/2356 reg 5; Deckmyn v Vandersteen, 2014

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5.3.15 Text and data analysis or mining Copyright is not infringed by the making of a copy of any kind of work to which the user has lawful access for the purposes of ‘computational analysis’ – analysis by computer for instance to identify patterns or trends that would not otherwise be apparent or to compare results across many works. Lawful access would include ownership of a copy of the work or access through an archive or library of which the user was a legitimate reader to a work that was open to public access or to which the user had been granted privileged access. The purpose of the analysis must be non-commercial research (see 5.3.8), unless some other use is authorized by the copyright owner, and any copy made must carry a ‘sufficient acknowledgement’ of the work and the author (see 5.2.1). Any copy made is solely for the use of the person doing the research and it must not be passed to anyone else without the consent of the copyright owner. That does not restrict the non-commercial use of the results of the research for instance in an academic journal, but clearly the results may not be published commercially. A term in a contract (including a licence) that seeks to prevent or restrict the use of this exception is unenforceable. 1988 (CDPA) s29A; SI 2014/1372, reg 3(2) 5.3.16 Disabled persons: personal copies There is a special exception to enable disabled people to make or obtain for their personal use ‘accessible copies’ of all or part of any kind of copyright work in a form that allows them to have improved access to and enjoyment of the contents, unless suitable versions are made commercially available by the copyright owner. The accessible copy may include special navigation facilities but may not involve any changes to the source work that are not required to deal with the disabled person’s disability. A disabled person is one who has a physical or mental impairment that prevents him or her from enjoying a copyright work to the same degree as a person without that disability. However, a person is not considered to be disabled if the disability is a visual impairment that can be improved by the use of corrective lenses to a level that is normally acceptable for reading without the use of special levels or kinds of lighting. An ‘accessible copy’ may be made by or for the disabled person so long as that person legitimately owns a copy of the work or has legitimate access to it, for instance through a library or record office. The copy is for the personal use of the disabled person and if it is made by someone else such as an archivist or records manager it may only be transferred to the disabled person or to someone who transfers it to him or her. If a charge is made for the accessible copy, the fee may cover only the cost of its making and supply. If the copy is made by a librarian or archivist, no declaration (see 5.4.12) is required. A term in a contract (including a licence) that seeks to prevent or restrict the use of this exception is unenforceable. 1988 (CDPA) ss31A, 31F(2–5, 8); SI 2014/1384

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5.3.17 Disabled persons: multiple copying There are special arrangements for an educational establishment (see 5.3.20) and for a body of any other kind that is not conducted for profit (‘authorized bodies’) to make multiple accessible copies of published works that it owns and of broadcasts of which it owns copies or has legitimate access to copies, for supply to disabled people (see 5.3.16) for their personal use. Such copies may not be made if there are accessible copies commercially available on reasonable terms. Authorized bodies may also make intermediate copies if these are required for the production of accessible copies. Most such multiple copying is by specialist organizations working in the field, including the Royal National Institute of Blind People and special schools. There are some conditions to this exception: • An accessible copy made by an educational establishment that is conducted for profit may only be used for its educational purposes. • Each accessible copy must carry a statement that it was made under s31B of the Copyright Designs and Patents Act 1988 and also a sufficient acknowledgement (see 5.2.1). • If the accessible copy is made from a work with electronic copy protection, the accessible copy must, so far as reasonably practicable, have the same or equally effective copy protection unless the copyright owner agrees otherwise. • Authorized bodies may pass accessible and intermediate copies to one another to assist them to make accessible copies. • If a charge is made for an accessible copy or intermediate copy, the fee may cover only the cost of its making and supply. An authorized body must also keep records of the accessible and intermediate copies it makes and to whom it supplies them. It must also still keep records it made of copies made for visually impaired people before the exception was amended on 1 June 2014. These records must be made available to copyright owners or their representatives (such as licensing bodies, see 5.2.12) on request and regular reports must be made to them. If a licensing body offers a licence that offers more generous terms than the exception permits, that licence may be used instead. However, if such a licence, or any other contract, seeks to prevent or restrict copying in ways that are permitted by the exception, those terms are unenforceable. Further, if specified works are excluded from such a licence, accessible copies may still be made of them under the terms of the exception. 1988 (CDPA) ss31B, 31BA, 31BB, 31F, 178 ‘sufficient acknowledgement’; SI 2014/1384 5.3.18 Rental and lending For the purposes of rental and lending right (see 5.1.4), neither rental nor lending includes public performance, playing or showing in public or broadcasting, exhibiting

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in public or reference use in the institution. Archivists may therefore make documents available on site without infringing. Rental and lending right is also not infringed by: • lending of originals or copies of works by an institution that is open to the public to another institution that is open to the public, for instance by one archive to another for an exhibition • lending a book by a public library under the Public Lending Right scheme (PLR; see 8.4) • lending originals or copies of works (such as books or manuscripts) by an archive or a library that is not a public library (including, for instance, a manuscripts collection in a university library), provided that the lending institution is not conducted for profit • lending originals or copies of works by an educational establishment (see 5.3.20) • rental or lending by one individual to another. In any other circumstances, rental and lending are permitted only so long as reasonable royalties are paid or the activity is under licence. Contracts and licences may limit the user’s freedom to rent and lend to less than is permitted by exceptions. 1988 (CDPA) ss16(1)(ba), 18A, 36A, 40A; SI 1996/2967 regs 10, 11, 35 5.3.19 Fair dealing: education Fair dealing with a work of any kind for illustration for instruction for a noncommercial purpose does not infringe if it is by a person giving or receiving instruction or preparing to give or receive instruction. Any copy made must be accompanied by a sufficient acknowledgement of the work and the author (see 5.2.1). A term in a contract (including a licence) that seeks to prevent or restrict the use of this exception is unenforceable. The following points should be borne in mind: • There is no restriction on the location of the instruction, nor on the type of people involved, so the exception would apply for instance to adult education courses and to home tuition by parents. More importantly in this context it would apply to instruction given in record offices, for instance to lessons on historical records for visiting school children and to training in research techniques for university students and other users. It would also apply to instruction and training of archive staff and records management staff so long as the purpose was non-commercial. • The exception covers use for examination, including setting and answering the questions, and would apply to use in dissertations and theses that are to be examined but not to subsequent publication or online availability of those dissertations and theses.

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• This is a fair dealing exception so it would not normally permit the copying of an entire work. It would not, for instance, permit the making of a copy of a musical work for use in an examined performance. The MPA (see 5.2.12), however, permits the making of copies for use by examiners and to ease a difficult page turn, so long as the copies are destroyed after the examination or performance. The copying of a whole work might be permissible in certain circumstances (for instance a short poem, or an artistic work that could not reasonably be represented for the purpose at hand by a detail) but it would be necessary to be able to justify it (see 5.3.7). • Fair dealing is unlikely to permit the making of multiple copies, for instance for all students at a training session, except in the case of use in an examination paper. There is a separate exception for this (see 5.3.20). The purpose of the fair dealing exception is to permit copying manually (as on a blackboard) and to permit the making of copies by individuals for their own teaching use (as in a teacher’s PowerPoint presentation) or educational use (by the student). • The exception would apply to a person who has not yet arrived at an educational establishment, such as a person about to start the first year as an undergraduate who is doing preliminary reading as preparation to receive instruction. 5.3.20 Educational establishments There are several other educational exceptions, but they are more restrictive because they apply only to educational establishments. Educational establishments are defined precisely in a variety of statutes. In summary such an establishment is: • any school as defined by current education legislation in England and Wales, Scotland or Northern Ireland • any university, or any college or institution within a university, with power to award degrees • in England and Wales and Scotland any institution providing higher education or any institution whose sole or main purpose is to provide further education • in Northern Ireland any higher education institution, college of education or institution whose sole or main purpose is to provide further education • any theological college. The following exceptions apply only to use by an educational establishment, though the recordings or copies may be made on its behalf, for instance by an archive: • Performances of literary, dramatic and musical works may be given, and sound recordings, films and broadcasts may be played or shown, to the pupils and staff (but not parents) on the premises. • Recordings of broadcasts may be made, but they may be communicated (on a network) or shown only to pupils and staff for non-commercial educational purposes

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and they may be communicated to pupils and staff who are off the premises only by means of a secure electronic network accessible only by them. However, this exception does not apply if or to the extent that there is a licensing scheme available that would cover the activity and the ERA (see 5.2.12) provides precisely that. To the extent that there are exclusions from ERA licences, the exception would apply. Any recording made must be accompanied by a sufficient acknowledgement of the work and the author (see 5.2.1). • Copies of extracts from almost any other kind of work may be made for noncommercial purposes of instruction. Copies may not be made under this exception of a free-standing artistic work, but may be made of an artistic work embedded in another work that is also being copied, such as an illustration in a book. Such extracts may not amount to more than 5% of a single work (including any literary works embodied in it) in any 12 month period. Such copies may be communicated (on a network) or shown only to pupils and staff for non-commercial educational purposes and they may be communicated to pupils and staff who are off the premises only by means of a secure electronic network accessible only by them. However, this exception does not apply if or to the extent that there is a licensing scheme available which would cover the activity, and the CLA (see 5.2.12) has a range of relevant licensing schemes covering published literary works including embedded artistic works. Where there are exclusions from these licences, notably of particular publications and of all unpublished works, the exception would apply. No licence may restrict copying to less than would be permitted under the exception. Any copy made must be accompanied by a sufficient acknowledgement of the work and the author (see 5.2.1). It is important to appreciate that it is the educational purpose that must be noncommercial, not the institution. Thus the teaching of project management skills to the staff of a company at an educational establishment would probably be commercial but the teaching of professional skills to archivists and records managers by a lecturer employed by an educational establishment would probably not (see 5.3.8). 1980 (Scotland) s1(5)(b); 1988 (Education) Sch 6; 1988 (CDPA) ss32, 34–36, 174, 178 ‘sufficient acknowledgement’; 1992 (Scotland) ss1(3), 38; 1996 (Education) s2; 2002 (Education) Sch 22; SI 1986/594 reg 2(2); SI 1997/1772 Sch 1; SI 2005/223; SI 2014/1372, reg 4 5.3.21 Education: archivists’ obligations If an archivist wishes or is asked to make copies of copyright archival material for educational purposes he or she should note the following: • Fair dealing copies of parts of copyright works of all kinds may be made by the trainer for educational purposes in the archive, for the instruction either of staff or of readers

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(see 5.3.19), and the copies may be shown (for instance as slides). • Fair dealing copies of parts of copyright works may also be made by readers or staff who are being trained, for their own instruction (see 5.3.19). • Readers who are teachers and lecturers may be supplied with copies for educational purposes of anything except free-standing artistic works under the terms of the relevant educational establishment’s licence from the ERA or the CLA or, if not covered by the licence, under the terms of the exceptions (see 5.3.20). • Readers who request copies of free-standing artistic works for educational purposes should be referred to DACS and readers who request copies of entire musical works for use in an examined performance (or indeed any other performance) should be referred to the MPA (see 5.2.12). Once they return with licences the copies may be made and supplied. 5.3.22 Public administration and judicial and Parliamentary proceedings Any work, of any date, and whether published or unpublished, may be copied and used for the purposes of Parliamentary or judicial proceedings or the proceedings of a royal commission or statutory inquiry, without infringement of copyright. This includes proceedings of the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly. It also covers inquests, employment tribunals or public inquiries for planning or into a right of way. Note though that a hearing of an individual application for planning permission, for instance, does not fall under judicial proceedings since it is an application for a right not a hearing about an existing right, so copying for that sort of purpose is not permitted under this exception. Copies of documents, including multiple copies, may be supplied for use in such proceedings. Archivists need not require a declaration (see 5.4.12), but they should ask to be provided with evidence that the purpose is as stated. It is not at all clear when ‘proceedings’ can be said to start, but it appears that preparation for proceedings that have been announced are covered, such as when someone has said that he or she intends to obtain a divorce or when an announcement and call for evidence for a public inquiry are published. For a limitation on the use of such copies see 5.3.25. If for some purpose an unpublished literary, dramatic, musical or artistic work has been communicated to the Crown or to a National Health Service body with the approval of the copyright owner, so that a document or object (such as a CD-ROM or a network server) on which it is recorded is now owned by the Crown or an NHS body, it may be copied, copies may be issued to the public and it may be made available online, for the same or a related purpose which could reasonably have been anticipated by the copyright owner. One purpose that a copyright owner should nowadays expect is the supply of copies under a Freedom of Information Act (see 5.4.4–5), and making such copies generally available online is a sensible way to reduce the burden of repeated requests. This provision would not affect archivists holding NHS records unless the archive is actually part of a Crown or NHS body, but it would certainly apply to NHS records

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managers. Note though that the copyright owner must have consented to the supply in the first place, so an e-mail from an individual would be covered but not necessarily one forwarded by someone else or from an employee (see 3.2.4, 3.2.12), nor an attachment that was copyright of a third party. For a limitation on some of these exceptions see 5.3.25. 1988 (CDPA) ss45, 46, 48, 178 ‘judicial proceedings’, ‘Parliamentary Proceedings’; 1998 (Scotland) Sch 8 para 25(7); 2006 (Wales) Sch 10 para 29; A v B, 2000; Controller of HMSO v Green Amps, 2008 5.3.23 Public administration: statutory registers There are three rather closely related exceptions for material that is required by statute to be open to public inspection or that is on a statutory register. Copyright is not infringed if, with the authority of the person responsible for the register or for making the material open to public inspection: • it is a literary work and factual information of any kind is copied from it (probably in manuscript), so long as copies of the work are not issued to the public (published) • copies are made and issued to the public or are made available online to enable it to be inspected at a more convenient time or place or to facilitate the statutory purpose • it contains information of general scientific, technical, commercial or economic interest, and copies are made and issued to the public or are made available online to disseminate that information. The first case is of limited value, and probably applies most usefully to study of the register in person. The second case would cover, for instance, all the documents relating to a planning application, including the related maps, plans and drawings. The third case might, for instance, cover material of relevant interest that had been considered by a meeting of a local authority and that is open to public inspection. The latter two cases both permit a public authority to make a work that is open to public inspection or on a public register available online provided it has not been made available to the public commercially by the copyright owner. For a limitation on the making and use of such copies see 5.3.25. 1972 ss100D–100E; 1988 (CDPA) s47; 1990 (Planning) s69(5) 5.3.24 Public administration: maps, plans and drawings open to public inspection Where copies are issued to the public of maps that are open to public inspection for statutory purposes or are on a statutory register (see 5.3.23), the copies must bear the following note:

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This copy has been made by or with the authority of [the name of the responsible person] pursuant to section 47 of the Copyright, Designs and Patents Act 1988 (‘the Act’). Unless the Act provides a relevant exception to copyright, the copy must not be copied without the prior permission of the copyright owner.

Where copies are issued to the public of plans and drawings that are open to public inspection for statutory purposes (see 5.3.23), the copies must bear the following note: This copy has been made by or with the authority of [the name of the responsible person] pursuant to section 47 of the Copyright, Designs and Patents Act 1988. Unless that Act provides a relevant exception to copyright, the copy must not be copied without the prior permission of the copyright owner.

For a limitation on the making and use of such copies see 5.3.25. 1988 (CDPA) s47(4); SI 1989/1099; SI 1990/1427 5.3.25 Public administration: limitations These public administration provisions (5.3.22–24) apply only so long as the circumstances that gave rise to them continue. Thus, once court proceedings or a public inquiry have ended it is no longer possible to make copies for their use, and once a statutory register has been superseded (for instance, all the entries recorded in a register of planning applications or for building regulations approval have been approved or rejected) the provisions apply to the replacement, but not to the earlier version. Copies from superseded registers that are preserved in archives should be made under the normal archival copying provisions (see 5.4.13). 5.3.26 Public interest In some instances, a court declines to enforce a copyright in a work if an unauthorized use made of it has been in the public interest. In making such a decision, the court has to balance the public interest and the right to freedom of expression on the one hand against the property rights of the copyright owner and perhaps also any duty of confidence (see 8.7) owed by the alleged infringer on the other. It also has to distinguish between the public interest and things in which the public is interested, or perhaps the narrow interest of the alleged infringer (which might be, say, a newspaper wishing to enlarge its market share). Factors that appear to be important are: • the nature of the material disclosed • whether the same result could have been achieved without infringing copyright • whether there is another public interest (such as the protection of national security) that ought to have precedence.

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The Court of Appeal has decided that the public interest itself cannot be rigidly defined and can be assessed only in the circumstances of the particular case. It has concluded, though, that the public interest in freedom of speech, as set out in the Human Rights Act, rarely requires unauthorized use of a copyright work, since it is not normally a restraint on freedom of speech to require the user to employ his or her own words, except perhaps by the use of short extracts to demonstrate the authenticity of the material. The European Court of Human Rights itself has considered the relationship between copyright and freedom of speech, in cases involving a criminal conviction in France for the use online of a photographer’s copyright images taken at fashion shows and the provision of the Pirate Bay website on which users could share infringing copies of copyright works. The protection of the rights of others was held to be a legitimate aim in a democratic society, and there was no over-riding public interest in the publication of the images or in the website. 1988 (CDPA) s171(3); Shelley Films v Rex Features, 1994; Hyde Park Residence v Yelland, 2000; Ashdown v Telegraph Group, 2001; Ashby Donald v France, 2013; Kolmisoppi v Sweden, 2013 5.3.27 Public interest: successful defences Examples of successful public interest defences are: • publication by an ex-employee of confidential documents revealing price fixing (contrary to a statute) and excessive profit taking by a company • publication by ex-employees of confidential memoranda that cast doubt on the accuracy of breathalysers used to provide the sole evidence to convict motorists of drink driving • publication of extracts from Peter Wright’s book Spycatcher about his experiences in the Security Service, since ‘his action reeked of turpitude’ so he did not deserve copyright protection; national security would not be damaged since the material had already been widely published overseas • broadcasting by the BBC of a programme about the dangers of a low-calorie diet at a time chosen by the BBC in line with its duty to broadcast on matters of public interest and concern. Initial Services v Putterill, 1968; Lion Laboratories v Evans, 1985; Lord Jauncey in Attorney General v Guardian Newspapers, 1988, at 668; Cambridge Nutrition v BBC, 1990 5.3.28 Public interest: failed defences The courts have not accepted a public interest defence for the: • publication, in an attack on a politician, of an internal memorandum of one newspaper leaked to a competing one where the memorandum revealed no misdeeds of a serious nature

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• publication of material copied from another newspaper, since the information was already available to the public • publication of stills from security videos showing the length of time that Diana, Princess of Wales and Dodi al Fayed had spent at the Villa Windsor in Paris the night before they died; the information could have been made available without infringing copyright and while of interest to the public the publication of the stills was not necessary in the public interest • use of lengthy extracts from a politician’s diary, when only short extracts were needed to show the authenticity of the material and the remaining information could have been expressed without infringing copyright. Beloff v Pressdram, 1973; Express Newspapers v News UK, 1991; Hyde Park Residence v Yelland, 2000; Ashdown v Telegraph Group, 2001 5.3.29 Use of works whose copyright has been revived The revival of copyrights (see 2.1.23–26) created many problems, notably that some copyrights that were revived had expired many years earlier. This is particularly true of photographs. The standard term for these is now for the life of the author plus 70 years, but under the 1911 and 1956 acts their term was not based on the life of the author but was respectively for 50 years after the year of creation or of publication. In 1995, when the new 70-year term was introduced, all photographs taken before 1945 were therefore out of copyright. Copyright was revived in them, no matter how old they were, if the author (the photographer, see 2.3.7) died after the end of 1924. Copyrights in films made, first registered, first released or first published before 1945 had also expired by 1995 and copyright was revived in them if any of the ‘persons connected with the film’ (see 2.4.9) died after the end of 1924. Copyrights that were revived in other kinds of literary, dramatic, musical or artistic work by known authors could have expired as long as 20 years earlier (at the earliest at end of 1974). An exception permits any use of a work whose copyright was revived in 1995 if it is not possible by reasonable enquiry to discover the name and address of a person who can authorize the use. That person could be the copyright owner or an authorized licensing body (see 5.2.12), but DACS for instance would not normally seek to represent the author of a documentary photograph. The BFI might be able to license use of British feature and documentary films. A reasonable enquiry is not defined, but is certainly less extensive than a ‘diligent search’ (see 5.2.18), so this exception is worth using, if it applies, in preference to an orphan works scheme (see 5.2.17, 5.4.20). A reasonable enquiry should involve following up any clues in the work itself and in related materials (such as the name of a photographic studio printed on the back of a photograph) and any information available about the author or publisher. For a reasonable enquiry in relation to the identification of the author see 2.1.18.

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1911 s21; 1956 ss3(4)(b), 13(3); 1988 (CDPA) s13(1) before amendment, Sch 1 para 12(2)(c), (e); SI 1995/3297 reg 23(4) 5.3.30 Private copying IMPORTANT NOTE In the first printing of this book, Section 5.3.30 described a new exception introduced into UK law in October 2014, under which an individual could make for personal use a copy of any copyright work that he or she owned. Surprisingly, some rights owners apparently experienced an increase in sales as a result of this. Nevertheless, three organizations representing musicians brought an action for judicial review of the regulations implementing the new exception, on the grounds that it deprived them of their rights. That review was successful because the court held that the Government had not secured sufficient evidence to show that the exception would not cause harm to the interests of rights owners. The regulations were quashed on 17 July 2015. The exception is thus no longer available and private copying, for instance from CD to MP3, is once again an infringement, though the collecting societies have indicated that they do not intend to take action against any individuals. The court did not make a decision on whether copies made between 1 October 2014 and 17 July 2015 were lawful or not; it seems unlikely that we shall ever find out since no-one is likely to be sued. The whole of the original section 5.3.30 has therefore beeen deleted from subsequent printings, though it is possible that the Government will try again at some point. Tim Padfield 5.3.31 Home copying of broadcasts It is not an infringement of copyright in a broadcast, or in any work included in it, to record the broadcast for private and domestic use in order to enable the broadcast to be watched or listened to at a more convenient time, so long as the recording is made at home. This ‘time-shifting’ exception does not therefore cover the making of a recording for sale to a person who then uses it for private or domestic use, nor the making by an archivist of a recording for home viewing by readers (but see 5.4.27), nor the building

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up of a library of recordings. Also, there is no infringement of a broadcast or of a film being broadcast by photographing an image on the television screen, so long as the photograph is for private and domestic use and was taken at home. 1988 (CDPA) ss70–71; SI 2003/2498 regs 19–20; Sony Music Entertainment v Easyinternetcafé, 2003

5.4

Copying in archives, libraries and museums

5.4.1 Supply of copies Archivists, librarians and curators may make and supply copies of the materials in their collections that are still in copyright if they have a suitable licence (see 5.2) or if a general exception applies (see 5.3). However, there is also a range of special exceptions from which they (but not records managers in charge of repositories that are not providing a service to the public; for the public, see 4.1.2) can benefit. 5.4.2 Public records Any published or unpublished public record that is available to the public may be copied by an officer appointed under the relevant act, or with the authority of such an officer, and supplied to any person, without infringement of copyright, irrespective of the permission or prohibition of the copyright owner. This affects all public records in what the Controller (see 3.2.30) terms ‘public record repositories’: • TNA, Kew, and places of deposit of public records under the Public Records Act 1958 • the National Records of Scotland under the Public Records (Scotland) Acts 1937 and 2011, including records of authorities under those acts • the Public Record Office of Northern Ireland under the Public Records Act (Northern Ireland) 1923 • all Welsh public records in TNA or places of deposit pending creation of a Welsh national archive, under the Government of Wales Act 2006. The terms of this exception permit the copying of public records by a member of staff for internal use or on behalf of a member of the public, or by a member of the public so long as copying is authorized by an officer. They impose no requirement on the institution to determine the purpose for which the person obtaining the copy will use it or to ask for the completion of a declaration (see 5.4.12). The exception does not mean, however, that use of the copy thereafter is not an infringement; it is the responsibility of the individual or body obtaining the copy to ensure that their use of it is not infringing. 1958 s4(1); 1988 (CDPA) s49; 2006 (Wales) ss146, 148; 2011 s3

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5.4.3 Public records not selected The provision for the copying of public records does not apply to records not selected for permanent preservation under one of the acts but which have been presented to repositories under the statutory provisions for disposal other than by destruction. Such records cease, on presentation, to be public records but the copyright in them is unaffected, so that Crown copyright material, for instance, is still Crown copyright. Because they are no longer public records, copyright works in them may be copied only in accordance with general provisions such as fair dealing or, as appropriate, in accordance with the general provisions for libraries and archives (see 5.4.13). 1923 s8; 1937 s12(1); 1958 s3(6); 2011 s1(2) 5.4.4 Freedom of information: England, Wales and Northern Ireland Where an archive or registry is, is part of, or holds the records of a public authority as defined in the Freedom of Information Act 2000 or the Environmental Information Regulations 2004 (EIR) it must supply information from relevant records unless one of the exceptions set out in the Act or Regulations applies. The application may request a copy of the information, and the Government has advised that such a copy may be supplied without infringement of copyright or database right under a general exception for acts done under statutory authority. The special exceptions for librarians and archivists do not apply so there is no need for the applicant to make a declaration (see 5.4.12). In any covering letter or message it is worth making clear that the use of the copies or of the information supplied, and any infringement of copyright that may result, is the responsibility of the applicant. Freedom of information and EIR applications, and a record of the copies supplied, should be preserved for at least seven years or such other period as legal advisers recommend. If copies are made and supplied from documents that are made available to the public outside the terms of the Freedom of Information Act or the EIR the normal copyright rules for copying apply (see 5.4.13, 5.4.16). 1988 (CDPA) s50; 2000 (FoI) ss1, 8, 11, 21, 22, 80(3); SI 1997/3032 Sch 1 para 6; SI 2004/3089 reg 3(3) 5.4.5 Freedom of information: Scotland The Freedom of Information (Scotland) Act is very similar to the Act for the remainder of the UK. A statutory instrument has made clear that the supply of copies under the Scottish Freedom of Information Act is not an infringement of copyright, but Scottish authorities would be well advised, like those elsewhere in the UK, to make clear to applicants their responsibility for any infringement arising from their use of copies or information supplied. The EIR (see 5.4.4) apply in Scotland as in the rest of the UK.

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2002 (Scotland) ss8, 11, 25; SI 2004/3089 reg 3(3) 5.4.6 Copying in libraries, archives and museums The 1988 Act, as revised in 2014, contains special provisions as exceptions to the rights of copyright owners that assist libraries and archives, and to some extent museums and educational establishments, to provide their public services. Under the earlier copying provisions, libraries and archives were offering an ‘information society service’ ‘for remuneration’, under the Electronic Commerce Regulations. Since the revised provisions permit charging only to recover the actual costs of making the copy, it appears that this is no longer the case. Most document copiers in archives are nowadays likely to be scanners and printers, not photocopiers. The fact that the copier makes and stores a copy in its memory before printing, then deletes it again without human intervention is not a problem because that copy is merely ‘transient’ (see 6.1.2). The exceptions apply, as appropriate, to librarians, archivists and museum curators, and to someone acting on their behalf. 1988 (CDPA) ss28A, 43A; SI 2002/2013 reg 2; SI 2014/1372, reg 5; Infopaq International v Danske Dagblades Forening, 2009 5.4.7 Exceptions applicable to archives, libraries and museums The term ‘archive’ is left to its dictionary definition. All archives in the UK may use dedicated terminals (see 6.5.3) and are covered by the copying provisions, except that an archive that is established or conducted for profit (or administered by a body that is established or conducted for profit) may not receive preservation copies of material (see 5.4.10) and may not lend copies (see 5.3.18). A library is defined as either a library that is publicly accessible (for the ‘public’, see 4.1.2) or a library of an educational establishment (see 5.3.20) but is otherwise left to its dictionary definition. All such libraries may use dedicated terminals (see 6.5.3). A library that is established or conducted for profit, or administered by a body that is established or conducted for profit, may not receive preservation or other copies of material (see 5.4.10 and 5.4.17), may not lend copies (see 5.3.18) and may not make and supply copies of published works to readers (see 5.4.16). A museum includes a gallery but is not otherwise defined and so has its normal dictionary definition. A museum that is established or conducted for profit (or administered by a body that is established or conducted for profit) may not receive preservation copies of material (see 5.4.10). Any museum may use dedicated terminals (see 6.5.3). The exceptions do not otherwise apply to museum collections, but the definitions of libraries and archives are sufficiently broad to permit the exceptions to apply to library and archive collections within museums. 1988 (CDPA) ss40A, 41, 42, 42A; SI 2014/1372, reg 5, Sch paras 3, 14

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5.4.8 Material that is copiable The provisions of the 1988 Act provide for different categories of material. Confusingly, the range of material in a library or archive that is covered varies from one exception to the next: • Copying for preservation purposes (see 5.4.10–11) is allowed only of items in the permanent collection or to replace items in the permanent collection. The term ‘permanent collection’ is not defined, but further conditions confine the exception to works that are wholly or mainly for reference on the premises; works that are not accessible to the public; and works that are available on loan only to other libraries, archives or museums. The intention appears to be to exclude material that is available for loan to the public. • Copying of unpublished works for users (see 5.4.13 and see also 4.1.9) is allowed of all works that are in the library or archive and that had not been published or communicated to the public prior to deposit (though remember that the manuscript of a published work normally counts as published, see 4.1.10). There is no requirement for deposit to be on any particular terms, so the provision presumably covers material even on short-term deposit for any reason. • Copying is allowed (see 5.4.16–19) of any published work, regardless of whether it is held in the collection of the library making the copy. 1988 (CDPA) ss42, 42A, 43; SI 2014/1372, reg 5 5.4.9 Artistic works, films, sound recordings and broadcasts Previously artistic works, films and sound recordings were not permitted to be copied by libraries and archives. This is no longer the case. They may now be copied as published or unpublished works, as appropriate. For publication of artistic works in sale catalogues see 4.2.3. For folksongs see 5.4.21 and for broadcasts see 5.4.27. 5.4.10 Preservation All archives, libraries and museums in the UK, including those run for profit, may, without infringement of copyright, make a preservation copy of an item in their permanent collections that is not available for loan to the public (see 5.3.18, 5.4.8). A copy may be made of any kind of copyright work, of a preservation copy of such a work that was made earlier, of sound recordings of folksongs in archives (see 5.4.21) and of recordings of broadcasts in archives (see 5.4.27), as many times as is necessary for the purpose, in order: • to preserve or replace that item in the collection, by adding the copy to the collection in addition to or in place of the original

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• to replace an item that has been lost, destroyed or damaged in the permanent collection of another archive, library or museum that is neither run for profit nor run by an organization that is run for profit (see 5.4.7). Provided that: • it was not reasonably practicable to purchase a replacement • where appropriate, if a charge is made for the supply of a copy to another archive, library or museum, the other institution pays for the copy at a level to cover the cost of production of the copy but no more. A term in a contract (including a licence) that seeks to prevent or restrict the use of this exception is unenforceable. If copyright works are supplied to a publisher or a newspaper for publication, the licence to publish that the author gives has an implied term (see 5.2.3), even if not an express one, to permit the publisher to make copies for archival preservation purposes (but not for commercial purposes). Since preservation copying is permitted only of works in the ‘permanent collection’ of a library, archive or museum it does not apply to files in the care of records managers who have yet to review them with a view to selection for permanent preservation (see 6.5.6). Once records have been reviewed, those selected for permanent preservation should be kept separately and would then be considered to be held in an archive to which the preservation exception applies, so long as they are not available for loan to the public. 1988 (CDPA) s42, 43A; SI 2014/1372 reg 5(2); Grisbrook v MGN, 2011 5.4.11 Preservation: purpose and use Any copy made for preservation purposes within the same institution should be treated, for copyright purposes, as if it were the original: the fact that it is a copy does not reduce any other limitations on copying from it, since its purpose is to stand in place of the original. Preservation copying would cover microfilming or digitization in order to avoid excessive handling of popular or fragile originals. That part of the exception which allows copying for preservation purposes for another institution is rarely applicable to unpublished works (but see 5.4.25). Although there is nothing to prevent an archive, library or museum making a preservation copy in digital form it is important to remember that the purpose of the copy is to preserve or replace the original: it is not for remote online access. For facilities for access to such a copy see 6.5.3. 1988 (CDPA) ss17(2), 42; SI 2014/1372 reg 5(2)

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5.4.12 Declaration There is no longer any requirement that a particular declaration form be used when libraries and archives make and supply copies to readers. A declaration in writing is still required, and there are particular things that it must say, but it need no longer be signed and may be sent as an e-mail or even a text message. For suggested forms of words for declarations, see 9.2. The declaration remains a most important document for the librarian or archivist. It is the evidence that would need to be produced should a rights owner ever seek to commence an action for infringement by the making of the copy. Its function is to transfer responsibility for any infringement from the archivist or librarian to the reader. The person making the declaration is responsible for its truth and is responsible for the consequences if it is false. The librarian or archivist may rely on it if he or she does not know, and has no reason to know (see 5.1.16), that it was completed falsely (see 5.1.11). The most likely reason for a false declaration is probably that the purpose of the research is commercial. If the declaration is known to be false (for instance you know that the purpose of the research is for a commercial publication), the copy must not be made or supplied. There is no reason why a library may not supply a copy to a reader at another library, but in such a case the supplying library needs to receive the declaration together with an assurance from the reader’s library that the declaration is believed to be honestly made (see 5.1.18, 5.4.17). A declaration should not be used when supplying copies under another exception such as the special provisions for disabled people (see 5.3.16–17), under freedom of information (see 5.4.4–5) or when copying public records (see 5.4.2), nor when the work is not protected by copyright (see for example 7.6.4). All forms of declaration expressly state that the user will not pass the copy to any other person. If the copy is passed on, the user has failed to adhere to the terms of the declaration so the copy automatically becomes an infringing copy the mere possession of which by an archivist is likely to be a secondary infringement (see 5.1.14–15, but see also 5.4.25). The declaration does not need to mention copying of the copy because that would always infringe: such copying would not be fair dealing (see 5.3.7) and would not be covered by the private copying exception (see 5.3.30) or any other exception. The Act does not specify the period during which declarations should be preserved, but the Limitation Act 1980 (applying to England, Wales and Northern Ireland) provides that action for a tort (such as infringement of copyright) must begin within six years of the infringement in normal circumstances. In Scotland for a ‘delict’ (tort) there is a limit of five years from one of three possible events: the date of the infringement, the date an ongoing infringement ceased or the date the rights owner became aware or ought to have become aware of the loss caused by the infringement. In this context it is (one hopes) not the librarian or archivist but the purchaser of the copies who would be committing the infringement, and the purpose of keeping the declarations is to demonstrate that the librarian or archivist was acting lawfully. Since no action can be taken against the librarian

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or archivist after the limitation or prescription period has ended, five years (in Scotland) or six years (in the rest of the UK) from the date of copying is the minimum period for which the declarations should be kept. It may be that in an infringement action against the user his or her good faith in making the declaration, and the archivist’s or librarian’s in accepting it, would be raised, but that possibility does not seem to offer sufficient justification for keeping the declarations for even lengthier periods. 1973 (Scotland) ss6, 11; 1980 (Limitation) s2; 1988 (CDPA) ss27(6), 42A, 43; SI 2014/1372, reg 5; University of London Press v University Tutorial Press, 1916; Longman Group v Carrington Technical Institute, 1991; Inland Revenue Commissioners v Conbeer, 1996; J Pereira Fernandes v Mehta, 2006 5.4.13 Copying unpublished works All archives and libraries in the UK, including those run for profit, may, without permission and without infringement of copyright, make and supply a single copy of the whole or part of any kind of work that has been deposited in the library or archive (unless it is a public record, for which a less restrictive exception is available, see 5.4.2), provided that: • the work had not been published (see 4.1.3, 4.1.6, 5.1.3) or communicated to the public (see 5.1.6) prior to deposit (see 5.4.8); if the archivist or librarian is aware, or ought to be aware (see 5.1.16), that it had been published or communicated to the public they may not make the copy under this exception, but see 5.4.16 • the copyright owner has not prohibited copying; if he or she has prohibited copying, it is an infringement to make the copy if the archivist or librarian is aware, or ought to be aware (see 5.1.16), of the prohibition. Note that such a prohibition applies only to works in which that person owns the copyright; a depositor cannot for instance rely on this to forbid copying of letters received in which he or she does not own the copyright (see 3.2.4) • the purchaser uses the copy only for private study or non-commercial research (see 5.3.8); if the archivist or librarian is aware that the copy will be used for any other purpose, including for research for a commercial purpose, it is an infringement to make it • the purchaser has made a declaration in writing (see 5.4.12, and for a suggested form of words that satisfies the requirements of the legislation, see 9.2.1) • the purchaser only ever receives a single copy of any one work. If the library or archive makes a charge for the copy, the fee may cover only the costs attributable to the making of the copy. There is no longer any requirement to charge. A manuscript of a work that was published before deposit may not be copied under this exception, unless it is significantly different from the published version (see 4.1.10).

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A manuscript that is published after deposit, however, may be copied as long as the other conditions apply. There is no restriction on the proportion of the work, including the whole of it, that may be copied. The limitation to non-commercial research (see 5.3.8) is a problem not only for users but for archivists and librarians trying to provide a public service. The identification of copyright owners able to give a licence for commercial research can be difficult or impossible (see 5.2.17) and there are no collecting societies to represent them. If the librarian or archivist is aware that the purpose is commercial, the user should be advised to seek an orphan works licence (see 5.2.20). If the user presents such a licence, the copy may be made and supplied under that and no declaration is required, though it would be sensible to keep a copy of the licence. 1988 (CDPA) ss43, 43A, 175; SI 2014/1372, reg 5(2); SI 2014/2863; Norowzian v Arks (No 2), 2000; Sweeney v Macmillan Publishers, 2002 5.4.14 Copying older unpublished works Under the terms of the 1956 Act, the relevant provision of which remains in force, copies may be made, without infringement of copyright: • of unpublished literary, dramatic or musical works, including any illustrations • that are open to public inspection • in any library, museum or other comparable institution (including an archive) in the UK, including those run for profit provided that: • • • •

the work was created before 1 August 1989 the author has been dead for more than 50 years the work is more than 100 years old the copy is obtained for the purposes of research (including, in this case, commercial research) or private study, or with a view to publication (see 5.4.15).

Once the work has been published this exception is no longer available, but if only part of it is published, the remaining part is still eligible. This exception does not cover independent artistic works, though it does cover artistic works that are illustrations to a literary, dramatic or musical work provided they are intrinsic to the understanding of the text, are copied as part of the main work and are not reproduced independently. It is not clear whether this exception allows the copying of a work of which the author is unknown. It seems probable that if the work is of a sufficient age that the author must have died at least 50 years earlier, that would be enough.

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The benefits of this exception as an alternative to the more familiar one in the 1988 Act, if the work to be copied is old enough, are that: • no declaration is required • copying may be for commercial research • copies may be published (see 5.4.15). 1956 ss7(6), 7(9)(d); 1988 (CDPA) Sch 1 para 16 5.4.15 Publication of old works without permission A work that has been copied under the exception for 100-year-old works (see 5.4.14) may be published without permission and without infringement of copyright if the publisher does not know the identity of the copyright owner. There is no requirement to make any attempt to identify the copyright owner (as there is under orphan works exceptions, see 5.2.17–18, 5.2.20, 5.4.20), but if it ought to be obvious who the owner is, for instance if the document was written by a member of a prominent and still extant noble family, it might be sensible to be cautious. There is no longer any need to publicize the plan to publish the work. The original legislation required the publication of a notice in a daily or Sunday national newspaper, and the existence of such a notice (if it could be found) was evidence that a work had (probably) been published. This meant that the exception could no longer be relied upon. The notice had to be published twice, at least a month apart, at least three months before the intended publication then at least two months before. The publisher may produce further editions, in the same or altered form, of the publication containing the work, but the same work may not be reproduced in any other publication until copyright in it has expired. However, if only part of the original work is published, the remaining unpublished part is still eligible. Once a work has been published using this provision it may be broadcast, performed in public or recorded (as a sound recording only; video recording did not exist in 1956) without infringement. 1956 s7(6, 7, 8, 9(d)), 48(1) ‘record’, compare s7(5)(b); 1988 (CDPA) Sch 1 para 16, exclusion of 1956 s7(7)(a) in Sch 1 para 16(b); SI 1957/865 5.4.16 Published works: libraries All publicly accessible libraries and libraries of educational establishments (see 5.3.20) in the UK, so long as they are not conducted for profit (see 5.4.7), may, without infringement of copyright, make and supply a copy of: • a single article from a periodical, including any illustrations • a reasonable proportion of any other published work of any kind

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provided that: • the copy is purely for private study or non-commercial research (see 5.3.8) • the purchaser has made a declaration (see 5.4.12, and for a suggested form of words that satisfies the requirements of the legislation, see 9.2.2) • the purchaser and another person are not obtaining copies of substantially the same material for substantially the same purpose and at substantially the same time, and are not working together • the purchaser receives only a single copy of the material. If the library makes a charge for the copy, the fee may cover only the costs attributable to the making of the copy. There is no longer any requirement to charge. It is worth noting that the term ‘a reasonable proportion’ as used in this exception is not the same as an ‘insubstantial part’ (see 5.3.3–5). Indeed ‘a reasonable proportion’ must be substantial, since if an insubstantial part is copied there is no infringement at all and the exception is not needed. No definition is given of what is a ‘reasonable proportion’, so librarians must use their judgement. The best advice seems to be to restrict copying to the same quantities as for fair dealing (see 5.3.7). For electronic works, see 6.1.2–6 and for electronic supply see 6.5.2. A term in a contract (including a licence) that seeks to prevent or restrict the use of this exception is unenforceable. Elaborate licensing schemes have been designed to deal with copying of published works for commercial purposes. Librarians and archivists wishing to be able to supply such copies should contact the relevant licensing body (see 5.2.12); the Chartered Institute of Library and Information Professionals (CILIP) may be contacted for advice at 7 Ridgmount Street, London WC1E 7AE. Under certain circumstances, a librarian may also rely on fair dealing to supply copies (see 5.3.7), though this does not get around the commercial purpose problem. 1988 (CDPA) ss29(3)(a), 42A, 43A; SI 2003/2498 reg 14(1), Sch 1 para; SI 2014/1372 reg 5(2) 5.4.17 Published works: supplying copies to other libraries Any publicly accessible library or library of an educational establishment may make and supply to a library that is not conducted for profit (see 5.4.7) a single copy of the whole or part of a published work of any kind, for any purpose (see also 6.5.2). If there is a charge for the copy it may be for no more than the cost of production. However, the librarian making a copy of anything except an article in a periodical may not make it if he or she knows, or could reasonably discover, the name and address of a person who could authorize the making of the copy. There is no statutory guidance on what use the receiving library may make of the

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copy, but it seems probable that it may not make further copies for users since the exception for that purpose (see 5.4.16) does not (as some other exceptions do) talk of copying from copies. There seems to be no reason though why the receiving library should not be a conduit to pass the copy itself to a user so long as it ensures that the conditions are complied with. In such a case, the supplying library needs to receive the declaration (see 5.4.12) from the user together with an assurance that the declaration is believed to be honestly made. A term in a contract (including a licence) that seeks to prevent or restrict the use of this exception is unenforceable. 1988 (CDPA) s41, 43A; SI 2014/1372, reg 5(2) 5.4.18 Published works: archives If an archive holds a library of published works that are publicly accessible or that are part of an educational establishment it qualifies as a library (see 5.4.7) for the purposes of making copies of those works (see 5.4.16–17). The fact that the employer describes the person in charge as an archivist rather than a librarian would make no difference. It is by no means clear, however, whether the same provisions could be applied to published works that are held among the records in the archive, which are thus not distinguishable as part of a separate library. It must be probable that it was not intended to exclude such material, given the wide scope of the definition of a library, but it is not possible to be certain and there is (unsurprisingly) no case law. The best advice therefore seems to be for an archivist to put on the hat of a librarian when asked for a copy of a work that was published prior to deposit in the archive, and to ensure that the relevant requirements are met (see 5.4.16). Bear in mind in particular that: • only a ‘reasonable proportion’ may be copied, not the whole work • despite appearances, a manuscript of a work that has been published is itself a published work • the declaration is slightly different (see 9.2.2). 1988 (CDPA) ss41, 42A, 43A; SI SI 2014/1372, reg 5(2) 5.4.19 Anonymous works For copying of some published or unpublished anonymous works, see 5.2.21–22.

5.4.20 Orphan works: EU scheme The EU orphan works scheme provides an exception to copyright that permits certain uses of orphan works that have been identified as such after a diligent search (see 5.2.18) that is already registered at the OHIM or that has been carried out and then registered.

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It applies only to: • published literary, dramatic and musical works, including embedded illustrations (but excluding any standalone artistic works), and published films, audiovisual works and sound recordings, including embedded recordings of performances (see 8.5), that are in the collections of archives, film or audio heritage institutions or publicly accessible libraries, educational establishments (see 5.3.20) or museums (see 5.4.7) and that were first published in an EU member state • films, audiovisual works and sound recordings created by or for public service broadcasters before 1 January 2003 • works of the same kinds that have never been published or broadcast but have been made publicly accessible by the relevant institution ‘with the consent of the rightsholders’, so long as it is reasonable to assume that the rights owners will not object to the planned use. The requirement with unpublished works that they be available to the public with the consent of the rights owners seems likely to rule out large numbers of archival works, since even those that are not orphans have frequently been deposited in archives without reference to rights owners. It remains to be seen how the courts will interpret this provision, if they are ever asked to do so. In the meantime, if the orphan works scheme is to have any value archivists will be forced to adopt a risk-based approach in many cases (see 5.2.19). They should also bear the orphan works scheme in mind when negotiating the deposit or donation of records (see 7.3.1). If the diligent search fails to identify the rights owner, the results must be registered in the register of orphan works maintained by the OHIM, together with information about the planned use. If a rights owner comes forward subsequently, the OHIM must be informed so that the register can be amended to show that the work is no longer an orphan. Registered orphan works are recognized as orphans in all EU member states. If there is more than one rights owner, one or more of whom is known and one or more of whom has not been identified after a diligent search, the work is classified as an orphan but no use may be made of it without the permission of the known rights owner(s) and without acknowledgement of them. Without infringement of copyright or performers’ rights, an orphan work may be used non-commercially in pursuit of the relevant institution’s ‘public interest mission’ in the following ways: • digitized, indexed, catalogued, preserved or restored • made available to the public online or by being broadcast. Use outside the terms of the institution’s public interest mission infringes. An institution’s public interest mission is taken to include preservation and restoration of

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works in its collection and the provision of cultural and educational access to those works. Any revenues generated from the use of orphan works under this scheme must be used solely to cover the costs of digitization of those orphan works and making them available to the public. If the rights owner comes forward after use of an orphan work has started, fair compensation is payable. Directive 2012; 1988 (CDPA) s44B, Sch ZA1; SI 2014/2861, Sch 5.4.21 Recordings of folksongs Recordings of folksongs may be made for the purpose of being deposited in an archive, and the archivist of any body not established or conducted for profit may receive deposits of them, without infringement of the copyright in either the words or the music and without infringement of the performers’ rights, so long as: • the words are unpublished and of unknown authorship • the recordings do not infringe any other copyrights • the performers have not prohibited the making of the recording. The archivist may make and supply single copies of the recordings, without infringing the copyright in the recordings or the works recorded and without infringing the performers’ rights, so long as: • the user makes a written declaration (see 5.4.12, and for a suggested form of words that satisfies the requirements of the legislation, see 9.2.3) • the archivist is not aware that the declaration is false • no user receives more than one copy of the same recording. If the archive makes a charge for the copy, the fee may cover only the costs attributable to the making of the copy. There is no requirement to charge. 1988 (CDPA) s61, Sch 2 para 14; SI 2014/1372 reg 7 5.4.22 Self-service copying The user of an archive or library, including a user acting on behalf of someone else, may make copies of published or unpublished literary, dramatic, musical or artistic works without infringement of copyright, provided that one of the following applies: • The copyright has expired (see Chapter 2, 9.1.1–4). • The copies are of an insubstantial part of the work, but anyone relying on this should assess it very carefully, since an insubstantial part is unlikely to be very useful or extensive (see 5.3.3–5).

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• The purpose of the copying qualifies as fair dealing or falls under some other exception (see 5.3). This is the most likely route to be employed, but archivists must avoid authorizing an infringement by ensuring that users are made well aware of the limitations of fair dealing, notably the permitted purposes and the quantity that may normally be copied (see 5.3.7, 5.3.19). • In the case of literary, dramatic and musical works (and any illustrations) only, which are available to the public in a record office or similar institution, the work is at least 100 years old and its author has been dead for at least 50 years (see 5.4.14). • The works are public records and an officer has approved the copying (see 5.4.2). Users of files preserved in a records management system may rely on the first three of these. 1956 s7(6); 1988 (CDPA) ss16(3)(a), 29, 49, Sch 1 para 16 5.4.23 Self-service copying: precautions When permitting self-service copying, an archivist, librarian or records manager should ensure that he or she is protected as far as possible from claims of negligence or of having authorized infringement (see 5.1.12) if the person making the copy goes beyond the bounds of what is permitted by a relevant exception (see 5.3). With this in mind, the following precautions should be taken: • If permitted at all, self-service copying should be permitted to all users as a general policy. • Archivists will in many cases wish to check the condition of documents before allowing self-service copying. This is fine so long as the limited preservation purpose of the check is made clear to users and on the notice (see below). • No member of staff should assist with the making of the copy, nor should they seek to exercise control over what is copied or the purposes for which copies are being made, unless the provisions covering copies made by the archive or library are complied with (see 5.4.13, 5.4.16). • A notice along the following lines should be displayed making clear that copying of copyright works is an infringement of copyright except under certain conditions: Readers wishing to make copies themselves of any document in the record office, whether using the scanners provided or their own cameras, must understand that the majority of documents in the archive are protected by copyright. The making of a copy of any copyright work is an infringement of copyright unless permission has first been obtained from the copyright owner or an exception applies. Readers should note the following:

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Any check of a document conducted by record office staff prior to self-service copying is solely to assess the physical condition of the document. If it is considered that such copying might cause damage of any kind to the document, self-service copying will not be permitted. Record office staff have no expertise in copyright and are unable to offer any advice on whether the copying of a document for a particular purpose infringes. A copy of part of a work of any kind may be made for the use of the person making the copy or of another person for the purposes of private study, research for a non-commercial purpose or illustration for instruction (including in a thesis or dissertation that is to be examined). ‘Non-commercial research’ in this context must be interpreted in accordance with EU law to mean research that is ‘not for direct or indirect economic or commercial advantage’ to the user or someone else. It does not cover publication of any kind whether in traditional form or on the internet, regardless of whether payment would be involved. Only one copy of a part of any document may be made. No further copies may be made from the copy. There must be acknowledgement on the copy that identifies the work and its author. The staff of the record office give no authority for the making of a copy of any copyright work and accept no responsibility for any infringement. Any infringement resulting from the making or use of a copy is the responsibility of the person making the copy and the person (if different) for whom the copy is made.

• A similar notice should be displayed above copiers used by members of staff, emphasizing that management does not authorize the making of copies of copyright works and that an individual is personally responsible for any infringement. 1988 (CDPA) ss29, 32; CCH Canadian v Law Society of Upper Canada, 2004 5.4.24 Transcripts and tracings The making of manual copies (such as transcripts and tracings) by users is explicitly not covered by the special exceptions for libraries and archives (which apply only to copies made by the librarian or archivist), though it would seem to be permissible under the one for public records (see 5.1.8, 5.4.2). Manual copying of insubstantial parts of a work is always permitted (see 5.3.3–5), but archivists should advise users to be careful to ensure that their copies are insubstantial in qualitative as well as quantitative terms. Beyond that, the limits applying to self-service reprographic copying would apply equally to manual copies (see 5.4.22–23). 1988 (CDPA) s17

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5.4.25 Deposit of copies in an archive It is inadvisable under most circumstances for an archive to accept the deposit of copies of works, and they should never accept copies that had been made under the exceptions allowing library and archive copying for users (see 5.1.15, 5.4.6) or private copying (see 5.3.30). There appear to be a few sets of circumstances in which it is possible for an archive to receive copies of unpublished documents from another archive or from a depositor without infringement of copyrights owned by third parties: • if the copyright can be shown to have expired in the original work (see Chapter 2) • where permission has been given by the copyright owner for the copies to be made and deposited • to replace an item that has been lawfully exported (see 5.4.28) • to replace an item that has been lost, destroyed or damaged in the recipient repository (but this would be possible only if the document is not unique) (see 5.4.10–11) • the exception which allows public records to be copied without infringement (see 5.4.2) contains no limitations on the purpose of the copies, so there is nothing to prevent the supply of such copies to other record offices • under the terms of the 1956 Act (see 5.4.14), copies may be made for the purposes of research and private study of documents over 100 years old whose author has been dead for more than 50 years; there is no restriction on the type of recipient or on the type of research. Where copies are accepted, the receiving institution should ensure that the copies are used solely for appropriate purposes such as non-commercial research or private study (see 5.3.7–8). It would also be best advised to refer requests for copies of the copies to the source institution, which can make fresh copies from the originals and will be kept aware of uses (especially commercial uses) of its material. 5.4.26 Copying from copies There are two issues to consider in relation to the making of copies from copies: the rights of the custodian and of the owner of the copyright of the original document. There is unlikely to be any copyright in most copies (see 2.1.9). It is the responsibility of the custodian of the original document to decide whether and how to exercise the reproduction rights in images that they have supplied of documents in their care (see 5.2.25) where they also control the copyright (see 7.3), and to inform any recipient record office of what it may do with the copy. For its part, TNA does not normally object to other record offices making limited copies from copies of Crown copyright material that it has supplied (for instance census microfilms or copy tithe maps supplied to county record offices), if they are for non-commercial research or private study. It does,

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however, expect that its permission will be sought for the use of such copies for other purposes, including publication or posting on the internet. Where the documents copied are copyright, and the copyright is not controlled by the record office or other body, care must be taken to ensure that copies taken from those copies are legitimate: • It seems that copies may be made from preservation copies as if they were the original, since they are intended to replace a lost or damaged original (see 5.4.10 and 5.4.13). • No copies may be made from copies of public records, unless they are Crown copyright (see above and 5.2.7–8) or the copyright owner has given permission. • No copies may be made from copies supplied in return for a declaration (see 5.4.12). • Copies may be made from copies of documents supplied under the terms of the 1956 Act for the purposes of publication (see 5.4.14–15). • Under the appropriate circumstances, self-service copying might qualify as fair dealing (see 5.3.7–14, 5.3.19).

5.4.27 Recordings of broadcasts It is not an infringement of copyright in a broadcast, or in any work included in it, nor is it an infringement of any performer’s right, for a recording, or a copy of a recording, to be made for deposit in any archive maintained by a body that is not established or conducted for profit. A term in a contract (including a licence) that seeks to prevent or restrict the use of this exception is unenforceable. Once the recording has become an ‘item’ in the permanent collection of the archive, preservation copies may be made of it (see 5.4.10–11). The making of a copy of a recording for a reader is a less certain matter. Clearly the broadcast has been broadcast, and so has been communicated to the public. This precludes the use of the exception for the copying of unpublished works. On the other hand, it is not clear that it has thereby become a ‘published work’ that may be copied by a librarian, though that is almost certainly what was intended. Until further information on the point becomes available it would seem permissible to supply a copy of a reasonable proportion of a recording of a broadcast preserved in an archive under the terms of the library copying exception (see 5.4.16, 5.4.18). 1988 (CDPA) s75, Sch 2 para 21; SI 2014/1372, reg 8 5.4.28 Works being exported A copy may be made of any work or of a recording of a performance of cultural or historical importance for deposit in an appropriate library or archive, without

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infringement of copyright, if such a copy is required by law before the original work may be exported from the UK. The Act makes no provision for how the resulting copy may be used, but it seems not unreasonable to treat it as an item in the permanent collection of the library or archive (see 5.4.6–9). For the export of copies see 5.1.18. 1988 (CDPA) s44, Sch 2 para 7

5.5

Litigation and legal advice

If an archivist or records manager is unfortunate enough to be involved in litigation over copyright, either as a defendant (for a primary or a secondary infringement, see 5.1.9–17), as claimant (against someone who has infringed a copyright administered by him or her), or as a witness, the first step, to be taken as early as possible, must be to secure good legal advice. This means a lawyer who specializes in intellectual property law, rather than a general practitioner. Names of firms specializing in this area can be obtained from the Law Society’s directory of solicitors, either in its published form or online (www.lawsociety.org.uk; see 10.2, 10.3). If at all possible it is best to avoid litigation, which can be hugely expensive and timeconsuming, and potentially very damaging. Although major cases in England and Wales still go to the High Court, where costs can rise alarmingly, most are now heard in the Intellectual Property Enterprise Court, where the procedure is simplified, the costs that are recoverable from the losing party are strictly limited (currently to £50,000) and the duration of any hearing is at most two days. There is also a small claims procedure in the same court, for claims up to a value of £10,000. Cases may be heard in Scotland before the Outer House of the Court of Session and in Northern Ireland in the High Court, where there are no limitations on costs and no small claims procedures. Some possible consequences of losing an infringement action are: • an award of damages, based on an assessment of the harm caused • a requirement to provide an account of profits, under which any profits gained as a result of the infringement are assessed and passed to the claimant • liability for all the costs of the action, which can be much more substantial than any damages • an injunction (interdict in Scotland) restraining the infringer from continuing or repeating the activity • damage to reputation • loss of staff time to prepare the case and attend court. The courts are keen to encourage the use of alternative dispute resolution and the IPO has established a mediation service to assist all parties to a dispute to resolve their

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differences without going to court. Details and advice on when mediation is and is not appropriate are available from the IPO (see 10.3).

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Copyright in the electronic environment

6.1

Introduction

6.1.1 What is different about the electronic environment? For many purposes, existing copyright law applies in the same way in the electronic environment as it does to traditional formats. Electronic materials are protected by copyright, and the copyright owners enjoy much the same rights over them as they do over works on paper. Users, too, enjoy much the same exceptions to copyright, allowing them to make use of copyright works for non-commercial research and private study for instance. There are good reasons, though, for discussing copyright in the electronic environment as a distinct issue: • Although copyright rules still apply, it is very much easier to infringe and the consequences of infringement can be much more damaging, so rights owners are very much more inclined to be energetic in their efforts to prevent or punish infringement than they are with the older media. • The nature of the internet as a global communications medium makes copyright, an essentially territorial right which differs from country to country, very difficult to apply. • The 1988 Act was first drafted in a pre-digital age though much effort has gone into keeping it up to date. It is normally, but not always, safe to assume that a permitted act is permitted in any medium, so that for instance copying may be digital as well as hard copy. • Some special provisions have been made in the law that apply only, or particularly, to electronic materials.

6.1.2 Use of electronic materials Since for the most part the law applies to electronic works in the same way as to paperbased ones, the same uses are allowed. Thus, fair dealing (see 5.3.7–14, 5.3.19) and library and archive copying (see 5.4) are permitted, unless there are special provisions restricting them, as there are, for instance, with public record databases (see 8.2). However, it should be borne in mind that fair dealing for the purposes of private study and non-commercial research is limited to those purposes, as is copying under the library and archive regulations, for the use of a single individual only. They do not, for instance, permit communication of the work to the public (see 5.1.6), such as on a

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website, nor do they permit the user to transmit electronic copies to other people by email. It should be remembered too that data protection as well as copyright must be taken into account when material contains details of living individuals (see 8.7.2). The simple viewing of a copyright work (except a computer program or a database) on a computer screen, for a lawful purpose, is not an infringement because it is the equivalent of reading on paper and any copying involved (whether on the screen or in a cache) is ‘transient or incidental’. The CJEU (see 1.2.5) has held that a copy can be transient ‘only if its duration is limited to what is necessary for the proper completion of the technological process in question, it being understood that the process must be automated so that it deletes that act automatically, without human intervention, once its function of enabling the completion of such a process has come to an end’. However, the saving of the work to disk (for instance by downloading a file) could infringe, depending on the circumstances, because it involves the permanent copying of the work (see 5.1.2, 6.2.5). Directive 2001 (Information Society) art 5(1); 1988 (CDPA) s28A; SI 2003/2498 reg 8; R v Higgs, 2008; Infopaq International v Danske Dagblades Forening, 2009 at para 64; R v Gilham, 2009; Public Relations Consultants Association v Newspaper Licensing Agency, 2014

6.1.3 Guidelines for copying electronic publications In 1998, the Joint Information Systems Committee (JISC) for the higher education sector in the UK and the Publishers Association agreed guidelines for the copying of electronic materials under fair dealing and library privileges. These are necessary because the library exceptions permit the copying of only a ‘reasonable proportion’ of a published edition of a work (see 5.4.16) and because one of the criteria for fair dealing is the quantity copied. These guidelines are still available online on an archived site of UKOLN (see 10.3). The archive copying exception (see 5.4.13) is different, since an entire unpublished work may be copied, so no guidance on quantities is required. It should be remembered that these guidelines were drafted for the higher education sector and are not intended to be any more than pointers towards good practice even there. For the most part they cover copying for purposes of non-commercial research and private study only; use for teaching might require a licence, and use for any commercial purpose would certainly require permission. As with print materials, only a single copy of an electronic publication may be made by or for an individual. A librarian or someone acting for the individual may not make copies of substantially the same extracts for more than one person at substantially the same time and may not make any copy if they know or have reason to believe that the individual intends to make further copies from the copy.

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6.1.4 Limits to what is allowed under the guidelines The following would normally be regarded as fair and lawful under the guidelines (see 6.1.3): • viewing part or all of an electronic work on screen, so long as any incidental copy made by the computer is deleted afterwards • printing out a copy of part (to a maximum of say 5%, see 5.3.7) of an electronic publication • copying a part of an electronic publication to disk where the disk is portable or is accessible by only one person at a time • transmitting across a computer network part of an electronic publication to enable it to be printed out locally, so long as any incidental copies are then deleted • transmitting across a network part of an electronic publication for local storage and use, but not for onward transmission • quoting from electronic material for the purposes of criticism, review or current news reporting, so long as the source is properly acknowledged; the guidelines were prepared before the exceptions were amended and expanded, but it should go without saying that all exceptions apply in most circumstances (see 5.3, 5.4). The following would probably be regarded as unfair and unlawful, unless prior permission is obtained: • copying the whole of an electronic work, except an incidental copy for use when viewing on screen • transmitting across a computer network the whole of an electronic work, for any purpose • posting all or part of an electronic publication on a network or a website • making more than one copy • copying an artistic work on its own or one that was not integral to the text.

6.1.5 Moral rights Moral rights apply to electronic works in the same way as to paper-based ones (see 8.1). The author can assert the right to be identified as the author and an individual can object to having a work falsely attributed to him or her. The ease with which electronic materials can be amended makes the third moral right, the right of integrity, particularly important. Misquotation of a work, or use of extracts in a misleading way, could be infringements.

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6.1.6 Other people’s works Since the reproduction of a work (including on CD-ROM or on a website) is in itself a restricted act (see 5.1.2), and if it is in a publicly available electronic form is also publication (see 4.1.1, 5.1.3) or communication to the public (see 5.1.6), it must only be done with the consent of the copyright owner. Out-of-copyright material, and material generated by the owner of a website or by the staff of an organization that owns a website, is no problem. It is an infringement, though, to copy and reproduce material from someone else’s website, or to scan material from a copyright work on paper. Limited licences for scanning some literary works are now available from the CLA (see 5.2.12). Without permission, never reproduce someone else’s website design, since that is protected by copyrights (see 6.2).

6.1.7 Digital rights management systems Digital rights management systems (DRMSs) have attracted much attention and criticism, some justified and some not. It is important to recognize that the term covers a range of technologies with different purposes: • systems to restrict access to content, for instance by encryption • systems to identify owners of rights and to give information on licensing (see 6.5.5) • copy protection systems or ‘technological protection measures’ to prevent unauthorized copying. The aspects of DRMS which raise most problems in a records context are access controls and copy protection, though Sony found itself in major difficulties with tracking software it put into some CD-ROMs. This modified computer operating systems and in some cases laid systems open to attack by software viruses. Access controls and copy protection systems are intended to prevent or restrict the use and copying of an electronic work (including a computer program), or to impair the quality of copies made. These present more problems to librarians than to those responsible for archival materials, but archivists and records managers receiving electronic materials should be aware that DRMS may: • effectively give perpetual control to the rights owner, since the protection does not automatically expire as copyright does • be designed to prevent enjoyment by users of the benefits of the statutory limitations and exceptions to rights (see 5.3) • prevent the making of preservation copies by ‘migration’ to new media and new software platforms, copies that are essential to the permanent preservation of works in electronic form.

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Whatever the purpose, all forms of DRMS are given statutory protection, making it an infringement, and sometimes a criminal offence, to disable or evade them or to provide equipment to do so. When copies of an electronic work are issued to the public with DRMS the person issuing the copies can take action for infringement against anyone who sells any device or means designed or adapted to circumvent the systems used or who publishes information to help people circumvent it, and can ask the court to order the seizure of infringing materials. For example, the circumvention of the systems designed to limit the parts of the world where DVDs may be played is thus an infringement, but on the other hand there is a special exception to allow research into cryptography, unless the research or its publication prejudices the rights of the copyright owner. The protection of technological protection measures must be proportionate, so that if an activity or a device is used by people for a significant purpose other than infringement of copyright it does not infringe the rights in the technological protection measure. Regulations have provided mechanisms, by means of an appeal to the secretary of state (by individuals or their representatives), to stop rights owners using copy protection devices to prevent people exercising their legitimate freedoms under limitations and exceptions to copyright, in particular the private copying exception (see 5.3.30). If the secretary of state issues a direction, the rights owner must make it possible for the complainants to use the work as directed or be at risk of being sued for breach of statutory duty. 1988 (CDPA) ss296, 296ZA–ZG, 296ZEA, Sch 5A; SI 2003/2498 regs 24–25, Sch 3; SI 2014/2361, reg 3(2); Sony Computer Entertainment v Owen, 2002; Sony Computer Entertainment v Ball, 2005; Nintendo v Playables, 2010; Nintendo v PC Box, 2014

6.2

Internet

6.2.1 What is protected An internet website is not a variety of work in itself, and does not qualify as a form of broadcast (see 2.6.3). A website is normally a form of database, which might be protected by copyright or database right (see 8.2), or both. The underlying computer programs are protected as such (see 6.6), and the designs of website screen displays are protected as artistic works recorded in the program. The owner of a website needs to ensure that he or she owns or controls all rights in the site, especially if consultants are employed (see 3.2.17). It might not be possible to secure assignments of copyright in all the programs (see 6.6.1) but licences (see 5.2.2), and assignments of copyright in material especially created for the site (see 3.3.8), should be obtained. There are also completely separate copyrights in the material displayed on websites. These include literary and artistic copyrights in text and images displayed on the pages or included in catalogues accessible from the pages. Protection for these is the same as for

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other works of the same kinds (see 2.2, 2.3). A catalogue available through the website is also a database, and the rights in it are completely separate from the rights in the website itself. Navitaire v Easyjet Airline, 2005

6.2.2 Publication and communication to the public It is not explicit in statute that the inclusion of a work on an internet website publishes it, but it almost certainly does (see 4.1.8, 5.1.3). It certainly communicates the work to the public, which is a restricted act (see 5.1.6) requiring permission. Archivists in particular should note that the library and archive copying provisions (see 5.4) do not allow any communication to the public. Publication online, even if not for profit, is apparently an inherently commercial activity (see 4.1.5). 1988 (CDPA) ss18, 20; SI 2003/2498 reg 6; Svensson v Retriver Sverige, 2014

6.2.3 Protection There are things that the owner of a website can do to protect the materials made available there, but ultimately the best protection for a work is to keep it off the web. It is helpful to include on the site a reminder to users that copyright and probably moral rights apply (see 3.4). Beyond that consider the following points: • Decide how much protection is required: can some material be copied freely or is there a need for some restriction? A statement of the limits of freedoms and restrictions is needed, setting out what users may do, what they may copy, and what they may do with their copies. A Creative Commons licence might be appropriate (see 6.2.4). • Recognize that free access to and use of material can be beneficial: it can lead to increased demand for other off-line or commercial services. Moreover, free access is what many regard as being the primary benefit of the web. • If some material must be made available, but it is desired to protect it or limit its use, can it be made available in an area of the website accessible only to certain subscribers, can it be copy-protected or marked in some way to show its origin and to allow the tracing of copies, or can a low-quality copy be used (such as a lowresolution scan of an image)? Is it possible to use ‘geo-fencing’, to restrict access to users in specified locations based on things such as their internet protocol address or the access point used by their mobile device? The designs of the site itself are copyright (see 6.2.1), and it might include logos, trade marks or other identifying marks of the owner. These need protection as much as the contents of the site.

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6.2.4 Creative Commons Creative Commons is an organization that has prepared free licences for use by anyone, primarily on the web. They are intended to simplify the process of giving permission to others to use material published on the web and to make it simpler for users to find licensed material and to understand what they may do with it. Licences may not be modified if the name ‘Creative Commons’ or the symbols that identify each option are used. There is an international suite (version 4) of licences, designed to be applicable throughout the world and thus well suited to use on the internet. There are also ‘ported’ licences (version 3 and earlier) designed for use in individual jurisdictions, including the UK, which are most appropriate if the licensor wishes to specify the courts and legislation that apply. A CC licence may include limiting options, or a combination of options: • attribution (CC:BY): users may copy, distribute, play or perform the work or derivative works based on it, so long as they acknowledge the author • non-commercial (CC:NC): users may use the work only for non-commercial purposes • non-derivative (CC:ND): users may use the work but may not create a derivative work from it • share-alike (CC:SA): allows users to make and distribute derivative works, but requires them to distribute them under an identical licence. In addition to these licensing options, Creative Commons assists an author who wishes to relinquish all rights in a work by putting it in the public domain (a CC0 licence). Note that a Creative Commons licence is not appropriate in all circumstances: • Third party copyright works cannot be licensed without permission, so a Creative Commons licence should not be used (unless with their permission) for the publication of a work in someone else’s copyright, for instance as a part of a digitization project or by an image library. • A Creative Commons licence is irrevocable although the work itself may be withdrawn again, so once a work has been issued under one of the licences, any use that has started by then is permanently licensed and the rights owner would have undermined his or her own market if he or she wished subsequently to exploit the work commercially. • A Creative Commons licence is applicable worldwide: it is not possible to limit use to a particular country. • It is not possible to limit use to a particular type of user, for instance one in an educational context. • It is not possible to prevent derogatory use about any organization or anybody except the author, in which case moral rights may be infringed (see 8.1.7).

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• It is not possible to prevent use in a promotional context, for instance use to promote a particular point of view or (if commercial use is allowed) in advertising. No court in the UK has as yet had to decide whether a Creative Commons licence is enforceable, but Creative Commons licences for non-commercial and commercial use have been upheld in the Netherlands and Spain. Further information on the licences and how to use them is given on the Creative Commons website (www.creativecommons.org.uk). Curry v Audax Publishing, 2006; SGAE v Fernandez, 2006

6.2.5 Use of internet materials There is no infringement of copyright by merely reading or looking at most material on a website (see 6.1.2). Also, a website owner by implication (see 5.2.3) authorizes the copying of a work that he or she has made available for download from the website by a user who downloads it, but any further use is subject to the terms and conditions of use of the site and the general exceptions (see 5.3). If a website contains hyperlinks to other websites, those links may take the user directly to a particular page or document without the website or the user infringing the copyright, so long as the page or document would have been freely accessible if the user had gone to it directly. There is not even any infringement by including the other website’s material in a frame so that it appears to be on the first site. However, if the link helps the user to bypass security measures such as a requirement to subscribe or register it will infringe by communicating the page or document to a ‘new public’ – people who were not the intended audience. There could also be infringement ‘where the work is no longer available to the public on the site on which it was initially communicated’, which could affect links to internet archives. It is important therefore that anyone creating a hyperlink directly to a page or document in an internet archive first checks that the archive has permission to continue to make available material that has been withdrawn from the original website. Any employer who provides internet access to staff should have strict rules about its use and particularly about the importance of not infringing the copyright and related rights of website owners. Moreover, those rules should be strictly and publicly enforced, lest the employer become liable for authorizing infringement (see 5.1.12). Internet service providers who make temporary copies of most types of work (but not computer programs or databases) solely in order to transmit them across the web are not liable for infringement by making those copies. However, a service provider becomes liable if he or she has actual knowledge that an infringement is being committed by a user using the service, but does nothing about it. Actual knowledge means knowledge received by a notice which identifies the sender and the details of the infringement (see 5.1.16).

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1988 (CDPA) ss28A, 97A; SI 2003/2498 reg 27; Svensson v Retriver Sverige, 2014 at para 31; Bestwater International v Mebes and Potsch, 2014

6.2.6 Law applicable to the internet One of the great difficulties with enforcing copyright in works made available on a website is the internet’s global nature. There is no international agreement on which laws apply to material made available on websites and which courts have jurisdiction. The position within the EU is becoming clearer, though. The standard rule in Europe is for a case to be heard in the country where the defendant lives or is based, but the claimant has the option to choose a court in another country in certain circumstances. In copyright cases within the EU, the CJEU has decided that a country’s courts may have jurisdiction if: • the use made of the copyright work would be an infringement under that country’s law • copies of the work were marketed in that country • the decision to make the material available online was made in that country • the material was accessible online in that country. However, a country’s courts may only assess damage caused in their country. The claimant would therefore need to sue in every country in which they wished to secure damages. There has been some criticism of this, and it seems likely that eventually there will be legislation to allow a judicial decision to apply across the EU. In database right cases, a country’s courts have jurisdiction if the material was targeted at that country. So, for instance, if a website delivering access to the database is in English, prices are given in pounds sterling, it relates to things of interest in the UK, such as music recordings by UK artists or photographs of street life in UK towns, and a substantial proportion of the website’s users are UK-based, it is likely to be found to be targeted at the UK. The law differs from country to country, and what may be unlawful in one place may be legitimate in another. For this reason if for no other, do not place material on a website if you do not wish it to be copied, and protect other material (especially logos) with watermark and fingerprinting devices. Legal advice is certainly necessary to clarify whether there is an infringement under UK law and what can be done about it (see 5.5). Directive 2001 (Information Society) recital 24; Council Regulation 2001 arts 2(1), 5(3); SI 2002/2013 reg 2; Pammer v Reederei Karl Schluter, 2012; Football Dataco v Sportradar, 2013; Pinckney v KDG Mediatech, 2013; EMI v BSkyB, 2013; Hi Hotel v Spoering, 2014; Omnibill v Egpsxxx, 2014; Hejduk v EnergieAgentur, 2015

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Electronic mail

Many of the comments applicable to the internet apply to e-mail, but there are some differences. E-mails may be messages sent to one or many people. In the latter case, it is unlikely that an individual author would wish, or be able, to control use of the material in the message or any attachment by copyright, although he or she could still seek to insist on the integrity of the message as a moral right. For that reason, messages or attachments should not be forwarded as the work of the original author if they have been changed. A message to a single person, on the other hand, is akin to a letter (see 3.2.4). It remains the copyright of the author, and there is no implied licence to publish the message or (unless the message says differently) to forward it to someone else. Emails sent by individuals as employees are copyright of the employer (see 3.2.12). There is nothing to prevent an employer, or indeed an individual, adding a note at the bottom of e-mails imposing restrictions on their use, but it is far from clear how effective this is. In any event, the recipient is entitled to save the message and to print it out, relying on fair dealing for private study (see 5.3.8), and an archivist or records manager should treat a filed e-mail in the same way as any other document. A document should not be sent as an attachment to an e-mail unless the sender owns the copyright in it or has permission to reproduce it.

6.4

Databases

Databases are discussed below (see 8.2).

6.5

Records in the electronic environment

6.5.1 Electronic media Electronic media are impinging on the work of archivists and records managers in many ways, including through: • use of electronic document and records management systems, which store all files created by an organization as digital media • use of standalone or networked PCs for office applications, including wordprocessing and spreadsheets • use of standalone or networked systems for the delivery of public services, such as access to a computerized catalogue and other dedicated databases, to the internet, and to commercial packages downloaded or on CD-ROM • delivery of services remotely, such as information about the organization or archive, access to the catalogue, responses to enquiries and freedom of information applications, and for scanned images of original documents • provision of copies in electronic formats, either from electronic originals or from

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scanned copies, delivered to the customer on disk or across a network • provision of direct access to digitized and digital copies of materials on public access websites • preservation of original electronic material in the archive and public access to it. Use of most commercial products such as databases requires a licence, particularly if there is to be public access to them or they are to be used for the supply of electronic copies. The library sector is well versed in these issues, and it would be worth consulting the publications of Facet Publishing (the publishing arm of CILIP, see 5.4.16, 10.2, 10.3). If external assistance is employed for the design of computer systems or websites, for instance, the contract for the commission should specify that copyright in all products is assigned by the contractor to the record office or the parent body (see 3.3.8). If the contractor refuses to assign, as is quite possible since most bespoke software is based on pre-existing code, which the contractor needs to be able to use again for other contracts, it is vital to ensure that the licence from the contractor covers all possible uses of the material in the future, including the development of new and revised materials (see 6.6.1). The making available of records to the public by means of an electronic retrieval system, for instance on a PC in a record office or on a website, whether the documents originated electronically or have been scanned, can amount to publication (see 4.1.8), as well as being an infringement by communication to the public (see 5.1.6). Whereas the supply of copies of copyright works is covered by the library and archive privileges, only the publication of some older copyright works is permitted without permission (see 5.4.14–16). Any necessary permission should be obtained from the copyright owner before the service is started. 1988 (CDPA) s175(1)(b); Clearsprings Management v Businesslinx, 2006

6.5.2 Electronic copies of documents and their supply The making and supply by archivists of electronic copies of records of all kinds is covered by the general library and archive copying exceptions (see 5.4.13, 5.4.16) and the public records copying provisions (see 5.4.2). Copies may be supplied to the individual who made the request on disk, as e-mail attachments or by personal download from a temporary online site created for the user. The declaration required for the supply of copies by libraries and archives (see 5.4.12) must be in writing but need no longer be signed. It may therefore be sent as part of an email so long as it contains all the elements required (see 9.2). 1988 (CDPA) ss42A–43; SI 2014/1372 reg 5

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6.5.3 Access to digital and digitized material on the premises Archives, libraries, museums (including art galleries, see 5.4.7) and educational establishments (see 5.3.20) may make born-digital works and digitized copies of works of any kind available to the public on dedicated terminals on the premises. They may also digitize selected material, but not their entire collections, and may use preservation copies (see 5.4.10–11), for this purpose. These are the limitations on this exception: • If the institution has a licence from a rights owner or collecting society (see 5.2.12) that forbids or regulates this activity, the terms of the licence apply instead. There is no obligation on the institution to take out such a licence, even if one is available, but care should be taken since a more general licence (such as one to an educational establishment for its network, see 5.3.20) might include terms relating to this. • The works or copies made available must have been lawfully acquired by the institution. For an original (born-digital) work to have been lawfully acquired it must presumably be legitimately part of the permanent collection (see 5.4.8). For a copy of a work to be lawfully acquired it seems that it must have been made: — for this purpose by or for the institution from an original in the permanent collection — from an original in the same institution or in another library, archive or museum under the preservation exception (see 5.4.10–11) — with the consent of the copyright owner, in which case there is no need for the institution to have accessioned the original. • The terminals used must be ‘dedicated’. They may be linked to the institution’s own server, so as to provide access to catalogues and to the materials, but they must not be linked to the internet. It must not be possible for readers to e-mail copies to themselves or to anyone else, or to post copies online. • Use by readers is for purposes of non-commercial research or private study only. Any institution providing this service should therefore have prominent notices by the terminals stating this clearly. • In order for the exception to comply with the three-step test (see 5.3.1), it seems probable that concurrent access by readers to a digitized copy of a work must be limited to the same number of readers as there are physical copies of that work in the permanent collection, which for archives normally means just one reader at a time. A similar limitation on born-digital works might be harder to justify. • Readers may make fair dealing copies for themselves, only for purposes of noncommercial research or private study, to paper or to a digital carrier. Notices about fair dealing copying (see 5.4.23) should therefore also be prominently displayed by the terminals. 1988 (CDPA) s40B; SI 2014/1372 reg5(1); University of Darmstadt v Eugen Ulmer, 2014

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6.5.4 Digitization projects and rights clearance Most archives, record offices, museums, galleries and libraries are now involved in projects to digitize some or all of their holdings in order to make them available for remote access, usually on the internet. Such projects are vital to the development of modern public services but they must be approached in an orderly fashion so copyright issues must be considered at an early stage (see 1.3.4). These are some issues to bear in mind at the beginning and during the project: • Are the materials to be digitized protected by copyright? If only some of them are, can the project be redesigned to exclude all or most of the copyright material? Midnineteenth-century and older materials are obvious candidates. • Are there other issues to take into account besides copyright? Consider moral rights (see 8.1), confidentiality and data protection (see 8.7), and trade marks (see 8.6.8), for instance. • What rights do I need? This is a big subject so consult works mentioned in the bibliography (see 10.2) as well as these notes. There is no point in seeking (and sometimes paying for) more than is needed, but on the other hand it is far better to obtain all the rights that might be needed in the future so that the process of licensing does not have to be repeated. Consider the scope of the project: internet access means you need world rights whereas a book might have much more restricted distribution. Consider also what you wish to do with the work: is it to be reproduced in facsimile, transcribed, quoted, indexed, shown (films), played (sound recordings) or performed? Is the website freely accessible or is it restricted to approved users? Do you wish to be able to supply copies, to allow users to take copies, to license further use by users? Be careful to ensure that everything you might wish to do is covered by the licence you obtain, and ensure that you retain and keep up-to-date contact details for the rights owner if you might need to be in touch in the future, for instance if their consent is needed for commercial use by a user of the site. • For how long do I need the rights? Rights owners are not necessarily willing to grant rights for lengthy terms, so be realistic. Consider seeking a clause allowing for automatic renewal at set intervals if the licence is not terminated. • In what form do I need the rights to be? Do I need an assignment (see 3.3.8) or is a licence sufficient (see 5.2.2)? • How much money is available to devote to rights clearance? Is a diligent search to the standard required for the orphan works schemes (see 5.2.18) practicable? This is a time-consuming and thus expensive process since it involves trying to identify a current copyright owner then tracing and contacting him or her. Rights clearance must not be left to the last minute. • What do I do if I cannot trace the copyright owner? One or other of the orphan works schemes is the best route but might not in practice be feasible (see 5.2.17–20, 5.4.20).

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• It is possible that rights owners will refuse permission. Be prepared for this and do not think you can ignore it. Also, remember that no reply must be interpreted as meaning ‘no’ (see 5.2.23), at least unless you have assessed and decided to accept the resultant risk.

6.5.5 Rights information Rights owners are entitled to require that information about their rights is attached to digital copies of their works. This can be included in the metadata for the document and should preferably be written in a digital rights expression language which can be interpreted by computers and search engines. The information given should, among other things, identify the work by some unique identifier (such as a digital object identifier), the rights owner(s) (including the author), the uses permitted and the conditions of use. The Open Digital Rights Language Initiative has made available open source languages for this purpose.

6.5.6 Electronic document and records management It is government policy that government departments and other agencies should cease to rely on paper records and should instead create electronic records and store them electronically, and other bodies are moving in the same direction. The maintenance of paper files poses no or few copyright problems, since none of the restricted acts is routinely infringed, although the use of files whether active or closed can lead to infringement, notably by copying for some other purpose. There is a range of activities involved in creating and managing electronic files which could lead to infringement: • Paper materials must be digitized, which involves copying (see 5.1.2, 6.5.7). • Multiple copies must be made, for instance for back-up storage on different servers or for users to read (see 6.5.7). • Files must be migrated to new media and new formats in order to ensure their preservation and accessibility, all of which involves copying (see 6.5.8). • Records must ultimately be selected for permanent preservation and be made available to the public, which might involve a communication to the public (see 5.1.6, 6.5.9).

6.5.7 Records management: copying Where preservation copying is carried out within an archive, of materials in the ‘permanent collection’, copies may be made in any format and in such numbers as are required for the preservation purpose (see 5.4.10). There is no reason why records in a

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records management system that have been selected for permanent preservation should not be covered by this. Records that have yet to be reviewed with a view to selection for preservation cannot be said to be part of a permanent collection and so records managers are not assisted by this exception. There is no other exception that clearly covers copying for the routine purposes of records management. Although back-up copies of computer programs may be made (see 6.6.2), the same does not apply to data. On the other hand, an organization’s records have little intrinsic commercial value, records managers everywhere must be copying electronic ones routinely and the impact of such copying on a rights owner is likely to be minimal, so the risk of an infringement action appears likely to be remote. The courts occasionally recognize that ‘technical infringements’ are too trivial to be worth worrying about, and it is to be hoped that this would fall into that category. For Crown and NHS bodies there may be some help from the public proceedings exception (see 5.3.22–25). 1988 (CDPA) s50A; Blair v Osborne and Tomkins, 1971; ZYX Music v King, 1997

6.5.8 Records management: migration The process of migration of electronic files is a much more significant issue for records managers. Migration can take two forms: conversion of the files to a new medium (for instance from tape to disk) and conversion of the data to a new format as computer programs are updated and replaced. When records management is handled within the context of an archive, and the files are part of the permanent collection, the archive preservation exception (see 5.4.10) applies to permit media migration as often as required. There is no equivalent provision for files still held by the creating body, so records managers must hope that this too would be considered only a technical infringement.

6.5.9 Records management: communication to the public The communication to the public of works preserved in records management systems is likely to remain beyond the scope of any exception in national or European law. It is the electronic equivalent of publishing and goes far beyond what parliaments or governments are likely to force rights owners to accept. The same issues apply as to any other project to allow remote access (see 1.3.4, 6.5.1).

6.6

Computers and computer programs

6.6.1 Copyright protection Computer programs (both the source code and the object code) and preparatory design

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material for them are literary works in copyright terms, and the normal rules apply. However, regulations have made some special provisions, which apply to computer programs of any date. An adaptation of a computer program means an arrangement or altered version or a translation (a conversion into a different computer language or code), and is an infringement if done without permission. It is not fair dealing to convert a program from a low-level to a high-level language (except as part of decompilation, see 6.6.2). The circuit diagram for a computer or similar device is both a literary and an artistic work, as a compilation of notations for components and as a graphic work (see 2.1.2). There is no copyright in a computer programming language, which is regarded as being an idea or principle (see 2.1.4), nor in a command structure, which is seen as being a small language. Nor is there copyright in a computer program’s functionality (the way it works, the inputs it requires, and the outputs it generates) which is again merely ideas, not expression. When a computer program generates a graphic display which is static on the screen, that display can be an artistic work fixed (see 1.1.5) in the code, just as is a digital photograph (see 2.3.2–3), unless components of the display are dictated by technical requirements so that they are not intellectual creations of the author (see 2.1.6). Icons used on on-screen buttons are also artistic works (see 2.3.2). A variable numerical or character-based display is not fixed and not artistic and so is not of itself a copyright work. Commissioned programs are normally the copyright of the programmer or his or her employer (see 3.2.12, 3.2.17–18). The programmer is unlikely to agree to a full assignment of copyright to the person commissioning it because so much programming is generic and must be available to the programmer for use on other projects, but a partial assignment or exclusive licence covering just the tailored parts, together with a licence for the rest, should be secured if possible (see 3.2.17, 3.3.8, 5.2.2). 1988 (CDPA) ss3(1), 21(3)(ab) and (4); SI 1992/3233 regs 3, 5, 7, 12; Anacon v Environmental Research Technologies, 1994; Aubrey Max Sandman v Panasonic UK, 1998; Mackie Designs v Behringer, 1999; Navitaire v Easyjet Airline, 2005; Clearsprings Management v Businesslinx, 2006; Bezpečnostní softwarová asociace [BSA] v Ministerstvo kultury, 2011; SAS Institute v World Programming, 2014; Abraham Moon & Son v Thornber, 2012

6.6.2 Lawful users There are special provisions covering the activities of lawful users of a computer program. A lawful user is a person who has a right to use the program, by licence or otherwise. No licence or other agreement may restrict the freedom of a lawful user: • to make any back-up copy necessary for his or her lawful use

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• to decompile the program, by converting it from a low-level to a higher-level language, and in the process to copy it. A back-up copy is not ‘necessary’ in all circumstances. If, for example, the manufacturer of a CD-ROM has a policy of supplying replacement copies of disks that are damaged or have become unusable, there is no need to make back-up copies. Decompilation is permitted only in order to obtain information to enable the user to create a new program which can operate with the original program or another one. It would be an infringement to decompile a program if the user already had the necessary information, did more than was necessary to obtain the information needed, supplied the information to someone else unless that was necessary to create the new program, or used the information to create a new program substantially similar to the original. 1988 (CDPA) ss50A and 50B, 296A; SI 1992/3233 reg 8; Sony Computer Entertainment v Ball, 2005

6.6.3 Lawful use Lawful use permits a lawful user to observe, study or test the functioning of a program in order the discover the ideas and principles underlying it, so long as this is during the course of normal use of the program, and no licence may restrict this freedom. A lawful user may also copy or adapt a program if that is necessary for his or her lawful use, but only provided such copying or adaptation is not prohibited by any licence or agreement. Any program or package that is bought for use on computers comes with a licence, and it is important to study the licence carefully to ensure that all required uses of the material are authorized. If variations are needed (for instance to allow more people to use the program or package at the same time) the licensor should be contacted and a revised licence purchased. It is normal for software to be supplied ‘shrink-wrapped’ on a CD-ROM, with a label saying that opening the wrapping indicates acceptance of the terms of a licence to use the software. This is legitimate so long as the user has the opportunity to read the licence before opening. If the licence cannot be read before the packaging is opened, the user cannot be contractually bound by it until he or she actually starts using the software (see 5.2.2). If the user decides not to open the pack, for any reason, it may be returned. Online ‘click-use’ licences are similar. 1988 (CDPA) ss50BA, 50C; SI 1992/3233 reg 8; SI 2003/2498 reg 15; Beta Computers (Europe) v Adobe Systems (Europe), 1996

6.6.4 Technological protection Computer programs may be protected by anti-copying measures, which are themselves protected from circumvention (see 6.1.7).

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7

Special cases

7.1

British Isles outside the UK

7.1.1 Republic of Ireland: copyright history The Copyright Act 1911, when it was passed, applied to southern Ireland as part of the UK. When the two parliaments for the south and north were established by the Government of Ireland Act 1920, copyright was a subject reserved by Westminster. That Act was repealed in 1922, when the south became a self-governing dominion within the British Empire. The 1911 Act applied to self-governing dominions only if their local legislatures decided that it should, and local legislatures could amend or repeal that or any other Westminster copyright legislation so long as no existing rights were prejudiced. The Irish Free State duly provided its own copyright law by the Industrial and Commercial Property (Protection) Act 1927. This applied retrospectively to works created on or after 6 December 1921 but material created before that date continued to be protected under the 1911 Act. The Republic of Ireland ceased to be a dominion in 1949 by the Ireland Act 1949, and since then the Republic has twice passed new copyright legislation: the Copyright Act 1963 (see 7.1.4) and the Copyright Act 2000 (see 7.1.5). Strong similarities to the law in the UK remain, however, because the law of the Irish Republic is rooted in the common law tradition (see 1.1.1, 1.2.2), and both countries are now required to implement the harmonized aspects of European law, such as those for the duration of copyright (see 1.2.8, 2.1.28, 9.1.3). 1911 ss25, 26; 1920 s4(1); 1927 (Ireland) s174

7.1.2 Republic of Ireland: works created before 6 December 1921 The provisions of the Copyright Act 1911 continued to apply in the Republic, in particular to the subsistence of copyright and the ownership of it in works created in Ireland before 6 December 1921 (but see 7.1.5). This means that, for works to which the 1911 Act continues to apply: • the first owner of a commissioned engraving, photograph or portrait is normally the person who commissioned it (see 3.2.19) • ownership of copyrights assigned before 1 July 1912 may have reverted to the author’s heirs (see 3.3.13) • where a testator who was the author bequeathed to a particular person or institution

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a manuscript of a work, the ownership of the manuscript is taken to be prima facie proof of ownership of the copyright, unless the copyright was explicitly bequeathed elsewhere (see 3.3.3) • there is no protection for films as such, but those that can be shown to be original dramatic works are protected as dramatic works, and each frame is protected as a photograph (see 2.2.4, 2.4.1). 1911 ss5(1)(a), 17(2), 24, 35(1) ‘dramatic work’; 1927 (Ireland) s174(1); 1963 Sch 1 paras 12–13; 2000 (Ireland) Sch 1 paras 5, 7–8, 21

7.1.3 Republic of Ireland: works created 6 December 1921 to September 1964 The 1927 Act was very similar to the 1911 Act. It covered works created by citizens of the Irish Free State, works published in the state and works created or published elsewhere if there was reciprocal protection, if they were created, commissioned or bequeathed after 6 December 1921 and before 1 October 1964. Some of the provisions that were continued from the 1911 Act are those applying to the following: • commissioned engravings, photographs and portraits (see 3.2.19) • the employer as the first owner of the copyright of a work produced in the course of employment (see 3.2.12) • reversionary interests in assigned copyrights (see 3.3.14) • presumptions about the ownership of copyright in a bequeathed manuscript (see 3.3.3) • authorship of photographs (see 2.3.7) • films as original dramatic works and (retrospectively) as photographs (see 2.2.4, 2.4.1). There are some significant differences: • The right of the copyright owner to control the translation of his or her work into the Irish language expired ten years after first publication, unless the owner had arranged for such a translation to be published within that period. • The ownership of all infringing copies of a work that infringed the whole or a substantial part of another person’s copyright belonged to that person. • Crown copyright was replaced by a government copyright, owned by the Government of the Irish Free State. This applied to any work prepared or published by or under the direction or control of the Provisional Government or any minister or department (from 6 December 1921 onwards); and to any work prepared, printed or published by or under the direction of the Government of the Irish Free State, any minister or department, or by or under the authority of the Stationery Office. The

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reference to the Stationery Office meant that any work (including the original manuscript) by a private author became the copyright of the Government if it was officially published. 1927 (Ireland) ss154(2)(a), 158, 160, 167(2), 168, 171, 177 ‘dramatic work’; 1963 Sch 1 paras 12–13; 2000 (Ireland) Sch 1 paras 5, 7–8, 16, 22(2)

7.1.4 Republic of Ireland: works created October 1964 to the end of 2000 The 1963 Act in the Republic of Ireland was closely modelled on the UK’s 1956 Act, much of the text having been copied word-for-word. As a result, most of what this book says about parts of the 1956 Act that are still in force may also apply to the Republic, for works created during the period from 1 October 1964 (when the 1963 Act came into force) to 1 January 2001 when the 2000 Act came into force (but see 7.1.5). It should, though, be borne in mind that as the jurisdictions are separate, court judgments in Ireland may have differed from those in the UK. There are some significant differences between the statutes: • The 1956 Crown copyright provisions (see 3.2.28) are replicated for the benefit of ‘the Government’ of the Republic. • The 1956 provisions for the copying by institutions such as libraries, museums and archives of works over 100 years old and for their publication (see 5.4.14–15) are not included, so archivists and publishers in the Republic may not rely on them. • A literary, dramatic, musical or artistic work was published even if reproductions of an insubstantial part were issued to the public. • The author of a photograph, and the first owner of copyright if the work was not commissioned or made in the course of employment, was the photographer not the owner of the negative or plate (see 2.3.7). 1963 ss3(1, 2), 10, 51; SI 1964/177 (Ireland); 2000 (Ireland) Sch 1 paras 7–8

7.1.5 Republic of Ireland: 2000 Act Copyright in the Republic of Ireland has since 1 January 2001 been governed by the Copyright and Related Rights Act 2000 as amended. The Act updates the law to take account in a single statute of technological developments, changes arising from European Union directives and changes in international law, but there are still very close family similarities to the UK statute, and some provisions are identical. For one significant amendment of the Act in relation to exhibitions, see 4.2.2. There are special provisions in the Irish Act for the copying of works of any kind in the permanent collections of prescribed archives and libraries for non-commercial curatorial purposes. These cover copying for insurance, security, cataloguing, exhibition,

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for the supplying of copies of certain works to other similar institutions and for preservation purposes. Works in archives and libraries that in the UK are called unpublished works are described as works that have ‘not been lawfully made available to the public’ (as they have not been made available to the public with the rights owner’s explicit permission, and so cannot have been published), a very different use of the expression ‘made available to the public’ from that used in the UK (see 4.1.11). Archives and libraries may supply to researchers copies of the whole or part of unpublished works of any kind for the purposes of research or private study. There is no limitation of research to non-commercial research. Instead, the archives and libraries supplying the copies must be ‘not conducted for profit’, a quite different interpretation of the directive from that adopted in the UK. Before supplying copies to researchers, libraries and archives must receive a signed declaration form as specified in the regulations, as was formerly a requirement in the UK. For the comparable UK provisions see 5.4.13, 5.4.16. Fair dealing is very similar to the UK provision, except that fair dealing for the purposes of commercial research is not explicitly excluded. Instead the Act adopts part of the Berne Convention’s three-step test (see 5.3.1), specifying that use must be ‘for a purpose and to an extent which will not unreasonably prejudice the interests of the owner of the copyright’. This test appears to be even more subjective for users to understand than the UK’s non-commercial one (see 5.3.8), but it seems probable that commercial research would not be considered to be fair. The work used must have been made available to the public if fair dealing for any purpose is to apply. The reprographic copying of sheet music is not permitted under fair dealing for research or private study. Government and Oireachtas copyrights are much the same as Crown and Parliamentary copyrights in the UK. There is no copyright in a film as such made before 1 October 1964, but there is copyright in the individual frames as photographs and, where appropriate, in the film as a dramatic work. For duration of copyright in the Republic, see 9.1.3 and for Artist’s Resale Right, see 8.8. Directive 2001 (Information Society) art 5(2)(c); 2000 (Ireland) ss40, 50, 59–70, 191–193, Sch. 1 paras 3(5), 5; SI 404/2000 (Ireland); SI 427/2000 (Ireland) regs 3(1), 6, Sch 2 form B; SI 16/2004 (Ireland) reg 6

7.1.6 Crown dependencies The Channel Islands and the Isle of Man are dependent territories of the British Crown, outside the UK, the EU and the EEA (see 1.2.8, 2.1.28), though to some extent bound by treaties made by the UK. Each of the dependencies has its own legislature and its own form of government. The dependencies are covered by protocol 3 to the Treaty of Accession of the UK to the European Community, under which they are part of the EU customs territory and must treat EU citizens and bodies equally. EU legislation that

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directly relates to areas covered by the protocol is directly applicable in the dependencies, but this does not include the copyright directives. They have nevertheless been applied voluntarily. Jersey, Guernsey and the Isle of Man are all parties to the Berne Convention (see 1.2.6). Department of Health and Social Security v Barr and Montrose, 1989

7.1.7 Jersey In 2011 Jersey replaced the Copyright Act 1911 with a new law, drafted to take account of Jersey’s own needs. It came into force on 18 December 2012. It is based on the 1988 Act in the UK, but with some important differences. The advice in this book applies in most areas, but should still be used with caution in Jersey. These are some of the significant variations: • A film made before 18 December 2012 is protected as a sequence of photographs and, if appropriate, as a dramatic work (see 2.2.4, 2.4.1). • There is no copyright in a typographical arrangement published or in a broadcast made before 18 December 2012 (see 2.6.1, 2.6.15). • Reversionary interests (see 3.3.14) may be assigned since 18 December 2012. • Provisions under the 1911 Act covering copyright in documents bequeathed apply for works created up to 18 December 2012 (see 3.3.3). Thereafter, provisions are as in the UK Act (see 3.3.5). • Standard duration terms apply to works made before 18 December 2012 as to works made after that date (see 9.1.3). • The public exhibition of a literary, dramatic or musical work definitely does not infringe (see 4.2.2). • Fair dealing for the purposes of private study or research is not expressly limited to non-commercial research, though it must be probable that use for commercial research would not be found to be fair. However, fair dealing for these purposes is limited to literary, dramatic, musical and artistic works and to typographical arrangements. There is no exclusion of contractual prohibitions (see 5.3.8). • Fair dealing for purposes of criticism, review and current news reporting cannot be excluded by contract. There is no fair dealing for quotation generally, nor for caricature, parody and pastiche or text and data mining (see 5.3.10–11, 5.3.14–15). • The disability exceptions apply only to the visually disabled, but the definition of visually disabled covers people who cannot hold a book to read, cannot move their eyes to read or have a learning disability preventing reading. They apply only to literary, dramatic, musical and artistic works and to typographical arrangements. They do not permit the making of an accessible copy of a musical work for the purpose of recording a performance (see 5.3.16–17).

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• The education exception does not permit reprographic copying. The examination exception permits any use for the purposes of examination except the making of a copy of a musical work for use in an examined performance (see 5.3.19). Reprographic copying (but not online communication) of small parts of literary, dramatic and musical works (together with illustrations) by educational establishments is permitted only if there is no licensing scheme for the purpose. There is a form of extended collective licensing that enables the minister to extend such a licensing scheme to excluded works. The exception permitting the making of recordings of broadcasts by an educational establishment is not excluded by the existence of a licensing scheme but online access by people off the premises is not permitted (see 5.3.20). An educational establishment is a school in Jersey or an establishment for higher, vocational or continuing education, and the provisions apply also to peripatetic teachers employed by the States. • Provisions for library and archive copying are very similar to those that applied in the UK until June 2014. All exceptions apply to certain libraries specified in the regulations (libraries of educational establishments, public libraries, government libraries and a library of the Jersey Heritage Trust) and to any library not conducted for profit (prescribed libraries). All the archival exceptions apply to an archive of the Jersey Heritage Trust, archives that are not conducted for profit and archives holding Jersey public records (prescribed archives). Some exceptions apply to any library or archive in Jersey. For details see the 2012 regulations. • A prescribed library in Jersey may make and supply to a user a single copy of a published article from an issue of a periodical or a reasonable proportion of a published edition of a literary, dramatic or musical work, together with any illustrations, in return for a signed declaration form as set out in Schedule 1 of the regulations. The copy must not be supplied if the librarian has reason to believe that the declaration is false (see 5.4.12, 5.4.16). • Any library in Jersey may make and supply a copy, as above, to a prescribed library in Jersey or to a library elsewhere that is not conducted for profit, so long as the supplying library receives a written statement asserting that the receiving library does not know the identity of a person who could authorize the copying (see 5.4.17). • Any library or archive in Jersey may make a preservation copy of a literary, dramatic or musical work (together with illustrations) and of its typographical arrangement in the permanent collection, so long as the work is not available for loan to the public and a copy cannot be purchased (see 5.4.10–11). • Any library or archive in Jersey may supply a preservation copy, as above, to replace a lost or damaged work in a prescribed library or archive in Jersey or any library or archive outside Jersey that is not conducted for profit (see 5.4.10–11). • Any library or archive in Jersey may make and supply a single copy of all or part of an unpublished work of any kind for a user for the purposes of research or private study in return for a signed declaration form as set out in Schedule 2 of the

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• • • •

•

regulations. The copy must not be supplied if the librarian or archivist has reason to believe that the declaration is false (see 5.4.12–13). Users may be charged for the supply of copies, but there are no regulations about fees. Any public record may be copied for a user for any purpose. Moral rights (see 8.1) apply only to a person who had not died before 18 December 2012 but database right (see 8.2) can apply to any qualifying database. States Assembly copyright is similar to Parliamentary copyright. States copyright applies to a work created in the course of the duties of a minister or assistant minister, the bailiff or deputy bailiff, the attorney or solicitor general, a states employee (excluding a States Assembly employee) and a member of a committee or tribunal, and various other official figures and officers. The chief minister, the bailiff or the attorney general are variously the owners. Crown copyright applies to a work created by Her Majesty or an officer or servant of the Crown in the course of his duties, unless States Assembly or States Copyright apply instead. The Lieutenant Governor represents the Queen.

The law also provides for database right, publication right, performance rights and for designs. There is no distinct Jersey nationality, so most Jersey residents are British citizens. For qualification in Jersey and for Jersey works in the UK, see 3.1.2–3. For the duration of copyright in Jersey see 9.1.3. 1988 (CDPA) ss154–155; 2002 (Jersey) s3; 2011 (Jersey) ss7(1), 34, 46–47, 49–50, 54–55, 58–66, 72, 175, 182–184; R&O 147/2012 arts 10–12, 19, 34, 39; R&O 149/2012 arts 2–6, Sch 1–2

7.1.8 Guernsey The Bailiwick of Guernsey (including Alderney, Sark and other smaller islands) has a copyright ordinance (which came into force on 1 January 2006) that is very similar, and is for the most part identical, to the UK’s 1988 Act as it was up to June 2014. Important points to note, though, are: • Duration of copyright in literary, dramatic, musical and artistic works and in sound recordings of any date is for the standard terms (see 9.1.3). • Authorship of works created before 2006 is determined for everything but moral rights by the 1911 Act provisions, so for photographs the author was the owner of the negative, even for purposes of duration (see 2.3.7). • There is no copyright in a film as such (but see 2.2.4, 2.4.1), a broadcast or a typographical arrangement (see 2.6.1, 2.6.15) created or published before 2006.

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• There is a distinction between Crown copyright, in works created by officers and servants of the Crown, which vests in the Receiver-General for Guernsey on behalf of Her Majesty, and States copyright, in works created under the direction or control of (but not works commissioned by) the States (the government of the Bailiwick of Guernsey), which vests in the States. Copyright in laws and ordinances passed by the States of Deliberation for the whole bailiwick or for Guernsey alone is the property of the States of Guernsey, while copyright in those passed by the States of Alderney or the Chief Pleas of Sark belongs to those bodies. • Reversionary interests (see 3.3.14) may be assigned since 1 January 2006. • Provisions covering copyright in documents bequeathed under the 1911 Act (see 3.3.3) apply for works created up to 31 December 2005 and provisions the same as those in the UK Act apply thereafter (see 3.3.5). • Fair dealing provisions for non-commercial research, private study, criticism, review and current news reporting apply, but there is one significant addition. It may be fair dealing to use a work for any purpose so long as the two tests for the effect on the rights owner contained in the Berne Convention’s three-step test (see 5.3.1) are passed. The ordinance gives guidance on the issues to be taken into account: whether the use is commercial; the nature of the work used; the quantity and substantiality of what is taken; the effect of the use on the market for the source work and on its value; and the availability of a commercial copy. This could cover quotation, text and data mining or parody (see 5.3.11, 5.3.14–15). • Of other exceptions, the disability exception applies only to the visually impaired (see 5.3.16–17) and the examination exception (see 5.3.19) is broad and permits any use for the purposes of educational examination so long as there is sufficient acknowledgement (see 5.2.1). • As in Jersey, provisions for library and archive copying, introduced in 2011, are very similar to those that applied in the UK until June 2014. • Any library or archive in the Bailiwick of Guernsey that is not conducted for profit (listed in Schedule 1 of the regulations) may make and supply to users single copies of articles and of published literary, dramatic or musical works (but not artistic works, films or sound recordings) in return for an appropriate signed declaration (as set out in Schedule 3 of the regulations). • Any library or archive in the Bailiwick of Guernsey may make and supply to users single copies of unpublished literary, dramatic or musical works (but not artistic works, films or sound recordings) in return for an appropriate signed declaration. • Any library or archive in the Bailiwick of Guernsey may make preservation copies of any item in its own permanent collection that is not available for loan to the public. • Any library or archive in the Bailiwick of Guernsey may make and supply copies of articles and of published literary, dramatic or musical works, and may make and supply preservation copies (subject to specified conditions), to virtually any library or archive within or outside the Bailiwick that is not conducted for profit.

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• Any user, library or archive receiving a copy must pay a fee for it to cover the cost of the copy and a contribution to the general expenses of the supplying library or archive. An ordinance to introduce the database right to Guernsey was also passed in 2005 and Ordinances to cover other rights have been passed, based where appropriate on relevant EU directives, covering performance rights, registered and unregistered designs and trade marks. There is no distinct Guernsey nationality, so most Guernsey residents are British citizens. For qualification in Guernsey and for Guernsey works in the UK, see 3.1.2–3. For the duration of copyright in Guernsey see 9.1.3. 1988 (CDPA) ss154–155; 2005 (Copyright) ss34–36, 44(5), 50–57, 115, 189, 191, Sch 1 paras 6–9, 11, 17–18, 23–24; 2005 (Databases); SI 2011 No 14

7.1.9 Isle of Man The Isle of Man has its own Copyright Act of 1991, largely identical to the UK Act of 1988, which came into force on 1 July 1992. There are some significant differences from the current UK legislation: • The standard term of copyright is life of the author plus 50 years, but since Manx residents are mostly British citizens protection in the UK for a work originating in the Isle of Man is for the standard UK term (see 1.2.8, 9.1.3). • Copyright in unpublished literary, dramatic and musical works expires on 31 December 2042 at the earliest. • There is no limitation of ‘research’ to non-commercial research under either fair dealing or library and archive copying (see 5.3.8, 5.4.13, 5.4.16). • Fair dealing for the purposes of research or private study applies only to literary, dramatic, musical and artistic works, typographical arrangements and databases (see 5.3.8). • There is no fair dealing for quotation generally, nor for caricature, parody and pastiche or text and data mining (see 5.3.11, 5.3.14–15). • There is no disability exception (see 5.3.16–17). • The education exception does not permit reprographic copying. The examination exception permits any use for the purposes of examination except the making of a copy of a musical work for use in an examined performance (see 5.3.19). Reprographic copying (but not online communication) of small parts of literary, dramatic and musical works (together with illustrations) by educational establishments is permitted only if there is no licensing scheme for the purpose (see 5.3.20).

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• Library and archive copying is very similar to provision in Jersey (see 7.1.7). • Cable programmes are separately protected from broadcasts and there is no infringement by ‘communication to the public’ (see 5.1.6) so use of a work on the internet probably infringes by inclusion in a cable programme. • The public records copying exception applies to records in the Public Record Office, General or Diocesan Registry or the Manx Museum. • Crown copyright vests in the Treasury or (for maps) the Department of Local Government. • There is no copyright in an artistic work made before 31 May 1959 if it was a design capable of registration under the Registered Designs Act 1949 or earlier designs legislation and it was used or intended to be used to make multiple copies. A Copyright Amendment Act in 1999 introduced database right to the Isle of Man. There is no distinct Isle of Man nationality, so most Isle of Man residents are British citizens. For qualification in the Isle of Man and for Isle of Man works in the UK, see 3.1.2–3. For duration of copyright in the Isle of Man see 9.1.3. Directive 1996; EC Council decision 2003/239/EC; 1991 ss3A, 12, 20, 29, 32, 36–43, 49, 156–158, Sch 1 paras 6, 12, 38–42; 1999 (Isle of Man) ss6–18; SI GC 316/92; SI 2003/2501 regs 3–5

7.2

Records of a repository’s parent institution or authority

7.2.1 Ownership of copyright Except in the case of public records, there are no special copyright provisions for the records of a repository’s parent institution or authority. This means that the repository is not entitled to copy or license the reproduction of any material among the records of the parent institution or authority which is the copyright of an individual or another institution (for instance letters received), except as this is permitted under the general provisions for copying and publication or the special provisions for libraries and archives (see 5.3 and 5.4).

7.2.2 Guidance from management An archivist who is responsible for the care of the records of a parent institution or authority should secure guidance from senior management on the use of material among the records that is in the parent institution’s or authority’s own copyright. This guidance should certainly include authority to supply copies to users, so as to reduce the burden of compliance with the special regulations for copying by libraries and archives (see 5.4), and might extend to explicit authority to grant licences for the use of copyright material.

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7.3

Gifts and deposits of records

7.3.1 Gifts and deposits Copyright is not infringed by simply making original documents (or preservation copies, see 5.4.10–11) available to the public to read, nor by displaying documents in an exhibition (see 4.2). The copyright owner may not impose conditions on access to the records, therefore, unless he or she is also the owner of the documents themselves, and even then only in accordance with freedom of information where appropriate (see 5.4.4–5). The copyright owner’s control is limited to the copying and use of his or her copyright material (see 1.1.3). If an archivist wishes to publish any of the documents, he or she is in the same position as a member of the public wishing to do so. The following comments about the deposit of records apply also to gifts, unless otherwise stated. It is important that a depositor fully understands the terms of his or her deposit, and particularly the implications of any provisions for copyright. The archivist must also be aware that any deposit agreement and any copyright licence may be a form of contract (see 5.2.2, see also 3.3.8), and that legal advice should be sought if there is any doubt about the drafting or meaning of particular provisions (see 5.5). It is also important now to be aware of the implications of the EU orphan works scheme (see 5.2.17, 5.4.20). The scheme does not apply to unpublished works unless they are made accessible to the public by the archive with the approval of the copyright owner and use of such works, even if identified as orphans, is only permissible if it is reasonable to presume that the rights owner would not object. With possible future application of the scheme in mind, therefore, archivists should ensure, when negotiating the deposit or donation of unpublished materials in which the depositor or donor owns some or all of the copyrights, that they obtain permission to make the material publicly accessible and communicate the material to the public online. With these permissions recorded and known about, the scheme can be applied to the material if the rights owner is, in the future, untraceable or the rights pass to a new and unknown owner. Such permissions are not needed if an assignment is secured (see 7.3.7).

7.3.2 Gifts and deposits: depositor’s conditions When documents are deposited in a record office, the depositor may impose conditions of deposit which are similar to, but entirely distinct from, copyright restrictions. It may be that the donor of records could insist on the same right, but any such conditions might be unenforceable. A depositor’s conditions might include, for instance, requiring written undertakings from intending readers that they will limit their use of the material to research and private study or to education. Before accepting any deposit, the archivist is presumably satisfied that the depositor is authorized to deposit the documents. That being the case, although the depositor may not be the owner of the copyright in the documents, the conditions must be observed (even if, for instance, they prevent

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copyright owners making use of their own works) though freedom of information provisions might take precedence (see 5.4.4–5).

7.3.3 Gifts and deposits: categories of material Any deposit of documents is likely to contain three categories of material: • out of copyright (for instance old published and artistic works) • copyright of the depositor • copyright of someone other than the depositor. A deposit that contains, for instance, a family’s or a company’s correspondence includes copies of letters sent and originals of letters received; the depositor is likely to own only the copyright in the copies of letters sent (see 3.2.4). The archivist must remember this when negotiating the terms of the deposit and subsequently advising members of the public. No licence is needed for any use of items in the first category. The depositor is unlikely to have any right to give permission for the use of items in the third category, since any copyright licence (see 5.2.2) or assignment (see 3.3.8) is valid only for works in which copyright is owned by the person signing the agreement or the person on whose behalf it is signed. The archivist would be well advised to secure a licence or assignment to cover the second category, and must make sure that he or she understands precisely what it does and does not cover. It is desirable, for instance, that a licence permits the archivist to use, or authorize others to use, the material. Any licence or assignment should be in writing and signed by the licensor, and should be in return for at least a nominal payment. Even if a licence or assignment is secured, the archivist must remember that the moral rights of the author of a work (see 8.1) remain with the author and his or her heirs unless they are explicitly waived.

7.3.4 Gifts and deposits: depositor control In some cases, the depositor may wish to retain all control over material in his or her copyright. In that case the depositor needs to provide details of how he or she may be contacted by the archivist or a member of the public for permission to make use of relevant material. Provision should be made for information about changes of address to be supplied, and to ask the depositor’s heirs to notify the archivist of the change in ownership of the copyright after the depositor’s death. The copyright owner may then issue, or refuse to issue, licences in response to specific requests for permission to use material. This is the least desirable solution from the archivist’s point of view.

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7.3.5 Gifts and deposits: licence to archivist Most depositors are content to give a licence to the archivist to deal with requests for the reproduction of his or her copyright material on his or her behalf. The licence may be for a set term, but should preferably be for the full term of copyright, and may specify the sorts of use that are, or are not, permitted. If it does so, the archivist should ensure that the terms of any conditions are clear. For instance, the depositor might be willing to allow use in charitable or educational publications but not in commercial ones. He or she may wish to have referred to him or her applications for uses that the licence does not allow; in that case, contact arrangements are needed as above. The licence should also specify whether the archivist may grant permission for a fee. If the depositor is retaining the right to grant licences for commercial exploitation, if at all possible the archivist should not accept any responsibility for the collection of fees on the depositor’s behalf. If the licence for specified material permits copying, there is no need to require users to complete a declaration before receiving copies of that material. However, users must be made aware of any limits imposed on their use by the licence. There is one possible disadvantage of a licence of this sort. A licence while in force is automatically binding on the depositor’s heirs, but is not binding on anyone who buys, without knowledge of the licence, an assignment of the copyright (see 3.3.8) from the depositor or the heirs. The licence could therefore become ineffective without warning (see 5.2.2). A sample licence is given in the Appendix (see 9.3.1). 1988 (CDPA) s90

7.3.6 Gifts and deposits: partial assignment Some depositors are happy to make an assignment to the archivist, but only of some, not all, of his or her rights in the material. A partial assignment may be limited to a term of years and/or may be limited by specifying to which of the copyright owner’s rights it applies. It may, for instance, specify reproduction rights, or performing rights, or publication rights, or a combination. The assignment must be in writing and signed by the copyright owner and preferably be given (except in Scotland) in return for a consideration (see 3.3.8) and is then binding on him or her, his or her heirs and any purchaser of his or her rights. They may then be sued for infringement of the rights assigned and for breach of contract. Once the archivist has received an assignment of some of the depositor’s rights in documents deposited, he or she may give permission and issue licences for the use of material that was the copyright of the depositor, within the limits laid down, without reference to the depositor, and may charge such fees as he or she thinks fit. An assignment of the reproduction right means that no declaration from a user is required before copies

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are made and supplied, but the user must be made aware of any restrictions on use resulting from the rights owner’s retention of other rights. The archivist too must remember that the depositor or some other assignee owns the remaining rights in the material; his or her freedom of action is limited to the rights that have been assigned. This could cause difficulties if there is a risk that the copyright owner will in future become difficult or impossible to trace; some arrangement for the future is desirable (see 7.3.5). A partial assignment that is limited to a term of years reverts to the assignor automatically, without any need for any action by either party. An archivist or records manager who receives such an assignment must make some provision to ensure that he or she, and his or her successors, are aware of when the assignment ceases to be effective. A better solution, from the archivist’s or records manager’s point of view, is a full assignment. 1988 (CDPA) ss90, 173(1); Gross v Seligman, 1914; Crosstown Music v Rive Droite Music, 2011

7.3.7 Gifts and deposits: full assignment The most desirable solution with gifts and deposits is for the depositor to assign all of his or her rights in the material to the archivist (by title, not by name). A full assignment transfers all rights to the archivist or his or her employer: he or she becomes the owner of the copyright and the depositor no longer has control (except in respect of moral rights unless they are waived, see 8.1). As with a partial assignment, the assignment must be in writing and signed by the copyright owner, and should (except in Scotland) be in return for a consideration (see 3.3.8) and is binding on the copyright owner, his or her heirs and any subsequent purchaser of any remaining rights in other material so that they may be sued for infringement. Once the archivist has received a full assignment, the archive or its parent authority owns the depositor’s right in the deposit but not of course the righrs in documents that were not the copyright of the depositor, such as letters received (see 3.2.3–4). No declaration is then needed from a user in return for the supply of copies of the depositor’s copyright material, the archivist may give permission and issue licences for the use of that material without reference to the depositor, and the archivist may charge such fees as he or she thinks fit. It is a valuable document and should be kept safely in a place where it can be readily found if needed, for the duration of the copyright. 1988 (CDPA) s90; Gross v Seligman, 1914

7.3.8 Gifts and deposits: sample assignment A sample assignment is given in the Appendix (see 9.4, and see 3.3.8). Note the following:

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• The assignor may be an individual, individuals or a company. If several members of a family are depositing records, they should all be parties to the assignment and sign it. • The head of the record office as assignee should be identified by title not by the individual’s name. • The definition of the rights is complicated by the fact that few deposits contain material all of which is in the copyright of the depositor (see 7.3.3). For this reason it is very desirable that the background paragraph gives information on the nature of the material in which the assignor owns the copyright. • Where a depositor is assigning rights in his or her own works, moral rights become relevant (see 8.1), and the works concerned must be clearly identified. If he or she wishes to be identified as the author, that moral right must be asserted in the assignment. Alternatively, either or both of the rights to be identified as the author and to object to derogatory treatment may be waived. • The assignment should preferably be in return for a consideration (see 3.3.8). • There is no requirement that an assignment be witnessed, or that it be signed by the assignee as well as the assignor, but these precautions may prevent disputes later.

7.3.9 Gifts and deposits: licence to publish If the archivist has been licensed to give permission for the use of copyright material deposited, or has received a partial or total assignment, he or she may authorize the use of the material and should always do so in writing, keeping a copy on file. In many cases, permission does not require the formality of a further licence to the user; a simple letter giving permission for a specified use (or uses) of a specified document (or documents) is normally sufficient. However, a complex request for permission might justify a formal licence, and it is certainly necessary if there is to be a continuing relationship between the archive and the licensee, for instance for the payment of royalties. Unless there are exceptional circumstances, any licence must be non-exclusive (see 5.2.5). Archivists should be very wary of granting exclusive licences, because they mean that no one else (including the archivist) may do the same thing with the same material without the archivist being in breach of contract. Archivists should also never issue blanket licences which do not specify, in some way, the material to which the licence applies. A model licence is given in the Appendix (see 9.3.2). This model licence needs to be adapted to suit the circumstances. If for instance the copyright has been assigned to the archives, it is unlikely that the depositor will be a party to the agreement. In that case the preamble needs to be rewritten appropriately and there probably needs to be a definition of depositor in clause 2. Possible options for other variations are given throughout the text.

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Public records

7.4.1 Special provisions Special copyright provisions for the copying of public records are described in 5.4.2–3. The licensing of Crown copyright material in public records is considered in 5.2.7.

7.4.2 Census returns Returns of decennial censuses of population for all parts of the UK are public records and Crown copyright literary works. Many local record offices and libraries hold copies of some of the returns, which are made available for public inspection. The original returns for England and Wales, 1841–1911, are held by and made available in TNA and online (www.nationalarchives.gov.uk; see 10.3). Those for Scotland, 1841–1901, are held by the National Records of Scotland in Edinburgh and are also available online (www.scotlandspeople.gov.uk; see 10.3). For Ireland, north and south, the few surviving 19th-century returns and the returns for 1901 are held by and available on microfilm at the Public Record Office of Northern Ireland in Belfast and at the National Archives of Ireland in Dublin, but are to be made available online. All these records are covered by Crown copyright licensing terms (see 5.2.7).

7.4.3 Census returns: Ireland The few surviving 19th-century returns of decennial censuses of population and the returns for the 1901 and 1911 censuses for areas now in the Republic of Ireland are now in the National Archives of Ireland in Dublin. Under the terms of the Copyright Act 1911 they are, and continue to be (at least in theory), Crown copyright. Later censuses are covered by legislation of the Irish Free State and the Republic of Ireland, and the copyright belongs to the Irish Government (see 7.1.1–5). 1911 s18; 1927 (Ireland) ss168, 174(1)

7.5

Records of local authorities

7.5.1 Ownership of copyright In normal circumstances, a local authority is the first owner of copyright in works created by its employees (see 3.2.12), including, for instance, employed officers of civil parishes. Where officers were not actually employed but were effectively volunteers, there might be complications (see 7.13). Moreover, many local authority files contain material in the copyright of others (including the Crown). This might include letters received, invoices from suppliers, government circulars, advertising literature and so on. Material created by individuals and bodies working on commission for the authority is

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normally the copyright of the authors (see 3.2.17), unless the contract contained an assignment of copyright to the authority (see 3.3.8). Archivists and records managers must be aware of the distinction between material which is and is not the copyright of their parent authority, and ensure that they do not commit an infringement by authorizing the publication (see 4.1.3, 5.1.3) or communication to the public (see 5.1.6) of works which are not in the authority’s copyright (see 5.1.12).

7.5.2 Pre-20th-century records Given that there was no provision for automatic ownership by employers of copyright in unpublished works until the passing of the 1911 Act (see 3.2.12), the strict ownership of copyright in records of 19th-century and earlier local administration could be very difficult to determine. However, in many cases the principles of equitable ownership might be useful (see 3.3.18–19): the author as legal owner of the copyright would be deemed to have been acting for the equitable owner (such as the parish or the union). This could apply, for instance, to records created by overseers of the poor, surveyors of highways, boards of guardians and other officers of local administration, and the equitable rights would since have descended to the present local authority. Copyright in the records of poor law authorities and their workhouses was transferred to relevant county councils when the authorities were abolished in 1929. However, a modern local authority is unlikely to have any claim to the copyright in records of a body such as a turnpike trust, a private institution that owed no duty to the parish. In such a case, copyright might have been owned jointly by the members of the board or might have belonged to the clerk (probably a local attorney) who did all the work. Local authority copyright ownership would apply only to records created after responsibility for a road had passed to a local highways board. 1911 s24; 1929 s113

7.5.3 Local authority archivists Local authorities in England and Wales are empowered by the Local Government (Records) Act 1962 to provide archive facilities, take records into their care, make them available to the public, provide finding aids to them, and exhibit them. However, the Act explicitly reminds local authorities and their archivists that it does not give authority to do anything that infringes copyright in the material held. The library and archive copying provisions (see 5.4) thus apply, except in the case of material no longer in copyright, material in the copyright of the authority itself (see 7.2) or public records on deposit (see 5.4.2). 1962 s1(2)

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7.5.4 Local government reorganization In the many reorganizations of local government over the years it has usually been possible to determine the identity of the successor to an authority that has been abolished; the copyright in works created by that abolished body would have passed to the successor along with the files. In some cases, reorganizations have not been so clear cut and special provisions have had to be made. These are outlined below. In any doubtful case, a local authority archivist or records manager should try to get hold of the relevant agreements and consult the authority’s legal advisers. It is not possible to give general guidance that covers every case. The duration of the copyright is as for any other works (see Chapter 2); the notional ‘death’ of an abolished authority has no effect on duration.

7.5.5 1974 reorganization in England and Wales Under the Local Government Act 1972, the local government of England and Wales was radically reorganized with effect from 1974, creating new metropolitan counties and a new structure of county and district councils. In many cases, the transition from abolished to successor authority was sufficiently clear for there to be little doubt about the successor in title to the copyrights. Where necessary, local agreements were reached, and these should be on the files of the legal department of the successor authority. To give certainty in England, however, the Local Authorities (England) (Property etc.) Order 1973 provided for property (which included copyright) of abolished authorities to be transferred to and to vest in successor authorities and for deeds and agreements (which included assignments of copyright) in favour of abolished authorities to have full force in favour of successor authorities. 1972 s254; SI 1973/1861

7.5.6 1986 reorganization of metropolitan counties and London The Local Government Act 1985 abolished, as from 1986, the Greater London Council and the metropolitan counties created in 1974, transferring their functions to the City of London and the district and borough councils, which had previously formed the second tier, or to residuary bodies required to distribute functions before they themselves were abolished. The Act also created joint authorities for such things as the fire and passenger transport services. For the most part property and rights (including copyright) passed to the successor authorities or residuary bodies, but the Local Government Reorganization (Property etc.) Order 1986 made further provision for property and rights, including the transfer of ownership of records. Detailed advice on any particular problem should be sought from the successor authority’s legal advisers. 1985 (Local) ss62, 100; SI 1986/148

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7.5.7 1995 reorganization in England The Local Government Act 1992 provided for the review by a Local Government Commission of local government in England outside the metropolitan counties. The Commission could recommend the replacement of existing county and district authorities by single-tier authorities, and the secretary of state could by order implement the change, with or without amendments. The Local Government Changes for England (Property Transfer and Transitional Payments) Regulations 1995 required successor authorities, where there was more than one, to reach agreement on the identification and future ownership of property and rights; if they could not reach agreement, the matter went to arbitration. Such agreements determine the ownership by the successor authorities of copyrights owned by the abolished authorities, and should be available for consultation in the successor authorities’ legal departments. The same regulations provided for agreements on the transfer of ownership in property contained in archival and local history collections, and related rights and liabilities. In this case, no agreement could specify more than one successor authority for any item in such a collection. Where the abolished authority owned rights, including copyright, in archival materials, therefore, those rights transferred with the documents. 1992 (Local Government) ss17, 19; SI 1995/402 regs 5, 6, 19

7.5.8 1996 reorganization in Wales The structure of two tiers of counties and districts created for Wales in 1974 was amended in 1996 by the creation of single-tier counties and county boroughs. Property and rights (including copyright) of the abolished authorities passed to their successor authorities. Where public bodies were affected by the reorganization, they could make agreements with the successor authorities for the transfer or retention of property and rights (including copyright), copies of which should be available with the successor authorities’ legal advisers. 1994 (Wales) ss17, 56

7.5.9 1975 and 1996 reorganizations in Scotland Scottish local government was reorganized in 1975 by the Local Government (Scotland) Act 1973 into regions, islands areas and districts. The Act vested the records of abolished authorities in their successors, and the Local Authorities (Property etc.) (Scotland) Order 1975 provided for the transfer of property (including rights such as copyright) to the successor authority responsible for each function, unless successor authorities agreed a different distribution between themselves. Copies of such agreements should be available among the records of the legal advisers of those successor authorities. The regions and districts were abolished in 1996 by the Local

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Government etc. (Scotland) Act 1994, which created new single-tier local government areas. The Local Authorities (Property Transfer) (Scotland) Order 1995 required successor authorities to reach agreement on the distribution of property (including records) and rights (including copyright), and again such agreements should be available from the legal advisers. 1973 (Scotland) ss200, 222; 1994 (Scotland) s15; SI 1975/659; SI 1995/2499

7.5.10 Subsequent local government reorganizations There have been many piecemeal reorganizations of local government in all parts of the UK during the current century. Each one has resulted in divisions and mergers of responsibility for different issues, including archives. It is not possible to summarize the effects on copyright ownership, so archivists and records managers who need to know about ownership of copyright in records in their care should investigate the history of the changes in their locality.

7.6

Records of ecclesiastical and religious bodies

7.6.1 Ownership The records of any ecclesiastical or religious body may have been created, collected and deposited (if they are in the diocesan or some other record office) by diocesan, parochial or other authorities. These authorities are the owners, and sometimes also the custodians, of the records themselves and thus have rights to exercise some control over such things as copying, publication and exhibition, irrespective of the copyright position. They may also be the owners of the copyright, but in many cases are not.

7.6.2 Church of England, Episcopal Church of Scotland and Roman Catholic Church Historically, the clergy of the Church of England, the Episcopal Church of Scotland and the Roman Catholic Church at all levels when occupying ecclesiastical offices were regarded as ecclesiastical office-holders not as employees, serving God and the people. There was no employer, and no contract of employment, actual or implied, with the parish, the bishop, the archbishop or other church authorities; a clergyman owed nothing but a duty of ‘due’ or ‘canonical’ obedience to an ecclesiastical superior. In the case of the Church of England, beneficed clergy (notably rectors) owned, and in some cases still do own, the freehold to the benefice. This is changing under a measure that introduces ‘common tenure’ to the holders of all Church of England offices for which the individual receives a stipend, from the archbishops down to lay readers, including deans, canons, archdeacons and vicars. All new appointments from 2010 onwards have

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been by common tenure; existing office-holders are given the option to retain their existing terms. Common tenure gives some rights equivalent to those of an employee (for instance to appeal against unfair dismissal) but it creates no actual relationship of employer and employee. All this means that for these three churches the office-holder, not the church, continues to be the first legal owner of copyright in works of which he or she is the author, such as correspondence. However, the copyright position is not necessarily quite that simple. It may be that, in a parish for instance, the current rector, vicar or minister as the current office-holder, or the parochial church council or session as an undying corporation, may have a claim in equity to works created on behalf of the parish by an earlier incumbent (see 3.3.18, and see also 7.13). Whatever the precise legal position, for practical purposes archivists are advised to continue to regard the current incumbent as the first port of call in such cases. Ordained clergy are capable of being employees, for instance as chaplains to schools. The position of individuals who are not ordained depends on their particular circumstances. Many, such as secretaries, have the status of employees (see 3.2.12), while a volunteer secretary or other officer does not (see 7.13). People who do not have a licence from the bishop to exercise a ministry might be employed; it depends on whether the church and the individual intended to create a relationship of employment (see 3.2.18). 2009 ss1(1), 9(6); Canons Ecclesiastical C14(3); In re Employment of Church of England Curates, 1912; Barthorpe v Exeter Diocesan Board, 1979; Diocese of Southwark v Coker, 1998; Percy v Church of Scotland, 2006

7.6.3 Records of other religious bodies The employment status of ministers of non-conformist churches, rabbis of synagogues, Sikh priests, Salvation Army officers and similar individuals is probably now rather different. The House of Lords has decided that there should be no automatic presumption that such individuals are not employees, and their status depends on the nature of the mutual obligations of the individual and the church or other religious body. For practical purposes the first enquiry should be addressed to any modern parent body or current senior figure (for example, the office of a bishop or archbishop or the headquarters of a church or religious organization), or to the current priest, minister, rabbi or other individual as appropriate. Records of such bodies as synods, meetings of elders, boards of deputies and monthly meetings are created by volunteers in some cases (see 7.13), but in others by employees (see 3.2.12). Scottish Insurance Commissioners v Church of Scotland, 1914; Rogers v Booth, 1937; President of the Methodist Conference v Parfitt, 1984; Davies v Presbyterian Church of Wales, 1986; Santokh Singh v Guru Nanak Gurdwara, 1990; Birmingham Mosque Trust v Alavi, 1992; Percy v Church of Scotland, 2006; New Testament Church of God v Stewart, 2007

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7.6.4 Parish and non-parochial registers The Church of England has recognized that there is no copyright at all in the contents of its registers of baptisms and burials for lack of originality (see 2.1.10). This applies both to an individual entry and to an entire register. There is thus no need to ask readers to complete a declaration (see 5.4.12) when requesting copies. The registers of parochial baptisms and burials themselves are, however, the property of the incumbent of the parish, the churchwardens or the parochial church council, and they have the right to control access to and copying of them and especially commercial or extensive use, whether still in the parish or in a diocesan record office. Roman Catholic and Church of Scotland parochial registers and other non-parochial registers are equally unoriginal, but similar permission should be sought from the priest, minister, clerk, rabbi or equivalent as owners of them. Any registers created since 1 January 1998 presumably qualify as databases, so there could perhaps be a copyright but probably not a database right in them (see 8.2). For local marriage registers see 7.7.13. 1812 s5; Legal Opinions Concerning the Church of England, p. 208e (Legal Advisory Commission of the General Synod)

7.6.5 Records of ministry Works produced as part of his or her ministry by a clergyman, priest, minister, rabbi or other individual, such as the texts of sermons or prayers, should normally be regarded as the copyright of their author, in the same way as other literary works.

7.7

Legal records

7.7.1 Court-holding authority and judgments The court-holding authority is the first owner of copyright in documents (such as indictments and enrolments) drafted by officials of any court of law who are employees of the authority (see 3.2.12). The court-holding authority is owner of the copyright in judgments delivered by the court. However, many judgments are published in court reports (see 7.7.6). If lengthy extracts are to be used from judgments, it would be as well to secure the permission of the individual judge (if still alive) as well as from the courtholding authority and (where appropriate) the publisher of the court report.

7.7.2 The Crown as court-holding authority The Crown is (or was) the court-holding authority for the following categories of court in England and Wales:

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• the Privy Council (for appeals from Commonwealth countries which still retain that link) • the Court of Appeal (Civil and Criminal Divisions) • the High Court (Chancery Division, Queen’s Bench Division and Family Division and their predecessors) • the Crown Court • assizes and quarter sessions • county courts • magistrates’ courts (since 2005) (but see 7.7.3) • tribunals. The Supreme Court has replaced the Appellate Committee of the House of Lords (see 7.7.3) as the highest court of appeal in England, Wales and Northern Ireland and for appeals in civil cases from Scotland. The Crown is the court-holding authority, since the Court’s members are office-holders of the Crown. In Scotland, the Crown is the court-holding authority for the higher courts: the Court of Session, the High Court of Judiciary and the sheriff courts, and was the court-holding authority for the post-Reformation commissary courts. The Crown is the court-holding authority for all courts in Northern Ireland: the Court of Appeal, the High Court, the Crown Court, the county courts, and the magistrates’ and coroners’ courts. 2005 (Constitutional Reform) s23; Crown Copyright in the Information Age, Cm 3819 (1998) 7.7.3 Other court-holding authorities Parliament was the court-holding authority for the former Appellate Committee of the House of Lords (but see also 7.7.2), so works created by its members are in Parliamentary copyright (see 3.2.35). The court-holding authority for manorial courts was the lord of the manor (see 7.10). For ecclesiastical courts (including those of the preReformation Church, the Church of England and the Church of Scotland), the courtholding authority was normally the appropriate bishop or archbishop, but see 7.7.4 for their probate jurisdiction. A coroner is an officer of the Crown so his works, when acting in that capacity, are Crown copyright, but his staff are employees of the relevant local authority. Justices of the peace (magistrates) in England and Wales are officers of the Crown and any works created by them personally in that capacity are Crown copyright. However, their clerks have not always been employees of any court-holding authority. Thus it appears that copyright in most magistrates’ court (petty sessions, police court) records lies as follows: • Until 1851 justices’ clerks were all fee-paid in private practice, and themselves owned the copyright.

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• Between 1851 and 1878 justices’ clerks were increasingly employed by the local authority, so the copyright position varied from place to place. • Between 1878 and 1951 all clerks were employed by the local authority, which was the court-holding authority. • Between 1951 and 2005 clerks were employed by magistrates’ courts committees as court-holding authority. • Since 1 April 2005 the Crown is court-holding authority as the courts are now part of HM Court Service. In Scotland the local authority was the court-holding authority for burgh, police and justices’ courts, and is the authority for district courts. 1877; 1949 (Justices); 1988 (Coroners); 2003 (Courts); 2009 (Coroners)

7.7.4 Probate and inheritance Until 1858 in England and Wales, jurisdiction over probate matters (the proving of wills and the granting of letters of administration) was handled by ecclesiastical courts scattered around the country. The most important of these were the prerogative courts of York and Canterbury. The ecclesiastical jurisdiction, together with the jurisdiction of some temporal peculiars, was abolished by the Court of Probate Act 1857, and replaced by a new civil court with one central and 40 district registries, whose records are Crown copyright. The records of the pre-1858 courts were transferred to the new registries and have since been deposited in record offices, but the Act made no mention of the ownership of those records or of any rights in them. That being so, the copyright in the records, including in letters of administration issued by the courts but not in wills proved by them (see 7.7.5), should be presumed to have transferred to the successor at law of the old courts, which is the Crown, although the copyright did not as a result become ‘Crown copyright’ (see 3.3.12). All such records are public records. In Scotland, inheritance of movable property was dealt with by church courts until the Reformation, as in England and Wales. Jurisdiction over the inheritance of movable property passed to the commissary courts in 1563 and on their abolition in 1824 to the sheriff courts (see 7.7.2). Thus, the post-Reformation testaments confirming the execution of an estate are Crown copyright (but see 7.7.5 for wills). The feudal nature of land owning in Scotland means that the records relating to heritable property (primarily the register of Sasines and various Chancery records) are also Crown copyright. In Ireland, as in England and Wales, ecclesiastical jurisdiction over probate was abolished in 1858, and a new Court of Probate established in Dublin, and after 1922 in Belfast. The pre-1858 records were deposited in the new probate registries ‘so as to be easy of reference, under the control and direction of the Court’, but almost all the original

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wills were lost in 1922. The copyright position in Northern Ireland is as for England and Wales; for the Republic see 7.1.1–5. 1823 s6; 1857 (Probate) ss3, 89; 1857 (Ireland) ss5, 6, 96; 1958 Sch 1 para 4(1)(n)

7.7.5 Wills and inventories It is normally assumed that the testator is the author of a will for copyright purposes and that the testator’s legal heirs are the owners of the copyright in the text, whether the original or a registered copy. This may or may not strictly be the case. In fact, authorship and first ownership of copyright in a will, and of any codicils, depends on the circumstances in which they were drafted (see 2.2.14). If the testator drafts or dictates the precise terms of the will or codicil, he or she is the author and ownership of the copyright lies with him or her and subsequently with the legal heirs. If, however, the will or codicil expresses the intentions of the testator but is drafted in the words of a solicitor or some other person, that person is the author and first owner of the copyright unless he or she is the employee of the testator at the time of drafting, and that person’s legal heirs are the present owners of the copyright unless it was assigned elsewhere. In practice, it is likely to be impossible to determine the circumstances in which a particular will or codicil was drafted. Any successors of a solicitor would be hard pressed to prove their right to the copyright, and the testator’s legal descendants are likely at least to have a claim in equity (see 3.3.18). Unless there are clear indications to the contrary, therefore, it is normally reasonable to regard the testator’s direct descendants (if they can prove their descent) as the current owners of the copyright. For the effect of a will on the copyright in any items bequeathed see 3.3.1–6. Inventories of the goods of the deceased are normally protected by copyright as compilations. The author of the compilation is the first owner, but again the facts about who created the compilation of old inventories are almost certainly lost. Since inventories were created as part of the probate proceedings at the direction of the court, it is probably best to regard those created before 1858 as being in Crown-owned copyright and those created between 1858 and 1 August 1989 as being Crown copyright. Ownership of any created since 1989 should not be too difficult to determine, based on who created them (see 3.2.28–29, 3.3.12, 7.7.4).

7.7.6 Court reports There are two kinds of account recording what happened during a trial, and they have different copyrights: • Published court reports, which appear in many published series and in some newspapers (see 11.4), are prepared by qualified barristers employed by the

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publishers. They record the significant elements of the cases made by counsel, and the reasoning and judgments of the judges. Those that appear after some delay are approved before publication by the judges, and so are regarded as authoritative statements of judgments for the purposes of precedent in later trials. For the most part they have no other official status and as reports they are the copyright of the publishers (who may be the Crown), but see 7.7.1 for the judgments themselves. • Shorthand transcripts of the proceedings of the trial are taken by shorthand writers either employed directly by the court or employed by companies operating under contract with the court. The contracts reserve the copyright in the transcripts to the Crown.

7.7.7 Writs Writs issued by a court in connection with civil proceedings are likely to involve two distinct copyrights. The form of the writ is Crown copyright; the Crown permits the copying of blank forms and their publication without formality. The details with which the form is completed (such as the reasons for suing someone) are the copyright of the author, usually the person issuing the writ or a solicitor. The reproduction of a completed writ thus requires the permission both of the author of the details and, in theory though not in practice, of the Crown. Writs issued by a court in criminal proceedings are Crown copyright, and permission is required in most cases for the copying or publication of them.

7.7.8 Affidavits and witness statements The first owner of the copyright in affidavits and witness statements is not always easy or even possible to determine, but under the Act the position is as follows: • If a document was recorded in the deponent’s own words, the deponent is the first owner of the copyright (see 2.2.8). • If a document was drafted by, for instance, a solicitor or police officer (see 3.2.18, 7.7.10–11) using the ideas of the deponent but not reproducing his or her precise words, the writer (or the writer’s employer) is the first owner of the copyright (see 2.2.9, 3.2.12). • If a document was drafted before 1 August 1989 ‘under the direction or control of Her Majesty’ it is Crown copyright. Thus an affidavit or witness statement made before that date on the direction of a court of which the Crown was the court-holding authority (see 7.7.2) is Crown copyright, regardless of who actually did the recording. In practice, it is often impossible to determine the precise circumstances in which such a document was created. Unless internal or other evidence suggests a different author or

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first owner, therefore, it is normally appropriate to treat the deponent or the deponent’s employer as the author and first owner.

7.7.9 Exhibits The copyright status of exhibits filed for or produced during court proceedings is normally unchanged by their use for that purpose, and the court normally has no more right to the copyright in them than does a person depositing in a record office letters he or she has received. However, if before 1 August 1989 the Crown was the first publisher of unpublished exhibits or other works, they became Crown copyright (see 3.2.28).

7.7.10 Metropolitan Police The records of the Metropolitan Police Service (MPS) up to the establishment of the Greater London Authority are public records. Where works were created by civilian staff of the MPS they are all now the copyright of the Mayor’s Office for Policing and Crime. The Mayor’s Office has no objection to the use of copyright material for the purposes of research or private study. The use of copyright material for academic, educational, charitable or other non-profit-making purposes (including use on non-commercial radio) is permitted, so long as the following acknowledgement is used (with appropriate amendment as necessary): ‘Material in the [name of the Record Office] in the copyright of the MPS is reproduced by permission of the Mayor’s Office for Policy and Crime.’ The use of copyright material for any commercial or profit-making purpose (including commercial radio) and for television requires the permission of the Departmental Record Officer, MPS, 20th Floor, Empress State Building, Lillie Road, London SW6 1TR. Police officers are not employees of their police authority but are officers of the Crown; therefore works created by them are Crown copyright. Non-commercial use of MPS material would be covered by the standard terms for the use of Crown copyright material (see 5.2.7, 5.2.10), but for commercial use TNA (see 3.2.30, 5.2.8) or the departmental record officer should be approached.

7.7.11 Other police forces Copyright in material created by the Royal Irish Constabulary until 1922, and by the Garda in the Republic of Ireland since that time, is the property of the Garda. Contact the Inspector i/c at the Garda Museum and Archives, Record Tower, Dublin Castle, Dublin 2, Ireland, or by e-mail at [email protected]. Copyright in material created by civilian staff of the Royal Ulster Constabulary 1922–2001 and of the Northern Ireland Police Service since 2001 is the property of the Northern Ireland Policing Board at Waterside Tower, 31 Clarendon Road, Clarendon Dock, Belfast BT1 3BG ([email protected]).

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Copyright in material created by civilian staff of police and crime commissioners and of other police authorities is the property of the relevant commissioner or authority. As with officers of the Metropolitan Police, police officers are not employees of the commissioner or authority but officers of the Crown. Their works are thus Crown copyright. For non-commercial use the standard terms for Crown copyright material apply (see 5.2.7, 5.2.10), but for commercial use TNA (see 3.2.30, 5.2.8), the Policing Board or the relevant commissioner or police authority should be approached.

7.7.12 Records of civil registration The civil registration of births, deaths and marriages has been compulsory in England and Wales since 1837, in Scotland since 1855 and in Ireland since 1864 (with the exception of non-Roman Catholic marriages, which were registered from 1845), of civil partnerships in the UK since 2005 and of same sex marriages in England and Wales since 2014. The registers are not public records, so there is no right of access to or copying of them on those grounds (see 5.4.2). The Crown claims the copyright in the design of the register volumes and certificates (extracts in Scotland) as artistic works (see 2.3.2), not in the information, so no restriction is placed on the transcription and publication of the information obtained from them. The registers are unpublished; artistic copyright in those created before 1989 does not expire until 2039 at the earliest if they are engravings (see 2.3.21) but expires 50 years after creation if they are not engravings (see 2.3.20). The certificates are published, so copyright expires 50 years after issue (see 2.2.23, 2.3.20). However, reproduction of certificates could qualify as fraud, a criminal offence, so great care needs to be taken. Guidance on the Crown copyright in certificates and registers has been issued by TNA and is available online (www.nationalarchives.gov.uk; see 10.3). 1836 (Births) ss18, 30, 43; 1844 ss3, 64; 1854 ss26, 46; 1863 (Births) s30; 1953 ss25, 37; 1958 Sch 1 para 2(2)(b); 1965 (Scotland) ss13, 22, 53; 2004 (Civil Partnership) ss30, 98, 155–156; 2013 (Marriage) s11; SI 1976/1041 regs 34, 38–39, 45; SI 2005/3176 regs 13–17

7.7.13 Records of registration of marriage Whereas the registration of births and deaths is a purely civil matter, the registration of some marriages is handled by people other than the registrars. The copyright position remains the same (see 7.7.12), but in some cases the position over the supply of copies does not. In England and Wales since 1837, marriages have been solemnized in register offices, parish churches, Friends meeting houses and Jewish synagogues, and in certain categories of licensed premises, notably churches of other denominations and more recently in places such as hotels and stately homes. For marriages in licensed premises the local

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registrar attends and the registers remain in his or her custody. However, registers are supplied in duplicate to Church of England parish clergy, clerks of meetings and secretaries of synagogues by the registrar general. Only one is returned to the registrar when complete, the other being retained locally or in the custody of the diocesan record office. The person having custody of a local register may issue a marriage certificate, and a Church of England parish clergyman and the chief officer of a diocesan record office may make copies from registers in their custody. In Scotland, marriages have also been solemnized in churches, Friends meeting houses and synagogues, and more recently in other places, but the marriage is authorized by the issue of a schedule by the registrar which is signed at the ceremony and returned to the registrar who then completes the register. The records thus all remain in the hands of the registrar. In Ireland, the registration of all but Roman Catholic marriages began in 1845. As in England, duplicate registers were supplied to and kept by clergy of the United Church of England and Ireland, Presbyterian ministers, clerks of meetings and secretaries of synagogues, and they were authorized to supply certified copies. The arrangements for the registration of Roman Catholic marriages from 1864 were similar to those in Scotland. The marriage registers of most religious denominations in Northern Ireland are now held by the Public Record Office of Northern Ireland but there is no special provision allowing copying of them. 1836 (Marriage) s23; 1836 (Births) ss30, 35; 1844 ss63, 65, 68; 1854 s46; 1863 (Marriages) ss11–12; 1949 (Marriage) ss63–65; 1977 (Marriage) ss8, 15; 1978 (Parochial) ss6, 10, 14, 16–18, 20

7.8

Electoral registers

7.8.1 Copyright status There are no special copyright provisions for electoral registers, so they are covered as published literary works (see 4.1.7, 7.8.5) by the relevant general provisions of the various copyright acts. Their preparation and use are governed by the electoral legislation in force at the time they were compiled. The restrictions imposed by the latest legislation apply only to registers compiled after 16 October 2002 in England and Wales and after 18 November 2002 in Scotland and Northern Ireland, but data protection requires restrictions on earlier ones nevertheless. SI 2002/1871 reg 2(2); SI 2002/1872 reg 2(2); SI 2002/1873 reg 2(4)

7.8.2 Author and first owner Electoral registers were first compiled under the Representation of the People Act 1832, and the arrangements were improved by the Parliamentary Voters Registration Act 1843.

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Under both, lists were prepared by overseers of the poor in the shires and the boroughs, posted in public places for inspection, and passed to the clerks of the peace (for the shires) and town clerks (for the boroughs). The lists were then amalgamated into registers and printed for sale. All registers created before 1 July 1912 are likely to be published works of unknown authorship, in which copyright has expired (see 2.2.19). If the author is known, the continuation of the copyright depends on his or her date of death (see 2.2.10). A legal opinion of the Treasury Solicitor in 1924 decided firmly that under the Copyright Act 1911 (and thus also under the 1956 Act) electoral registers were Crown copyright (see 3.2.28). In consequence, all registers created between 1 July 1912 and 31 July 1989 as published works are out of copyright once they are over 50 years old. Registers made after 1 August 1989 are copyright of the local authority, with duration based on the life of the registration officer who is ‘an officer of the council’, an employee. 1983 s8; TNA: T 161/241, file S25383

7.8.3 Current registers Registers are prepared each year in accordance with the provisions of the Representation of the People Act 1983 as amended by the Representation of the People Act 2000 and implementing regulations. As soon as a new register comes into use, the previous one lapses (see 7.8.4). The 2002 Regulations created a two-tier structure with full and edited versions of the register; electoral registration officers may not make the full registers available to the public generally except under suitable supervision. Amending regulations in 2006 clarified that copies of full registers in England, Wales and Scotland may be supplied to a public library (statutory library authority in Scotland) or local authority archive service for public use under supervision. Users may only make handwritten notes and are not permitted to make copies, and may not search electronic versions of the register by names of individuals. Supervision must be to a standard to ensure that these requirements are met and the Electoral Commission has urged electoral registration officers to offer help with defining the appropriate level of supervision. The full edition of all the registers since 1947 is available in the British Library in paper and digital forms, and in digital form for the appropriate country also in the National Library of Scotland and the National Library of Wales. They may be consulted under the same conditions as in other libraries. Regulations specify the fees for the sale of copies of the edited register but also provide that any person may make a copy (whether handwritten or by other means) of the whole or part of it. SI 2001/341 regs 7, 93, 97, 97A–B, 107, 109A; SI 2001/400 regs 7, 43, 91; SI 2001/497 regs 7, 43, 96, 108; SI 2002/1871 regs 6, 10, 15; SI 2002/1872 regs 6, 9, 14; SI 2002/1873 regs 6, 13, 21; SI 2006/752 regs 16, 21; SI 2006/834 reg 19

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7.8.4 Past registers There is nothing in the regulations about access to electoral registers made before autumn 2002. However, they have specified that full registers made since then may be consulted and copied once they are ten years old for research (including historical research) purposes only, under the conditions specified in the Data Protection Act 1998 (see 8.7.2). Edited registers that have lapsed have no special status, and it is difficult to see why copying that is permitted when they are current should cease to be permissible thereafter. Earlier registers could be copied without hindrance. The 2001 regulations, for instance, provided that copies of the whole or any part of a register could be made by any person by any means. Care should nevertheless be taken in order to comply with current data protection law. SI 2001/341 reg 7; SI 2002/1871 reg 2(2, 3); SI 2002/1872 reg 2(2, 3); SI 2002/1873 reg 2 (4, 5); SI 2006/752 reg 21(9, 10); SI 2006/834 reg 19(9, 10)

7.8.5 Publication and duration All electoral registers that are in force are published, in the sense both of the Representation of the People legislation and of the copyright legislation, with consequential implications for the duration of copyright (see 7.8.2). 1988 (CDPA) s175; SI 1986/1081 regs 51, 53–54; SI 2001/341 reg 43(1, 1A), 97A–B; SI 2001/400 reg 43; SI 2001/497 reg 43; SI 2002/1871 reg 10; SI 2002/1872 reg 9; SI 2002/1873 reg 13; SI 2006/752 reg 16

7.9

Business records

7.9.1 Complexity Copyright in the records of companies and other business enterprises, especially if they are defunct, is likely to be complex. Material that was created by employees of the company, including copies of out-letters, design drawings, reports to shareholders, some publicity material and some accounts, is the copyright of the company if created on or after 1 July 1912, but may be owned by descendants of the author if created before then (see 3.2.16). However, letters and orders for goods received by the company, accounts prepared by external accountants, publicity material prepared by external consultants, and most commissioned reports are all likely to be the copyright of their respective authors, unless the business has been far-sighted enough to secure assignments. The ownership of the physical items (see 3.2.3), and even the right to use them for the purposes for which they were prepared (such as an advertising campaign) (see 3.2.18, 3.3.18), do not affect the copyright position. Archivists should thus ensure that they

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secure authority for the copying, publication and exhibition of material that is the copyright of the depositor, and preferably obtain an assignment of the copyright, but must remember that the permission of other individuals or bodies is often still required. For company coats of arms see 7.10.5.

7.9.2 Directors Copyright material produced by the directors of companies can present special problems. Until the 1980s the courts seem to have treated all directors alike, as managers not employees. Since then the position has been less clear cut. A few directors are employees, acting under a contract of service (see 3.2.12). In such a case, any material they produce in accordance with that contract is the copyright of the company. Most directors, though, have no formal employment contract and the copyright status of any works they produce is not easy to determine. There are three broad categories into which work by such a director might fall: • General management: A director as manager is unlikely to be an employee, and is probably the owner of copyright in works of which he or she is the author. • Regular non-management tasks performed for the company: The products of such work are likely to count as being produced in the course of employment, unless any contract explicitly provides otherwise. • Occasional non-management tasks performed for the company: The ownership of copyright in the products of this sort of work depends on the particular circumstances. If the director was paid a fee to undertake a certain project or has personally received royalties for its exploitation, the copyright is treated as belonging to the individual. In the absence of such indicators, a director might be regarded by a court as being merely the trustee for the company as the equitable owner of the copyright (see 3.3.18), or might be treated for this purpose as an employee. It is possible for even the sole owner of a company to be an employee as well as a director. The law regards the company and the individual as distinct entities, so an owner, representing the company, can give instructions to him or herself as employee. As a result, some records are copyright of the company and some of the director. Some voluntary organizations, such as local museums, are registered as limited companies run by directors. Such a director is not an employee and is in much the same position in relation to copyright as a member of any other voluntary organization (see 3.2.1, 7.13). Unless the copyright ownership is clear, an archivist or records manager is probably best advised to treat the company (or its current successor) as the first point of contact. Normandy v Ind Coope, 1908; Antocks Lairn v I Bloohn, 1972; Roban Jig and Tool v Taylor, 1979; Gardex v Sorata, 1986; Ultraframe UK v Fielding, 2003

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7.9.3 Defunct companies Most companies become defunct by being taken over or going bankrupt. In the former case, the copyrights owned by a company are simply among the property purchased by the new owner, while in the latter case the receiver sells the copyrights along with the other property so as to realize as much as possible in order to pay off the company’s debts. If the assets have been sold off piecemeal, it may not be easy to trace the new copyright owners; the receivers are likely to be the best source of information. As a first step, try the website Firms out of Business, which might provide details of a successor company or of the fate of a company’s rights (www.fob-file.com; see 5.2.18, 10.3). If a company is dissolved with no outstanding debts there may be no successor company. In that case, the remaining assets including the copyrights become bona vacantia (see 3.3.20). Even if a company has become defunct its trade marks might well remain valuable assets. Ownership of the rights in them might be a useful indicator of ownership of copyrights (see 8.6.8).

7.10 Estate, manorial and personal records 7.10.1 Ownership of estate and manorial records Under the Law of Property Act 1922 and the Manorial Documents Rules 1959, as amended, manorial documents created before 1923 are protected so that so far as possible they are preserved in good condition and in facilities which allow access to them for legal purposes. Their ownership may lie with the present lord of the manor (if any), with an earlier lord of the manor, or with some other person to whom they have been sold, and control of them remains with the owner even if they are deposited in an approved place of deposit under the Rules. Those who need to consult the records for legal purposes are entitled to do so, but inspection and copying for historical research purposes of deposited records is possible only with the consent of the lord of the manor. Thus there are hurdles to be surmounted over the ownership, care and control of the records themselves before the question of ownership of the copyright in them is considered. However, neither the 1922 Act nor the Rules apply to deeds and other evidences of title or to non-manorial estate records. SI 1959/1399; SI 1963/976; SI 1967/963

7.10.2 Copyright in estate and manorial records The normal rules for the ownership of copyright in documents apply to estate and manorial records: it should not be assumed that the owner of the records or the present owner of the estates to which they refer necessarily owns the copyrights (see 3.2.3). The present and previous owners of the estates presumably own the copyright in materials

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that they created themselves or that were created by employees such as secretaries, bailiffs or stewards, though only the larger estates are likely to employ such people nowadays and the rules for employer ownership may apply only to works created after 1 July 1912 (see 3.2.16). The present owner of the estates probably owns no copyright in the records of his or her predecessors, and the owner of the records probably owns no copyrights at all, unless they have been assigned to him or her by the previous copyright owner or they have passed by inheritance or bequest (and such transfers in any case do not cover all the different copyrights likely to subsist in the records) (see 3.3). Where titular lordships of the manor have been sold but with no title to the relevant estate, no copyrights are likely to have been transferred.

7.10.3 Professionals employed on estate or manorial business Many, and perhaps in recent times even most, estate documents were drafted for the landlord by lawyers, surveyors, architects, accountants and others. Such people were, for the most part, self-employed professionals not employees of the landlord, and as such were working under contracts for services (see 3.2.17–18). They normally have retained their copyright in any works of which they were the authors, including, for example, title deeds and accounts.

7.10.4 Personal records An individual’s private papers include some in which the individual owns the copyright (see 3.2.1), such as diaries, accounts or e-mails he or she created, and others that are copyright of someone else (see 3.2.3–4), such as letters and e-mails received. This is an important issue for archivists, affecting the value of assignments and licences received from depositors and donors (see 7.3.5–7) and affecting the usefulness of the EU orphan works scheme (see 5.4.20).

7.10.5 Coats of arms Coats of arms were originally the means by which individual armoured knights identified themselves, and many individuals still bear them. Subsequently, grants of arms have been made to universities, towns, companies and other organizations. They are, or can be, extremely decorative and in 1955 the Court of Chivalry in its (probably) last case (and its first since 1737) held that there was no infringement of the armigerous person’s or body’s rights by the use of their arms by others for decorative purposes, but there could be infringement if the use usurped that person’s or body’s authority or status. The ‘blazon’ of a coat of arms is the textual description of it. This is copyright of the Crown, since the heralds are officers of the Crown (see 3.2.28–30). The ‘achievement’ is the pictorial representation of the blazon and is copyright of the artist (unless he or she

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is an employee of the College of Arms or (in Scotland) of the Lord Lyon, see 3.2.12). It is possible for different artists to create different achievements of the same blazon: the precise appearance of a coat of arms is not fixed so long as it accurately represents the blazon. The interests of corporate bodies and others in their coats of arms are now commonly protected by registration of an achievement as a trade mark (see 8.6.8). The Royal Arms have special (criminal as well as civil) protection and should not be reproduced without permission from the Royal Household, unless the Arms are incidental as for instance they are at the top of an Act of Parliament. The Royal Arms have been the same since the accession of Queen Victoria, so the Arms of all monarchs from Queen Victoria onwards are protected. The Arms of earlier monarchs have no statutory or copyright protection. The Arms and ciphers (such as the feathers of the Prince of Wales) of the Royal Family are also protected. Royal warrant holders have special privileges to display the appropriate Arms and a parish church of the Church of England, whose head is the Queen, has the right to display the Royal Arms. For seals see 2.3.4, 4.1.3. 1949 (Designs) Sch A1; 1994 (Trade Marks) ss4, 99; Royal Warrant Holders Association v Dean, 1912; Re West Tarring Parish Church, 1954; Manchester Corporation v Manchester Palace of Varieties, 1955

7.11 Hospital and medical records 7.11.1 National Health Service to 1990 Most records created within the National Health Service until 1990, with some exceptions as noted below, are Crown copyright. Where hospitals and other bodies that were absorbed into the National Health Service in 1948 owned the copyright in their records and those records passed to the NHS, that copyright passed to the Crown. It did not, as a result, become ‘Crown copyright’, however (see 3.3.12), and the duration is determined as if the copyright were still privately owned. All these records, whether created before or after 1948, are likely to contain material that was not created by the NHS or the body that originally owned them; items such as letters received, for instance, are the copyright of the authors. For pre-NHS poor law records see 7.5.2. 1946 ss6, 69; SI 1948/567; SI 1948/1292

7.11.2 National Health Service since 1990 Since 24 July 1990 in Scotland and 1 April 1991 in England and Wales, copyright in works created within National Health Service bodies (regional health authorities, district health authorities, special health authorities and NHS trusts) or by their employees has belonged to the individual bodies, not the Crown.

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1990 (NHS) ss5, 32, 60, Sch 2 paras 16, 18; Sch 6 paras 16, 21; SI 1990/1329; SI 1990/1520

7.11.3 National Health Service medical staff Most staff working within the NHS, including consultants and other specialist staff within hospitals, are employed by the relevant authority or trust under standard terms and conditions of service appropriate to their positions. Copyright in works produced by them in accordance with those terms is owned by the Crown (see 3.2.28–29, 7.11.1) or the authority or trust as appropriate (see 3.2.12–17, 7.11.2). Many such staff, however, are also permitted to carry out private work so long as it does not conflict with their NHS duties; material produced as a result of such private work is normally the copyright of the individual. Doctors, dentists and opticians providing NHS primary care services are normally working in private practice under a contract for services with the NHS. Copyright in works produced by them is normally owned by the individual. In some cases they are employed by a company or other body which has the contract with the NHS, in which case the copyright is owned by the employing body.

7.11.4 Private health care services Copyright in records created in private practices and private institutions (such as hospitals and clinics) is owned by the institutions or individuals concerned, depending on the circumstances in each case. Property, including copyrights, owned by hospitals not absorbed within the NHS in 1948 remained with the governing bodies of the institutions or the local authority, as appropriate. 1946 s6

7.12 Transport records 7.12.1 Copyright ownership Most transport records were created by private companies, and copyright lies with the creators or their successors (see 3.3.7, 7.9). Copyrights owned by companies nationalized under the Transport Act 1947 passed to the British Transport Commission. These companies included almost all railway companies, together with the canal and docks companies that they had established or taken over, and companies involved in long-distance road haulage. Most of the haulage companies were sold off again, with their copyrights, from 1953 onwards.

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7.12.2 Railways and canals The copyrights in most railway and canal companies passed to the British Railways Board when the British Transport Commission was abolished. The Board itself was abolished in 1993 and replaced by British Railways Board (Residuary) Ltd, which assigned the copyrights in canal company records to the Waterways Archive. The residuary company was itself wound up on 30 September 2013. Some of its physical assets (land, bridges and structures, listed in the schedule to the abolition order) together with related rights passed to Network Rail Assets Ltd, a subsidiary of Network Rail. All its remaining functions passed to the secretary of state for transport on behalf of the Crown. Most railways records are thus now subject to the Crown’s standard licensing terms (see 5.2.7, 5.2.10). Permission for use for other materials should be sought as follows: • Copyright in records of canal companies is now administered by the Head of Archives and Records, The Waterways Archive, The Boat Museum, South Pier Road, Ellesmere Port, Cheshire CH65 4FW. • Copyright in the records of London Transport is administered by London’s Transport Museum, Covent Garden Piazza, London WC2E 7BB. 1993 (Railways); SI 2013/2314

7.13 Office-holders, members and unincorporated bodies 7.13.1 Ownership of copyright There can be no doubt that, in accordance with the statute, the author is the first owner of the copyright in a work created by a person acting in a voluntary or honorary capacity (for instance, as an office-holder or member) for an organization or individual, or working under an express or implied contract for services (as a contractor not an employee) (see 3.2.17–18). In practical terms, though, this can at times be nonsense, and equity rather than strict law may provide the answer (see 3.3.18).

7.13.2 Members of representative bodies Members of representative bodies including Parliament, the Scottish Parliament, the National assemblies of Wales and Northern Ireland, and local and regional authorities, when acting in their capacity as members, are first owners of the copyright in their works. If they take on a post under a contract of service they are employees and the employing body is the first owner, but the mere holding of an office, such as chairman or leader of the council, would not normally be under such a contract. If an MP, peer, member of the Scottish Parliament or of the national assemblies of Wales or Northern Ireland becomes a government minister, minister of the Scottish Administration or Assembly secretary, all the works they create in that capacity (including, for instance, ministerial speeches) are

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Crown copyright (see 3.2.28–33). Copyright in works created by the same individuals in their constituency capacities (including, for instance, constituency and election speeches) would be owned by the author. For Parliamentary copyright see 3.2.34–38.

7.13.3 Honorary and voluntary office-holders Honorary and voluntary, and in some cases stipendiary, office-holders are not normally employees; it depends on whether they have a legal relationship with the body concerned. If not employees they are, strictly, the first owners of the copyright in the works they produce in that capacity (see 3.2.21). This includes, for example, honorary secretaries and treasurers of charities and learned societies, secretaries to parochial church councils, trustees of local trusts, officers of friends’ organizations and perhaps unpaid clerks to poor law unions. In practice, few are likely to have assigned their copyright to the body for which they act but most would probably regard the body as having some rights over the material or even as being the copyright owner. In such cases, the bodies might be able to exercise rights in equity (see 3.3.18), and for practical purposes they should be regarded as the point of contact for archivists. Barthorpe v Exeter Diocesan Board of Finance, 1979

7.13.4 Unincorporated bodies There are many small bodies in existence that are not formally constituted so as to be able to own property, including copyright. They also have no employees so their officers and members are in much the same position as those of other bodies (see 7.13.3), except that they cannot assign their copyrights to the body even if they want to. If an archivist or records manager is offered the records of such a body that is to be wound up he or she could consider asking it to pass a formal resolution, approved by all members, declaring that copyright in works created for it will not be enforced. Failing that, the archivist or records manager could: • seek assignments (see 3.3.8) or licences (see 5.2.2) from all its officers or members • assess the risk of assuming that the copyrights will not be enforced (see 3.3.11, 5.2.19).

7.14 Maps, charts and plans, together with engravings and prints 7.14.1 Copyright status The copyright positions of maps and related material (including charts, plans,

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architectural drawings and elevations, and at least some engineering drawings) and of engravings and other forms of print (see also 2.3.2), was decidedly tangled until the passing of the 1988 Act. They are all now classified as artistic works. Ordnance Survey maps are Crown copyright (see 3.2.28–29); until 1923 they were printed from engravings, and this would be important for any unpublished maps printed before that date because it means that they remain in copyright (see 7.14.7). Under some circumstances a map might also be classified as a compilation of data (places, names, heights and so on), which is a form of literary work (see 2.2.3). It should be borne in mind that an ‘engraving’ may be both the printing plate or equivalent and the print or other work taken from it. For a definition of engraving prior to 1912 see 7.14.2 and for a definition since then see 7.14.5. James Arnold & Co v Miafern, 1980; Geographia v Penguin Books, 1985

7.14.2 Protection before 1912: engravings and prints Prior to 1912, maps, charts, plans, engravings (including etchings and woodcuts), lithographs and prints were protected by the Engraving Copyright Acts 1734 and 1766 and the Prints Copyright Act 1777. These acts together provided copyright protection for any ‘historical print, or any print or prints of any portrait, conversation, landscape or architecture, map, chart or plan, or any other print or prints whatsoever’. To qualify for protection the plate and each print had to carry the name of the proprietor. Protection under these acts was for 28 years after the year of publication. Works that were not published were potentially protected by the common law (see 1.2.2). Works still in copyright on 1 July 1912 (whether published or unpublished) were protected thereafter by the provisions of the 1911 and subsequent acts (see 7.14.5–6) and for the periods set out in them. From 1842, separately published maps, charts and plans (but not pictorial engravings) that did not satisfy the requirements for qualification as engravings were capable of being protected as ‘books’ under the Literary Copyright Act if they were described and treated appropriately (see 7.14.3). Engraved works of any kind that were illustrations to books (and thus not separately published) together with pictorial engraved prints or designs that were separately published, continued to be capable of being protected under the Engravings Acts. 1734 s1; 1766 ss1, 7; 1777 s1; 1852 s14; Bogue v Houlston, 1852; Stannard v Harrison, 1871

7.14.3 Protection before 1912: maps as ‘books’ Maps, charts and plans (but not pictorial engravings) that were separately published and

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that were described as such by their publishers were included in the definition of ‘books’ in the Literary Copyright Act 1842, ‘for maps are intended to give information in the same way as a book does’. They therefore had to be registered at Stationers’ Hall (see 1.2.1). This provision was alongside that still provided by the Engravings Acts (see 7.14.2). Under the 1842 Act, protection for works published during the life of the author was for seven years after the death of the author or 42 years after publication, whichever was later, and for works first published after the author’s death, 42 years after publication. Works still in copyright on 1 July 1912 were protected thereafter by the provisions of the 1911 and subsequent acts (see 7.14.5–6). 1842 ss2, 3; Bogue v Houlston, 1852; James LJ in Stannard v Lee, 1871, at 349

7.14.4 Drawings for engravings from 1862 The unpublished drawings on which published maps, charts, plans and engravings were based were first given statutory protection by the Fine Arts Copyright Act 1862. Protection was for seven years after the death of the author so long as they were registered. Those that were unregistered had limited but perpetual protection under the common law (see 1.2.2). Those that were still in copyright or that were covered by the common law on 1 July 1912 were protected thereafter as artistic works under the 1911 and subsequent acts (see 7.14.5–6). 1862 s1

7.14.5 Protection since 1912: engravings and prints Under the Copyright Act 1911, all published and unpublished engravings (including etchings, lithographs, woodcuts, prints and other similar works, but excluding photographs or photo-lithographs and any that were maps, charts or plans, see 7.14.6), were classified as artistic works. This included relevant works created before 1 July 1912 that were in copyright on that date under earlier acts (see 7.14.2–4). Those that were still in copyright on 1 June 1957, and all engravings made between that date and 31 July 1989, were given special provision by the 1956 Act for the duration of copyright. All engravings made since 1 August 1989 have been treated in the same way as all other artistic works. If the copyright under the 1956 provision would expire later than it would under the amended 1988 Act, then it still applies. For guidance on the duration of copyright in these works see 2.3.12–30, 7.14.7. 1911 ss3, 35(1) ‘literary work’, ‘artistic work’, ‘engraving’, ‘photograph’; 1956 ss3(4)(a), 48 ‘engraving’, ‘photograph’; 1988 (CDPA) s4(2) ‘graphic work’, ‘photograph’

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7.14.6 Protection since 1912: maps, charts and plans Under the Copyright Act 1911, all maps, charts and plans (whether printed from engravings or not, and whether published or unpublished) were defined as literary works. This included relevant works created before 1 July 1912 in copyright on that date under earlier acts (see 7.14.2–4). Those that were still in copyright on 1 June 1957 were reclassified as artistic works by the Copyright Act 1956. All maps, charts and plans created since that date are also artistic works. All were treated in the same way as other artistic works except that those which were engravings were given special provision by the 1956 Act for the duration of copyright. For guidance on the duration of copyright in these works see 2.3.12–30, 7.14.7. 1911 ss3, 35(1) ‘literary work’; 1956 ss3(1), 48(1) ‘artistic work’, ‘drawing’

7.14.7 Crown copyright All Crown copyright (see 3.2.28–29) maps (including Ordnance Survey maps) and engravings are now artistic works. For the duration of copyright in these works see as follows: • engravings created before but unpublished on 1 August 1989: 2.3.21 • engravings created and published before 1 August 1989: 2.3.22 • other maps, charts and plans, and drawings for engravings (whether published or unpublished), created before 1 August 1989: 2.3.20 • unpublished works created on or after 1 August 1989: 2.3.26 • published works created on or after 1 August 1989: 2.3.27–28. The Ordnance Survey issues licences for copying for commercial purposes (including planning purposes), and has prepared tailored ones for different sectors including local authorities and universities. Information about such licences may be obtained from Ordnance Survey (www.ordnancesurvey.co.uk) at Romsey Road, Southampton SO16 4GU, on its customer helpline (08456 050505).

7.14.8 Relationship to design right Some works described collectively as maps, charts and plans, notably but not exclusively engineering and architectural drawings, also qualify for protection as designs (see 8.6 and especially 8.6.5).

7.14.9 Enclosure awards and maps Enclosure awards and maps made by assistant commissioners, their valuers and

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surveyors under the 1845 and later general Enclosure Acts are Crown copyright (see 3.2.28). Copyright in most such maps will have expired, but that in the awards still subsists since they are unpublished works in copyright terms (see 2.2.21, 2.3.20–21). Copyright in earlier awards and maps may be less easy to determine. Where commissioners were appointed they would have shared the copyright as joint authors of the award, even if it was actually written by a clerk, and that copyright still subsists (see 2.2.6, 2.2.20, 3.2.7). However, the map is likely to have been prepared by a surveyor, who would have been the author and first owner of the copyright in it (see 2.3.6, 2.3.12–13). Crown copyright in the Enclosure Acts themselves expires 50 years after the year in which each Act received royal assent (see 2.2.23, 3.2.28–29). Those awards and maps that are in TNA are public records; where local record offices have copies of them TNA, would have no objection to further single copies being made for research or private study purposes. Locally deposited contemporary copies of the maps, including copies to be found, for instance, among court records, are subject to the control of the relevant archive once any remaining copyrights have expired.

7.14.10 Tithe apportionments and maps The Tithe Commissioners and their assistant commissioners were all public servants, and the apportionments and maps prepared by them are (or were) all Crown copyright (see 2.2.21, 2.3.20–21, 3.2.28). In those cases where a map originally prepared for another purpose was used as the tithe map, the copyright would have been owned by the surveyor (see 2.3.6, 2.3.12–13). Those apportionments and maps that are in TNA are public records; where local record offices have copies of them TNA would have no objection to further single copies being made for research or private study purposes. Locally deposited diocesan and other contemporary copies of the maps are subject to the control of the relevant archive once any remaining copyrights have expired.

7.14.11 Valuation Office maps Maps and related field books created under the Finance Act 1910 by the Valuation Office are (or were) all Crown copyright (see 2.2.21, 2.3.20–21, 3.2.28). They are also all public records.

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8

Other intellectual property rights

8.1

Moral rights

8.1.1 Definition Moral rights are the rights, even more intangible than copyright, that attach to the author’s personality as expressed in his or her work. They recognize that the products of the human mind and spirit are so closely tied to the personality of the author that protection is needed, since the corruption of the one inevitably damages the other. They are of great importance in some parts of Europe, notably France and Germany, but are of much less significance in the UK, where emphasis has traditionally been given to economic rights rather than the personality of the author (see 1.1.1). As a result, they were not for the most part recognized in the UK until the passing of the 1988 Act. Some of the elements of moral rights were covered by such things as the law of defamation, but copyright law was silent on the subject except through the creation by the 1956 Act of a civil offence of false attribution of a copyright literary, dramatic, musical or artistic work. Action had to be taken in 1988 in order to bring the UK into line with the provisions of the Paris Act (1971) of the Berne Convention (see 1.2.6). The result is a group of rights strictly limited in application and scope, which apply to the author as an individual. They are the right of attribution (to be identified as the author), the right of integrity (to object to changes to the work), the right to object to false attribution, and (not really a moral right at all) the right of privacy of a person who commissions certain photographs or films. For moral rights in performances see 8.1.11, 8.5.3. 1956 s43

8.1.2 Importance for archives For the most part moral rights do not have a direct bearing on the work of archivists but they could affect anyone wishing to publish or exhibit a copyright work, and since archivists may at times wish to do both things, and will be called upon to advise others who wish to do them, they must be aware of them. Moral rights in the UK are hedged about with many limitations and exceptions, not all of which can be described in this book. Those that seem likely to be of concern to archivists are mentioned, but careful study of the statute, or a good guide to it, is advisable for anyone who needs more detailed knowledge.

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8.1.3 Authors and types of work Moral rights apply only to literary, dramatic, musical and artistic works and to films. They do not apply to sound recordings, except where a work covered by a moral right is reproduced in a sound recording. Two of the rights (attribution and integrity) apply to authors, while the other two (false attribution and privacy) apply to any person. An author is determined solely under the terms of the 1988 Act, and not under those of the Act in force at the time the work was made. This is of particular significance for photographs where for moral rights purposes the photographer is always the author (see 2.3.7). For films, the author’s rights apply to the principal director, not (say) the author of the screenplay and not the producer. Note that the rights of attribution, integrity and false attribution apply even if the individual concerned was acting in the course of employment, though the rights are quite likely to be restricted (see 8.1.6, 8.1.8). 1988 (CDPA) ss77(1), 80(1), Sch 1 para 10

8.1.4 Duration and waiver All moral rights, except the right relating to false attribution, subsist for the same period as the copyright. The right relating to false attribution ends 20 years after the person’s death. Moral rights may not be assigned to anyone else but they may be waived, temporarily or permanently. They are inherited by the person’s personal representatives or as directed in a person’s will, except that the right relating to false attribution may only be inherited by the person’s personal representatives. 1988 (CDPA) ss86, 87, 94, 95

8.1.5 Right of attribution The author of a copyright literary, dramatic, musical or artistic work and the principal director of a copyright film has the right in certain circumstances to be identified as the author or director if the work (or a substantial part of it) is published commercially (see 4.1.5), performed in public or broadcast, issued to the public as part of a film or sound recording, or, in the case of an artistic work, exhibited in public. Before it can be enforced the author or director must previously have asserted the right (unless the work is in Crown or Parliamentary copyright, see 8.1.6, and see also 3.4): • by including a statement of authorship in an assignment of copyright, in which case the assignee (and any successors) is bound by the assertion • by signing an instrument in writing, in which case anyone to whose attention the assertion is brought (for example, anyone reading a book, through a statement at the front) is bound by it • for an artistic work that is publicly exhibited, by attaching the author’s name to the

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original or a copy made under the author’s direction, or to a frame or mount, in which case anyone into whose hands the work comes is bound by the assertion, regardless of whether it is still visible • for an artistic work of which copies are publicly exhibited, by including an assertion in a licence authorizing the copying, in which case the licensee and anyone possessing such a copy is bound by the assertion, whether or not they have been told about it. Archivists would be well advised to acknowledge the author of a work without worrying about whether the right has been asserted. In this context it is normally better to do something than nothing. One important time that this is needed is during the exhibition of artistic works; all that is required is a reasonably prominent caption giving the name of the artist. Another is when reproducing or quoting from a work in a publication. A caption or footnote should then be sufficient. 1988 (CDPA) ss77–78, 89(1)

8.1.6 Right of attribution: exceptions The right does not apply: • to the author of a literary, dramatic, musical or artistic work who died or the director of a film that was made before 1 August 1989 • to anything permitted under an assignment or licence from the copyright owner of a literary, dramatic, musical or artistic work created before 1 August 1989 • to the author of a piece of music or of the words of a song when the work is performed in public, or broadcast • to a computer program, the design for a typeface or a computer-generated work • where the employer of the author or director was the first owner of the copyright and approved its publication or use • to a work in Crown or Parliamentary copyright, unless the author or director is identified in or on published copies of the work; no other assertion by the author is then required • to any work made for the reporting of current events • to publication in a newspaper, magazine or collective work of reference (for instance an encyclopedia or collection of essays) of a literary, dramatic, musical or artistic work created for that purpose or made available with the consent of the author for that purpose. Also, the right is not infringed by some uses under the exceptions to copyright, notably fair dealing for the purposes of reporting current events by a sound recording, film or broadcast (see 5.3.12), incidental inclusion (see 5.3.6), use for the purposes of an

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examination (see 5.3.19) and uses for the purposes of Parliamentary and judicial proceedings and statutory enquiries (see 5.3.22). The exclusion of authors and directors who died before 1 August 1989 means that all older works in archives are unaffected by moral rights. There is no legal requirement to acknowledge them, though that does not mean it is not right to do so. 1988 (CDPA) ss77–79, Sch 1 para 23; SI 2003/2498 Sch 1 para 18; SI 2014/1372, Sch para 4

8.1.7 Right of integrity The author of a copyright literary, dramatic, musical or artistic work and the director of a copyright film have the right in certain circumstances to object to derogatory treatment of the whole or part of the work. Derogatory treatment means additions and alterations to, deletions from or adaptations of the work (except translation of a literary or dramatic work or transcription of a musical work into another key) that distort or mutilate it or are otherwise prejudicial to the honour or reputation of the author or director. It is not clear whether, in the UK, the work may be destroyed in its entirety without infringement of the right, on the grounds that nothing then remains to prejudice the author. However, in India, destruction was held to be infringing because that was the extreme form of mutilation and it also reduced the volume of the author’s creative corpus of works and so affected his reputation prejudicially. It may be that UK judges would follow that line of thought. For an action to succeed, the treatment must always be prejudicial to the honour or reputation of the author or director, whether or not it involves actual distortion or mutilation of the original work. The author must persuade the court that his or her view of the effect of the treatment would appear reasonable to someone else, which appears to be a high hurdle. The right may be exercised if the altered work is published commercially (see 4.1.5), communicated to the public online, performed in public or broadcast, issued to the public as part of a film or sound recording or, in the case of an artistic work, exhibited in public. There have so far been few cases considering the right of integrity in the UK, and in only one has prejudice been found. That involved use of photographs on a website, which had been reversed and cropped and from which the background had been removed. In unsuccessful cases, changes to the size and colour of a promotional leaflet did not amount to derogatory treatment, and the judge explicitly made a comparison to a judgment in France where the colourization of an entire black and white film was derogatory. Other cases have considered a reduction in the size of cartoons for reproduction in a book and incomprehensible words added to a recording of a piece of music. An author’s objections to a revised version of his book were described by the judge as ‘carping objections of a trivial kind’. The damages awarded as a result of a successful action are likely to be small;

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the principal purpose of pursuing an action would normally be to secure an injunction to stop the infringing use. 1988 (CDPA) ss80, 89(2); Huston v Turner Entertainment, 1992; Tidy v Trustees of the Natural History Museum, 1998; Pasterfield v Denham, 1999; Confetti Records v Warner Music UK, 2003; Sehgal v Union of India, 2005; Harrison v Harrison, 2010; DelvesBroughton v House of Harlot, 2012

8.1.8 Right of integrity: exceptions The right does not apply: • to the author of a literary, dramatic, musical or artistic work who died or the director of a film that was made before 1 August 1989 • to anything permitted under an assignment or licence from the copyright owner of a literary, dramatic, musical or artistic work created before 1 August 1989 • to a computer program or a computer-generated work • where the employer of the author or director was the first owner of the copyright and approved the treatment, so long as the author or director has not been identified as such (see 8.1.5); however, even if the author or director has been identified, the right does not apply if a ‘sufficient disclaimer’ is also published • to a work in Crown or Parliamentary copyright, unless the author or director is identified in or on published copies of the work (see 8.1.5), and even then it does not apply if the altered work contains a ‘sufficient disclaimer’ • to any work made for the reporting of current events • to publication in a newspaper, magazine or collective work of reference (for example an encyclopedia or collection of essays) of a literary, dramatic, musical or artistic work created for that purpose or made available with the consent of the author for that purpose. A ‘sufficient disclaimer’ means a clear and reasonably prominent indication in the publication or film, alongside the name of the author or director, that the work has been subjected to treatment to which the author or director has not consented. 1988 (CDPA) ss81, 82, 178 ‘sufficient disclaimer’, Sch 1 para 23; SI 2003/2498 Sch 1 para 18

8.1.9 False attribution Any person has the right not to have the whole or part of a literary, dramatic, musical or artistic work or a film falsely attributed to him or her as author or director. The right is infringed if a person issues to the public copies of a work bearing the false attribution;

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exhibits in public an artistic work bearing a false attribution; performs in public or broadcasts a literary, dramatic or musical work as being the work of someone when the infringer knows it is not; and shows in public or broadcasts a film as having been directed by someone when the infringer knows it was not. The right applies to literary, dramatic, musical and artistic works of any date, and to films made on or after 1 August 1989. The right has had a longer life than other moral rights in UK law, having appeared in the 1956 Act, and is related to the long-standing tort of passing-off (see 8.6.9). As the Master of the Rolls said as long ago as 1842: ‘A man is not to sell his own goods under the pretence that they are the goods of another man; he cannot be permitted to practise such a deception.’ Actions for false attribution succeeded in a case when misplaced quotation marks appeared to suggest that certain comments were by the person quoted, and in another when a new edition of a book, by a different author, was promoted by reference to the excellence of the previous edition. 1956 s43; 1988 (CDPA) ss84, 89(2), Sch 1 para 22(2); Lord Lauderdale MR in Perry v Truefitt, 1842, at 752; Noah v Shuba, 1991; Harrison v Harrison, 2010

8.1.10 Right to privacy of certain photographs and films Any person who, on or after 1 August 1989, commissions the taking of a photograph or the making of a film for private and domestic purposes has the right not to have copies of the whole or any substantial part of the work issued to the public, or the work exhibited, shown in public or broadcast. The intention is to protect, for instance, wedding photographs, but note that the right belongs to the person commissioning the images who is not necessarily the subject. A similar right existed under the common law for a work created before 1 August 1989. In practice, some commercial photographers are likely to ask clients to waive this right. ‘Commissioning’ is not defined and is not otherwise used in the 1988 Act. The definition in the 1956 Act therefore continues to apply. This requires that there be prior agreement imposing an obligation to do the work on the person commissioned and to pay money or money’s worth on the person giving the commission. An offer by a friend to take photographs as a wedding present would not be a commission since there is no obligation to perform, indeed the friend might accept work elsewhere, and although the present would be money’s worth it is being paid by the person commissioned not by the recipient. It may be that data protection and human rights law could be used to stop a photographer publishing or exhibiting his or her pictures of people if they were not taken on commission (see 8.7.2), but there is little to stop a photographer publishing or exhibiting non-intrusive pictures of people and other pictures, such as pictures of a record office, whether commissioned or not, unless an obligation of confidence can be established (see 8.7.3–4).

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For commissioning in the context of copyright, see 3.2.17. 1956 s4(3); 1988 (CDPA) ss85, 89(1), 172, Sch 1 para 24; Pollard v Photographic Co, 1889; Stedall v Houghton, 1901; Apple Corps v Cooper, 1993; Trimingham v Associated Newspapers, 2012

8.1.11 Moral rights in performances A performer (see 8.5) giving a performance on or after 1 February 2006 has the moral right to be identified as the author of that performance so long as the right is asserted (see 8.1.5). The right applies when a performance is given, or a broadcast or recording of a performance is shown, in public. The performer has the right to be identified by name unless he or she is part of a named group and it is not reasonably practicable to name individuals, but the group must then be named. A performer also has the right to object to derogatory treatment of the performance (see 8.1.7). Similar limitations apply to these rights as to other moral rights (see 8.1.6, 8.1.8, 8.5.3). 1988 (CDPA) ss205C–205G; SI 2006/18, regs 6, 8

8.2

Databases and database right

8.2.1 Origin As a result of an EU directive (see 1.2.8), the Copyright and Rights in Databases Regulations 1997 created a right called database right. This gave particular rights to the creators of databases and changed the nature of copyright protection for databases. Databases may now attract database right or be protected by copyright as literary works, or both. Database right (see 8.2.7) is an explicitly economic right that applies to the investment in the assembly and accuracy of the database, while copyright in a database (see 8.2.4) is more of an authorial, intellectual right that applies to intellectual creation in the database’s design and the selection of its contents (see 1.1.4). Neither right affects the continuance where appropriate of the quite distinct rights in the individual items making up the contents of the database which will in many (but not all) cases be copyright works themselves, with a variety of copyright owners. Clearance to use material in a database may thus not be simple to obtain. Also, many databases are used to store information (including photographs) about individuals. If those individuals are still living, the Data Protection Act applies (see 8.7.2). Unless otherwise stated, the comments below relate to a database itself and not to the items making up its contents. Directive 1996; SI 1997/3032

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8.2.2 Definition A database, whether protected by copyright or database right or both (or indeed neither), is a collection of independent works, data or other materials that are arranged in a systematic or methodical way and are individually accessible by electronic or other means. The Regulations offer no other definition, but the directive on which they are based provides that a recording, or an audiovisual, cinematographic, literary or musical work as such (for instance a CD of songs, a computer game, a single film, a novel or a symphony) is not a database. A database need not be on or for use on a computer: it could be a card index, a filing system or perhaps even a microfilm. Many works previously regarded as compilations (see 2.2.3) are now databases, including (it would seem) catalogues, encyclopedias, most CD-ROMs and internet websites. If it attracts copyright, the database as a whole is a literary work even if it consists of non-literary works, such as pictures, numbers or passages of music. A computer database program is not in itself a database; it is used to create one when it is structured by the user (the maker) as required, and data are added. The program is separately protected (see 6.6.1). Directive 1996 recitals 17, 19; 1988 (CDPA) s3A(1); SI 1997/3032 reg 6; Ryanair v PR Aviation, 2015

8.2.3 Copyright: databases created before March 1996 Any database that was entitled to copyright protection before 1 January 1998 and that was completed on or before 27 March 1996 continues to enjoy copyright protection for the full term as a literary work. To qualify, it would merely have to be an original compilation (see 2.1.10, 2.2.3). SI 1997/3032 reg 29

8.2.4 Copyright: databases created after March 1996 A database that was created on or after 27 March 1996 qualifies for copyright protection as a literary work only if it is original because, by reason of the selection or arrangement of the contents, it constitutes the author’s own intellectual creation. There must be an individual who was the author of the database, so that a database created by a company, for instance, with no one who could be described as the author or authors (even if anonymous), would appear to be unable to attract copyright. Moreover, the database cannot be copyright if it is in a standard form and there was no intellectual creativity in the selection or arrangement of the contents. The author must have created it him or herself using his or her own skill and ingenuity, making free and creative choices that are not dictated by technical constraints. Also, skill or originality in creating the

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contents, leading to a copyright in the individual items stored in the database, does not assist towards copyright in the database itself. Thus a database would probably not qualify for copyright if it were a simple card index of basic data, a microfilm of a single class or series of documents, a telephone directory in alphabetical order, or if it were constructed on a commercially available program using straightforward data. On the other hand, an encyclopedia, a classified directory or a carefully designed CD-ROM containing a selection of hitherto unrelated documents or images which together form a genuinely creative work could qualify for copyright protection as databases. It seems probable that relatively few databases pass the test. 1988 (CDPA) s3A(2); SI 1997/3032 regs 6, 29; Walsall Council, 2004; Forensic Telecommunications Services v Chief Constable of West Yorkshire, 2012; Football Dataco v Yahoo, 2013

8.2.5 Copyright: duration and author Any copyright in a database has the same duration and authorship as for any other literary work, whether in private, Crown or Parliamentary copyright (see 2.2.7–33). In many cases, a database is a work of joint authorship (see 2.2.14, 3.2.7–8), but, where individual parts can be securely attributed to particular authors, those parts are protected as works of those authors alone. If an older database is anonymous, as happens in many cases, copyright in it lasts for the same time as for any other anonymous literary work. If a database created after March 1996 has no author at all it seems it can have no copyright protection (see 8.2.4).

8.2.6 Copyright: rights and exceptions If a database qualifies for copyright protection, for the most part the owner of the copyright enjoys the same rights and the user of the database enjoys the same exceptions as for any other literary copyright work (see 5.1, 5.3–4). However: • The use of data from a database does not infringe copyright in the database itself unless the form or arrangement of the database or a substantial part of the selection of the contents is also taken. • Any user who is entitled to use the database may do anything that is required for the purpose of gaining access to and using the contents of the database without infringement of the copyright in the database, and no agreement or contract can prohibit or restrict this freedom. Nevertheless a licence or contract may restrict use of a database that is protected neither by copyright nor by database right (see 8.2.12).

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Directive 1996 recital 38; 1988 (CDPA) s29, 50D; SI 1997/3032 regs 8, 9; Ryanair v PR Aviation, 2015

8.2.7 Database right Database right is a property right that subsists in a database if there has been a substantial investment in obtaining, verifying or presenting the contents of the database. It may apply to any database that was completed on or after 1 January 1983 and that qualifies for protection, and it applies regardless of the nature and value of the contents and regardless of whether there is copyright in the contents. A database qualifies for protection if its maker, or one or more of its makers, was an individual resident in the EEA (see 1.2.8) or a body operating in an EEA state. The investment in a database may be substantial in qualitative or quantitative terms, or both, and it may consist of the investment of financial, human or technical resources. It seems that what is ‘substantial’ in this context can vary: a substantial investment by a big company would probably have to be a lot bigger than one by a small company (see 8.2.9). In this context the terms investment, verification and presentation have the following meanings: • Investment in obtaining data means gathering data together from external sources but not creating it in the first place: no matter how much has been invested in creating data, that investment will not help in establishing database right. The CJEU (see 1.2.5) has decided that a database is protected only if its creation was an end in itself, not a means to some other end. The right, it seems, is intended to encourage innovation in developing databases, not to assist other activities that happen to depend on databases. As a result the scope of the right is quite narrow: only databases of collected items, such as photographs, seem likely to be protected. • Verification involves checking data obtained or already in the database for reliability and accuracy even if few changes have to be made as a result. • Presentation means designing a database in such a way that it fulfils its function to process information and makes it accessible to the user. This must be distinguished from the separate rights, if any, of the owner of copyright in a computer database program or of a copyright in the database. 1988 (CDPA) s172A; SI 1997/3032 regs 18, 30; British Horseracing Board v William Hill, 2005; Fixtures Marketing v Oy Veikus, 2005; Apis Hristovich v Lakorda, 2009

8.2.8 Database right: maker The maker of a database is the first owner of the database right in it. The maker is the person who takes the initiative in obtaining, verifying or presenting the contents, and

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takes the risk of investing in the database, and may thus be a company or other body as well as an individual. An employer is the maker of a database that was made by an employee in the course of employment, and the Crown is the maker of a database made by an officer or servant of the Crown in the course of his or her duties. The Controller of HMSO administers Crown database right as well as Crown copyright (see 3.2.30). The two Houses of Parliament, separately or together, are makers of databases made under their direction or control. A database is made jointly if two or more people shared the work and the risk. Database right may be assigned or bequeathed by the maker in the same way as copyright (see 3.3). SI 1997/3032 regs 14, 15, 23

8.2.9 Database right: restricted acts Database right restricts the unauthorized extraction or re-utilization (directly or indirectly) of all or a substantial part of the contents of a database. In this context the terms extraction, re-utilization and substantial are used in the following way: • Extraction means the permanent or temporary transfer of contents to another medium by any means or in any form, such as the making of individual copies of extracts or the copying of information into a new database. Infringement by extraction occurs when the material is removed, so the reason for extracting the material is irrelevant. • Re-utilization means making contents available to the public by any means, and so includes making available online to the public in another EU member state (see 4.1.11, 6.2.6). • Substantial may be assessed qualitatively, quantitatively or both (compare 5.3.3–5). When assessed quantitatively, substantial must be measured in relation to the rest of the database: a substantial part of a very large database would have to be much bigger than a substantial part of a small one. When assessed qualitatively, substantial must be measured in relation to the investment in obtaining, verifying or presenting what has been taken: if that investment was not substantial (see 8.2.7) the material taken is not a substantial part. The repeated and systematic extraction or re-utilization of insubstantial parts of the contents may amount to a substantial part (as defined above), so the extraction of a little each day may not be allowed without permission. Directive 1996 art 7(2); SI 1997/3032 regs 12, 16; British Horseracing Board v William Hill, 2005; Apis Hristovich v Lakorda, 2009; Directmedia Publishing v Albert Ludwigs Universität Freiburg, 2009

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8.2.10 Database right: duration Database right expires at the end of the year 15 years after the database was completed, but note the following points: • Database right in a database completed between 1 January 1983 and 31 December 1997 has expired, unless the term has been extended as a result of availability to the public or amendment (see below). • When a database is made available to the public (see 4.1.11) while database right in it still subsists, a new period of 15 years commences from the year in which it was first made available. • Any substantial change to the contents of the database, including accumulated additions, deletions or alterations, that amount to a substantial new investment qualify the resulting database for a new period of protection for 15 years. The new period of protection probably does not apply to unamended data if they can be distinguished. Therefore database right in a database subject to repeated substantial new investment (see 8.2.7) could be perpetual. SI 1997/3032 regs 17, 30

8.2.11 Database right: assumption as to expiry If the database has no label or other mark identifying the maker and it is not possible to discover the identity of the maker by reasonable enquiry, and it is reasonable to assume that database right has expired (that it was completed more than 15 years ago), it is not an infringement of the right to extract or re-utilize (see 8.2.9) substantial parts of the contents. SI 1997/3032 reg 21

8.2.12 Database right: lawful users A lawful user is a person who, by licence or otherwise, has a right to use the database. A lawful purchaser of a simple database, such as a CD-ROM, is a lawful user, but it is far from clear how many of that purchaser’s friends would qualify. Certainly, if an organization buys a database it needs to ensure that it has any appropriate licences to cover access for those of its staff who use it: licences tend to specify the number of individual users they permit. For the most part, anyone allowed access to an archive or library is a lawful user of a database that is legitimately made available there, so it is important to ensure that licences permit public access. Lawful use of a database available across the internet depends on the terms and conditions of access (if any) to the relevant website.

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If a person is a lawful user of a database protected by database right that is available to the public (see 4.1.11) in any manner under a licence or other agreement, no condition may be placed on that user by the licence or agreement to restrict his or her freedom to extract or re-utilize (see 8.2.9) insubstantial parts of the contents. The use of a database that qualifies for neither database right nor copyright, though, is subject to any licensing terms imposed by the owner of the database (see 8.2.6). SI 1997/3032 regs 12, 19(2); Ryanair v PR Aviation, 2015

8.2.13 Database right: permitted uses: insubstantial parts A lawful user of a database that has been made available to the public in any manner (including to only a limited segment of ‘the public’, see 4.1.2, 4.1.11) may extract or reutilize (see 8.2.9) insubstantial parts of the contents for any purpose. As usual, insubstantial must be considered in qualitative or quantitative terms, or both (see 5.3.3–5), but could be quite a lot if the database is large (see 8.2.9). SI 1997/3032 reg 19(1)

8.2.14 Database right: permitted uses: fair dealing Database right in a database that has been made available to the public in any manner (including to only a limited segment of ‘the public’, see 4.1.2, 4.1.11) is not infringed by fair dealing with a substantial part of the contents by a lawful user for the purpose of illustration for teaching or research, so long as it is not for any commercial purpose and the source is indicated. The taking of extracts (in whatever form) from a database to illustrate a class or lecture in a school or university would qualify. Since use for the purposes of examination qualifies as fair dealing for the purpose of illustration for instruction in a copyright context (see 5.3.19), it follows that the use of extracts from a database for examination purposes (including in a thesis or dissertation) should be permitted. Use of extracts for commercial training courses, on the other hand, is not fair dealing. There is no certainty as to whether ‘illustration’ also qualifies ‘research’, but so far the UK courts have decided that it does not. Research must be narrowly interpreted as ‘scientific research’, but ‘scientific’ in an EU context is not narrowly confined to science as understood in the UK but rather concerns ‘knowledge’ (Latin scientia). Any research using a database must therefore be in pursuit of knowledge and its dissemination, not for some other end. Commercial research cannot be fair dealing (see 5.3.8). SI 1997/3032 reg 20(1); Forensic Telecommunications Services v Chief Constable of West Yorkshire, 2012

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8.2.15 Database right: permitted uses: public lending The public lending of a database (for example, on a CD-ROM) is not an infringement of database right, provided it is not lent for direct or indirect commercial advantage and it is lent by an establishment that is accessible to the public. The charging of a fee for the service is permitted, so long as it covers only the costs of the establishment. The use that the borrower makes of the database, of course, is a different matter. This exception does not apply to on-the-spot reference use of a database, so a library or archive needs the maker’s permission or a licence to make available a database for reference use. SI 1997/3032 reg 12(2–4)

8.2.16 Database right: permitted uses: public administration Database right is not infringed by anything done for the purposes of Parliamentary or judicial proceedings or the reporting of those proceedings, nor by anything done for the purposes of a royal commission or statutory inquiry or the reporting of their proceedings that were held in public. All or a substantial part of the contents of a database that are open to public inspection under statute or are on a statutory register may be extracted so long as the contents consist of factual information and the purpose of extraction does not include re-utilization of more than an insubstantial part (see 8.2.9) by making the material available to the public. However, the information may be both extracted and re-utilized in order to enable the contents to be inspected at a more convenient time or place or to facilitate exercise of the statutory rights. Also, if the information is about matters of general scientific, technical, commercial or economic interest, both extraction and re-utilization are permitted in order to disseminate the information. All of these public administration exceptions apply only if the use was ‘by or with the authority of the appropriate person’. The ‘appropriate person’ is the person who maintains the register or who is required to make it open to public inspection. SI 1997/3032 Sch 1 paras 1–3

8.2.17 Use in various circumstances: libraries and archives The following notes discuss the likely range of circumstances in connection with databases in libraries and archives. In all cases, it is very important to remember that the contents are likely to be protected by a multitude of different copyrights, quite independently of the database right, and that these last for much longer than database right unless the database is repeatedly updated or changed.

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8.2.18 Use in various circumstances: manual databases Most manual databases are likely to pose few problems with database right. Those created by an archive or its parent institution are accessible to staff and the public on terms set by the archivist or his or her superiors. Access to manual databases that have been deposited as records in the archive are governed by the terms of the deposit, and after 15 years at most database right in the database deposited will expire.

8.2.19 Use in various circumstances: administrative databases Many institutions, including libraries and archives, make use of a range of databases for their own purposes: the various catalogues, the administration of collections, the recording of information about users, the running of the finances, and so on. In part these might be manual, but they are much more likely to be dependent on computers. Any of them that contain details of living individuals fall under the Data Protection Act, and must be treated accordingly (see 8.7.2). The software for the databases has in almost all cases been supplied by an external contractor, who provides a licence for the use of his or her copyright material (see 6.6). That licence has nothing to do with database right, since the database was created by the archive and its maker is the archive or its parent institution. When such a database is not available to the public, it is up to the archivist to define the lawful users and control access and use as appropriate. Any approved user of the record office (however defined by the archivist) is a lawful user of a database that is provided for public access.

8.2.20 Use in various circumstances: public record databases The normal exception for the copying of public records applies to databases and their contents, so public record databases and their contents may be copied without infringement of any copyright either in the database or its contents (see 5.4.2). There is a new exception covering database right in public records, but it is not all-embracing. It gives the repository the right to make available to the public (re-utilize) any public record database, but the making of copies (extraction) of the contents may be an infringement of database right, so the database right must belong to the record office or its parent body, or any extraction must fall within the terms of a licence or of the other exceptions (see 8.2.13–16, 8.2.21). SI 1997/3032 Sch 1 para 5

8.2.21 Use in various circumstances: deposited electronic databases An electronic database that is deposited with an archive as an addition to its collections is unlikely to be of continuing commercial value, and if it has not been substantially

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changed within the previous 15 years the database right in it has already expired. At the latest, database right expires 15 years after deposit. Once database right has expired it cannot be revived, but if it still subsists at the time of deposit, and is assigned by the maker to the archivist, it is possible (though unlikely) that substantial investment in the periodic re-formatting (presentation) of such an electronic database would qualify the database for a new term of database right protection each time. If the right is assigned to the archivist (see 3.3.8), there should be no problem with the public use of the database. Failing that, use is limited to what is permitted by the exceptions (see 8.2.13–16) or by the terms of a licence (see 8.2.22). SI 1997/3032 reg 23

8.2.22 Use in various circumstances: licences Licences for the use of databases may be issued by collecting societies (see 5.2.11–12) as part of licensing schemes, or individually by licensing societies or the individual owners of database rights. There are licensing schemes available for some sectors, such as the ‘Chest Agreements’ for institutions in higher and further education run by Eduserve (see 10.3). More common are individual licences, one for each database. The archivist must ensure, when securing rights to re-utilize (make available to the public, see 8.2.9) and for staff and users to extract substantial parts of the material in a database, that the licence covers all the people who need or may need to be lawful users (see 8.2.12). No licence may prevent a lawful user from extracting an insubstantial part for any purpose, so it is particularly important to get the definition in the licence of a lawful user right: the staff of the archive together with all approved users of the archive are likely to be the main categories. The licence must also provide clear rules as to how much may be extracted and for what purposes. SI 1997/3032 reg 19(2), Sch 2

8.3

Publication right

8.3.1 Definition Publication right is a right equivalent to copyright that is acquired by the first person after 1 December 1996 to publish a previously unpublished literary, dramatic, musical or artistic work or a film after copyright has expired. It expires 25 years after the end of the year of first publication. It is important to note that no one can ever acquire publication right in a work that has been published while still in copyright; and no one can acquire publication right in a previously unpublished work until copyright has expired. SI 1996/2967 regs 1(2), 16, 17

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8.3.2 Publication Publication in this context has a different meaning from publication as it applies to copyright (see 4.1.1–8). This can cause some confusion, since it means that a work may be an unpublished work in copyright terms (which can affect the duration of copyright) but a published work in publication right terms. For publication right purposes, publication includes making the work available to the public by the following means: • issuing copies to the public (normal publication) (see 5.1.3) • making the work available to the public by means of an electronic retrieval system, for instance on the internet (which is also a means of copyright publication) • renting or lending copies of the work to the public (see 5.1.4) • performing, exhibiting or showing of the work in public (see 5.1.5) • communicating the work to the public (for example, by broadcasting or on a website, see 5.1.6). If any of these acts is done to the work before copyright expires, with the approval of the copyright owner (see 4.1.9), it is already published for the purposes of publication right, which as a result can never subsist in it. Any of these acts after copyright expires qualifies a work for publication right if none of these things had previously been done to it. SI 1996/2967 regs 16, 17; SI 2003/2498 Sch 1 para 27

8.3.3 Qualification A work qualifies for publication right if it is first published in the EEA (see 1.2.8) and the first publisher, or at least one if there is more than one, is a national of an EEA state. No work qualifies for publication right if Crown or Parliamentary copyright subsisted in it. Moreover, for publication right to subsist, publication must be with the explicit consent of the owner of the physical medium on which the work is recorded. Thus, if the work is actually owned by the library or archive (rather than merely being deposited there) the librarian or archivist may withhold consent, or give it only in return for royalties. SI 1996/2967 regs 16, 17

8.3.4 Rights and exceptions The owner of publication right has all the same rights in relation to the work as the copyright owner previously had except moral rights, and these apply equally to the original item and to the published version (see 5.1.1–10). Fair dealing and most of the other exceptions to copyright also apply, including all of those covering archives and

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libraries, so copies of the original item may continue to be provided and copies of extracts from the published version may be made (see 5.3, 5.4). However, the provisions covering assumptions as to the expiry of copyright do not apply (see 5.2.21–22). SI 1996/2967 regs 16, 17

8.3.5 Application to traditional archives: literary, dramatic and musical works All literary, dramatic and musical works that were unpublished and had never been made available to the public before 1 August 1989 (see 4.1.11, 8.3.2) remain in copyright until at least the year 2039 (see 2.2.17, 2.2.20), so publication right cannot apply to them until then. If the 2039 term is ever removed, thousands of unpublished works will cease to be in copyright, which is likely to affect all or most literary, dramatic and musical works in archives. Archivists should therefore give careful thought to finding a means to make such works available to the public themselves so as to acquire the publication right, lest they lose that right, and thus control of parts of their collections, for another 25 years. Directive 2006 (Term) art 4; SI 1996/2967 regs 16, 17

8.3.6 Application to traditional archives: artistic works of known authorship Copyright in most unpublished artistic works of known authorship expires 70 years after the death of the author (see 2.3.12–13). This means that publication right can subsist on first publication of such previously unpublished works by an author who died more than 70 years ago. Where the work was first made available to the public less than 70 years after the author died there can be no publication right. SI 1996/2967 regs 16, 17

8.3.7 Application to traditional archives: artistic works of unknown authorship Copyright in most unpublished artistic works of unknown authorship will expire in 2039 at the earliest. However, copyright in photographs of unknown authorship created before 1 June 1957 expires 70 years after creation if they are not made available to the public during that time (see 2.3.17, 4.1.11). If the photographs are made available to the public less than 70 years after creation, the duration of the copyright will be extended and there will never be any publication right in them. Publication right can however subsist in either of these categories of work if they are first made available to the public after copyright has expired.

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SI 1996/2967 regs 16, 17

8.3.8 Application to film archives Most commercial films are made to be shown in public, which counts as publication for publication right purposes (see 8.3.2). Publication right can thus apply only when copies of the film have never been issued to the public and the film has never been shown in public. This would cover, for instance, family and other private films, in-house films made by businesses, and films that were never released by the film companies that made them. Films made before 1 June 1957 qualify for copyright as dramatic works or photographs (or both), so copyright in them expires as for those works (see 2.2.4, 2.2.17, 2.2.20, 2.4.1, 2.4.10, 8.3.6). Copyright in later unpublished films is likely to persist until the year 2039 at the earliest (see 2.4.9–18). Publication right can thus only apply before 2039 to unpublished non-fiction films made before 1957 whose director died more than 70 years ago (see 2.4.10). SI 1996/2967 regs 16, 17

8.4

Public Lending Right

8.4.1 Public Lending Right and books Public Lending Right (PLR) was created by the Public Lending Right Act 1979; the current scheme was established in 1982 and has been subject to successive variations. It exists to provide some return for ‘eligible’ authors, translators, editors and compilers for the lending of their copyright works by public libraries. It is not strictly a right under copyright law, but lasts for the same period as copyright. Only books that have been registered with the registrar of the scheme qualify for payments, which are made from a central (government) fund. Authors may register their books for the right online (www.plr.uk.com, see 10.3). Public libraries are restricted in the lending that they may do outside the scheme, hence the qualification to the definition of a library for lending purposes (see 5.4.7). Since PLR does not cover rental, public libraries may only supply such things as videos and CDs for rent under licence from the copyright owner or a collecting society. For the quite distinct rental and lending right, see 5.1.4, 5.3.18. 1988 (CDPA) s40A; SI 1982/719; SI 1990/2360; SI 1996/2967 regs 11, 35

8.4.2 PLR and audiobooks and e-books From 1 July 2014, PLR applies to the lending by public libraries of audiobooks (‘talking books’ or recordings of people reading books) and, in theory, to e-books. Authors must be identified on the case or in the narration or by a provision in their contract with the

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publisher, and they must be ‘natural persons’ (humans, not companies). In practice, e-books are not currently eligible for the scheme because to qualify for PLR the work must be downloaded on the premises of the library before being taken away, which is not a facility that copyright law permits public libraries to offer. Instead, e-book lending is currently by a download directly to the user’s personal device. 2010 s43; SI 2014/1457 art 2; SI 2014/1945, Appendix

8.5

Performers’ rights

8.5.1 Relevance to archives Rights in performances are set out in the 1988 Act as amended by Regulations in 1996 and 2013. They are summarized here because, although they are not relevant to most traditional archival materials, there are some provisions of which archivists, particularly those with responsibility for collections of film and sound recordings, should be aware. If an archivist or records manager works for a company or body that commissions films and sound recordings, it would be worth ensuring that the commissioning department makes the necessary arrangements with the performers at the time the works are made, to allow use as required. It is important to distinguish between performers’ rights, which are the rights of the performers themselves, and performing rights. The latter are the rights of copyright owners in works (such as pieces of music) that may be performed; performing rights in music are normally administered by PRS for Music (see 5.2.12). 1988 (CDPA) ss180ff.; SI 1996/2967 regs 20ff.; SI 2013/1782, regs7–10, 22–26

8.5.2 Performances A performance for the purpose of performers’ rights is: • a dramatic performance (including dance and mime) • a musical performance • a reading or recitation of a literary work (whether or not that work qualifies for copyright because it has previously been written or recorded, so an ad lib speech or lecture qualifies) • a performance of a variety act or similar presentation. A performance qualifies for protection if it was made in or by a subject of the UK, a citizen of a member state of the EU or a signatory state of the 1961 Rome Convention (see 1.2.7). A performance also qualifies for some of the rights if it was made in or the performer was a subject of a signatory state of the TRIPS Agreement (see 1.2.6).

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1988 (CDPA) ss3(1), 180, 206, 211(1); SI 1995/2990

8.5.3 The rights Performers’ rights are of three kinds: non-property rights and property rights, which relate respectively to live and recorded performances, and moral rights. Some similar rights are given to companies with exclusive recording contracts with the performer. The performer may be amateur or professional. Non-property rights are infringed if, without the performer’s consent, someone makes a film or sound recording of a substantial part of a live performance; makes a live broadcast of a substantial part of a performance; makes a recording of such a broadcast; or gives a public performance of or broadcasts an infringing recording. Property rights are infringed if, without the performer’s or rights owner’s consent, someone copies a recording of a substantial part of a performance (whether or not the first recording was legitimate); issues copies of a recording of a substantial part of a performance to the public; lends or rents copies of a recording to the public; or makes the recording available to the public by electronic transmission for access when and where a member of the public chooses (see 4.1.11). Moral rights (see 8.1.11) are similar to the moral rights of authors. They give the right to the performer or group (if collectively named) to be identified if they have asserted the right; and the right to object to derogatory treatment of the performance by distortion, mutilation or other modification that is prejudicial to the reputation of the performer or group. Property and non-property rights relate to performances made at any time, but moral rights apply only to performances made on or after 1 February 2006. 1988 (CDPA) ss180(3), 182, 182A–CA, 183–188, 191A, 192A, 205C–H; SI 1996/2967 regs 20–24, 26; SI 2006/18 regs 6, 8

8.5.4 Consent and waiver Each performer taking part in a performance owns rights in the performance, so consent for the making and use of recordings is required from each of them. The consent does not have to be in writing, but it is easier to prove that it has been given if it is. Consent may be given for any of the acts restricted by non-property rights for a specific performance, for performances generally and for future performances. Consent for acts restricted by property rights is normally by licence, and is binding in most cases on successors and assignees. Moral rights may be waived by an instrument in writing signed by or on behalf of the rights owner(s), and the waiver may be whole or partial, temporary or permanent. 1988 (CDPA) ss191B, 193, 205J; SI 1996/2967 reg 21; SI 2006/18 reg 6

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8.5.5 Duration and transmission Performers’ rights generally expire 50 years from the end of the year in which the performance took place, or, if during that time a recording (of any kind except a sound recording) is released (see 4.1.13) with the consent of the rights owner, 50 years from the date of release of the recording. However, if the recording of the performance is a sound recording, performers’ rights in the performance expire 70 years after its release. There have been two separate changes of term in performers’ rights. The term set in the original 1988 Act was merely 50 years from the date of the performance. In some cases, the introduction of a term based on the date of release gave an extension or a revival, which applied only if the performance was still protected in the UK on 31 December 1995 or in another EEA member state on 1 July 1995. This means as a minimum that the performance took place on or after 1 January 1945. The 70-year term applies only to performances that were still protected on 31 October 2013 under the previous term of 50 years since release, so it resulted in no revivals of rights. Similar provisions apply to ownership and to existing licences and activities started before protection was extended or revived as they do to extended and revived copyrights (see 2.1.24). Performers’ rights of all kinds belong initially to the performers themselves, even if they are performing in the course of employment. Non-property rights and moral rights may not be assigned or passed to any other person or body, except by inheritance or bequest (see 3.3.1–6). If they are not bequeathed but the property rights are, the moral rights pass with the property rights, otherwise moral rights pass to the residuary legatee (see 3.3.1, 3.3.6). Individuals or bodies that own recording rights under exclusive recording contracts with performers may assign the benefits of the rights by assigning the contract. Property rights may be assigned in the same way as copyright (see 3.3.8). If an unpublished recording of a performance is bequeathed in which the testator owned the performer’s property rights, those property rights are bequeathed with the recording, subject to anything in the will to the contrary. If a performer has assigned to the producer some or all of his or her property rights in a sound recording of a performance, once 50 years have passed since the recording was first published or made available to the public (see 4.1.11) he or she may give notice of an intention to cancel the assignment if the producer has not: • issued to the public copies of the recording in sufficient quantities • made the recording available online. If the producer responds by making the recording available in one of these ways but then stops again, or fails to respond, the performer may give notice of termination of the agreement. If the producer continues to fail to respond for a further year the assignment is cancelled and the copyright in the sound recording terminates immediately, but the performer’s rights in the performance continue for the full 70 years after its first release.

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1988 (CDPA) ss180(3), 185, 191, 191B, 191E, 191HA, 192A, 205L–M; SI 1995/3297 regs 10, 27–33; SI 1996/2967, reg 21; SI 2006/18 reg 6; SI 2013/1782 regs 8, 9, 22–26; SI 2014/434

8.5.6 Exceptions Almost all of the exceptions that apply to copyright (see 5.3–5.4) now apply also to performers’ rights. These are the principal issues of note: • The supply of a copy of a reasonable proportion of a published recording of a performance by a library or of the whole or part of an unpublished recording of a performance by a library or archive must be in return for a written declaration with the same contents as a declaration for a copy of a copyright work (see 5.4.12, 9.2.1–2). • There is also now provision for the supply of a copy of a sound recording of a performance of a folksong preserved in an archive, in return for a declaration (see 5.4.21, 9.2.3). • There is no exception for official registers or for material communicated to the Crown (see 5.3.22). 1988 (CDPA) Schs ZA1, 2; SI 2014/1372, regs 3(3), 4(4), 6, 7(3, 4), 8(2); SI 2014/1384, reg 3; SI 2014/2356 regs 4, 5(2); SI 2014/2361, reg 3(3); SI 2014/2861, reg3(4), Sch; SI 2014/2863

8.5.7 Recordings of performances in archives and records An archivist or records manager with responsibility for recordings of performances, including films, and video recordings made up to 50 years ago and sound recordings made, published or made available to the public up to 70 years ago, or who works for a body that commissions such recordings, should be careful to ensure that consents or licences have been obtained from all performers involved in the recordings before allowing the recordings to be used for public performances, broadcasts or the making of copies, and that performers are properly acknowledged (for instance in a printed programme). In many cases, it may be possible to secure licences from the relevant collecting societies, such as the BECS for theatrical performers and producers and Phonographic Performance Ltd (PPL) for musical performers and record companies (see 5.2.12). Archivists and records managers should remember that copyright restrictions could also apply, and so need information about whether the rights of the various contributors of different copyright works (the music, the script, the artwork, and so on) have been cleared. Rights probably will have been cleared in the case of the product of a production company, but a work commissioned by a company could be different; it may be that the

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company secured only limited rights of exploitation for its own purposes, which might not cover archival and historical uses.

8.6

Designs, patents and trade marks

8.6.1 Monopoly rights Designs, patents and trade marks are, unlike copyright, all monopoly rights that have limited application to most archives and archive materials. The significance of the monopoly is that it is possible to infringe innocently, by independently designing, making or using something that has already been designed or registered. Action can be taken against an innocent infringer, but the penalties are different from those for a deliberate infringer. The following notes are intended only as brief introductions to the relevant rights, in order to assist archivists and records managers to decide whether the rights affect them and to show their relationship to copyright where appropriate. There is a particularly close relationship between designs on the one hand and artistic works that are protected by copyright legislation on the other. If necessary, more detailed guidance should be sought from suitable reference works (see 10.2), from lawyers (see 5.5) or from patent or trade mark attorneys. For patent attorneys contact the Chartered Institute of Patent Attorneys (CIPA) at 95 Chancery Lane, London WC2A 1DT (see 10.3); for trade mark attorneys contact the Institute of Trade Mark Attorneys (ITMA) at 222–225 Strand, London WC2R 1BA (see 10.3). Corelli v Gray, 1913

8.6.2 Registered designs A design for an article made before 1949 could be registered under the Patents and Designs Act 1907, and the protection then lasted for a maximum of 15 years. However, there was no copyright in any artistic work which was capable of being registered as a design unless it was not used, and was not intended to be used, as a model or pattern for the production of multiple copies. The same exclusion was repeated in the Registered Designs Act 1949 and continues to apply to any relevant artistic work made before 1 June 1957. Any protection under the 1949 Act for designs created and registered before 1 August 1989 has expired. A design for which an application for registration was made on or after 1 August 1989 and before 9 December 2001 could be registered if it was new and consisted of features applied to an article by an industrial process that appealed to the eye, and that were neither a method nor principle of construction nor features dictated solely by the function of the article. A design could not be registered if, among other things, it consisted of

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printed matter primarily of a literary or artistic character, such as book jackets, maps and plans, but note that manuscript literary or artistic material was not so excluded. The author was owner of the right unless the design was commissioned ‘for money or money’s worth’ or was made in the course of employment. A registration could be renewed every five years, up to a maximum of 25 years. An EU directive has required further changes, which were implemented by regulations in 2001 and 2003. A design may now be registered if it is new and has individual character – if it does not look to an informed person like an earlier design. A design consists of the appearance of the whole or part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture or materials of the product or its ornamentation. The specific exclusion of ‘matter of a literary or artistic character’ has disappeared, but the definition of a design appears to exclude most of them anyway, since a product is defined as ‘any industrial or handicraft item other than a computer program’. However, some care might be needed since a work of artistic craftsmanship (see 2.3.5) could be a handicraft item, and typefaces (see 2.3.2) are identified as products. Duration of protection remains at a maximum of 25 years from the application. The European Union has also now introduced its own design registry, based in the trade mark registry, the OHIM (see 10.3). Applicants may choose to register there, for protection throughout the EU, and may also have protection for three years prior to registration under a new European design right. Protection for a design of any date covers the design when applied to the product or products for which registration was made, and now also a design ‘which does not produce on the informed user a different overall impression’. Thus, if a design has been registered for use on wallpaper alone there is unlikely to be any infringement if it is applied to wrapping paper, and there is never likely to be an infringement if a design is reproduced as an illustration in a book, though there might be an infringement of copyright in the design as an artistic work (see 5.1). There is strict liability, so a person who is unaware that a design has been registered can still infringe, though such a person will not be liable for damages. 1907 s53; 1911 s22; 1949 (Designs) ss1, 1B, 2, 7–9; 1956 Sch 7 para 8(2); 1988 (CDPA) ss267, 269, Sch 1 para 6(1); SI 1995/2912 rule 26(3); SI 2001/3949 regs 2, 5, 13; SI 2001/3950 rule 12; SI 2003/550 reg 2

8.6.3 Design right Design right requires no registration, and it is possible for design right to subsist in a registered design, so long as the design was first recorded on or after 1 August 1989. Any aspect of the shape or configuration (whether internal or external) of the whole or part of an article qualifies as a design for design right. However, a design must be original

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(in the same sense as a copyright work, see 2.1.6–8, except that a design is not original if it is commonplace in the relevant field) and it may not be a principle or method of construction, a feature which enables the article to function with another article (for instance a spare part), or mere surface decoration (enhancing the appearance but not requiring a particular shape or construction of the article). Before design right can subsist, the design must have been recorded either as a design document or as an article made to the design; it then lasts for a maximum of 15 years. A design document is defined as any record of a design, including a record in the form of a drawing, written description, photograph or computer file. Infringement of the design right is only by the reproduction of the design (either by making an article to the design or by copying a design document) for commercial purposes. 1988 (CDPA) ss213, 216, 226, 263 ‘design document’; Jo-y-Jo v Matalan Retail, 2000

8.6.4 Design right and copyright It is possible for both copyright and unregistered design right to subsist in a single design, but note the following: • Where the design is for the making of a typeface or an artistic work (such as a work of architecture or a sculpture or for the surface decoration of something) it is an infringement of copyright in the design document (see 8.6.3) or in a model recording the design to make an article from it (for example, to make a scale model from an engineering drawing for the sculpture The Angel of the North, or to make a badge using the same surface decorative design as for someone else’s design for a badge). • Where the design is for something other than the making of a typeface or an artistic work (for example, an engineering drawing for a special form of nut and bolt or the pattern made by the combination of different fabrics used to make an item of clothing), it is not an infringement of the copyright in the design document or in a model recording the design, or of the author’s moral right of attribution (see 8.1.5), to make an article to the design or to copy an article made to a design (for example, by making a Teletubby costume, which is itself not an ‘artistic work’), though it might be an infringement of design right. The copyright in typefaces is subject to its own limitations (see 2.3.32). The intention is to stop copyright being used to prevent commercial exploitation of functional items which do not themselves attract copyright. 1988 (CDPA) ss51, 79(4)(f), Sch 1 para 19; BBC Worldwide v Pally Screen Printing, 1998; Lambretta Clothing v Teddy Smith (UK), 2005; Flashing Badge Co v Groves, 2007

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8.6.5 Designs and copyright: manufacture If an artistic work is exploited commercially, copyright and moral rights in it may, for the moment, be affected. This exception is to be repealed but the repeal will not be brought into force until 6 April 2020, giving a transitional period that allows businesses that have relied on it time to adjust. Until then, the following provisions continue to apply, and anything made under them may continue to be sold after that date. There is no effect on copyright if the articles in which the artistic work is used are: • • • •

films works of sculpture other than those intended to be used for commercial reproduction wall plaques, medals and medallions printed matter primarily of a literary or artistic character, including book jackets, calendars, greetings cards, maps, plans and advertisements. This list is not exhaustive, but does not include anything that could be registered as a design, such as wallpaper and printed textiles.

A rights owner may not sue for infringement of copyright or seek an injunction stopping use of a copyright artistic work, and the author’s moral right of attribution (see 8.1.5) does not apply, if: • the artistic work was, with the copyright owner’s approval, applied to more than 50 separate articles or to goods manufactured by machine in lengths or pieces, and those articles or goods were sold or hired out before 1 August 1989, and the otherwise infringing use involved the making of articles of a similar description • someone copies the artistic work to make and sell articles of any description at least 25 years after the work was used, with the copyright owner’s approval, to make by an industrial process and to market articles that are copies of the work, if those articles were first marketed on or after 1 August 1989. Thus artistic works such as a drawing of a teapot, a hand-drawn map, an architectural drawing of a house, or an engineering drawing of a toy car continue to attract full copyright and moral rights protection for the full term if reproduced commercially for a calendar, as printed maps, by the construction of a single house or in an animated film. However, it is not an infringement of copyright to copy those artistic works to make and sell articles: • such as teapots, topographical models, houses or toy cars if the artistic works were exploited commercially to make similar articles before 1 August 1989 • of any description if the works were exploited commercially at least 25 years ago but since 1 August 1989.

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It would still be an infringement of copyright in the artistic work to copy it in some other way (for instance, by photocopying the drawing). 1956 s10(2, 3); 1988 (CDPA) ss52, 79(4)(g), Sch 1 para 20; 2013 (Enterprise) s74; SI 1989/1070; SI 2015/641; Westwood v Knight, 2011

8.6.6 Design right and copyright: infringement of both rights Where design right and copyright subsist in the same work and there has apparently been infringement of both design right and copyright, the design right is taken not to have been infringed. The effect of this is that the infringement of both rights (for instance by the photocopying of a design document, see 8.6.3) may only be pursued as an infringement of the copyright. 1988 (CDPA) s236

8.6.7 Patents for invention Patents for invention are registered in the UK under the Patents Act 1977 or may be registered for the whole of the EU at the European Patent Office. A patent may be for a product (such as a new form of pen) or a process (such as a new way to make a pen), but it may not protect a literary, dramatic, musical or artistic work or any other aesthetic creation, nor a computer program. Patents last for 20 years from the filing of the application. Archivists and records managers are unlikely to have much need of knowledge of how to apply for a patent, or of whether a patent registration is valid. If they do, they should consult a qualified patent attorney (see 8.6.1, 10.3). Infringement is by the making of a product or the using of a process that is protected by a patent, so the reproduction in a book of an image of a patented product is not an infringement of the patent, though there is likely to be a design drawing and such reproduction might well infringe the copyright, and conceivably any design right, in that. The copyright in specifications for patents for invention has had a chequered history. Before 1852, when the Patent Office was established, the courts held that there was no copyright in patent specifications at all. Thereafter, until 31 July 1989, specifications were Crown copyright because they were first published by the Crown (see 3.2.28). Patent specifications since 1 August 1989 are copyright of the patentee. The letters patent themselves are a Crown copyright published work (see 4.1.3). 1977 (Patents) ss1, 25, 30, 31, 60; Wyatt v Barnard, 1814

8.6.8 Trade marks Trade marks are registered and protected in the UK under the Trade Marks Act 1994 or

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may be registered in the EU Registry, OHIM (see 10.3). Protection is effectively endless, so long as the registration is renewed at the necessary intervals (every ten years) and the mark is actually used. If you need to apply for registration of a trade mark you should consult a trade mark attorney (see 8.6.1, 10.3). The trade marks register is a useful source of information about companies (see 10.3). Like patents, rights in trade marks are monopolies, so it is possible to infringe innocently (see 8.6.7). Use of a trade mark does not infringe if it is merely descriptive, to describe one of the characteristics of the goods or services rather than to indicate the trade origin of the goods. It would be unlikely (depending on the circumstances) to be an infringement of the trademark to reproduce in a book a picture of a chocolate wrapper bearing the manufacturer’s trade mark, although there could be an infringement of copyright in the artwork for the wrapper and in the mark as a (probably anonymous) artistic work unless its inclusion could be shown to be incidental (see 5.3.6). A trade mark that consists of a very few words alone and in no special form is unlikely to qualify for copyright protection. 1994 (Trade Marks) ss1, 42, 43; Trebor Bassett v The Football Association, 1997

8.6.9 Passing-off It is possible for a trade mark, a style of packaging, a company name, an internet domain name or even (in limited circumstances) the name of an individual to have legal protection even if it does not qualify for copyright or registered trade mark protection, by means of a civil action for passing-off under the common law. Passing-off law protects goodwill in goods or services that has been acquired in the course of trade. Goodwill is ‘the attractive force that brings in custom’, while trade is defined quite widely and can cover not only a commercial company but also a profession, a charity or an individual who is (for instance) a well known author, though it does not otherwise protect an individual’s name. Passing-off occurs when someone misrepresents him or herself in order to misappropriate the goodwill, so that there is, or is likely to be, confusion on the part of the public. Even the copying of the general appearance of an article can be enough for passing-off if it is that general appearance that the public associates with the protected goods or services. Parody is permitted so long as the true authorship is as prominent as the spoof attribution (see also 5.3.14, 8.1.9). Lord MacNaghten in Commissioners of Inland Revenue v Muller & Co’s Margarine, 1901, at 224; Reckitt & Colman Products v Borden, 1990; Alan Clark v Associated Newspapers, 1998; Numatic International v Qualtex, 2010

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Confidentiality

8.7.1 Confidential records Copyright is far from being the only restriction on the use of records held by archives. Few collections do not have some material that falls under the terms of the Data Protection Act, and many are likely also to have material that is or has been confidential. The following notes do not attempt to give detailed advice, and archivists and records managers would be well advised to consult the relevant statutes on the Legislation website (see 10.3) and published guidance (see 10.2). 8.7.2 Data protection The data protection principles in the Data Protection Act 1998 reflect the privacy requirements of the European Convention for the Protection of Human Rights and Fundamental Freedoms, brought into UK law by the Human Rights Act 1998. Archivists and records managers should be aware that data protection applies to a wide range of information relating to identifiable living individuals, including photographs and expressions of opinion by or about the individual, and other textual and financial material and information held digitally. This is not the place to specify precisely which information falls within the scope of the Data Protection Act, but the Information Commissioner’s Office has issued guidance which is available on its website (see 10.3). There are special provisions for ‘sensitive’ personal data about individuals, including information about racial origin, religious or political opinions, physical or mental health or condition, or sexual life. Personal data must be processed (which means used in any way) fairly and lawfully, with the interests of the individual always in mind. They may be kept indefinitely for the purposes of historical research and may be made available for public access so long as: • they are not then used to take decisions about living individuals • they are not used in a way that could cause substantial damage or distress to living individuals, for example undermine their reputation or private and family life • provision of access would not be unlawful in some other way, for example be a breach of confidence or of a statutory prohibition on access. If these conditions cannot be met the data should not be made available for public access during the lifetime of the individual concerned. Under the eighth data protection principle, personal data may not be transferred to a country outside the EU which does not have comparable protection. However, putting data onto a website does not contravene this, even though a website is potentially accessible from anywhere in the world, so long as the internet service provider is based in a member state. Note, however, that the same limitations that apply to public access apply to publication on a website.

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Guidance for archivists and records managers is available in the Code of Practice for Archivists and Records Managers under the Data Protection Act, which is available from the website of TNA (www.nationalarchives.gov.uk; see 10.3). 1998 (Data Protection) ss1, 51(4); 2000 (FoI) s68(2); Bodil Lindqvist v Kammaraklagaren, 2004

8.7.3 Law of confidence The law of confidence is part of the common law, so there is no statute defining its nature or extent. Instead, there are certain basic principles that apply, whose interpretation depends on the circumstances in which the information was communicated between the parties: • The information must be confidential – it must not already be public knowledge. It is possible, though, for some parts to be public knowledge while others remain confidential, or for publicly available information to have been used in a confidential way. • There must be an obligation of confidence, which depends on some level of understanding, agreement or knowledge on the part of the recipient. The test of this is based on whether a ‘reasonable man’ would recognize that the information received was confidential. A person who does not know that information is confidential is under no obligation, but if the recipient knows or ought to know that it is, he or she would normally be bound. If for instance an obviously confidential document is blown from an open window into the street or a private diary is accidentally dropped, the person who finds them should know that they are confidential. However, even where there is an obligation it is not absolute: it may for example be lawful under some circumstances to break a confidence to prevent a crime, to defend one’s reputation or if the breach is otherwise in the public interest (see 5.3.26). • For breach of confidence to be actionable, the revealing of the confidential information must normally have resulted in damage, usually to the confider but perhaps also to a third party such as the confider’s family. However, a breach of confidence is actionable, even without damage, if the breach is ‘unconscionable’ – it would trouble the conscience of a reasonable person. Coco v A N Clark (Engineers), 1969; Lion Laboratories v Evans, 1985; Attorney General v Guardian Newspapers, 1988; Stephens v Avery, 1988; Shelley Films v Rex Features, 1994

8.7.4 Obligation of confidence It is not normally too difficult to decide whether information is confidential, or to decide

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that damage might be caused by disclosure. The difficulty tends to be in deciding whether there is an obligation of confidence. An obligation of confidence can arise without any explicit agreement (either oral or in writing) if it is implicit in the circumstances. Two companies working together on a project are likely to owe a duty of confidence to one another even if they have no contract saying so, and so do a married couple (or in modern circumstances, any couple in a longterm relationship). There is an implied obligation on every servant or employee not to disclose information or documents received in the course of employment, and a similar obligation arising from confidential relationships such as between doctor and patient or solicitor and client. An obligation of confidence might arise even if the information is unsolicited, for instance because a letter says ‘In Confidence’ at the top. An archivist who does not wish to be bound by an unsolicited obligation should return the information at once with a note to say that no obligation of confidence is accepted. If the organization receiving the information is an authority within the meaning of the Freedom of Information Acts (see 5.4.4–5) it has to consider carefully which obligation takes precedence. The confidentiality owed to people responding to a survey (such as of readers in a record office) depends largely on the terms under which the information was sought. The presumption is likely to be that there is no relationship of confidence, but it would be sensible to clarify the position by a statement on the form such as that replies would be treated as confidential only if appropriately marked. An obligation of confidence diminishes over time, and the duty owed must be increasingly weighed against the public interest in openness (see 5.3.26). However, the obligation does not necessarily expire with the death of the person to whom it is owed. A duty owed, for instance, by a lawyer to his or her client or by a doctor to a patient may well survive the death of the client or patient. Similarly, trading or company secrets are likely to remain secrets after the death of a sole trader though they are unlikely to survive the liquidation of a company. Prince Albert v Strange, 1848–9; Morison v Moat, 1852; Philip v Pennell, 1907; Saltman Engineering v Campbell Engineering, 1948; Argyll, Duchess of, v Argyll, Duke of, 1967; Seager v Copydex, 1967; Initial Services v Putterill, 1968; Coco v A N Clark (Engineers), 1969; Lion Laboratories v Evans, 1985; Stephens v Avery, 1988; A v B and C, 2002

8.7.5 Privacy A right to privacy in the UK has been gradually developed by the courts. The statutory law in this area derives from the Human Rights Act 1998 (incorporating the European Convention on Human Rights into UK law) and the Data Protection Act 1998 (see 8.7.2). The Convention says that ‘everyone has the right to respect for his private and

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family life, his home and his correspondence’. It is worth noting in this context that the right does not merely protect private information, it also protects the reputation of the person, so that the publication of information that is not true could also be a breach of privacy. Privacy has developed as a child of the law of confidence (see 8.7.3–4), but it has its own tests: • Does the claimant have a reasonable expectation of privacy? A person in a clearly public place normally has no expectation of privacy, but some activities (such as dining in a secluded area of a public restaurant) might nevertheless be private. The sending of private papers, marked confidential, to a few friends is unlikely to remove the expectation of privacy, and the authorized publication of images of a private event do not make the rest of that event public. The invasion of privacy by photography, and especially by the publication of photographs, is regarded as especially offensive. • Which of the human rights of privacy and freedom of expression has precedence in the particular circumstances, bearing in mind that each is equally important? What is the justification for interfering with one or the other right, and is the damage caused by the interference proportional to the benefit gained? The public interest is of importance here (see 5.3.26), so that freedom of expression might win if a newspaper could show that it was in the public interest to reveal information about which the person had lied. As with other public interest questions, it matters ‘whether publication is sought genuinely to inform public debate, or rather merely to titillate the undoubted interest of a section of the public in the sexual or other private peccadillos of prominent persons. The two categories are not necessarily exclusive, as the Profumo scandal vividly illustrates.’ In the view of the European Court of Human Rights, the right to freedom of expression relates to the expression of ideas. Photographs which convey information but not (normally) ideas may well not be covered so that the right to privacy of the subject of the pictures would be superior. • In some circumstances the right to privacy might even survive the death of the individual, depending on the nature of the private information. 1998 (Rights) Sch 1 art 8, 10; Sheffield City Council v Addinell, 2001; Campbell v MGN, 2004; Von Hannover v Germany, 2004; HRH the Prince of Wales v Associated Newspapers, 2007; McKennit v Ash, 2007; Murray v Express Newspapers, 2008; Briggs J in Rocknroll v News Group Newspapers, 2014 at para 32

8.7.6 Moral rights There is a moral right of privacy in photographs and films commissioned for private and domestic purposes (see 8.1.10).

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Artist’s resale right (droit de suite)

The author or authors of an artistic work (including some which might be defined for copyright purposes as works of artistic craftsmanship, such as glassware and tapestries) are entitled to a percentage of the price paid for the work each time it is sold, after it first leaves the artist’s possession, so long as the sale is through a professional art dealer (including an auction house) and is above a minimum value. The right cannot be assigned but may be bequeathed, and it may not be waived, though only the living author may benefit from sales made before 1 January 2012. The right lasts for the same period as copyright in the work. The collection of the royalty in the UK must be handled by a collecting society. There are two non-profit societies offering this service: DACS (see 5.2.12) and the Artists’ Collecting Society, set up for this purpose by the Bridgeman Art Library for the Society of London Art Dealers, which may be contacted at 17–19 Garway Road, London W2 4PH, or www.artistscollectingsociety.org. In the Republic of Ireland, the right expires on the death of the author of the work. There is no requirement that collection be handled by an agency. Directive 2001 (Artists); SI 2006/346; SI 312/2006 (Ireland); SI 2009/2792

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9.1

Appendix

Charts for the duration of copyright 9.1.1 Literary, dramatic, musical and artistic works (excluding Crown copyright) 9.1.2 Literary, dramatic, musical and artistic works in Crown copyright 9.1.3 Duration of copyright in Gibraltar, Guernsey, the Isle of Man, Jersey and the Republic of Ireland 9.1.4 Duration of copyright in selected countries 9.2 Copyright declarations 9.2.1 Declaration for a copy of the whole or part of an unpublished work or of an unpublished recording of a performance 9.2.2 Declaration for a copy of a single article from any one issue of a periodical, of part of a published work or of part of a published recording of a performance 9.2.3 Declaration for a copy of a sound recording of a performance of a folksong 9.3 Model licences 9.3.1 Licence to the archive 9.3.2 Licence to a user 9.4 Model assignment to the record office

Yes

Yes

Copyright expires 70 years after the work was made available to the public

No

Copyright expires 70 years after creation or 70 years after the work was made available to the public if within 70 years of creation

Was the work first made available to the public before 1 January 1969?

Copyright expires on 31 December 2039

No

Has the work ever been made available to the public?

No

Yes

No

Yes

Yes

Copyright expires 50 years after first publication

Yes

No

Copyright expires on 31 December 2039

Yes

Did the author die before 1 January 1969?

No

Copyright expires 70 years after the death of the author

No

Did the author die more than 20 years before publication?

Yes

Was the work published before 1 August 1989?

No

Is the work a photograph taken before 1 June 1957?

Copyright expires 70 years after the death of the author

No

Is the work a literary, dramatic or musical work, a photograph or an engraving, created before 1 August 1989?

Yes

Figure 9.1.1 Duration of copyright: literary, dramatic, musical and artistic works (excluding Crown copyright)

Copyright expires 70 years after first publication

Yes

Was the work published before 1 August 1989?

No

Is the work a photograph created before 1 June 1957?

Yes

Was the work created before 1 January 1969?

No

Is the author known?

9.1 Charts for the duration of copyright

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Copyright expires 125 years after creation or on 31 December 2039, whichever is later

No Copyright expires 50 years after publication

Copyright expires 50 years after creation

Copyright expires 50 years after publication

No Copyright expires on 31 December 2039

Yes

Yes

No

No

No

Was the work published before 1 August 1989?

Yes

Was the work created before 1 June 1957?

Yes

Has the work been published?

No

Yes

Is the work a photograph?

Yes

No

Figure 9.1.2 Duration of Crown copyright: literary, dramatic, musical and artistic works

Copyright expires 50 years after publication

Yes

Was the work published commercially less than 75 years after creation?

Yes

Was the work published after 1 August 1989?

No

Is the work an artistic work?

No

Is the work a photograph or engraving?

Yes

Was the work created before 1 August 1989?

No

Yes Copyright expires 50 years after publication

Was the work published commercially less than 75 years after creation?

Yes

Copyright expires 125 years after creation

No

Has the work been published?

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9.1.3 Duration of copyright in Gibraltar, Guernsey, the Isle of Man, Jersey and the Republic of Ireland Works by residents of or published in these countries are all protected by copyright in the UK. The Republic of Ireland is a member of the EU so UK terms apply directly to works originating there (see 7.1.1–5, 9.1.4). In Gibraltar and the Crown dependencies, most residents are British citizens and thus entitled to the full protection of UK law (see 2.1.28). For the most part, therefore, works of Gibraltarian, Channel Islands or Isle of Man origin should be treated in the UK the same as a work of UK origin (see 7.1.6–9). In most cases, ‘publication’ in the following table includes other appropriate means of making available to the public (see 4.1.11), such as performance or exhibition.

Gibraltar Gibraltar is a self-governing overseas territory of the UK, within the EU. The EU copyright directives apply and it is a full participant in the single market. The UK Act of 1988 used to apply directly in the territory, but it has now been replaced by Gibraltar’s own Act of 2005. This is based on the UK Act as it was before June 2014 (when the UK exceptions were significantly amended) with alterations to adapt it to local circumstances and with appropriate provisions, such as for publication right, database right and orphan works, to implement directives. There is no copyright in a film (as distinct from a dramatic work embodied in the film) made before 1 June 1960 (see 2.2.4, 2.4.1). Works created by a Gibraltarian enjoy the full protection of local copyright law in all member states and the local Act applies in Gibraltar to works created by nationals of member states. All the duration provisions in the UK Act, including the transitional ones, are replicated in the Gibraltar Act except that: • where the date 1 June 1957 applies in the UK it is replaced for Gibraltar by 1 June 1960 • where the date 31 December 2039 applies in the UK it is replaced for Gibraltar by 31 December 2055. See also 9.1.3 (introductory paragraph). 2005 (Gibraltar) Sch 1 paras 12, 34, 35; SI 2006/1039

Guernsey The duration provisions in the Ordinance of 2006 apply to works created before and after commencement, but just in case the legislators missed something there is a provision that any work not expressly provided for has duration as in the UK Copyright Act 1911, though that was hardly comprehensive.

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See also 7.1.6, 7.1.8, 9.1.3 (introductory paragraph) Nature of the work

Duration in Guernsey

Literary, dramatic, musical or artistic work (2005 s13(2))

Life + 70 years

Anonymous literary, dramatic, musical or artistic Creation + 70 years or publication + 70 years if work (2005 s13(3)) published within 70 years of creation Film made on or after 1 January 2006 of which the persons connected with the film (see 2.4.9) are known (2005 s15(2))

Life + 70 years

Anonymous film made on or after 1 January 2006 (2005 s15(4))

Creation + 70 years or publication + 70 years if published within 70 years of creation

Film made on or after 1 January 2006 of which Creation + 50 years there was none of the persons connected with a film (2005 s15(9)) Film made before 1 January 2006 (Sch 1 para 6)

Treated as a sequence of photographs and as a dramatic work if appropriate

Sound recording (2005 s14(2))

Creation + 50 years or publication + 50 years if published within 50 years of creation

Broadcast made on or after 1 January 2006 (2005 s16(2), Sch 1 para 7)

Broadcast + 50 years

Published edition published on or after 1 January 2006 (2005 s17, Sch 1 para 8)

Publication + 25 years

Moral rights of authors who died or relating to a Same term as copyright except right to object to film that was made on or after 1 January 2006 false attribution, life + 20 (2005 s108, Sch 1 para 14) Crown copyright (2005 s189)

Creation + 125 years or publication + 50 years if published commercially (see 4.1.5) within 75 years of creation

States copyright (2005 s191)

Creation + 50 years

Laws and ordinances

Year passed + 50 years

2005 (Copyright) Sch 1 para 11

Isle of Man See also 7.1.6, 7.1.9, 9.1.3 (introductory paragraph). Nature of the work

Duration in the Isle of Man

Literary, dramatic, musical or artistic work by a known author created on or after 1 July 1992 (1991 s12(1))

Life + 50 years

Anonymous literary, dramatic, musical or artistic Perpetual until published then publication + 50 work created on or after 1 July 1992 (1991 years, unless it is reasonable to assume that ss12(2), 57) copyright has expired or that the author died more than 50 years earlier

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Nature of the work

Duration in the Isle of Man

Anonymous literary, dramatic, musical or artistic Publication + 50 years work created and published before 1 July 1992 (1956 Sch 2 para 1, 1991 Sch 1 para 12(3)(a)) Anonymous literary, dramatic, musical or artistic 2042 or publication + 50 years if published work created before 1 July 1992 and before the end of that year unpublished at that date (1991 s12(2), Sch 1 para 12(3)(b)) Literary, dramatic or musical work created before Publication + 50 years 1 July 1992 and published after the death of the author (1956 s2(3) proviso, 1991 Sch 1 para 12(2)(a)) Literary, dramatic or musical work by a deceased 2042 author, or engraving, created before and unpublished on 1 July 1992 (1991 Sch 1 para 12(4(a, b)) Engraving created and published before 1 July Publication + 50 years 1992 but published after the death of the author (1956 s3(4) proviso, 1991 Sch 1 para 12(2)(b)) Photograph published before 1 July 1992 (1956 s3(4)(b), 1991 s12(2)(c))

Publication + 50 years

Photograph taken between 31 May 1959 and 1 July 1992 and unpublished at the latter date (1991 Sch 1 para 12(4)(c))

2042

Photograph taken before 31 May 1959 (1956 Sch Creation + 50 years 7 para 2, 1991 s12(2)(c)) Film made on or after 1 July 1992 (1991 s13)

Creation + 50 years or publication + 50 years if published within 50 years of creation

Film, including a Crown copyright film, made before 31 May 1959 (1991 Sch 1 para 7)

Treated as a sequence of photographs and as a dramatic work if appropriate

Film made and published or registered (see Publication or registration + 50 years 2.4.12) between 31 May 1959 and 1 July 1992 (1956 s13(3), 1991 Sch 1 para 12(2)(e)) Any other film made between 31 May 1959 and 2042 or publication + 50 years if published 1 July 1992 (1991 para 12(5)(b)) before the end of that year Sound recording created on or after 1 July 1992 Creation + 50 years or publication + 50 years if (1991 s13) published within 50 years of creation Sound recording published before 1 July 1992 (1956 s12(3), 1991 s12(2)(d)) Sound recording made between 31 May 1959 and 1 July 1992 and unpublished at the latter date (1991 Sch 1 para 12(5)(a)) Sound recording made before 31 May 1959 (1956 Sch 7 para 11, 1991 s12(2)(d))

Publication + 50 years

Broadcast made on or after 31 May 1959 (1991 s14, Sch 1 para 9) Published edition (1991 s15)

Broadcast + 50 years

2042 or publication + 50 years if published before the end of that year Creation + 50 years

Publication + 25 years

Moral rights of authors who died or relating to a Same term as copyright except right to object to film that was made on or after 1 July 1992 (1991 false attribution, life + 20 years s86, Sch 1 para 22(2))

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Nature of the work

Duration in the Isle of Man

Crown copyright literary, dramatic, musical or artistic work created on or after 1 July 1992 (1991 s156)

Creation + 125 years or publication + 50 years if published commercially (see 4.1.5) within 75 years of creation

Crown copyright literary, dramatic or musical work published before 1 July 1992 (1956 s39(3(b), 1991 Sch 1 para 39(2)(a))

Publication + 50 years

Crown copyright literary, dramatic or musical work created before but unpublished on 1 July 1992 (1991 Sch 1 para 39(3))

Later of the standard term for a Crown copyright work or 2042

Crown copyright artistic work other than an engraving or photograph, made before 1 July 1992 (1956 s39(4), 1991 Sch 1 para 39(2)(b))

Creation + 50 years

Crown copyright engraving created before 1 If published before 1 July 1992 publication + 50 July 1992 (1956 s39(4) proviso, 1991 Sch 1 paras years, otherwise 2042 39(2)(c) and 39(4)(a)) Crown copyright photograph created before 1 As for other photographs created before 1 July July 1992 (1956 s39(4), Sch 1 para 30, 1991 Sch 1 1992, as appropriate paras 39(2)(d) and 39(4)(b)) Crown copyright film or sound recording (1956 s39(5)(b), 1991 Sch 1 para 39(2)(e, f ), 39(5))

As for other films and sound recordings, as appropriate

Crown copyright in acts and measures (1991 s157)

Royal Assent + 50 years

Tynwald copyright unpublished literary, dramatic, musical and artistic work of any date and any other work created on or after 1 July 1992 (1991 s158, Sch 1 para 42)

Creation + 50 years

1956; 1991

Jersey See also 7.1.6–7, 9.1.3 (introductory paragraph). Nature of the work

Duration in Jersey

Literary, dramatic, musical or artistic work (s25(2))

Life + 70 years

Anonymous literary, dramatic, musical or artistic Creation + 70 years or available to the public + work (s25(3)) 70 years if available within 70 years of creation Computer-generated literary, dramatic, musical or artistic work (s25(6))

Creation + 50 years

Film (s27(2))

Last to die of the persons connected with the film (see 2.4.9) + 70 years

Anonymous film (s27(4))

If none of the persons connected with the film is known, creation + 70 or available to the public + 70 if available within 70 years of creation

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Nature of the work

Duration in Jersey

Film to which none of the persons connected with a film (see 2.4.9) contributed (s27(7))

Creation + 50 years

Sound recording (s26)

Creation + 50 years or publication/available to the public + 50 years if published or made available within 50 years of creation

Broadcast (s28)

Broadcast + 50 years

Typographical arrangement (s29)

Publication + 25 years

States Assembly copyright (s182(3))

Creation + 50 years

States copyright, literary, dramatic, musical and artistic works (s183(6))

Creation + 125 years or commercial publication (see 4.1.5) + 50 years if so published within 75 years of creation

States copyright, films (s183(7))

Creation + 125 or available to the public + 50 years if available within 75 years of creation

Crown copyright, literary, dramatic, musical and artistic works (s184(4))

Creation + 125 years or commercial publication (see 4.1.5) + 50 years if so published within 75 years of creation

Crown copyright, films (s184(5))

Creation + 125 years or available to the public + 50 years if available within 75 years of creation

2011 (Jersey)

Republic of Ireland The Irish legislation contains few of the complex transitional duration provisions that plague the UK Act; instead it has some inconsistencies and uncertainties that make it impossible to be certain when some copyrights will expire. It provides that works created before 1 January 2001 are covered by the provisions in the regulations that implemented the 70-year term in 1995. Unfortunately, although it was intended that unpublished literary, dramatic and musical works would be protected for life plus 70 years, a copyright law review committee has concluded that the provision was poorly drafted and that some works currently have perpetual protection. There is one provision for a term that is for 50 years after the Act came into force (until the end of the year 2051). It is for unpublished works created by international organizations. See also 7.1.1–5, 9.1.3 (introductory paragraph)

Nature of the work

Duration in Ireland

Published literary, dramatic, musical or artistic Life + 70 years work or (from 1 January 2001) original database (SI 158 of 1995 para 3; 2000 s24(1)) Unpublished literary, dramatic, musical or artistic work (no express provision)

Apparently perpetual

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Nature of the work

Duration in Ireland

Anonymous literary, dramatic, musical or artistic Creation + 70 years or publication + 70 years if work or original database created on or after 1 published within 70 years of creation, unless it is January 2001 (2000 ss24(2), 32(2), 33) reasonable to presume that the author has been dead for at least 70 years Anonymous literary, dramatic, musical or artistic Creation or publication + 70 years work created before 1 January 2001 (SI No 158 of 1995 paras 4, 5) Film created on or after 1 January 2001 of which Life + 70 years, or publication + 70 years if first the persons connected with the film (see 2.4.9) published within 70 years of the death of the are known (2000 s25) last of the persons connected with the film Anonymous film created on or after 1 January 2001 (2000 s32(3))

A time when it is reasonable to presume that all of the persons connected with the film have been dead for at least 70 years

Film created between 1 October 1964 and 31 December 2000 (SI 158 of 1995 para 6)

Life of the last of the persons connected with the film (see 2.4.9) + 70 years

Anonymous film created between 1 October 1964 and 31 December 2001 (no express provision)

Uncertain

Film created before 1 October 1964 (2000 Sch 1 para 5)

Treated as a sequence of photographs and as a dramatic work if appropriate

Sound recording (2000 s26)

Creation + 50 years or publication + 50 years if published within 50 years of creation

Broadcast or cable programme (2000 ss27–28)

Broadcast or inclusion within cable programme service + 50 years

Published edition (2000 s29)

Publication + 50 years

Moral rights (2000 s115)

Same term as copyright except right to object to false attribution, life + 20 years

Government copyright (2000 s191)

Creation + 50 years

Bill or enactment, copyright of the Oireachtas (2000 s192)

Publication + 50 years

Oireachtas copyright, any unpublished work, or any published work created on or after 1 January 2001 (2000 s193, Sch 1 para 29(1))

Creation + 50 years

2000 (Ireland) s33, Sch 1 paras 9, 30; SI 158 of 1995 paras 3–7

9.1.4 Duration of copyright in selected countries The tables below set out the duration of copyright in a selection of overseas countries. Works by residents of or published in these countries are all protected by copyright in the UK but the copyright does not last for longer in the UK than it would in the country of origin (see 2.1.27). In order to determine the duration of copyright in the UK of a work of overseas origin, therefore, it is necessary to decide what would be the term under each of the two jurisdictions; the shorter applies.

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UK durations apply in the UK to all works of EEA (see 1.2.8) origin, since all EEA member states are required to apply the benefits of their own copyright law to nationals of other member states without discrimination (see 1.2.8, 2.1.28). If the duration prescribed in another member state gives a later terminal date than would apply under UK law, a UK national would enjoy that longer term of protection in that other member state. Since this book is about copyright in the UK, though, the duration of copyright in other EEA member states is not covered in the tables. In most cases, ‘publication’ in the following tables includes other appropriate means of making available to the public (see 4.1.11), such as performance or exhibition. Many countries publish consolidated versions of their laws, incorporating amendments made by later legislation. Although the original version of the law is cited in these tables, the latest consolidated version has been used where available taking account of transitional provisions as appropriate.

Australia In 2005, the standard term of copyright in Australia was extended from 50 to 70 years, but there was no provision for revival of expired copyrights, so works with 50-year terms that had expired by 1 January 2005 do not enjoy the longer term. Nature of the work

Duration in Australia

Literary, dramatic, musical or artistic work Life + 70 years published in author’s lifetime whose author died on or after 1 January 1955 (1968 s33(2)) Literary, dramatic, musical or artistic work published after author’s death (so long as first publication was on or after 1 January 1955) (1968 s33(3,5))

Perpetual until published then publication + 70 years

Anonymous work (so long as first publication was on or after 1 January 1955) (1968 s34)

Perpetual until published then publication + 70 years

Film made after 30 April 1969 (1968 s93)

Perpetual until published then publication + 70 years

Film made before 1 May 1969 (1968 ss221–222)

Treated as a sequence of photographs, and as a dramatic work if appropriate

Sound recording (so long as, if published, first publication was on or after 1 January 1955) (1968 s94)

Perpetual until published then publication + 70 years

Broadcast (1968 s95)

Broadcast + 50 years

Published edition (1968 s96)

Publication + 25 years

Moral rights (1968 s195AM)

Duration of copyright, except right to be identified as author of a film until death of the author

Crown copyright literary, dramatic or musical work (1968 s180(1))

Perpetual until published then publication + 50 years

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Nature of the work

Duration in Australia

Published Crown copyright photograph or engraving created after 30 April 1969 (1968 s180(3))

Publication + 50 years

Unpublished Crown copyright photograph created after 30 April 1969 (1968 s233)

Perpetual

Other Crown copyright artistic work (1968 ss180(2), 233)

Creation + 50 years

Crown copyright film made after 30 April 1969 (1968 s181)

Publication + 50 years

Crown copyright sound recording (1968 s181)

Publication + 50 years

1968; 2004 (Australia) Sch 9 paras 117, 131

Barbados The Barbadian Copyright Act of 1998 applies to works existing before and after it came into force. There is a minor provision for Crown-owned copyright but solely in relation to folklore; earlier acts’ provisions for Crown-owned copyrights have not been continued. Nature of the work

Duration in Barbados

Literary, dramatic, musical or artistic work by a known author (s10(1))

Life + 50 years

Anonymous literary, dramatic, musical or artistic Perpetual until published then publication + 50 work (s10(3)) years Literary and artistic works of Barbadian folklore (s22(5))

The Crown is to be considered the author, but the Crown never dies so perpetual

Film or sound recording (s11(1))

Creation + 50 years, or publication + 50 years if published within 50 years of creation

Broadcast (s12(1))

Broadcast + 50 years

Published edition (s13)

Publication + 25 years

Moral rights (s18)

Duration of copyright, except right to object to false attribution, life + 20 years

1998 (Barbados) s151

Brazil The standard term of copyright was extended from 50 to 70 years in 1998 but there was no provision for revival of expired copyrights, so works with 50-year terms that had expired by 1 January 1998 do not enjoy the longer term. Excluded are the texts of treaties or conventions, laws, decrees, regulations, judicial decisions and other official enactments.

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Nature of the work

Duration in Brazil

Literary, dramatic, musical or artistic work except a photograph by a known author who died on or after 1 January 1948 (1998 s41)

Life + 70 years

Literary, dramatic, musical or artistic work except a photograph by an anonymous author, and any audiovisual work or photograph (so long as first publication was on or after 1 January 1948) (1998 ss43–44)

Perpetual until published then publication + 70 years

Work by a deceased author with no heirs, or work by an unknown author (1998 s45)

No copyright

Sound recording (1998 s96)

Creation + 70 years

Broadcast (1998 s96)

Broadcast + 70 years

Published edition

No copyright

Moral rights (1998 s27)

Perpetual

1973 (Brazil); 1998 (Brazil) s8

Canada Nature of the work

Duration in Canada

Published literary, dramatic or musical work by a Life + 50 years known author created after 24 July 1997, or a literary, dramatic or musical work created before that date and published during the author’s lifetime (s6) Literary, dramatic or musical work or an engraving published before 25 July 1997 but after the author’s death (s7(1))

Publication + 50 years

Literary, dramatic or musical work or an engraving unpublished on 25 July 1997, whose author died before 25 July 1947 (s7(4))

Expired

Literary, dramatic or musical work or an engraving unpublished on 25 July 1997, whose author died between 25 July 1947 and 24 July 1997 (s7(3))

2047

Unpublished literary, dramatic or musical work or engraving whose author died after 24 July 1997

Life + 50 years

Photograph of which a corporation is the author Creation + 50 years (s10(1)) Other artistic work by a known author (s6)

Life + 50 years

Work by an unknown author (s6(1))

Shorter of publication + 50 years or creation + 75 years

Original film (s6)

Life + 50 years

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Nature of the work

Duration in Canada

Unoriginal film (s11.1)

Creation + 50 years, or publication + 50 years if published within 50 years of creation

Sound recording (s23)

Creation + 50 years

Broadcast (s23)

Broadcast + 50 years

Published edition

No copyright

Moral rights (s14.2)

Duration of copyright

Crown copyright literary, dramatic, musical or artistic work or a film (s12)

Perpetual until published then publication + 50 years

1985 (Canada)

China (except Hong Kong) All works created before the present law came into force on 1 June 1991 have the same duration as is provided in that law. The law was amended in 2002. Excluded from copyright are laws; regulations; resolutions, decisions and orders of state organs; documents of a legislative, administrative or judicial nature; and official translations of such documents. Nature of the work

Duration in China

Literary, dramatic, musical or artistic work except a photograph (1990 s21)

Life + 50 years

Literary, dramatic, musical or artistic work where Creation + 50 years, or publication + 50 years if the copyright is owned by a legal entity (1990 published within 50 years of creation s21) Photograph or film (1990 s21)

Creation + 50 years, or publication + 50 years if published within 50 years of creation

Anonymous work (2002 s18)

Perpetual until published then publication + 50 years

Sound or video recording (1990 s41)

Creation + 50 years

Broadcast (1990 s44)

Broadcast + 50 years

Published edition (1990 s35)

Publication + 10 years

Moral rights (1990 s20)

Perpetual

1990 (China) ss5, 59; 2002 (China)

Egypt Excluded are official documents, laws and judgments.

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Nature of the work

Duration in Egypt

Literary, dramatic, musical or artistic work or an Life + 50 years audiovisual work, published during the author’s lifetime (ss140, 160) Collective work of which the copyright owner is a legal entity (s162)

Perpetual until published then publication + 50 years

Literary, dramatic, musical or artistic work published after author’s death, or an anonymous work (ss162–163)

Perpetual until published then publication + 50 years

Work of applied art (s164)

Perpetual until published then publication + 25 years

Sound recording (s167)

Creation + 50 years, or publication + 50 years if published within 50 years of creation

Broadcast (s168)

Broadcast + 20 years

Published edition

No copyright

Moral rights (s143)

Perpetual

2002 (Egypt) s141

Hong Kong The current copyright ordinance in Hong Kong is very closely based on the UK Act of 1988, except that the standard term remains based on 50 years and has not been increased to 70 years. Before 2007, the UK 1911 Act then the 1956 Act applied, except for a short-lived ordinance of 1997. The transitional provisions for works existing before the commencement of the 2007 Ordinance and before the 1956 Act was introduced to Hong Kong in 1972 are just as complex as those applying in the UK. Where no transitional provision applies to a work, the standard term applies.

Nature of the work

Duration in Hong Kong

Literary, dramatic, musical or artistic work (2007 s17(2))

Life + 50 years

Literary, dramatic or musical work created before 1 July 2007 and published after author’s death (1956 s2(3); 2007 Sch 2 para 13(1)(a))

Perpetual until published then publication + 50 years

Unpublished literary, dramatic or musical work or engraving whose author has died and that was created before 1 July 2007, or an unpublished photograph taken between 12 December 1972 and 1 July 2007 (2007 Sch 2 para 13(4)(a–c)

2057

Anonymous literary, dramatic, musical or artistic Perpetual until published then publication + 50 work (2007 s17(3)) years

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Nature of the work

Duration in Hong Kong

Anonymous literary, dramatic, musical or artistic 2057, or publication + 50 years if published work, except a photograph, created before 1 before the end of that year July 2007 (1956 Sch 2 para 1; 2007 s17(3), Sch 2 para 3) Engraving created before 1 July 2007 and published after author’s death (1956 s3(4); 2007 Sch 2 para 13(1)(b))

Perpetual until published then publication + 50 years

Published photograph created before 1 July 2007 or any photograph taken before 12 December 1972 (1956 s3(4); 2007 Sch 2 para 13(1)(c))

Perpetual until published then publication + 50 years

Film of which the persons connected with the film (see 2.4.9) are known (2007 s19(2))

Life of the last to die of the persons connected with the film + 50 years

Anonymous film (2007 s19(4))

Perpetual until published then publication + 50 years

Film of which there were none of the persons identified above (2007 s19(7))

Creation + 50 years

Published film created before 1 July 2007 (1956 s13(3)(b); 2007 Sch 2 para 13(1)(e), 13(3)(a))

Perpetual until published then publication + 50 years

Unpublished film whose producer has died and that was created before 1 July 2007 (2007 Sch 2 para 13(4)(d))

2057

Anonymous unpublished film created before 1 July 2007 (2007 Sch 2 para 13(3)(b))

2057, unless published before then in which case the standard term applies

Sound recording (2007 s18)

Creation + 50 years, or release + 50 years if released within 50 years of creation

Published sound recording created before 1 July Perpetual until published then publication + 50 2007 or any sound recording made before 12 years December 1972 (1956 s12(3); 2007 Sch 2 para 13(1)(d)) Unpublished sound recording made between 12 2057, or publication + 50 years if published December 1972 and 1 July 2007 (2007 Sch 2 before the end of that year para 13(5)) Broadcast (2007 s20)

Broadcast + 50 years

Published edition (2007 s21)

Publication + 25 years

Moral rights (2007 s97)

As copyright except right to object to false attribution, life + 20 years

Government copyright (2007 s182)

Creation + 125 years, or publication + 50 years if published within 75 years of creation

Government copyright published literary, dramatic or musical work created before 1 July 2007 (2007 Sch 2 para 25(a))

Publication + 50 years

Government copyright unpublished literary, dramatic or musical work or film created before 1 July 2007 (2007 Sch 2 para 35(3))

Later of 2057 or standard term

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Nature of the work

Duration in Hong Kong

Government copyright published engraving, As UK (see 2.3.20–2.3.24, except that 12 published photograph, unpublished December 1972 replaces 1 June 1957 and 1 July photograph created before 12 December 1972 2007 replaces 1 August 1989) or other artistic work, created before 1 July 2007 (2007 Sch 2 para 35(2)(b–d) Government copyright unpublished engraving taken before 1 July 2007 or unpublished photograph taken between 12 December 1972 and 1 July 2007 (2007 Sch 2 para 35(4))

2057

Government copyright published sound Perpetual until published then publication + 50 recording created before 1 July 2007 or any such years sound recording made before 12 December 1972 (1956 s12(3); 2007 Sch 2 para 35(2)(e)) Government copyright unpublished sound recording made between 12 December 1972 and 1 July 2007 (2007 Sch 2 para 13(5))

2057, or publication + 50 years if published before the end of that year

Government copyright in Ordinances (2007 s183, Sch 2 para 36)

Date of publication in the Gazette + 50 years

Legislative Council copyright in a literary, dramatic, musical or artistic work, including an unpublished such work created before 1 July 2007 (2007 s184, Sch 2 para 37(1))

Creation + 50 years

1956; 2007 (Hong Kong) Sch 2 paras 5(3), 13(6)

India Any work created before 4 June 1957 is subject to the provisions of the Copyright Act 1911 of the UK, as included in Indian law by the Indian Copyright Act 1914. Nature of the work

Duration in India

Literary, dramatic, musical or artistic work except Life + 60 years a photograph created on or after 4 June 1957 and published during the author’s lifetime (1957 s22) Literary, dramatic, musical or artistic work except Life + 50 years a photograph created before 4 June 1957 and published during the author’s lifetime (1914 sch 1 para 3) Literary, dramatic or musical work or an engraving created on or after 4 June 1957 and published after the author’s death (1957 s24)

Perpetual until published then publication + 60 years or publication of an adaptation + 60 years

Literary, dramatic or musical work or an engraving created before 4 June 1957 and published after the author’s death (1914 sch 1 para 17(1))

Perpetual until published then publication + 50 years

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Nature of the work

Duration in India

Photograph created on or after 4 June 1957 (1957 s25)

Perpetual until published then publication + 60 years

Photograph created before 4 June 1957 (1914 sch 1 para 21)

Creation + 50 years

Artistic work, other than a photograph or an engraving, unpublished during the author’s life

Perpetual

Anonymous literary, dramatic, musical or artistic Perpetual until published then publication + 60 work except a photograph (1957 s23) years Publication of a public undertaking (1957 s28A)

Perpetual until published then publication + 60 years

Film or sound recording created on or after 4 June 1957 (1957 s26–27)

Perpetual until published then publication + 60 years

Film created before 4 June 1957

Treated as a sequence of photographs, and as a dramatic work if appropriate

Sound recording created before 4 June 1957 (1914 sch 1 para 19(1))

Expired

Published edition

No copyright

Moral rights

None

Government publication created on or after 4 June 1957 (1957 s28)

Perpetual until published then publication + 60 years

Crown copyright work created before 4 June 1957 (1911 s18)

Perpetual until published then publication + 50 years

1914; 1957 (India) s79(5)

Israel Until recently the UK Copyright Act 1911 was still in force as applied to the British Mandate in Palestine. It was amended by an ordinance made in 1924 by the British High Commissioner, but has now been replaced by the new Copyright Act 2007. Works are protected only if copyright in them still subsisted on 25 May 2008 under the 1911 Act as amended. The standard term of copyright was extended from 50 to 70 years in 1971 but there was no provision for revival of expired copyrights so works with 50-year terms that had expired by 1 January 1971 do not enjoy the longer term. Excluded are statutes, and judicial decisions of courts or of government entities with judicial authority. Nature of the work

Duration in Israel

Literary, dramatic, musical or artistic work, including a photograph created on or after 25 May 2008 (2007 s38)

Life + 70 years

Photograph created before 25 May 2008 (1911 s21; 2007 s78(i))

Creation + 50 years

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Nature of the work

Duration in Israel

Anonymous work (2007 s40)

Creation + 70 years, or publication + 70 years if published within 70 years of creation

Sound recording (2007 s41)

Creation + 50 years

Moral rights (2007 s45)

Same term as the copyright

State copyright work (2007 s42)

Creation + 50 years

1911; 1971 ss1, 3; 2007 (Israel) ss6, 78(a, b)

Jamaica The Jamaican Copyright Act of 1993 came into force on 1 September 1993. The Copyright Act 1911 of the UK applies to any works created before that date. The 1993 Act has no provision for Crown or other government copyright, so Crown copyright applies only to such works that were created before that Act came into force. There is no provision in the 1993 Act to attach copyright to pre-commencement films or broadcasts. Nature of the work

Duration in Jamaica

Literary, dramatic or musical work or an Perpetual until published then publication + 50 engraving created before 1 September 1993 and years published after the author’s death (1911 s17, 1993 s153) Photograph created before 1 September 1993 (1911 s21, 1993 s153)

Creation + 50 years

Any other literary, dramatic, musical or artistic work by a known author (1993 s10(1))

Life + 50 years

Anonymous literary, dramatic, musical or artistic Perpetual until published then publication + 50 work (1993 s10(1)) years Sound recording created before 1 September 1993 (1911 s19, 1993 s153)

Creation + 50 years

Film, or sound recording created on or after 1 September 1993 (1993 s11(1))

Creation + 50 years, or publication + 50 years if published within 50 years of creation

Broadcast (1993 s12(1))

Broadcast + 50 years

Published edition (1993 s13)

Publication + 25 years

Moral rights (1993 s18)

Duration of copyright, except right to object to false attribution, life + 20 years

Crown copyright literary, dramatic, musical or artistic work created before 1 September 1993 (1911 s18, 1993 s153)

Perpetual until published then publication + 50 years

1911; 1993 (Jamaica)

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Japan The present Japanese copyright law originated in 1970 and has been amended and consolidated several times since. The previous law gave a standard term of life or publication + 30 years and there are no provisions for revival so works with 30-year terms that had expired by 1 January 1971 do not enjoy the longer term. Copyrights have also expired in all photographs and all unoriginal films made or published before 1 January 1961. Nature of the work

Duration in Japan

Literary, dramatic, musical or artistic work (including a photograph made on or after 25 March 1997) by a known author who died on or after 1 January 1941 (1970 art 51)

Life + 50 years

Anonymous work (including a photograph made on or after 1 January 1971) except a film (1970 art 52, 1996 art 2)

Publication + 50 years or presumed date of death + 50 years

Work (except a film) of which a corporate body is Creation + 50 years, or publication + 50 years if identified as the author (1970 art 53) published within 50 years of creation Photograph made or first published on or after 1 Later of life + 50 years and publication + 50 years January 1971 and before 25 March 1997 by a known author (1970 art 55; 1996 art 2) Film (1970 art 54)

Creation + 50 years, or publication + 50 if published within 50 years of creation

Original film made before 1 January 1971 (1899 art 22ter, 1970 supp art 7, 2003)

Life + 30 years or publication + 30 years if posthumous, anonymous or published by a corporate body

Sound recordings (1970 art 101(ii))

Creation + 50 years, or publication + 50 years if published within 50 years of creation

Sound recordings created before 1 January 1971 Longer of the standard term and the end of the (1970 supp art 15(2)) year 2021 Broadcasts (1970 art 101(iii))

Broadcast + 50 years

Published edition

No copyright

Moral rights (1970 art 59)

Perpetual

If the copyright has transferred to the National Treasury because the author has died with no heirs or a corporate body has been dissolved (1970 art 62)

Copyright terminates

1899 arts 3–6, 22ter, 23; 1970, supplementary provisions art 2(1); 1996; 2003 (Japan)

New Zealand Excluded are bills; acts; regulations; byelaws; Parliamentary debates; reports of select committees; judgments; and reports of royal commissions, commissions of inquiry, ministerial inquiries or statutory inquiries.

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Nature of the work

Duration in New Zealand

Literary, dramatic and musical work or engraving Publication + 50 years published before 1 April 1963 and author died before publication (sch 1 para 19) Literary, dramatic, musical or artistic work except Earlier of publication + 50 years and life + 75 a photograph created between 1 April 1963 and years 31 December 1994 and published before 1 January 1995, whose author died before publication (sch 1 para 18(2)) Literary, dramatic, musical or artistic work except Life + 75 years a photograph created between 1 April 1963 and 31 December 1994, unpublished and author died before 1 January 1995 (sch 1 para 18(1)) Literary, dramatic, musical or artistic work except Later of the first to die + 50 years and the year of a photograph in joint authorship published death of the last to die before 1 April 1963 (sch1 para 17(2)(b)) Other literary, dramatic, musical and artistic work by a known author (s22(1))

Life + 50 years

Anonymous unpublished literary, dramatic, musical or artistic work except a photograph unpublished on 1 January 1995, and remaining unpublished (sch 1 para 17(2)(d))

2045

Anonymous published work (s22(3))

Publication + 50 years

Film made before 1 April 1963 (sch 1 para 6(1)(a), Treated as a sequence of photographs, and as a 17(1)) dramatic work if appropriate Film made since 1 April 1963, or a sound recording (s23)

Creation + 50 years, or publication + 50 years if published within 50 years of creation

Broadcast (s24)

Broadcast + 50 years

Published edition (s25)

Publication + 25 years

Moral rights (s106)

Duration of copyright, except right to object to false attribution, life + 20 years

Crown copyright in any work except a published Creation + 100 years edition (s26)

1994 (New Zealand) s27 Russian Federation Excluded are official documents and translations, folk art. The 1993 Law provides for a standard 70-year term but contains no transitional provisions. Nature of the work

Duration in Russia

Literary, dramatic, musical or artistic work published before the author died (1993 s27(1))

Life + 70 years

Literary, dramatic, musical or artistic work Perpetual until published then publication + 70 published after author’s death or an anonymous years work (1993 s27(3, 5))

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Nature of the work

Duration in Russia

Sound recording (1993 s43(2))

Creation + 50 years, or publication + 50 years if published within 50 years of creation

Broadcast (1993 s43(3–4))

Broadcast + 50 years

Work, sound recording or broadcast by an author who was repressed and was then rehabilitated posthumously (1993 s27(5))

Year of rehabilitation + 70 years

Work, sound recording or broadcast by an author who worked during the ‘Great Patriotic War of 1941-1945’ or who participated in it directly (1993 s27(5))

Appropriate term + an additional 4 years

Moral rights (1993 s27(1))

Perpetual

1993 (Russia) s8

Singapore Works first published before 10 April 1987 are protected under the 1987 Act only if copyright in them still subsisted on that date under the UK Copyright Act 1911. As originally passed, the 1987 Act gave protection for only 50 years, but this was extended to 70 years in 2004; works whose author died, that were published or that were created on or after 1 January 1937, as appropriate, are protected for the extended term. Except where the appropriate term is perpetual or as noted below, copyright has expired in works created before that date. There is no copyright in a broadcast or published edition from before 10 April 1987. Government copyright applies to works made or published ‘under the direction or control’ of the Government.

Nature of the work

Duration in Singapore

Literary, dramatic, musical or artistic work except Life + 70 years a photograph published before the author died (s28(2)) Literary, dramatic or musical work published after the author’s death, a photograph or engraving, or an anonymous work (ss28(3, 5, 6), 29)

Perpetual until published then publication + 70 years

Photograph or sound recording created before 10 April 1987 (ss212, 219)

Creation + 70 years

Film or sound recording created after 10 April 1987 (ss92–93)

Perpetual until published then publication + 70 years

Film created before 10 April 1987 (ss220–221)

Treated as a sequence of photographs, and as a dramatic work if appropriate

Broadcast made after 10 April 1987 (s94)

Broadcast + 50 years

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Nature of the work

Duration in Singapore

Published edition (s96)

Publication + 25 years

Government copyright literary, dramatic or musical work (s197(1, 2))

Perpetual until published then publication + 70 years

Government copyright artistic work except an engraving or photograph (s197(4))

Creation + 70 years

Government copyright engraving, or a photograph created after 10 April 1987 (s197(4A))

Perpetual until published then publication + 70 years

Government photograph or sound recording created before 10 April 1987 (s231–232)

Creation + 70 years

Government film (ss197(5), 233)

As other films

Government sound recording created after 10 April 1987 (s197(5))

As other sound recordings

1987 ss210, 222–223, 240–242

South Africa Nature of the work

Duration in South Africa

Literary, musical or artistic work except a photograph created after 31 December 1978 and published before the author died (1978 s3(2)(a))

Life + 50 years

Literary, musical or artistic work except a photograph created after 31 December 1978 and unpublished when the author died (1978 s3(2)(a))

Perpetual until published then publication + 50 years

Literary, dramatic, musical or artistic work except Life + 50 years a photograph created before 1 January 1979 (1965 ss3(3), 4(3)(a) 1978 s43) Anonymous work created after 31 December 1978 (1978 s3(3))

Publication + 50 years or presumed life + 50 years, whichever is shorter

Anonymous literary, dramatic, musical or artistic Perpetual until published then publication + 50 work created before 1 January 1979 (1965 sch 2, years 1978 s43) Literary, dramatic, musical or artistic work by joint authors and published before 11 September 1965 (1965 sch 6 para 10, 1978 s43)

Later of the first to die + 50 years and the year of death of the last to die

Film, photograph or computer program created after 31 December 1978 (1978 s3(2)(b))

Creation + 50 years, or publication + 50 years if published within 50 years of creation

Photograph created between 11 September Perpetual until published then publication + 50 1965 and 31 December 1978 (1965 s4(3)(b), 1978 years s43) Photograph created before 11 September 1965 (1965 sch 6 para 2, 1978 s43)

Creation + 50 years

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Nature of the work

Duration in South Africa

Film created between 11 September 1965 and 31 December 1978 (1965 s14(2), 1978 s43)

Approval by the Board of Censors + 50 years, otherwise perpetual until published then publication + 50 years

Film created before 11 September 1965 (1965 sch 6 paras 14–16, 1978 s43)

Treated as a sequence of photographs, and as a dramatic work if appropriate

Sound recording created after 31 December 1978 (1978 s3(2)(c))

Perpetual until published then publication + 50 years

Sound recording created before 1 January 1979 (1965 s13(2))

Creation + 50 years

Broadcast (1978 s3(2)(d))

Broadcast + 50 years

Published edition published after 31 December 1978 (1978 s3(2)(f ))

Publication + 50 years

Published edition published before 1 January 1979 (1965 s16(2), 1978 s43)

Publication + 25 years

Moral rights (1978 s20)

Duration of copyright

State copyright literary or musical work, or a state copyright artistic work other than a photograph created after 31 December 1978 (1978 ss5(3))

Perpetual until published then publication + 50 years

State copyright artistic work other than an engraving or photograph created before 1 January 1979, or a state copyright photograph created before 11 September 1965 (1965 s39(4)(a), sch 6 para 29, 1978 s43)

Creation + 50 years

State copyright engraving created before 1 January 1979 or photograph created between 11 September 1965 and 31 December 1978 (1965 s39(4)(b), 1978 s43)

Perpetual until published then publication + 50 years

1965 (South Africa); 1978 (South Africa) Switzerland Excluded are laws, works of the public administration, judgments. All works created before the passing of the current law are subject to its terms. The bilateral treaties between Switzerland and the EU do not cover copyright and Switzerland is not a member of the EEA (see 1.2.8). Nature of the work

Duration in Switzerland

Literary, dramatic, musical or artistic work except Life + 70 years software (s29) Software (s29)

Life + 50 years

Original film or audiovisual work (s30)

Life of director + 70 years

Anonymous work (s31)

Perpetual until published then publication + 70 years

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Nature of the work

Duration in Switzerland

Sound recording or unoriginal film (s39)

Creation + 50 years

Broadcast (s39)

Broadcast + 50 years

Published edition

No copyright

Moral rights

None

1992 (Switzerland) ss5, 80

Turkey Excluded are laws, regulations, circular letters and judgments. All works created before the passing of the current law and its amendments are subject to its terms. There is no special provision for government copyrights. Nature of the work

Duration in Turkey

Literary, dramatic, musical or artistic work except Life + 70 years software (1951 s27) Anonymous work or work whose owner is a corporation (1951 s27)

Perpetual until published then publication + 70 years

Work in a language other than Turkish may be translated into Turkish if not translated with author’s consent (1951 s28)

Publication in original language + 70 years

Handicrafts, minor works of art, photographs and films (1951 s29)

Perpetual until published then publication + 70 years

Letters and memoirs (1951 s85)

Life of author and correspondent + 10 years

Public display of pictures and portraits (1951 s86)

Of prominent figures no protection, of other subjects life of subject + 10 years

Sound recording (2001 s34)

Creation + 70 years

Broadcast (1951 s82)

Broadcast + 70 years

Published edition

No copyright

Moral rights (2001 s12)

Life + 70 years

1951 s31, provisional art 1; 2001 USA Until 1978, a work had to be registered (‘copyrighted’) at the Library of Congress to enjoy copyright protection in the USA. At first registration the term was 28 years; reregistration was required for a second term of 28 years. The second registration term was gradually extended until in 1976 it stood at 47 years (a total of 75 years’ protection from the date of first registration). In 1976, the USA became a member of the Berne Convention (see 1.2.6), which required that there be no formality such as registration and a standard term of life of the author plus 50 years. As a result, with effect from 1

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January 1978 works created and/or published in the UK and other Berne Union countries have protection in the USA under US law without registration, but the redress available for infringement of an unregistered work is not extensive and there could be problems of proof of ownership. It is most important therefore to register a work before an infringement action is started in the USA. It remains necessary for a work of US origin (including a work published in the USA) to be registered in order to be protected. In 1992 the standard term and other terms based either on earlier legislation or on an event other than the author’s death were extended by 20 years. At the same time, the renewal of copyright that was still required for pre-1978 works was made automatic for those first copyrighted on or after 1 January 1964. A ‘work made for hire’ is broadly equivalent to a work made in the course of employment (for what that means in the UK, see 3.2.12–16). Excluded are works created by any federal (central) government agency and court judgments. Nature of the work

Duration in the USA

Work created on or after 1 January 1978 by a known author (1976 302(a), 1992)

Life + 70 years

Anonymous work or a work made for hire, Earlier of publication + 95 years or creation + created on or after 1 January 1978 (1976 s302(b), 120 years 1992) Work created but not published or copyrighted Life + 70 years if author known, creation + 120 before 1 January 1978 and not published before years if anonymous or made for hire 1 January 2003 (1976 s303) Work created but not published or copyrighted before 1 January 1978 but published between 1 January 1978 and 31 December 2002 (1976 s303)

Later of 2047 or appropriate standard term for work by known author, unknown author or work made for hire

Work copyrighted on or after 1 January 1950 and still in its first term (28 years) on 1 January 1978 (but any work first copyrighted before 1 January 1964 must have been renewed by the rights owner; renewal is automatic for a work first copyrighted on or after that date) (1976 s304(a), 1992)

Expired if copyrighted before 1 January 1964 and not renewed as appropriate between 1978 and 1991. Otherwise, original registration + 95 years

Work copyrighted or first published on or after 1 January 1923 whose copyright was renewed and was still running on 27 October 1998 (1976 s304(b))

Original registration + 95 years

Work published before 1 January 1923

Expired

Published edition

No copyright

Moral rights

None

Work created by a state government agency (1976 s201(b))

As for a work made for hire

1976 ss104–105, 401, 411; 1992 (USA); Banks v Manchester, 1888

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9.2

Copyright declarations

Suggested forms of words for the three different types of declaration required for the making of copies for users by archives and libraries are given below. If a different form of words is used instead, great care must be taken to ensure that the declaration meets the requirements of the legislation.

9.2.1 Declaration for a copy of the whole or part of an unpublished work or of an unpublished recording of a performance To: The Archivist or Librarian of [Name and Address of Archive or Library] Please supply me with a copy of: [description of the material to be copied, including the author or performer and the title or some other description of each work or recording; folio, page or track numbers or other internal references; and the archive or library shelf references] I declare that – (a) I have not previously been supplied with a copy of the same material by you or any other archivist or librarian; and (b) I require the copy for the purposes of research for a non-commercial purpose or private study, I will not use the copy for any other purpose and I will not supply the copy to any other person. I understand that if this declaration is false in a material particular the copy supplied to me by you will be an infringing copy and that I shall be liable for infringement of copyright as if I had made the copy myself. Name Address Date See 5.4.12–13, 8.5.6

9.2.2 Declaration for a copy of a single article from any one issue of a periodical, of part of a published work or of part of a published recording of a performance To: The Librarian of [Name and Address of Library]

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Please supply me with a copy of: [description of the material to be copied, including as appropriate the title of each periodical and the author and title of the article from it; the author and title of each published work; the name of the performer and of the work performed; page or track numbers or other internal references; and any library shelf references] I declare that – (a) I have not previously been supplied with a copy of the same material by you or any other librarian; (b) I require the copy for the purposes of research for a non-commercial purpose or private study, I will not use the copy for any other purpose and I will not supply the copy to any other person; and (c) to the best of my knowledge no other person with whom I work or study has made or intends to make, at or about the same time as this request, a request for substantially the same material for substantially the same purpose. I understand that if this declaration is false in a material particular the copy supplied to me by you will be an infringing copy and that I shall be liable for infringement of copyright as if I had made the copy myself. Name Address Date See 5.4.12, 5.4.16, 8.5.6

9.2.3 Declaration for a copy of a sound recording of a performance of a folksong To: The Archivist of [Name and Address of Archive] Please supply me with a copy of: [description of each sound recording including the name of the recording and of each folksong and the name(s) of the performer(s); track numbers or other internal references; and the archive shelf references] I declare that –

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(a) I have not previously been supplied with a copy of the same sound recording by you or any other archivist; and (b) I require the copy for the purposes of research for a non-commercial purpose or private study, I will not use the copy for any other purpose and I will not supply the copy to any other person. I understand that if this declaration is false in a material particular the copy supplied to me by you will be an infringing copy of the copyright sound recording and an illicit recording of the performance and that I shall be liable for infringement of copyright and performers’ rights as if I had made the copy myself. Name Address Date See 5.4.12, 5.4.21

9.3

Model licences

9.3.1 Licence to the archive See 7.3.5 LICENCE This Agreement is made this [date] day of [month and year] BETWEEN

1

the Depositor [name and full postal address of depositor]

AND

2

the Archive [name and full postal address of the archive]

Preamble 1 The Depositor has deposited the Material in the Archive. This Agreement relates to that part of the Material which is the copyright of the Depositor. Definitions 2.1 In this Agreement certain words and expressions shall have the following meanings: Commencement Date Material

The date of this Agreement [Specify the documents deposited, as precisely as

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Third party 2.2 2.3

2.4

possible, or refer to the Schedule, and attach a Schedule to the Agreement specifying the Material. If the Depositor makes a further deposit, the Schedule can be amended under clause 11, without changing the terms of the licence.] Any person or body that is not a party to this Agreement

Any reference to a clause or sub-clause shall be interpreted as a reference to the clause or sub-clause bearing that number in this Agreement. Unless the context requires otherwise, words importing the singular number shall include the plural number and vice versa, and words importing the masculine gender shall include the feminine and neuter genders and vice versa. Clause headings are for ease of reference only and do not affect interpretation.

Grant 3 The Depositor grants to the Archive the [exclusive] [sole] [non-exclusive] licence to do the following [delete or add others as necessary]: (i)

to grant licences for the use of the Material in [non-commercial/educational] publications [in all media or specify the media, e.g. book, journal, CDROM] and related products; (ii) to grant licences for the preparation and publication of indexes to the Material; (iii) to grant licences for the exhibition of copies of the Material; (iv) to grant licences for the use of the Material in films, sound recordings and broadcasts, and on internet websites; (v) to make use of the Material for similar purposes by the Archive and to make copies of the Material for preservation and other archival purposes. 4

All other rights in the Material remain with the Depositor. Applications for licences for other uses shall be forwarded to the Depositor who will notify the Archive of any licence issued at the time of issue and the terms of that licence. The Depositor or his or her heirs shall notify the Archive of any changes of address.

Period 5 Subject to the terms of clause 8 this Agreement shall run for the duration of the Depositor’s copyright in the Material, unless the Depositor withdraws some or all of the Material from the Archive in accordance with relevant provisions of any agreement for its deposit in the Archive, in which case it shall terminate, as respects the Material withdrawn, from the date of such withdrawal. Payments 6.1 The Archive may charge royalty fees for the issue of licences granted under clause

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6.2

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3, at its normal published rates. Income from such fees shall accrue to the Archive [or other specified beneficiary]. The Archive may remit part of any fee due, or waive the fee altogether, in appropriate circumstances and in accordance with its normal practice.

Copyright 7.1 The Archive shall require all licensees to acknowledge that part or all of the Material is the copyright of the Depositor and shall require that the following statement is featured prominently in all copies of works sold using the Material [or on screen, in the case of electronic publications]: Material in this work that is the copyright of [the Depositor] is published with the permission of [the Archive] on behalf of [the Depositor]. 7.2

The Archive shall immediately notify the Depositor of any infringements of the Depositor’s copyright in the Material that come to its attention. Any action in pursuance of such infringement shall be at the discretion of the Depositor.

Breach 8 The Depositor shall have the right at any time to give notice in writing to the Archive to terminate this Agreement on occurrence of any of the following events: (i)

if the Archive commits a material breach of any of the terms of this Agreement and in the case of a breach capable of being remedied fails to remedy such breach within twenty-one days of being requested by the Depositor in writing to do so; (ii) [in the case of a company archive] if the Archive’s company goes into liquidation either compulsorily or voluntarily or has a receiver appointed over its assets or enters into a composition with its creditors; (iii) [if appropriate] if the Archive fails to make the payments specified in clause 6. Termination 9.1 On termination of this Agreement under clause 8 all rights granted to the Licensee under this Agreement shall automatically and immediately revert to the Depositor. 9.2 On expiry or termination of this Agreement under clause 5, the Archive shall be entitled to issue and sell existing copies of any works published by it under clause 3 subject to all other obligations under this Agreement being complied with in full. 9.3 Termination for any reason shall not affect: (i)

the subsisting rights (if any) of any Third Party, or any sub-licence validly issued by the Archive prior to termination;

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(ii)

the right of the Depositor [or the Archive] to obtain royalties and any other payments due in respect of licences issued by the Archive; (iii) any claim which the Depositor may have against the Archive for damages or otherwise. Assignment 10.1 The Archive shall not assign this Agreement or the benefit or advantage hereof without the consent of the Depositor first being obtained in writing. 10.2 The Archive undertakes to inform the Depositor promptly of any changes in ownership of the Archive or any change of name or registered office. Consideration 11 In consideration for the grant of this licence, the Archive agrees to pay the sum of £1 (one pound) to the Depositor, receipt of which is hereby acknowledged. Entirety 12 This Agreement [(which expression includes the Schedules hereto whether in their original or amended form)] constitutes the entire agreement between the parties, and no modification or amendment shall be binding on either party unless it is agreed in writing and signed by both parties. Interpretation 13 This Agreement shall be governed by and interpreted in all respects under the laws of England and Wales [or Scotland, or Northern Ireland, or other specified country] and shall be subject to the jurisdiction of the courts of England and Wales [or Scotland, or Northern Ireland, or other specified country]. for the Depositor Signed Date Name in Block Capitals for the Archive Signed Date Name in Block Capitals

9.3.2 Licence to a user See 7.3.9.

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LICENCE This Agreement is made this [date] day of [month and year] BETWEEN

1

the Depositor [name and full postal address of depositor]

AND

2

the Archive [name and full postal address of the archive]

AND

3

the Licensee [name and full postal address of the licensee or of the licensee’s registered office]

Preamble 1 The Archive is authorized by the Depositor to license the reproduction of Material belonging to the Depositor held on deposit in the Archive that is the copyright of the Depositor or is no longer in copyright. [or The Depositor has deposited the Material in the Archive and assigned to the Archive such copyright in the Material as was his or her copyright.] Definitions 2.1 In this Agreement certain words and expressions shall have the following meanings: Accounting Periods

The first accounting period shall cover the period from the Commencement Date until . . . (inclusive) Thereafter Accounting Periods shall be the periods from . . . (inclusive) to . . . (inclusive) Commencement Date The date of this Agreement Edition One publication of the Work in the Language and the Format(s) specified. [In the case of books and CD-ROMs, the edition is defined by the ISBN; if this changes it is a new edition.] Format [Specify the format(s) licensed: volume/book form, electronic form (e.g. CD-ROM), video, audio, television, etc.] Gross Income Total revenue received by the Licensee generated by the sale (and sub-licensing in the case of electronic products) of the Work throughout the Territory during the appropriate Accounting Period, but excluding taxes, postage and packing, as shown in the signed and audited accounts of the Licensee for that Accounting Period Language English [or as specified] Material [Specify the documents licensed, as precisely as

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necessary, or refer to the Schedule, and attach a Schedule to the Agreement specifying the Material. The Schedule can be amended in future if desired under clause 12.1, without changing the body of the Licence.] One-time The right to reproduce any item of the Material Reproduction Right once only in one Edition in the Territory Territory [Specify, for instance, the university campus, the World, the European Union, the USA, or a combination.] Third Party Any person or body that is not a party to this Agreement Work The [publication/product/broadcast] containing the Material licensed by this Agreement [give details] 2.2 2.3

2.4

Any reference to a clause or sub-clause shall be interpreted as a reference to the clause or sub-clause bearing that number in this Agreement. Unless the context requires otherwise, words importing the singular number shall include the plural number and vice versa, and words importing the masculine gender shall include the feminine and neuter genders and vice versa. Clause headings are for ease of reference only and do not affect interpretation.

Grant 3 The Archive hereby grants to the Licensee the following rights [delete or add as necessary]: (i)

the non-exclusive One-time Reproduction Right to publish, market and sell the Material; (ii) [for electronic publishing] the right to sub-license end-users throughout the Territory to use the Work provided that the Licensee shall sub-license its end-users by means of an end-user licence which shall stipulate that end-users acknowledge that the Material is preserved in the Archive, that the copyright in part or all of the Material is the property of the Depositor [or the Archive] and that they have no right to supply copies of the Material or any part of the Material to others or to authorize the making of such copies without the consent of the Depositor [or the Archive]; (iii) the non-exclusive right to place the Material on a computer network and to permit the making of single hard copies for research or private study purposes only [e.g. by staff and students] throughout the Territory; (iv) the non-exclusive right to prepare and publish indexes to the Material throughout the Territory;

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(v) (vi)

the non-exclusive right to reproduce the Material in advertising for the Work throughout the Territory; the non-exclusive right to include the Material in a broadcast [and . . . repeats] to be received throughout the Territory.

Period 4 Subject to the terms of clause 9 this Agreement shall run for a period of . . . years from the Commencement Date and shall continue thereafter unless terminated by any party giving not less than six months’ notice in writing to the other parties. Payments 5.1 In consideration for the rights granted at clause 3 the Licensee shall pay to the Depositor [or the Archive] [for instance, one or a combination of]: (i)

a non-returnable advance of £ . . . on the royalties payable under clause 5.1(ii), which sum shall fall due within 28 days of the Commencement Date; (ii) a royalty of . . . % of the Gross Income, less the amount of any advance paid in accordance with clause 5.1(i), payable within [time, e.g. three calendar months] of the end of the first Accounting Period; (iii) a royalty of . . . % of the Gross Income, payable [e.g. annually] within [time, e.g. three calendar months] of the end of the appropriate Accounting Period; (iv) a single royalty payment of £ . . . , which sum shall fall due within 28 days of the Commencement Date. 5.2

5.3

All payments, together with a copy of the signed audited accounts for the appropriate Accounting Period, shall be sent to the Depositor [or the Archive] in £ sterling. Upon reasonable written notice and during the Licensee’s normal business hours, the Depositor [or the Archive] or its lawful representative, shall have the right to examine the Licensee’s record of accounts at the place at which they are normally kept, insofar as such records relate to sales and receipts in respect of the Work. Such examination shall be at the cost of the Depositor [or the Archive] unless errors are found to the disadvantage of the Depositor [or the Archive] in excess of 2.5% of the amount due to the Depositor [or the Archive] in respect of the last preceding Accounting Period, in which case the cost of such examination shall be borne by the Licensee.

Copyright 6.1 The Licensee shall acknowledge that part or all of the Material is the copyright

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of the Depositor [or the Archive] and shall ensure that the following statement is featured prominently in all copies of the Work sold [or on screen, in the case of electronic publications]: Material in this work that is the copyright of [the Depositor or the Archive] is published with the permission of the Archive [on behalf of the Depositor]. 6.2

The Licensee shall immediately notify the Depositor [or the Archive] of any infringements of the Depositor’s [or the Archive’s] copyright in the Material. Any action in pursuance of such infringement shall be at the discretion of the Depositor [or the Archive].

Complimentary copies 7 The Licensee shall within 28 days of making the Work available for sale, send . . . complimentary copies of the Work to the Depositor [and/or the Archive]. The Depositor [and/or the Archive] shall be entitled to purchase further copies at trade terms for use by the Depositor [or the Archive] and/or for resale by agreement with the Licensee. Advertising 8 The Licensee shall have the entire control of the manner and extent of advertising the Work save where the advertising material refers to the Depositor [and/or the Archive], when the advertising material shall be submitted to the Depositor [or the Archive] for prior written approval, such approval not to be unreasonably withheld. Breach 9 The Depositor [or the Archive] shall have the right at any time to give notice in writing to the Licensee to terminate this Agreement on occurrence of any of the following events: (i)

if the Licensee commits a material breach of any of the terms of this Agreement and in the case of a breach capable of being remedied fails to remedy such breach within twenty-one days of being requested by the Depositor [or the Archive] in writing to do so; (ii) [in the case of a company] if the Licensee goes into liquidation either compulsorily or voluntarily or has a receiver appointed over its assets or enters into a composition with its creditors; (iii) if the Licensee fails to make the payments and produce the accounts specified in clause 5.

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Termination 10.1 On termination of this Agreement under clause 9 all rights granted to the Licensee under this Agreement shall automatically and immediately revert to the Depositor [or the Archive] and no further copies of the Work shall be produced, issued or sold by the Licensee. 10.2 On expiry or termination of this Agreement under clause 4, the Licensee shall be entitled to issue and sell existing copies of the Work [and/or, e.g., make the broadcast] subject to all other obligations under this Agreement being complied with in full. 10.3 Termination for any reason shall not affect: (i)

10.4

the subsisting rights (if any) of any Third Party, or any sub-licence validly issued by the Licensee prior to termination; (ii) the right of the Depositor [or the Archive] to obtain royalties and any other payments due in respect of the Licensee’s sale of the Work; (iii) any claim which the Depositor [and/or the Archive] may have against the Licensee for damages or otherwise. On expiry or termination of this Agreement, the Depositor [and/or the Archive] may exercise the right to purchase all unsold stocks of the Work at a price, no greater than the trade price, to be agreed with the Licensee.

Assignment 11.1 The Licensee shall not assign this Agreement or the benefit or advantage hereof without the consent of the Depositor [or the Archive] first being obtained in writing. 11.2 The Licensee undertakes to inform the Depositor [or the Archive] promptly of any changes in ownership of the Licensee or any change of name or registered office. Entirety 12.1 This Agreement [(which expression includes the Schedules hereto whether in their original or amended form)] constitutes the entire agreement between the parties, and no modification or amendment shall be binding on any party unless it is agreed in writing and signed by all parties. 12.2 The Licensee acknowledges that this Agreement gives it no right to authorize or license the reproduction of the Material or any part of it by a Third Party except as set out in clause 3, and the issuing of any such illegitimate authority or licence will be a material breach of the Agreement. Interpretation 13 This Agreement shall be governed by and interpreted in all respects under the laws of England and Wales [or Scotland, or Northern Ireland, or other specified

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country] and shall be subject to the jurisdiction of the courts of England and Wales [or Scotland, or Northern Ireland, or other specified country]. for the Depositor Signed Date Name in Block Capitals for the Archive Signed Date Name in Block Capitals for the Licensee Signed Date Name in Block Capitals

9.4

Model assignment to the record office

See 3.3.8 and 7.3.7–8. ASSIGNMENT PARTIES 1 the Assignor [full name and full postal address of copyright owner, whether an individual or company; add extra assignors here and among signatories if there is more than one copyright owner] 2 the Assignee [title (not name) of the archivist or other permanent official and name and full postal address of the archive] Definitions In this Assignment, the following words will have the following meanings: Rights

Material

The copyright, all rights in the nature of copyright and related rights throughout the world in the Material that are the property of the Assignor, for all the residue of the term of copyright and such rights in the Material, together with all accrued causes of action in respect thereof [or specify the limited rights to be assigned, e.g. reference to particular types of use such as educational and charitable]. [Description of the Material, as full as necessary, including

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archival references as appropriate. The description may be contained in a Schedule consisting of an archival list or similar document if appropriate, in which case include here simply a reference to the Schedule.] [Authorial Work(s)] [This part to be used only if the Assignor is the author of some of the works in the Material, and wishes to assert or waive his or her moral rights (see below). It must explicitly identify the works of which the Assignor is the author, e.g. by reference to specific items in an archival list.] Background The Assignor is [the author of the Authorial Work(s) and] the owner of the Rights [wherever possible expand to describe the Rights actually owned by the Assignee, e.g. by reference to the family or the company]. The Assignor has deposited the Material in [name of the archive] and has agreed to assign the Rights to the Assignee. Assignment The Assignor hereby assigns with full title guarantee the Rights to the Assignee and successors for use throughout the world. Moral rights [use as appropriate] The Assignor hereby asserts his (her) right generally to be identified as the author of the Authorial Work(s). The Assignor hereby [unconditionally and irrevocably] waives his (her) right[s to be identified as the author of the Authorial Work(s) and] to object to derogatory treatment of the Authorial Work(s). [This waiver is made expressly and solely in favour of the Assignee and successors.] Further assurances The Assignor shall at any time and from time to time hereafter at the request and expense of the Assignee execute all such documents and do all such further acts as the Assignee may require in order to vest the Rights in the Assignee. Consideration In consideration for the grant of this assignment, the Assignee agrees to pay the sum of £1 (one pound) to the Assignor(s), receipt of which is hereby acknowledged. Execution The parties have shown their acceptance of the terms of this Assignment by signing below.

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for the Assignor Signed Name in Block Capitals [duly authorized or on behalf of [name of company]] in the presence of Signed Name in Block Capitals [for the Assignor Signed Name in Block Capitals [duly authorized or on behalf of [name of company]] in the presence of Signed Name in Block Capitals] for the Assignee Signed Name in Block Capitals in the presence of Signed Name in Block Capitals Date

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10 Bibliography

10.1 Documents The National Archives COPY 3/104–199 OS 1/6/2 T 161/241, file S25383 STAT 7/6 STAT 14/44

Stationers’ Hall Copyright Registers 1862–1912: 2.1.18, 5.2.18 Crown copyright in Ordnance Survey maps, 1883–1911: 5.3.3 Copyright in the register of electors, 1924–5: 7.8.2 Crown copyright, a memorandum by William Cox, Deputy Controller of HMSO, 1961: 3.2.28 Crown copyright in evidence taken before Committees and Commissions and proceedings of arbitration courts, 1935–54: 3.2.28

10.2 Publications Bainbridge, D. (2012) Intellectual Property, 9th edn, Pitman. Canons of the Church of England (2011), 7th edn, Church House. Caddick, N., Davies, G. and Harbottle, G. (forthcoming, 2015) Copinger and Skone James on Copyright, 17th edn, Sweet & Maxwell. Christie, A. and Gare, S. (2014) Blackstone’s Statutes on Intellectual Property, 12th edn, Blackstone. Copyright Law Review Committee (Australia) (2005) Crown Copyright, www.austlii.edu.au, search for [2005] CLRC 18. Cornish, G. P. (2015) Copyright: interpreting the law for libraries, archives and information services, 6th edn, Facet Publishing. Cornish, W. R., Llewelyn, D. and Aplin, T. (2013) Intellectual Property: patents, copyrights, trade marks and allied rights, 8th edn, Sweet & Maxwell. Electoral Commission (2006) Supply, Sale and Inspection of the Register of Electors: changes to 2001 Regulations, Circular EC06/2006. Ficsor, M. (2003) Guide to the Copyright and Related Rights Treaties administered by WIPO and Glossary of Copyright and Related Rights Terms, World Intellectual Property Organization. Hirtle, P. B., Hudson, E. and Kenyon, A. T. (2009) Copyright and Cultural Institutions: guidelines for digitization for US libraries, archives and museums, Cornell University Library, http://ecommons.cornell.edu/handle/1813/14142. Information Commissioner’s Office (n.d.) Freedom of Information and Environmental

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Regulations Guidance, Consideration of the Identity or Motives of the Applicant, https://ico.org.uk/media/for-organisations/documents/1043418/consideration-of-theidentity-or-motives-of-the-applicant.pdf Jacob, R., Alexander, D. and Fisher, M. (2013) Guidebook to Intellectual Property, 6th edn, Hart Publishing. Johnson, S. (1810) A Dictionary of the English Language, 10th edn. Laddie, H., Prescott, P. and Vitoria, M. (2011) The Modern Law of Copyright and Designs, 4th edn, Butterworth. Law Society, Directory of Solicitors and Barristers, Law Society, annual. Legal Advisory Commission of the General Synod (2007) Legal Opinions Concerning the Church of England, Church House Publishing. Michalos, C. (2003) The Law of Photography and Digital Images, Sweet & Maxwell. Monotti, A. and Ricketson, S. (2003) Universities and Intellectual Property, Oxford. The National Archives (2007) Code of Practice for Archivists and Records Managers under Section 54(1) of the Data Protection Act 1998, The National Archives. Pedley, P. (2012) Essential Law for Information Professionals, 3rd edn, Facet Publishing. Post, J. B. (1986) Copyright Mentality and the Archivist, Journal of the Society of Archivists, 8 (1), (April), 17. Post, J. B. and Foster, M. R. (1992) Copyright: a handbook for archivists, Society of Archivists. Rahmatian, A. (2014) Make the Butterflies Fly in Formation? Management of copyright created by academics in UK universities, Legal Studies, 34(4), (December), 709. Scottish Information Commissioner (2012) Your Right to Know: a guide to freedom of information in Scotland, www.itspublicknowledge.info/YourRights/YourRights.aspx. Scrutton, T. (1903) The Law of Copyright, 4th edn, William Clowes and Sons. Society of Authors (2009) Quick Guide to Permissions, www.societyofauthors.org/ sites/default/files/Quick%20Guide%20to%20Permissions_1.pdf. Sterling, J. A. L. and Suthersanen, U. (forthcoming, 2015) World Copyright Law, 4th edn, Sweet & Maxwell. Sterne, L. (1760) The Life and Opinions of Tristram Shandy. Stokes, S. (2012) Art and Copyright, 2nd edn, Hart Publishing. Stokes, S. (2014) Digital Copyright: law and practice, 4th edn, Hart Publishing. Treasury Minute (1887) Copyright in Government Publications, Parliamentary Papers 1887, vol. XLIX, HC 335, 223. Whitford Committee (Board of Trade) (1977) Copyright and Designs Law: report of the committee to consider the law on copyright and designs (the Whitford Report), Cmnd 6732, HMSO. Wienand, P., Booy, A. and Fry, R. (2000) A Guide to Copyright for Museums and Galleries, Routledge. Zorich, D. M. (2006) Managing Digital Assets: options for cultural organizations, Getty Information Institute.

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10.3 Useful websites For collecting society and related websites, see 5.2.12, 5.2.18, 5.2.24, 8.8. BBC Copyright Aware: using films and text, provides basic information on copyright for creators and users to encourage popular understanding and more responsible use of copyright material www.bbc.co.uk/copyrightaware Bona vacantia: guidance and information about purchase and claims to ownership of works that have become bona vacantia (see 3.3.20) www.gov.uk/government/organisations/bona-vacantia British and Irish Legal Information Institute (BAILII): all recent and many older reports of judicial decisions in cases before courts in the UK, Ireland and many other parts of the world www.bailii.org Chartered Institute of Patent Attorneys (CIPA): obtaining and dealing with patents www.cipa.org.uk Copyright history: primary sources on copyright 1450–1900, and a database of English copyright cases before about 1800 http://copy.law.cam.ac.uk/cam/index.php www.oldcopyrightcases.org Copyright hub: information about and links to licensing www.copyrighthub.co.uk Copyright term and the public domain in the USA: calculator for the duration of copyright in the USA http://copyright.cornell.edu/resources/publicdomain.cfm Copyright User: an online resource intended to make copyright accessible and understandable to creators, students and members of public, using text and images http://copyrightuser.org Court of Justice of the European Union (CJEU): judgments and related materials http://curia.europa.eu/jcms/jcms/j_6/ Creative Commons: online licensing www.creativecommons.org.uk Data protection: guidance from the Information Commissioner, and Code of Practice for Archivists and Records Managers https://ico.org.uk/for-organisations/guide-to-data-protection/ www.nationalarchives.gov.uk/documents/information-management/dp-code-ofpractice.pdf Eduserve: Chest Agreements, licensing software and online library materials for use in universities, colleges and charities and for research www.eduserv.org.uk/services/Chest-Agreements Europa: EU legislation, particularly directives

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http://europa.eu/eu-law/legislation/index_en.htm Facet Publishing: printed books and e-books for the information professions, including librarians and archivists www.facetpublishing.co.uk Firms Out of business: successors to and rights of defunct companies www.fob-file.com Institute of Trade Mark Attorneys (ITMA): obtaining and dealing with trade marks www.itma.org.uk Intellectual Property Office (IPO): general information about copyright including its mediation service, notices giving guidance on particular copyright issues that has been requested by small companies and members of the public who do not have ready access to legal advice, and guidance on the use of orphan works www.gov.uk/intellectual-property/copyright www.gov.uk/copyright-notices www.gov.uk/government/collections/orphan-works-guidance Law Society: directory of solicitors (specify ‘intellectual property’ as a specialism in a search) www.lawsociety.org.uk Legislation: UK legislation as amended and in force www.legislation.gov.uk Libraries and Archives Copyright Alliance (LACA): information and campaigning about copyright on behalf of the libraries and archives community, and downloadable posters about fair dealing copying www.cilip.org.uk/cilip/advocacy-awards-and-projects/advocacy-and-campaigns/ copyright The National Archives (TNA): online records, including census and pre-1858 wills, public sector and UK Government licensing, and guidance on Crown copyright www.nationalarchives.gov.uk www.nationalarchives.gov.uk/information-management/re-using-public-sectorinformation/ National Archives of Ireland: records relating to the Republic of Ireland www.nationalarchives.ie Office for Harmonization in the Internal Market (OHIM): orphan works, trade marks and designs registers for the EU https://oami.europa.eu/ohimportal/en/ Ordnance Survey: UK mapping and licensing of commercial and large-scale use www.ordnancesurvey.co.uk Out of Copyright EU: calculators for determining the duration of copyright in EU member states and guidance on the creation of new copyrights in digitized material http://outofcopyright.eu/category/calculators/ Public Lending Right: paying royalties to authors for the lending of books and audio

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books (but not currently e-books) by public libraries www.plr.uk.com Public Record Office of Northern Ireland: records relating to Northern Ireland www.proni.gov.uk Scotland’s People: Scottish census and civil registration records and other genealogical sources www.scotlandspeople.gov.uk Trade Marks Register (UK): a useful source for information about active companies www.gov.uk/search-for-trademark TRIPS: Trade-Related Intellectual Property Rights elements (the TRIPS Agreement) of the World Trade Agreement www.wto.org UKOLN: guidelines on copying under fair dealing and library exceptions www.ukoln.ac.uk/services/elib/papers/pa/fair/ UCC www.unesco.org WATCH: Writers, Artists and Their Copyright Holders, free searchable database www.watch-file.com World Intellectual Property Organization (WIPO, or Organisation Mondiale de la Propriété Intellectuelle, OMPI): Berne, Rome and Geneva Conventions and WIPO treaties, plus copyright and other intellectual property laws of member states www.wipo.int

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11 Authorities

11.1 Treaties and EU instruments For the texts of Conventions and Directives see the Europa, UNESCO, WIPO and World Trade Organization websites (see 10.3). 1886 1948 1952 1961 1971 1986 1991 1992

1993

1993 1994 1996 1996 1996 2001 2001

Berne Convention for the Protection of Literary and Artistic Works, Paris Act 1971 Universal Declaration of Human Rights Universal Copyright Convention, Paris Revision 1971 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations Geneva Convention for the Protection of Producers of Phonograms against unauthorized distribution of programme-carrying signals Directive 87/54/EEC of 16 December 1986 on the legal protection of topographies of semi-conductor products Directive 91/250/EEC of 14 May 1991 on the legal Protection of computer programs (replaced by codified version of 2009) Directive 92/100/EEC of 19 November 1992 on rental and lending right and on certain rights relating to copyright in the field of intellectual property (replaced by codified version of 2006) Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable re-transmission Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights (replaced by codified version of 2006) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) Directive 96/9/EC of 11 March 1996 on the legal protection of databases World Intellectual Property Organization (WIPO) Copyright Treaty World Intellectual Property Organization (WIPO) Performances and Phonograms Treaty Directive 2001/29/EC of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society Directive 2001/84/EC of 27 September 2001 on the resale right for the benefit of the author of an original work of art

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2001 2003 2003 2003

2004 2006

2006

2009 2011 2012 2013 2014

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Council Regulation (EC) No 44/2001 of 22 December 2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters Directive 2003/98/EC of 17 November 2003 on the re-use of public sector information (amended by 2013 Directive) Council decision 2003/239/EC of 18 February 2003 on the conclusion of an agreement extending to the Isle of Man the legal protection of databases Council Regulation (EC) 1383/2003 of 23 July 2003 concerning customs action against goods suspected of infringing intellectual property rights and the measures to be taken against goods found to have infringed such rights Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights Directive 2006/115/EC of 12 December 2006 on rental and lending right and on certain rights relating to copyright in the field of intellectual property (codified version of 1992 Directive) Directive 2006/116/EC of 12 December 2006 on the term of protection of copyright and certain related rights (codified version of 1993 Directive, amended by 2011 Directive) Directive 2009/24/EC of 23 April 2009 on the legal protection of computer programs (codified version of 1991 Directive) Directive 2011/77/EU of 27 September 2011 amending Directive 2006/116/EC on the term of protection of copyright and certain related rights Directive 2012/28/EU of 25 October 2012 on certain permitted uses of orphan works Directive 2013/37/EU of 26 June 2013 amending Directive 2003/98/EC on the reuse of public sector information Directive 2014/26/EU of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market

11.2 Statutes For the text of current UK statutes, see the legislation website (see 10.3). 1710 1734 1753 1766 1775 1777 1812 1814

Copyright Act 8Anne c21 Engraving Copyright Act 8Geo2 c13 Marriage Act 25Geo2 c33 Engraving Copyright Act 7Geo3 c38 Copyright Act 15Geo3 c53 Prints Copyright Act 17Geo3 c57 Parochial Registers Act 52Geo3 c146 Sculpture Copyright Act 54Geo3 c56

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1823 1832 1833 1835 1836 1836 1840 1842 1843 1844 1845 1851 1852 1854 1857 1857 1862 1863 1863 1877 1879 1899 1907 1910 1911 1914 1920 1922 1922 1922 1922 1923 1925 1927 1927 1929 1937 1938 1946 1948 1949

Commissary Courts (Scotland) Act 4Geo4 c97 Representation of the People Act 2&3Wm4 c45 Dramatic Copyright Act 3Wm4 c15 Lectures Copyright Act 5&6Wm4 c65 Marriage Act 6&7Wm4 c85 Births and Deaths Registration Act 6&7Wm4 c86 Non-Parochial Registers Act 3&4Vic c92 Copyright Act 5&6Vic c45 Parliamentary Voters Registration Act 6&7Vic c18 Marriage (Ireland) Act 7&8Vic c81 Enclosure Act 8&9Vic c108 Criminal Justice Administration Act 14&15Vic c55 International Copyright Act 15&16Vic c12 Registration of Births, Deaths and Marriages (Scotland) Act 17&18Vic c80 Court of Probate Act 20&21Vic c77 Probates and Letters of Administration Act (Ireland) 20&21Vic c79 Fine Arts Copyright Act 25&26Vic c68 Registration of Births and Deaths (Ireland) Act 26&27Vic c11 Registration of Marriages (Ireland) Act 26&27Vic c90 Justices Clerks Act 40&41Vic c43 Intellectual Property Law (Spain) Copyright Law (Japan) 1899/39 Patents and Designs Act 7Edw7 c29 Finance (1909–1910) Act 10Edw7&1Geo5 c8 Copyright Act 1&2Geo5 c46 Copyright Act (India) 1914/3 Government of Ireland Act 10&11Geo5 c67 Irish Free State (Agreement) Act 12Geo5 c4 Irish Free State Constitution Act (session 2) 13Geo5 c1 Irish Free State (Consequential Provisions) Act (session 2) 13Geo5 c4 Law of Property Act 12&13Geo5 c16 Public Records Act (Northern Ireland) 13&14Geo5 c20 Administration of Estates Act 15&16Geo5 c23 Cinematograph Films Act 17&18Geo 5 c29 Industrial and Commercial Property (Protection) Act (Ireland) No 16/1927 Local Government Act 19Geo5 c17 Public Records (Scotland) Act 1Edw8&1Geo6 c43 Cinematograph Films Act 1&2Geo6 c17 National Health Service Act 9&10Geo6 c81 Cinematograph Films Act 11&12Geo6 c23 Ireland Act 12&13Geo6 c41

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1949 1949 1949 1951 1952 1953 1956 1957 1957 1958 1960 1962 1963 1965 1965 1965 1968 1970 1971 1972 1973 1973 1973 1976 1977 1977 1977 1978 1978 1979 1980 1980 1983 1984 1984 1985 1985 1985 1985 1985 1986

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Marriage Act 12&13Geo6 c76 Registered Designs Act 12,13&14Geo6 c88 Justices of the Peace Act 12,13&14Geo6 c 101 Copyright Law (Turkey) 5846 Intestate Estates Act 1Eliz2 c64 Births and Deaths Registration Act 1&2Eliz2 c20 Copyright Act 4&5Eliz2 c74 Cinematograph Films Act 5&6Eliz2 c21 Copyright Act (India) 1957/14 Public Records Act 6&7Eliz2 c51 Films Act 8&9Eliz2 c57 Local Government (Records) Act 10&11Eliz2 c56 Copyright Act (Ireland) 10/1963 Registration of Births, Deaths and Marriages (Scotland) Act c49 Copyright Act (Germany) of 9 September 1965 Copyright Act (South Africa) 1965/63 Copyright Act (Australia) 1968/63 Copyright Law (Japan) 1970/48 Copyright Ordinance (Israel) Local Government Act c70 Prescription and Limitation (Scotland) Act c52 Local Government (Scotland) Act c65 Copyright Law (Brazil) 5988 General Revision of the Copyright Law (USA) United States Code Title 17 Marriage (Scotland) Act c15 Patents Act c37 Unfair Contract Terms Act c50 Parochial Registers and Records Measure General Synod No 2 Copyright Act (South Africa) No 1978/98 Public Lending Right Act c10 Education (Scotland) Act c44 Limitation Act c58 Representation of the People Act c9 Cable and Broadcasting Act c46 Building Act c55 Companies Act c6 Films Act c21 Local Government Act c51 Copyright Act (Canada) C-42 Law on Author’s Rights (France) 85-660 Insolvency Act c45

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1987 1988 1988 1988 1989 1990 1990 1990 1990 1990 1991 1992 1992 1992 1992 1992 1993 1993 1993 1994 1994 1994 1994 1995 1996 1996 1996 1998 1998 1998 1998 1998 1998 1998 1999 1999 2000 2000 2000 2001 2002

Copyright Act (Singapore) c63 Coroners Act c13 Education Reform Act c40 Copyright, Designs and Patents Act c48 Children Act c41 Town and Country Planning Act c8 National Health Service and Community Care Act c19 Government Trading Act c30 Broadcasting Act c42 Copyright Law (China) Copyright Act (Isle of Man) AT8 Local Government Act c19 Further and Higher Education (Scotland) Act c37 Copyright Code (France) 92-597 Federal Law on Copyright and Neighbouring Rights (Switzerland) Copyright Renewal Act (USA) 102-307 Railways Act c43 Copyright Act (Jamaica) 1993/4 Law on Copyright and Neighbouring Rights (Russia) 1993/5351 Local Government (Wales) Act c19 Trade Marks Act c26 Local Government (Scotland) Act c39 Copyright Act (New Zealand) 1994/143 Requirements of Writing (Scotland) Act c7 Education Act c56 Supplementary Copyright Provisions (Japan) 1996/117 Intellectual Property Law (Spain) 1996/1 Data Protection Act c29 Human Rights Act c42 Regional Development Agencies Act c45 Scotland Act c46 Northern Ireland Act c47 Copyright Act (Barbados) 1998/4 Copyright Law (Brazil) 9.610 Greater London Authority Act c29 Copyright (Amendment) Act (Isle of Man) AT 12 Representation of the People Act c2 Freedom of Information Act c36 Copyright and Related Rights Act (Ireland) No 28/2000 Copyright Law (Amendment) (Turkey) 4630 Education Act c32

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2002 2002 2002 2002 2003 2003 2003 2003 2004 2004 2004 2005 2005 2005 2005 2006 2006 2007 2007 2009 2009 2010 2011 2011 2013 2013

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Freedom of Information (Scotland) Act asp13 Public Records (Jersey) Law 15.580 Regulations for implementation of the Copyright Law (China) 2002/359 Law on the Protection of Intellectual Property Rights (Egypt) 2002/82 Communications Act c21 Legal Deposit Libraries Act c28 Courts Act c39 Supplementary Copyright Provisions (Japan) 2003/85 Civil Partnership Act c33 US Free Trade Implementation Act (Australia) 2004/120 Copyright and Related Rights (Amendment) Act (Ireland) No 18/2004 Constitutional Reform Act c4 Copyright (Bailiwick of Guernsey) Ordinance Database Rights (Bailiwick of Guernsey) Ordinance Intellectual Property (Copyright and Related Rights) Act (Gibraltar) No 2005-22 Government of Wales Act c32 Companies Act c46 Copyright Ordinance (Hong Kong) c528 Copyright Act (Israel) Ecclesiastical Offices (Terms of Service) Measure, General Synod No 1 Coroners and Justice Act c3 Digital Economy Act c24 Public Records (Scotland) Act asp12 Intellectual Property (Unregistered Rights) (Jersey) Law L29/2011 Enterprise and Regulatory Reform Act c24 Marriage (Same Sex Couples) Act c30

11.3 Statutory instruments For the text of current UK secondary legislation, see the legislation website (see 10.3). SI 1948/567 SI 1948/1292 SI 1957/863 SI 1957/865 SI 1957/867 SI 1959/1399 SI 1963/976 SI 177/1964 SI 1967/963

National Health Service (Transfer of Local Authorities Functions) Order 1948 National Health Service (Dissolved Authorities) Order 1948 Copyright Act 1956 (Commencement) Order 1957 Copyright (Notice of Publication) Regulations 1957 Copyright (Industrial Designs) Rules 1957 Manorial Documents Rules 1959 Manorial Documents (Amendment) Rules 1963 Copyright Act 1963 (Commencement) Order 1964 (Ireland) Manorial Documents (Amendment) Rules 1967

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SI 1973/1861 SI 1975/659 SI 1976/1041 (NI 14) SI 1982/719 SI 1986/148 SI 1986/594 (NI 3) SI 1986/1081 SI 1989/816

Local Authorities (England) (Property etc) Order 1973 Local Authorities (Property etc) (Scotland) Order 1975 Births and Deaths Registration (NI) Order 1976 Public Lending Right Scheme Order 1982 Local Government (Property etc) Order 1986 Education and Libraries (NI) Order 1986 Representation of the People Regulations 1986 Copyright, Designs and Patents Act 1988 (Commencement No 1) Order 1989 SI 1989/989 Copyright (International Organisations) Order 1989 SI 1989/1070 Copyright (Industrial Process and Excluded Articles) (No 2) Order 1989 SI 1989/1099 Copyright (Material Open to Public Inspection) (Marking of Copies of Maps) Order 1989 SI 1989/1105 Registered Designs Rules 1989 SI 1990/1329 National Health Service and Community Care Act 1990 (Commencement No 1) Order 1990 SI 1990/1427 Copyright (Material Open to Public Inspection) (Marking of Copies of Plans and Drawings) Order 1990 SI 1990/1520 National Health Service and Community Care Act 1990 (Commencement No 2) (Scotland) Order 1990 SI 1990/2360 Public Lending Right Scheme 1982 (Commencement of Variations) Order 1990 SI 1990/2540 Broadcasting (Transfer Date and Nominated Company) Order 1990 SI 1992/3233 Copyright (Computer Programs) Regulations 1992 SI GC 316/92 Copyright (Librarians and Archivists) (Copying of Copyright Material) Regulations 1992 (Isle of Man) SI 1995/402 Local Government Changes for England (Property Transfer and Transitional Payments) Regulations 1995 SI 1995/2499 Local Authorities (Property Transfer) (Scotland) Order 1995 SI 1995/2912 Registered Designs Rules 1995 SI 1995/2990 Performances (Reciprocal Protection) (Convention Countries) Order 1995 SI 1995/3297 Duration of Copyright and Rights in Performances Regulations 1995 SI 1996/2967 Copyright and Related Rights Regulations 1996 SI 1997/1772 (NI 15) Further Education (NI) Order 1997 SI 1997/3032 Copyright and Rights in Databases Regulations 1997 SI 1999/676 Parliamentary Copyright (Scottish Parliament) Order 1999

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SI 1999/3146 SI 427/2000 SI 2001/341 SI 2001/400 SI 2001/497 (S 2) SI 2001/3949 SI 2001/3950 SI 2002/1871 SI 2002/1872 (S 7) SI 2002/1873 SI 2003/550 SI 2003/2498 SI 2003/2501 SI 2004/1473 SI 2004/3089 (S 10) SI 2004/3391 SI 16/2004 SI 2005/223 SI 2005/1515 SI 2005/3176 SI 2006/18 SI 2006/346 SI 2006/752 SI 2006/834 (S 9) SI 2006/1028 SI 2006/1039 SI 312/2006

Parliamentary Copyright (Northern Ireland Assembly) Order 1999 Copyright and Related Rights (Librarians and Archivists) (Copying of Protected Material) Regulations 2000 (Ireland) Representation of the People (England and Wales) Regulations 2001 Representation of the People (Northern Ireland) Regulations 2001 Representation of the People (Scotland) Regulations 2001 Registered Designs Regulations 2001 Registered Designs (Amendment) Rules 2001 Representation of the People (England and Wales) (Amendment) Regulations 2002 Representation of the People (Scotland) (Amendment) Regulations 2002 Representation of the People (Northern Ireland)) (Amendment) Regulations 2002 Registered Designs Regulations 2003 Copyright and Related Rights Regulations 2003 Copyright and Rights in Databases (Amendment) Regulations 2003 Goods Infringing Intellectual Property Rights (Customs) Regulations 2004 Freedom of Information (Scotland) Act 2002 (Consequential Modifications) Order 2004 Environmental Information Regulations 2004 European Communities (Copyright and Related Rights) Regulations 2004 (Ireland) Copyright (Educational Establishments) Order 2005 Re-use of Public Sector Information Regulations 2005 Civil Partnership (Registration Provisions) Regulations 2005 Performances (Moral Rights, etc.) Regulations 2006 Artist’s Resale Right Regulations 2006 Representation of the People (England and Wales) (Amendment) Regulations 2006 Representation of the People (Scotland) (Amendment) Regulations 2006 Intellectual Property (Enforcement, etc.) Regulations 2006 Copyright (Gibraltar) Revocation Order 2006 European Communities (Artist’s Resale Right) Regulations 2006 (Ireland)

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SI 2007/1116 SI 2009/2792 SI 2010/324 SI 2010/992 SI 2010/2214 SI 2011 No 14 R&O 147/2012 R&O 149/2012 R&O 152/2012 SI 2013/536 SI 2013/777 SI 2013/1782 SI 2013/2314 SI 2014/5 SI 2014/434 SI 2014/898 SI 2014/1372 SI 2014/1384 SI 2014/1385 SI 2014/1457 SI 2014/1945 SI 2014/2356 SI 2014/2361

Parliamentary Copyright (National Assembly for Wales) Order 2007 Artist’s Resale Right (Amendment) Regulations 2009 Goods Infringing Intellectual Property Rights (Customs) (Amendment) Regulations 2010 Goods Infringing Intellectual Property Rights (Customs) (Amendment) (No 2) Regulations 2010 Building Regulations 2010 Copyright (Prescribed Libraries and Archives and Copying of Copyright Material) Regulations 2011 (Guernsey) Intellectual Property (Unregistered Rights) (Application, Transitional Provisions and Savings) (Jersey) Order 2012 Intellectual Property (Unregistered Rights) (Miscellaneous Provisions) (Jersey) Order 2012 Intellectual Property (Unregistered Rights) (Works of Foreign Provenance) (Jersey) Order 2012 Copyright and Performances (Application to Other Countries) Order 2013 Legal Deposit Libraries (Non-Print Works) Regulations 2013 Copyright and Duration of Rights in Performances Regulations 2013 Public Bodies (Abolition of BRB (Residuary) Ltd) Order 2013 Copyright (Application to the UK) (Bailiwick of Guernsey) Regulations 2014 Copyright and Duration of Rights in Performances (Amendment) Regulations 2014 Copyright (Regulation of Relevant Licensing Bodies) Regulations 2014 Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014 Copyright and Rights in Performances (Disability) Regulations 2014 Copyright (Public Administration) Regulations 2014 Public Lending Right Scheme 1982 (Commencement of Variations) Order 2014 Public Lending Right Scheme 1982 (Commencement of Variation and Amendment) Order 2014 Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014

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SI 2014/2588 SI 2014/2861 SI 2014/2863 SI 2015/216 SI 2015/641

Copyright and Rights in Performances (Extended Collective Licensing) Regulations 2014 Copyright and Rights in Performances (Certain Permitted Uses of Orphan Works) Regulations 2014 Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014 Copyright and Performances (Application to Other Countries) (Amendment) Order 2015 Enterprise and Regulatory Reform Act 2013 (Commencement No 8 and Saving Provisions) Order 2013

11.4 Cases Archivists and records managers unaccustomed to legal referencing in the form required by the Lord Chief Justice may find the full citations of cases given below rather unhelpful. The following notes may assist. For many of the judgments, access is available free online through BAILII (see 10.3); other judgments are available only through printed reports (available in large libraries and law libraries) or subscription sites (notably Westlaw, Lexis and Justis). References are to the parties in the case, usually cited as claimant (still called plaintiff in Northern Ireland; pursuer in Scotland) v defendant (defender in Scotland), but they are sometimes reversed on appeal. In speech the ‘v’ is rendered ‘and’, not ‘versus’. If a date is in (round brackets) it is the date of the case or the report and is supplied merely for information. If it is in [square brackets] it is the date of the report and is a vital part of the reference. There is then an abbreviated reference to the series of case reports in which this particular report is printed (the series cited in this book are listed below) followed by the page or case number. There are also occasional abbreviated references to the court in which the case was heard, also listed below. If two numbers are given, the first is a volume number. Occasionally a case is not reported in an established series, in which case a citation of a report might not conform to this pattern. Recent cases might instead be referred to by initials identifying the court followed by their case number; those for the High Court Chancery Division (from 1994) and the Civil Division of the Court of Appeal (from 1951), as well as for all other higher courts, are available online at: www.bailii.org. Cases from courts outside the UK might also not conform, and these are identified by the name of the country or court. Each citation is followed by the section numbers in this book where the case has been used. The footnotes might mention a judge from whom a particular quotation comes. The name of the judge is followed by letters indicating his or her position, listed below. Sometimes in such cases a reference continues ‘at . . .’ with a number, which is the page number for the quotation in the report.

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AC ACD All ER BLR Bus.LR C CA Ch ChApp ChD ChR CJ

Law Reports series, Appeal Cases Administrative Court Digest All England Law Reports Building Law Reports Business Law Reports Lord Chancellor Court of Appeal Law Reports series, Chancery cases Law Reports series, Chancery Appeals cases Law Reports series, Chancery Division cases Irish Chancery Reports Lord Chief Justice (now head of the Criminal Division of the Court of Appeal) CJEU Court of Justice of the European Union CMLR Common Market Law Reports CP Law Reports series, Common Pleas cases DLR Dominion Law Reports (Canada) ECDR European Copyright and Designs Reports ECHR European Court of Human Rights EMLR Entertainment and Media Law Reports series EmpLR Employment Law Reports ER English Reports series ETMR European Trade Mark Reports series EWCA Civ Court of Appeal, civil division, reports online EWCA Crim Court of Appeal, criminal division, reports online EWHC High Court reports online F Federal Reporter reports (USA) FSR Fleet Street Reports series F Supp Federal Supplement reports (USA) HCA High Court of Australia, unpublished reports HHJ His or Her Honour Judge (a circuit judge or recorder) HL House of Lords ICR Industrial Cases Reports IIC International Review of Industrial Property and Copyright Law ILP International Litigation Procedure ILT Irish Law Times InfoTLR Information Technology Law Reports IPD Intellectual Property Decisions IPR Intellectual Property Reports IRLR Industrial Relations Law Reports J Mr or Mrs Justice (a High Court Judge)

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JLR KB LJ LJCh LJQB LR LT MacCC MR ND NZLR PC QB QBD QdR RPC SC SCC SCLR SJ SLR SR (NSW) STC TLR UKHL UKSC US USCA VC WLR WR

Jersey Law Reports Law Reports Series, King’s Bench cases Lord or Lady Justice (a judge of the Court of Appeal) Law Journal reports, Chancery cases Law Journal reports, Queen’s Bench cases Law Reports series Law Times reports MacGillivray’s Copyright Cases Master of the Rolls (now the head of the Civil Division of the Court of Appeal) North Dakota unpublished reports (USA) New Zealand Law Reports Law Reports series, Privy Council cases, or Privy Council Law Reports series, Queen’s Bench cases Law Reports series, Queen’s Bench Division cases Queensland Reports (Australia) Reports of Patent, Design and Trade Mark Cases series Court of Session Cases (Scotland) Supreme Court of Canada reports Scottish Civil Law Reports Solicitors’ Journal Scots Law Reporter New South Wales State Reports (Australia) Simon’s Tax Cases Times (Newspaper) Law Reports United Kingdom House of Lords unpublished reports United Kingdom Supreme Court Supreme Court of the USA reports United States Court of Appeals unpublished reports Vice Chancellor (former title of the head of the Chancery Division of the High Court) Weekly Law Reports series Weekly Reporter

A v B [2000] EMLR 1007: 1.1.4, 2.1.2, 5.3.4, 5.3.22 A v B and C [2002] 3 WLR 542 CA: 8.7.4 A&M Records v Video Collection International [1995] EMLR 25: 2.5.4, 3.2.20 Abkco Music v Music Collection International [1995] RPC 657: 1.2.5, 5.1.12 Abraham Moon & Son v Thornber [2013] FSR 312: 2.1.3, 2.3.2–3, 6.6.1 Acorn Computers v MCS Microcomputer Systems (1983–5) 4 IPR 214 (Australia): 3.3.18 Alan Clark v Associated Newspapers [1998] RPC 261: 8.6.9

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Allen v Bloomsbury Publishing [2010] ECDR 395: 2.1.4 Anacon v Environmental Research Technologies [1994] FSR 659: 2.1.2, 2.2.2, 2.3.2, 6.6.1 Anne Frank Trade Mark [1998] RPC 379: 2.3.2 Anon (1774) 98 ER 913: 5.1.8 Antiquesportfolio.com v Rodney Fitch [2001] ECDR 51: 2.1.11 Antocks Lairn v I Bloohn [1972] RPC 219: 3.3.18, 7.9.2 Apis Hristovich v Lakorda [2009] ECDR 13 (CJEU): 8.2.7, 8.2.9 Apple Corps v Cooper [1993] FSR 286: 2.3.3, 3.2.19, 8.1.10 Argyll, Duchess of, v Argyll, Duke of [1967] LR Ch 302: 8.7.4 Art & Allposters International v Stichting Pictoright (2015) Case C-419/13: 5.1.3 Ashby Donald v France [2013] ECHR 28: 5.3.26 Ashdown v Telegraph Group [2001] 2 All ER 370; [2001] 4 All ER 666 CA: 5.3.7, 5.3.12, 5.3.26, 5.3.28 Associated Newspapers Group v News Group Newspapers [1986] RPC 515: 5.3.7, 5.3.12 Attorney General v Blake [1998] Ch 439 CA: 3.3.18 Attorney General v Guardian Newspapers [1988] 3 All ER 545 HL: 5.3.27, 8.7.3 Attorney General for New South Wales v Butterworth (1938) 38 SR (NSW) 195 (Australia): 3.2.28 Attorney General of Belize v Belize Telecom [2009] 1 WLR 1988: 5.2.3 Aubrey Max Sandman v Panasonic UK [1998] FSR 651: 2.1.2, 2.2.2, 2.3.2, 5.1.2, 6.6.1 Autospin v Beehive Spinning [1995] RPC 683: 2.1.10, 5.1.2 Baigent and Leigh v Random House [2007] FSR 579 CA: 2.1.4 Bamgboye v Reed [2004] EMLR 61: 2.5.4 Banier v News Group Newspapers [1997] FSR 812: 5.1.9 Banks v Manchester (1888) 128 US 244 (USA): 9.1.4 Barthorpe v Exeter Diocesan Board of Finance [1979] ICR 900: 7.6.2, 7.13.3 Bauman v Fussell [1978] RPC 485 CA: 2.1.8 BBC v Wireless League Gazette Publishing [1926] LR Ch 433: 2.1.10, 3.2.28 BBC Worldwide v Pally Screen Printing [1998] FSR 665: 8.6.4 Beckingham v Hodgens [2003] ECDR 48: 3.2.7 Beloff v Pressdram [1973] 1 All ER 241: 3.2.13, 3.3.9, 5.3.7, 5.3.10, 5.3.28 Bestwater International v Mebes and Potsch C-348/13 21 October 2014 CJEU: 6.2.5 Beta Computers (Europe) v Adobe Systems (Europe) [1996] FSR 367: 6.6.3 Bezpečnostní softwarová asociace [BSA] v Ministerstvo kultury [2011] ECDR 70 CJEU: 6.6.1 Biotrading and Financing v Biohit [1998] FSR 109 CA: 4.1.10 Birmingham Mosque Trust v Alavi [1992] ICR 435: 7.6.3 Black v Murray [1870] SLR 261: 4.1.10 Blair v Osborne and Tomkins [1971] LR 2 QB 78 CA: 3.2.18, 5.2.2–3, 6.5.7 Blau v BBC [2002] ECDR 34 (Switzerland): 1.2.5, 2.3.3 Bleiman v News Media (Auckland) [1994] 2 NZLR 673 (New Zealand): 5.3.4

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Blayney v Clogau St David’s Gold Mines [2003] FSR 360: 5.1.9 BMS Computer Solutions v AB Agri [2010] EWHC 464: 5.2.2 Bodil Lindqvist v Kammaraklagaren [2004] All ER(EC) 561 (CJEU): 8.7.2 Bodley Head v Flegon [1972] RPC 587: 4.1.6, 5.2.5–6 Bogue v Houlston (1852) 64 ER 1111: 7.14.2–3 Bonz Group v Cooke [1994] 3 NZLR 216 (New Zealand): 2.3.5 Bookmakers Afternoon Greyhound Races v Gilbert [1994] FSR 723: 2.1.4 Boucas v Cooke [1903] LR 2 KB 227 CA: 3.2.19 Bridgeman v Corel (1997) 36 F Supp 2d 191 (USA): 2.1.11 Brighton v Jones [2004] EMLR 507: 2.1.7, 3.2.7, 5.2.2–3 Brigid Foley v Elliott [1982] RPC 433: 5.1.2 British Horseracing Board v William Hill [2005] RPC 260 (CJEU), [2005] RPC 883 CA: 8.2.7, 8.2.9 British Oxygen v Liquid Air [1925] LR Ch 383: 1.1.4, 5.3.10 Budget Eyewear v Specsavers [2010] FCA 507 (Australia): 2.2.2 Burge v Swarbrick [2007] FSR 682 (Australia): 2.3.5 Byrne v Statist [1914] LR 1 KB 622: 2.1.4, 2.1.7, 2.1.12, 3.2.18, 5.1.7, 5.1.10, 5.2.2 Cala Homes (South) v Alfred McAlpine Homes East [1995] FSR 818: 3.2.7, 5.1.2 Cambridge Nutrition v BBC [1990] 3 All ER 523 CA: 5.3.27 Campbell v MGN [2004] 2 All ER 995 HL: 8.7.5 Canon Kabushiki Kaisha v Green Cartridge (Hong Kong) [1997] FSR 817 PC: 5.1.2 Cantor Fitzgerald v Tradition [2000] RPC 95: 5.3.5 Capital Finance v Bowmaker [1964] RPC 463: 2.1.16 Carmichael and Leese v National Power [1999] 4 All ER 897 HL: 3.2.14 CBS Songs v Amstrad [1988] RPC 567 HL: 5.1.12 CCH Canadian v Law Society of Upper Canada [2004] SCC 13 (Canada): 2.1.6, 5.1.12, 5.3.7, 5.4.23 Cembrit Blunn v Apex Roofing Services [2007] EWHC 111: 2.2.2 Century Communications v Mayfair Entertainment [1993] EMLR 335: 2.4.4–5 Chaplin v Leslie Frewin (Publishers) [1966] Ch 71: 3.3.9 Chappell v Redwood Music [1981] RPC 337 HL: 2.1.2, 2.2.3, 3.3.14 Clearsprings Management v Businesslinx [2006] FSR 21: 6.5.1, 6.6.1 Coco v A N Clark (Engineers) [1969] RPC 41: 8.7.3–4 Codemasters Software v Automobile Club de l’Ouest [2010] FSR 333: 5.1.10 Coffey v Warner and Chappell Music [2005] ECDR 312: 2.2.5 Coleridge-Taylor v Novello [1938] 3 All ER 506: 3.3.14 Collins v Imtrat [1994] FSR 168 (CJEU): 1.2.8, 2.1.24, 2.1.28 Commissioners of Inland Revenue v Muller & Co’s Margarine [1901] AC 217: 8.6.9 Confetti Records v Warner Music UK [2003] ECDR 336: 8.1.7 Controller of HMSO v Green Amps [2008] EWCA Civ 588: 5.3.22 Corelli v Gray (1913) [1911–16] MacCC 107 CA: 2.1.8, 8.6.1

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Courier Lithographing v Donaldson Lithographing (1900) 104 F 993 (USA): 2.3.3 Cramp v Smythson [1944] AC 329: 2.1.10 Creation Records v News Group Newspapers [1997] EMLR 444: 2.1.8, 2.1.12, 2.2.4, 2.3.4–5, 2.3.7, 3.2.7 Credit Lyonnais Bank Nederland v Export Credits Guarantee Department [2000] 1 AC 486 HL: 5.1.10 Crosstown Music v Rive Droite Music [2011] FSR 133 CA: 7.3.6 Curry v Audax Publishing [2006] ECDR 305 (Netherlands): 6.2.4 Davies v Presbyterian Church of Wales [1986] ICR 280: 7.6.3 Davis v Baird (1904) 38 ILT Reports 23: 3.2.19 Deckmyn v Vandersteen [2014] ECDR 431 (CJEU): 5.3.14 Delves-Broughton v House of Harlot [2012] EWPCC 29: 8.1.7 Department of Health and Social Security v Barr and Montrose [1991] 3 CMLR 325: 7.1.6 Designers Guild v Russell Williams (Textiles) [2000] 1 WLR 2416 HL: 2.1.4, 5.3.3 Dickens v Hawksley [1935] LR Ch 267 CA: 3.2.3, 3.3.1, 3.3.3 Dicks v Yates (1881) 18 Ch 76: 2.1.16 Diocese of Southwark v Coker [1998] ICR 140 CA: 7.6.2 Directmedia Publishing v Albert Ludwigs Universität Freiburg [2009] ECDR 19 (CJEU): 8.2.9 Distillers (Biochemicals) v Times Newspapers [1975] LR QB 613: 5.3.12 Donaldson v Beckett (1774) 1 ER 837 (argument) and 98 ER 257 (judgments) HL: 1.2.2 Donoghue v Allied Newspapers [1938] LR Ch 106: 2.1.4, 2.2.8, 3.2.7 Dragonfly Consulting v HM Revenue & Customs [2008] STC 3030: 3.2.13, 3.2.18 Dramatico v BSkyB [2012] ECDR 228: 2.1.13, 2.2.4, 2.4.2, 2.5.1 Drayton Controls v Honeywell Control Systems [1992] FSR 245: 4.1.10 Du Boulay v Du Boulay (1869) 16 ER 638: 2.1.16 Durand v Molino [2000] ECDR 320: 5.2.3 Eastbourne Borough Council v Foster [2001] EmpLR 1079 CA: 3.2.14 Elanco Products v Mandops [1980] RPC 213 CA: 2.1.10, 2.2.3 Electronic Techniques (Anglia) v Critchley Components [1997] FSR 401: 2.1.2 Ellis v Horace Marshall (1895) 64 LJQB 757: 3.2.19 Ellis v Ogden (1895) 11 TLR 50: 3.2.19 Elvis Presley Trade Marks [1997] RPC 543: 2.1.16, 2.3.2 EMI v BSkyB [2013] ECDR 224: 6.2.6 Enokia v The Royal Literary Fund (2013) Audiencia Provincial de Madrid, Sentencia No 160/2013 (Spain): 2.1.28 Ernest Turner Electrical Instruments v Performing Right Society [1943] LR Ch 167: 4.1.2 Evans v Hulton (1924) [1923-28] MacCC 51: 2.1.4, 3.2.7, 5.1.12 Evans v Spritebrand [1985] FSR 267 CA: 5.1.10 Evans v Tout (1909) [1905–10] MacCC 213: 2.1.7, 4.1.10 Express Newspapers v News UK [1990] FSR 359, [1991] FSR 36: 2.1.5, 2.1.11, 2.2.10, 5.3.28

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Exxon Corporation v Exxon Insurance [1982] RPC 69: 2.1.16, 2.2.2 FA Premier League v Panini [2003] ECDR 393 CA: 5.3.6 FA Premier League v QC Leisure [2008] 3 CMLR 280, [2013] FSR 392: 4.2.9, 5.3.4 Falcon v Famous Players [1926] 2 KB 474 CA: 5.1.12 Farmers Build v Carier Bulk Materials Handling (1997) 20 IPD 20069: 5.2.23 Fisher v Brooker [2009] 1 WLR 1764: 3.2.7–8, 5.2.23 Fixtures Marketing v Oy Veikus [2005] ECDR 43 (CJEU): 8.2.7 Flashing Badge Co v Groves [2007] ECDR 308: 8.6.4 Football Dataco v Sportradar [2013] FSR 60 (CJEU): 2.1.5, 6.2.6 Football Dataco v Yahoo [2013] FSR 1 (CJEU): 8.2.4 Football League v Littlewoods Pools [1959] 1 Ch 637: 2.1.10 Forensic Telecommunications Services v Chief Constable of West Yorkshire [2012] FSR 428: 8.2.4, 8.2.14 Francis, Day & Hunter v Bron [1963] LR Ch 587 CA: 5.1.10 Francis, Day & Hunter v Feldman [1914] LR 2 Ch 728: 4.1.6 Francis, Day & Hunter v Twentieth Century Fox [1940] AC 112 PC: 2.1.16 Fresh Trading v Deepend Fresh Recovery [2015] EWHC 52: 3.3.8 Fraser-Woodward v BBC and Brighter Pictures [2005] EMLR 487: 5.3.7, 5.3.10 Fylde Microsystems v Key Radio Systems [1998] FSR 449: 3.2.7 Gabrin v Universal Music Operations [2004] ECDR 18: 2.1.7, 3.2.7 Gardex v Sorata [1986] RPC 623: 7.9.2 Gee v Pritchard (1818) 36 ER 670: 3.2.4 General Tire and Rubber v Firestone Tyre and Rubber [1975] FSR 273 HL: 5.1.9 Geographia v Penguin Books [1985] FSR 208: 1.1.6, 2.1.5, 2.2.3, 7.14.1 Godfrey v Lees [1995] EMLR 307: 5.2.2, 5.2.23 Goubaud v Wallace (1877) 36 LT 704: 1.2.1 Graves’ case (1868–9) LR 4 QB 715: 2.1.11 Griggs v Evans and Raben Footwear [2005] FSR 706 CA: 3.3.18 Grisbrook v MGN [2011] ECDR 91 CA: 2.2.3, 5.2.3, 5.4.10 Gross v Seligman (1914) [1911–16] MacCC 219 (USA): 2.1.12, 3.3.8, 7.3.6–7 Hadley v Kemp [1999] EMLR 589: 3.2.7, 3.3.8 Harfield v Nicolson (1824–6) 57 ER 245: 3.2.16 Harms and Chappell v Martans Club [1926] LR Ch 870: 4.1.2 Harrison v Harrison [2010] FSR 604: 8.1.7, 8.1.9 Hawkes & Son v Paramount Film Service [1934] LR 1 Ch 593 CA: 5.1.10, 5.3.5–6 Hejduk v EnergieAgentur C-441/13, 22 January 2015 CJEU: 6.2.6 Hensher v Restawile Upholstery [1975] RPC 31: 2.3.5 Hi Hotel v Spoering [2014] ECDR 472 CJEU: 6.2.6 Hildesheimer and Faulkner v Dunn (1891) 64 LT 452: 3.2.16 Hoffman v Drug Abuse Resistance Education [2012] InfoTLR 63: 5.1.10, 5.3.4 Hollinrake v Truswell [1894] LR 3 Ch 420 CA: 2.2.2

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HRH the Prince of Wales v Associated Newspapers [2007] 2 All ER 139 CA: 3.2.13, 3.2.29, 5.1.9, 8.7.5 Hudson Bay Apparel Brands v Umbro International [2010] ETMR 1102 CA: 5.2.2 Hubbard v Vosper [1972] LR 2 QB 84 CA: 5.3.7, 5.3.10 Huston v Turner Entertainment (1992) 23 IIC 702 (France): 1.2.5, 8.1.7 Hyde Park Residence v Yelland [2000] EMLR 363 CA: 5.3.12, 5.3.26, 5.3.28 Hyperion v Warner (Chancery Division, unreported, 19 May 1991): 4.1.10 Ibcos Computers v Barclays Mercantile Highland Finance [1994] FSR 275: 5.1.2 Infopaq International v Danske Dagblades Forening (2009) ECDR 16 (CJEU): 2.1.6, 5.3.3–5, 5.4.6, 6.1.2 Initial Services v Putterill [1968] LR 1 QB 396 CA: 5.3.27, 8.7.4 Inland Revenue Commissioners v Conbeer [1996] 2 All ER 345: 5.4.12 In re Employment of Church of England Curates [1912] LR 2 Ch 563: 7.6.2 Interlego v Tyco [1988] RPC 343 PC: 2.1.7, 2.3.2, 5.1.2, 5.3.5 IPC Media v Highbury-SPL Publishing [2005] FSR 434: 2.1.4 Ironside v Attorney General [1988] RPC 197: 3.2.28 IT Human Resources v Land [2014] EWHC 3812: 5.2.2, 5.2.23 Jackson v Dear [2012] EWHC 2060: 5.2.3 James v London Borough of Greenwich [2008] IRLR 302 CA: 3.2.14 James Arnold & Co v Miafern [1980] RPC 397: 7.14.1 Jefferys v Baldwin (1753) 27 ER 109: 3.2.19 Jefferys v Boosey (1854) 10 ER 681 HL: 1.2.6, 2.1.4 Jennings v Stephens [1936] LR Ch 469 CA: 4.1.2 JHP v BBC Worldwide [2008] FSR 726: 5.2.6, 5.3.3 Jo-y-Jo v Matalan Retail [2000] ECDR 178: 8.6.3 J Pereira Fernandes v Mehta [2006] 2 All ER 891: 5.4.12 Kalamazoo v Compact Business Systems [1990] 1 QdR 231 (Australia): 2.2.3, 2.3.2 Kenrick v Lawrence (1890) LR 25 QBD 99: 2.1.4, 2.3.6 King Features Syndicate v O and M Kleeman [1941] AC 417 HL: 2.1.8, 5.1.2 Kipling v Genatosan (1920) [1917–23] MacCC 203: 5.3.4–5 Kolmisoppi v Sweden [2013] ECDR 213: 5.3.26 Komesaroff v Mickle [1988] RPC 204: 2.1.3 LA Gear v High Tech Sports [1992] FSR 121: 5.1.16 Ladbroke (Football) v William Hill (Football) [1964] 1 WLR 273 HL: 2.1.16, 5.3.3 Lady Anne Tennant v Associated Newspaper Group [1979] FSR 298: 5.1.10, 5.1.16, 5.2.2 Lagardère Active Broadcast v Société pour la perception de la rémuneration équitable [2006] ECDR 1 (CJEU): 4.1.2 Lamb v Evans [1893] 1 Ch 218 CA: 2.1.6, 2.1.16, 2.6.15, 3.2.16 Lambretta Clothing v Teddy Smith (UK) [2005] RPC 88 CA: 5.1.2, 8.6.4 Land Hessen v G Ricordi [2003] ECDR 1 (CJEU): 1.2.8, 2.1.24, 2.1.28 LB (Plastics) v Swish Products [1979] RPC 551: 2.1.11, 5.1.2

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Leah v Two Worlds Publishing [1951] LR Ch 393: 3.2.19 Levy v Rutley (1871) LR 6 CP 523: 3.2.7 Lewis v Fullarton (1839) 48 ER 1080: 5.3.7 Libraco v Shaw Walker (1913) 30 TLR 22: 2.1.16 Lilley v Euromoney [2014] EWHC 2364: 5.1.9 Lion Laboratories v Evans [1985] LR 1 QB 526 CA: 5.3.27, 8.7.3–4 Longman Group v Carrington Technical Institute [1991] 2 NZLR 574 (New Zealand): 5.4.12 Lucasfilm v Ainsworth [2011] FSR 945 UKSC: 2.3.4, 5.1.17 Ludlow Music v Robbie Williams [2001] FSR 271: 5.2.23 Mackie Designs v Behringer [1999] RPC 717: 2.1.2, 6.6.1 Macmillan v Cooper (1923) 40 TLR 186: 2.1.7, 2.1.10 Macmillan v Dent [1907] LR 1 Ch 107: 3.2.3–4 Maggs v Marsh [2006] BLR 395 CA: 3.3.8 Mail Newspapers v Express Newspapers [1987] FSR 90: 3.2.8 Manchester Corporation v Manchester Palace of Varieties [1955] 1 All ER 387: 7.10.5 Manners v Blair (1828) 4 ER 1379 HL: 3.2.30 Mansell v Valley Printing [1908] LR 2 Ch 441: 1.2.2, 5.1.10, 5.2.2 Marley v Rawlings [2014] 2 WLR 213 UKSC: 5.2.3 Massine v De Basil (1938) [1936-45] MacCC 223: 3.2.12, 3.3.18 Mayall v Higbey (1862) 158 ER 837: 1.2.2 Mayer & Pierson v Betbeder & Schwabbé (1862) J.-B. Sirey, Receuil générale des lois et des arrêts, 2e série, 1:41 (France): 2.3.3 McGowan v Dyer (1873) LR 8 QB 141: 5.1.10 McKennit v Ash [2007] EMLR 113 CA: 8.7.5 Media CAT v Adams [2011] FSR 679: 5.2.6 Meikle v Maufe [1941] 3 All ER 144: 2.3.6 Melville v Mirror of Life [1895] LR 2 Ch 531: 2.3.7 Merchant Adventurers v M Grew [1973] RPC 1: 3.3.19 Merck v Stephar [1981] 3 CMLR 463 (CJEU): 5.1.3, 5.1.17 Meridian International Services v Richardson [2008] InfoTLR 139 CA: 3.3.8 Merlet v Mothercare [1986] RPC 115: 2.3.5 Metix (UK) v G H Maughan (Plastics) [1997] FSR 718: 2.3.4 Millar v Taylor (1769) 98 ER 201: 1.2.2 Montreal v Montreal Locomotive Works [1947] 1 DLR 161 PC (Canada): 3.2.13 Moorhouse v Angus & Robertson [1980] FSR 231 (Australia): 3.2.3 Moorhouse v University of New South Wales [1976] RPC 151 (Australia): 1.3.2, 5.1.12 Morison v Moat (1852) 21 LJCh 248 CA: 8.7.4 Murray v Express Newspapers [2008] ECDR 197 CA: 8.7.5 Navitaire v Easyjet Airline [2005] ECDR 160: 2.1.4, 6.2.1, 6.6.1

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Newspaper Licensing Agency v Marks & Spencer [2001] 3 WLR 290 HL: 2.2.3, 2.6.15, 5.3.4–5 Newspaper Licensing Agency v Meltwater [2012] RPC 1 CA: 2.1.6, 2.1.16, 2.2.2, 5.3.3, 5.3.5 New Testament Church of God v Stewart [2007] IRLR 178: 7.6.3 Nichols v Universal Pictures (1930) 45 F.2d 119 (2d Cir.) (USA): 2.1.4 Nintendo v PC Box [2014] ECDR 90: 6.1.7 Nintendo v Playables [2010] FSR 846: 5.1.10, 6.1.7 Noah v Shuba [1991] FSR 14: 3.2.13, 3.2.22–23, 8.1.9 Normandy v Ind Coope [1908] LR 1 Ch 84: 7.9.2 Norowzian v Arks (No 2) [2000] EMLR 67 CA: 2.1.4, 2.1.13, 2.2.4, 2.4.2, 2.4.7, 4.1.10, 5.4.13 Nottage v Jackson (1883) LR 11 QBD 627 CA: 2.1.17–18, 2.3.7, 3.2.16 Nouveau Fabrics v Voyage Decoration and Dunelm Soft Furnishings [2004] EWHC 895: 5.1.16 Nova Productions v Mazooma Games [2007] RPC 589 CA: 1.1.1, 2.1.4, 2.2.13, 2.3.9 Novello v Keith Prowse Publishing [2005] RPC 578 CA: 3.3.14 Novello v Sudlow (1852) 138 ER 869: 5.1.3, 5.1.9 Numatic International v Qualtex [2010] RPC 713: 8.6.9 O’Kelly v Trusthouse Forte [1983] IRLR 370 CA: 3.2.14 Omnibill v Egpsxxx [2014] EWHC 3762: 6.2.6 Painer v Standard Verlags [2012] ECDR 89 CJEU: 2.1.6 Pammer v Reederei Karl Schluter [2012] Bus.LR 972 CJEU: 6.2.6 Pasterfield v Denham [1999] FSR 168: 8.1.7 Peek and Cloppenburg v Cassina [2009] ECDR 106 (CJEU): 4.1.3, 5.1.3 Peer International v Termidor Music Publishers [2003] TLR 6: 3.1.4, 3.3.14 Pensher Security Doors v Sunderland City Council [2000] RPC 249: 5.1.12 Perceval (Lord and Lady) v Phipps (1813) 35 ER 225: 3.2.4, 5.2.3 Percy v Church of Scotland [2006] 2 AC 28 HL: 7.6.2–3 Performing Right Society v B4U Network (Europe) [2014] FSR 343: 3.3.10 Perry v Truefitt (1842) 49 ER 749: 8.1.9 Philip v Pennell [1907] LR 2 Ch 577: 2.1.5, 8.7.4 Pinckney v KDG Mediatech [2013] ECDR 393 CJEU: 6.2.6 Point Solutions v Focus Business Solutions [2006] FSR 31: 5.1.13 Pollard v Photographic Co (1889) LR 40 ChD 345: 1.2.2, 4.2.4, 8.1.10 Pope v Curl (1741) 26 ER 608: 3.2.4 Power v Walker (1814) 105 ER 514: 3.3.8 President of the Methodist Conference v Parfitt [1984] ICR 176: 7.6.3 Prince Albert v Strange (1848–9) 64 ER 293: 1.2.2, 8.7.4 Prior v Lansdown Press [1977] RPC 511: 3.2.8 Pro Sieben Media v Carlton UK Television [1998] FSR 43, [1999] FSR 610 CA: 5.3.7, 5.3.10, 5.3.12

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Public Relations Consultants Association v Newspaper Licensing Agency [2013] RPC 469 UKSC, [2014] AC 1438 CJEU: 1.1.9, 6.1.2 R v Gilham [2009] InfoTLR 171: 5.3.4, 6.1.2 R v Higgs [2008] FSR 932 CA: 5.3.4, 6.1.2 Radley Gowns v Costas Spyrou [1975] FSR 455: 2.3.5 Ravenscroft v Herbert [1980] RPC 193: 2.1.5 Reckitt & Colman Products v Borden [1990] 1 WLR 491: 8.6.9 Redwood Music v B Feldman [1979] RPC 385 CA: 3.3.14 Redwood Music v Chappell [1982] RPC 109: 2.1.7, 2.1.12, 5.2.23 Redwood Music v Francis, Day & Hunter [1978] RPC 429: 5.2.23 Reject Shop v Manners [1995] FSR 870: 2.1.11 Reliance (Nameplates) v Art Jewels [1953] 1 All ER 759: 2.3.4 Re West Tarring Parish Church [1954] 2 All ER 591: 7.10.5 Roban Jig and Tool v Taylor [1979] FSR 130: 3.3.18, 7.9.2 Robin Ray v Classic FM [1998] FSR 622: 3.2.7–8, 3.2.18, 3.3.18, 4.1.10, 5.2.3 Rocknroll v News Group Newspapers [2014] FSR 128: 8.7.5 Rogers v Booth [1937] 2 All ER 751: 7.6.3 Rose Plastics v William Beckett (Plastics) [1989] FSR 113: 2.3.2, 5.3.5 Royal Warrant Holders Association v Dean [1912] 1 Ch 10: 7.10.5 Ryanair v PR Aviation C-30/14 CJEU 15 January 2015: 8.2.2, 8.2.6, 8.2.12 Saltman Engineering v Campbell Engineering (1948) 65 RPC 203: 8.7.4 Santokh Singh v Guru Nanak Gurdwara [1990] ICR 309: 7.6.3 Sasha v Stoenesco (1929) 45 TLR 350: 3.2.19 SAS Institute v World Programming [2014] RPC 218 CA: 2.1.4, 2.1.6, 5.3.5, 6.6.1 Sawkins v Hyperion Records [2005] 3 All ER 636 CA: 2.1.7, 2.1.11, 2.2.5, 4.1.10 Sawyer v Atari Interactive [2006] IL Pr 8: 1.2.5 Scottish and Universal Newspapers v Paul Mack [2003] ECDR 364: 1.1.6, 5.3.3 Scottish Insurance Commissioners v Church of Scotland [1914] SC 16: 7.6.3 Seager v Copydex [1967] 2 All ER 415: 8.7.4 Sehgal v Union of India [2005] FSR 829: 8.1.7 SGAE v Fernandez (2006): 6.2.4 Sheffield City Council v Addinell [2001] ACD 61: 8.7.5 Shelley Films v Rex Features [1994] EMLR 134: 5.3.26, 8.7.3 Shepherd v Conquest (1856) 139 ER 1140: 3.2.16 Shetland Times v Wills [1997] EMLR 277 (Scotland): 4.1.8 Sillitoe v McGraw Hill Book Co [1983] FSR 545: 5.1.16, 5.3.8 Slater v Wimmer [2012] EWPCC 7: 3.2.8 Sociedad General de Autores y Editores de España v Rafael Hoteles, [2007] ECDR 69 (CJEU): 4.1.2, 5.1.6 Société des Auteurs dans les Arts Graphiques et Plastiques v Editions Fernand Hazan [2007] ECDR 317 (France): 2.1.28

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Softlanding Systems v KDP Software [2010] Info TLR 436: 5.1.12 Solar Thompson Engineering v Barton [1977] RPC 537 CA: 5.2.3 Sony Computer Entertainment v Ball [2005] FSR 159: 6.1.7, 6.6.2 Sony Computer Entertainment v Owen [2002] ECDR 27: 6.1.7 Sony Music Entertainment v Easyinternetcafé [2003] TLR 58: 1.3.2, 5.3.31 Sony Music Entertainment Germany v Falcon Neue Medien Vertrieb [2009] ECDR 183 CJEU: 2.1.24 Southern v Bailes (1894) 38 SJ 681: 2.2.3 Spelling Goldberg Productions v BPC Publishing [1981] RPC 283 CA: 5.3.4 Springfield v Thame (1903) 89 LT 242: 2.1.5 Stackemann v Paton [1906] LR 1 Ch 774: 2.3.7, 3.2.19 Stannard v Harrison (1871) 19 WR 811: 7.14.2 Stannard v Lee (1871) LR 6 ChApp 346 CA: 7.14.3 Stedall v Houghton (1901) 18 TLR 126: 1.2.2, 4.2.4, 8.1.10 Stephens v Avery [1988] 2 All ER 477: 8.7.3–4 Stephenson, Jordan and Harrison v MacDonald and Evans (1952) 69 RPC 10: 3.2.13, 3.2.15, 3.2.18, 3.2.22–23 Stovin-Bradford v Volpoint [1971] LR Ch 1007 CA: 5.2.3 Svensson v Retriver Sverige [2014] ECDR 119: 6.2.2, 6.2.5 Sweeney v Macmillan Publishers [2002] RPC 651: 4.1.10, 5.3.5, 5.4.13 Tate v Fulbrook [1908] LR 1 KB 821: 2.1.4 Temple Island Collections v New English Teas [2012] FSR 321: 2.1.6 Tidy v Trustees of the Natural History Museum (1998) 39 IPR 501: 8.1.7 Time Warner Entertainment v Channel 4 Television [1994] EMLR 1: 5.3.10 Tod’s v Heyraud [2005] ECDR 457 (CJEU): 1.2.8 Trebor Bassett v The Football Association [1997] FSR 211: 8.6.8 Tree v Bowkett (1896) 74 LT 77: 2.1.7 Trimingham v Associated Newspapers [2012] 4 All ER 717: 8.1.10 Turner v Robinson (1860) 10 ChR 121 and 510 (CA): 2.1.12 Twentieth Century Fox v Harris [2014] FSR 128: 1.3.2, 3.3.18 Twentieth Century Fox v Newzbin [2010] FSR 512: 5.1.12 Ultraframe UK v Fielding [2003] RPC 435: 7.9.2 Universities UK v Copyright Licensing Agency [2002] EMLR 35: 5.2.12 University of Darmstadt v Eugen Ulmer [2014] ECDR 449: 6.5.3 University of London Press v University Tutorial Press [1916] LR 2 Ch 601: 1.1.6, 2.1.6, 2.2.2, 5.3.3, 5.3.8, 5.4.12 USP v London General Holdings [2006] FSR 65 CA: 2.1.4, 5.1.9 Valcarenghi v Gramophone (1931) [1928–35] MacCC 301: 5.1.8 Van Dusen v Kritz [1936] LR 2 KB 176: 5.1.15 Vermaat and Powell v Boncrest [2001] FSR 43: 2.3.2, 2.3.5 Vitof v Altoft [2006] EWHC 1678: 3.3.18

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Von Hannover v Germany [2004] EMLR 379 (ECHR): 8.7.5 Walsall Council (2004) ICO decision notice no FER 0279668: 8.2.4 Walter v Lane [1900] AC 539 HL: 2.1.6–8, 2.1.11, 2.2.9–10 Walter v Steinkopff [1892] LR 3 Ch 489: 2.1.5 Warne v Lawrence (1886) 54 LT 371: 1.2.1 Warwick Film Productions v Eisinger [1969] LR 1 Ch 508: 2.1.9, 5.3.5 Waterlow Publishers v Rose [1995] FSR 207 CA: 2.1.5, 2.2.3, 5.3.3, 5.3.5 Westwood v Knight [2011] FSR 847: 8.6.5 Whitaker v Publishers Circular (1946) [1946–7] MacCC 10: 2.1.10, 2.2.3 Wilkins v Aikin (1810) 34 ER 162: 1.1.6 Wilkinson v London Strategic Health Authority [2012] EWPCC 48: 5.2.3 Wilmer v Hutchinson (Publishers) (1936) [1936–45] MacCC 13: 2.1.4 Wood v Boosey (1868) LR 3 QB 223: 2.1.12, 5.1.7 Work Model Enterprises v Ecosystem [1996] FSR 356: 5.1.9 Wyatt v Barnard (1814) 35 ER 408: 8.6.7 ZYX Music v King [1997] EMLR 319 CA: 2.1.12, 5.1.16, 5.2.23, 6.5.7

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Index References are to sections

abridgement 5.1.7–8 accessible copy (disabled) 5.3.16–17 accessions 5.4.25, 7.3 acknowledgement 5.2.1 acquiescence 5.2.23 Acts of Parliament 2.2.30 actual knowledge 5.1.16 adaptation 3.2.7, 5.1.7 administration 5.3.22–25 affidavits 7.7.8 agency staff. See employer ALCS. See Authors’ Licensing and Collecting Society alternative dispute resolution 5.5 amanuensis 2.2.8 anonymous works author 2.1.18 available to the public 4.1.11 definition 2.1.18 duration 2.1.20–21, 2.2.19–20, 2.3.15–19. 2.4.16–17 owner 3.2.1, 3.2.10 presumptions 3.2.39 publication 5.2.21–22 revived copyright 2.1.24–25 use 5.4.19 applied art 2.3.5, 5.1.4 apprentices 3.2.12, 3.2.16, 3.2.23 architecture 2.3.4, 2.3.6, 4.1.1, 4.2.5 See also artistic works archives 1.3 as library 5.4.18 available to the public 4.1.12 collective licensing 5.2.15

copying 4.1.9, 5.1.11, 5.4, 6.1.2–5, 6.5.2, 9.2 databases 8.2.17–22 declaration 9.2.1, 9.2.3 definition for copyright 5.4.7 disabled persons 5.3.16–17 documents 2.1.2, 3.2.3–6 education 5.3.21 equity 3.3.19 exhibition and performance 4.2.1 export 5.4.28 files 2.1.2 gifts and deposits copies 5.1.15, 5.4.10, 5.4.25 records 3.2.3–6, 7.3, 9.3–4 image libraries 5.2.25 local authority records 7.1 moral rights 8.1.2 parent authority 7.6 performers’ rights 8.5.1, 8.5.7 primary infringement 5.1.11 publication right 8.3.5–8 secondary infringement 5.1.15 supply of copies to archives 5.4.25 artistic craftsmanship applied art 5.1.4 definition 2.3.5, 5.1.4 exhibition 4.2.5 artistic works author 2.3.6–11 commissioned 3.2.17, 3.2.19 copying 5.4.9 definition 2.3.1–5 designs 2.3.33, 8.6.2–6

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artistic works (continued) duration 2.1.20–25, 2.3.12–32 exhibition 4.2.3–6 fair dealing 5.3.7–14, 5.3.19 moral rights 8.1 publication right 8.3.6–7 qualification 3.1.1–4 revived copyright 2.1.23–25 sale 4.2.3 signatures 2.1.16, 2.3.2 artist’s resale right 8.8 assemblies. See Parliament and Parliamentary copyright assertion of copyright 3.4 of moral right of attribution 8.1.5 assignment 3.3.8–14, 5.2.2, 7.3.6–8 implied 3.3.8 model assignment 9.4 partial 7.3.6 reversionary interests 3.3.13–14 attribution 3.4, 8.1.5–6 auction catalogue 4.2.3 Australia 2.1.27, 9.1.4 author 1.1.6, 2.1.17 anonymous works 2.1.18 artistic works 2.3.6–11 assumptions about death 2.1.17, 5.2.21–22 broadcasts 2.6.6–9, 2.6.12 co-author 2.1.23, 2.1.25, 2.2.14 Crown copyright 2.2.15, 2.3.11, 2.4.8, 2.5.6, 2.6.14, 3.2.9 databases 8.2.5 dramatic works 2.2.6–15 duration based on life 1.1.7, 2.1.17 electoral registers 7.8.2 employee 2.1.17, 3.2.12–16 films 2.4.3–8 joint authorship 1.1.7, 2.2.14, 3.2.7, 3.2.17

joint ownership 3.2.8 literary works 2.2.6–15 moral rights 8.1 musical works 2.2.6–15 nature 2.1.17 owner 3.2.1, 3.2.17–23 Parliamentary copyright 2.2.15, 2.3.11, 2.4.8, 2.5.6, 2.6.14, 3.2.9 photographs 2.3.7 presumptions about subsistence and ownership 3.2.39 qualification 3.1.2 sound recordings 2.2.10, 2.5.4–6 typographical arrangement 2.6.16 authorial rights 1.1.4 Authors’ Licensing and Collecting Society (ALCS) 5.2.12 author’s right 1.1.1 authorizing infringement 5.1.12, 5.3.21, 5.4.25 available to the public archives 4.1.12 definition 4.1.11 Ireland 7.1.5 publication 4.1.3, 4.1.8 publication right 8.3.2 balance in copyright 1.1.1 bankruptcy 3.3.15, 7.9.3 BAPLA. See British Association of Picture Libraries and Agencies Barbados 9.1.4 BCC. See British Copyright Council BECS. See British Equity Collecting Society bequest 3.3.1–6 Berne Convention 1.1.5, 1.2.6, 3.1.3–4, 5.3.1 Bible 3.2.30 Bills, Parliamentary 2.2.31, 3.2.34, 3.2.36–38

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INDEX 347

births, deaths and marriages 7.7.12–13 blind. See disabled persons boards. See local authorities bona vacantia 3.3.20, 7.9.3 Book of Common Prayer 3.2.30 books. See published works and typographical arrangement Brazil 2.1.27, 9.1.4 British Association of Picture Libraries and Agencies (BAPLA) 5.2.18, 5.2.24–25 British Copyright Council (BCC) 5.2.12 British Equity Collecting Society (BECS, Equity) 8.5.7 British Isles 7.1, 9.1.3 British Rail 7.12.2 British Transport Commission 7.12.1 broadcasts author 2.6.6–9, 2.6.12 copying for archives 5.4.27 definition 2.6.1–5 duration 2.6.13–14 educational use 5.3.20 originality 2.1.14 person making 2.6.6–9, 2.6.12 place of broadcasting 2.6.9–12 qualification 1.2.7, 3.1.1 recording 5.2.12, 5.3.31, 5.4.27 showing or playing in public 4.2.9 transmission 4.1.14 business records 7.9 cable programmes. See broadcasts Canada 9.1.4 canals 7.12.2 caricature 5.3.14 cases 11.4 casual staff. See employer catalogue of an exhibition 4.2.3 census returns 7.4.2–3 Channel Islands 2.1.28, 7.1.6–8, 9.1.3

charts. See maps charts of duration of copyright. See duration China 9.1.4 choreography 2.2.4 Church of England 3.2.30, 7.6, 7.7.13 Church of Scotland 3.2.30 church records 7.6 churches 7.6, 7.7.13 civil law 1.1.1, 1.2.2, 5.1.9 civil registration 7.7.12–13 CLA. See Copyright Licensing Agency claiming copyright 1.1.5, 3.4 clergy 7.6.2–3, 7.6.5 clubs and societies 4.2.8 co-author. See author collages. See artistic works collecting societies 5.2.11–15, 8.5.7, 8.8 collective works 3.2.11, 3.2.25 commercial publication 4.1.5 research 5.3.8–9 use 4.1.5, 5.2.25 commission equity 3.3.18 implied licences 5.2.3 manorial records 7.10.3 owner 3.2.17–20 common law 1.1.1, 1.2.2, 3.2.16 communication to the public 4.1.6, 4.1.11 definition 5.1.6 internet 6.2.2, 6.5.1 companies author 2.3.10 copyright ownership. See employer dissolution 3.3.16, 3.3.20 records 7.9 succession 3.3.7, 3.3.20 tracing 5.2.18 compilations 2.1.5, 2.1.10, 2.2.3, 3.2.11, 3.2.25–27

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computer-generated works 2.2.12–13, 2.2.32, 2.3.8–9, 2.3.31 computer programs 2.2.2, 5.1.7, 6.6 conditions for copyright. See qualification confidentiality 8.7 constructive knowledge 5.1.16 consultants 3.2.17–18, 6.6.1 contracts 3.3.8, 5.2.4 for services. See commission of service. See employer copies copying from copies 5.4.26 deposit in an archive 5.1.14, 5.3.7, 5.3.12, 5.4.25 digital 6.5.2 issue to the public. See publication originality in 2.1.9 copy protection 6.1.7 copying 2.1.9, 2.1.11, 5.1.2, 5.4.1, 5.4.8, 6.5.2 anonymous works 5.4.19 artistic works 5.4.9–19 broadcasts 5.3.31, 5.4.27 declaration 5.1.11, 5.4.12, 9.2 educational 5.3.19–21 electronic materials 6.1.2–5, 6.5.2 films 5.4.9–19 folksongs 5.4.21 freedom of information 5.4.4–5 from copies 5.4.26 infringing 2.1.12, 5.1.2 libraries and archives 4.1.9, 5.4, 6.1.2–5, 9.2 licences 5.2.2–16 literary works 5.4.9–19 maps 5.3.24, 7.14.7, 7.14.9–11 originality 2.1.9 overseas user 5.1.18 preservation 5.4.10–11, 6.5.3, 6.5.8 private use 5.3.30 public records 5.4.2–5

publication by 4.1.9 published works 5.4.16–18 regulations 9.2 self-service 5.1.12, 5.4.22–23 sound recordings 5.4.9–19 text and data mining 5.3.15 transcripts and tracings 5.4.24 unpublished works 5.4.12–14 copyright continuity of the law 1.2.4 definition 1.1.1–2 designs 8.6.4–6 duration. See duration history 1.2.1–3, 7.1.1–5 Ireland 7.1.1–5 overseas 1.2.6–9 purpose 1.1.1 qualification 3.1.1–4 scope 1.1.4 subsistence 1.1.5 works 2.1.1–3 Copyright Hub 5.2.12 Copyright Licensing Agency (CLA) 5.2.12–14 copyright symbol 3.4 Copyright Tribunal 5.2.4, 5.2.12 coroner’s court 7.7.3 councillors 7.13.2 councils. See local authorities court-holding authorities 7.7.1–3 courts. See law Creative Commons 6.2.4 creativity 2.1.4–6 criminal offences 5.1.9 criticism or review 4.1.11, 5.3.10 Crown 5.3.22 Crown copyright assignment 3.3.12 author 2.2.15, 2.3.11, 2.4.8, 2.5.6, 2.6.14, 8.1.6, 8.1.8 broadcasts 2.6.14

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INDEX 349

Crown copyright (continued) copying 5.2.7, 5.4.26 copyrights owned by the Crown 3.3.12 definition 3.2.28–33 duration artistic works 2.3.20–29 films 2.4.18 literary, dramatic and musical works 2.2.21–30 sound recordings 2.5.9 engravings 7.14.7, 7.14.9–11 in public records 5.4.2–5 joint authorship 3.2.9 legal records 7.7.2 licensing 5.2.7–8, 5.2.10 maps 7.14.7, 7.14.9–11 ownership 3.2.28–33, 3.3.20 sound recordings 2.5.6 Crown dependencies 7.1.6–9, 9.1.3 current news. See news reporting DACS. See Design and Artists Copyright Society damages 5.1.9, 5.1.16 data protection 8.7.2 databases 8.2 adaptation 5.1.7 copyright 2.2.2, 8.2.3–6 database right 4.1.11, 8.2.7–16 definition 8.2.2 fair dealing 5.3.7–14, 5.3.19 licensing 6.5.1 originality 2.1.6 declaration 5.1.11, 5.4.12, 6.5.2, 9.2 dedicated terminals 6.5.3 deeds 2.1.2, 7.10.1–3 Denmark 1.2.1 deposits copies 5.1.15, 5.4.10, 5.4.25 orphan works 7.3.1 records 5.4.25, 7.3, 9.3–4

derivative works 1.1.6, 2.1.7, 2.1.12, 3.2.7, 4.1.10 derogatory treatment 8.1.7–8 Design and Artists Copyright Society (DACS) 5.2.11–14 designs and copyright 8.6.4–6 artistic works 2.3.33 design right 7.14.8, 8.6.3–6 registered designs 8.6.2 diaries 2.1.2, 2.1.5, 5.3.4 digital copies 6.5.2–3 digital files 2.2.2, 2.3.3, 6.5.3 digital rights. See rights digitization 1.3.4, 6.5.3–4 diligent search 5.2.18 direction or control 3.2.28 directives 1.2.8, 11.1 directors 7.9.2 Directors and Producers Rights Society. See Directors UK Directors UK 5.2.12 disabled persons 5.3.16–17 disclaimer 5.2.19, 8.1.8 display. See exhibition distribution to the public 5.1.3 documents archival 1.3.1, 2.1.2, 3.2.5–6, 4.1.1, 5.4.8 copying 5.4.10–14, 5.4.18 definition 6.5.2 document supply 5.4.17, 5.4.25, 6.5.2 estate and manorial records 7.10 image libraries 5.2.25 ownership 3.2.3–6 publication 4.1.1, 4.1.10, 5.2.16 drafts. See manuscripts dramatic works 2.2.1 adaptation 5.1.7 author 2.2.6–15, 2.4.3, 2.5.5 definition 2.2.4

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dramatic works (continued) duration 2.1.20–25, 2.2.16–32 educational use 5.3.20 exhibition 4.2.2, 4.2.6 fair dealing 5.3.7–14, 5.3.19 films 2.4.1, 2.4.3, 2.4.7 moral rights 8.1.3–10 performance 4.2.7, 5.3.20 presumptions about subsistence and ownership 3.2.39 publication right 8.3.5 qualification 3.1.1–4 revived copyright 2.1.23–25 sound recording 2.5.5 drawings. See artistic works droit de suite 8.8 duration 1.1.7, 2.1.19–28 anonymous works 2.2.19–20, 2.3.15–19, 2.4.16–17 artistic works 2.1.20–21, 2.3.12–32 available to the public 4.1.11 broadcasts 2.6.13–14 charts of duration 9.1.1–4 Crown copyright 2.2.21–30, 2.3.20–29, 2.4.18, 2.5.9, 2.6.14 databases 8.2.5, 8.2.10–11 dramatic works 2.1.20–22, 2.2.16–32 expiry 5.3.2 extended copyright 2.1.23–24 films 2.1.22, 2.4.9–18 international 2.1.27–28 international organizations 3.1.4 introduction 2.1.19–28 literary works 2.1.20–22, 2.2.16–32 moral rights 8.1.4 musical works 2.1.20–22, 2.2.16–32 overseas 2.1.27–28, 9.1.3–4 Parliamentary copyright 2.2.31, 2.3.30, 2.4.18, 2.5.6, 2.6.14 performers’ rights 8.5.5 principles 2.1.20–22

revived copyright 2.1.23–26, 5.3.29 significance of authorship 2.1.17 sound recordings 2.5.7–10 typographical arrangement 2.6.17 universities 2.2.33 ecclesiastical bodies 7.6 courts 7.7.3–4 education exceptions 5.3.19–21 lecturers 3.2.22–23 owner 3.2.22–23 schoolchildren 3.2.23 students 3.2.23 teachers 3.2.22–23 universities 3.2.22 educational establishments 5.3.20 Educational Recording Agency (ERA) 5.2.11–13 EEA. See European Economic Area Egypt 9.1.4 electoral registers 7.8 electronic copying and supply 5.2.13, 5.4.6, 5.4.26, 6.5.2 electronic document and records management 6.5.6–9 electronic materials 5.2.13, 6.1, 6.5 eligibility for copyright. See qualification e-mail 6.3 employer. See also education agency and casual staff 3.2.14, 3.2.21 before 1912 3.2.16 common law 3.2.16 databases 8.2.8 directors 7.9.2 duration of copyright 2.1.17 employee as owner 2.1.24, 3.2.13 equity 3.3.18–19 journalists 3.2.24–27 manorial records 7.10 moral rights 8.1.3, 8.1.6, 8.1.8

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INDEX 351

employer (continued) National Health Service 7.11.3 owner 2.1.24, 3.2.12–18 police 7.7.10–11 enclosures 7.14.9 England civil registration 7.7.12–13 Crown copyright 3.2.28–30 freedom of information 5.4.4 local government 7.5.5–7 Parliamentary copyright 3.2.34–35 probate 7.7.4 engravings 7.14 as artistic works 2.3.2 commissioned 3.2.19 duration 2.3.13–14, 2.3.21–22 Ordnance Survey 7.14.1 enquiry, reasonable 2.1.18, 3.2.1, 5.2.1, 5.2.21, 5.3.29, 8.2.11 entrepreneurial rights 1.1.4 Episcopal Church of Scotland 7.6.2 equity 3.3.17–18 Equity. See British Equity Collecting Society ERA. See Educational Recording Agency estates. See manors European Economic Area (EEA) 1.2.8, 2.1.28 European Union 1.2.8, 2.1.28 examination 5.3.19 exceptions 1.1.12, 5.3–4 anonymous works 5.4.19 archives 5.4 artistic works 5.4.9 broadcasts 5.3.31, 5.4.27 databases 8.2.6, 8.2.13–16 disabled persons 5.3.16–17 education 5.3.19–21 export 5.1.18, 5.2.25, 5.4.20, 5.4.28 fair dealing 5.3.7–14, 5.3.19 incidental inclusion 5.3.6

insubstantial part 5.3.3–5 libraries 5.4 official, judicial and statutory purposes 5.3.22–25 orphan works 5.2.17–20, 5.4.20 out of copyright 5.3.2 performers 8.5.6 public domain 5.3.2 public interest 5.3.26–28 public records 5.4.2–3 publication right 8.3.4 rental and lending 5.3.18 revived copyright 5.3.29 exhaustion of distribution right 5.1.3 exhibition and publication 4.1.6 archives 4.2.1 available to the public 4.1.11 copies 4.2.6, 5.1.3 infringement 4.2 originals 4.2.2–5, 5.1.3 rental and lending 5.3.18 exhibits 7.7.9 expiry. See duration export 5.1.18, 5.2.25, 5.4.20, 5.4.28 expression 2.1.4 extended copyright. See duration facsimile 2.1.11 facts 1.1.11, 2.1.5 fair dealing 4.1.11, 5.3.7–14, 5.3.19, 8.2.6, 8.2.14 fair use 5.3.7 false attribution 8.1.9, 8.6.9 fees 3.2.6, 5.2.24 files 2.1.2 Filmbank 5.2.12 films author 2.4.3–8 copying 5.4.9, 5.4.13, 5.4.15 definition 2.3.3, 2.4.1–2

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films (continued) dramatic work 2.2.4 duration 2.1.22–25, 2.4.9–18 educational use 5.3.20 moral rights 8.1.3–10 originality 2.1.13 presumptions about subsistence and ownership 3.2.39 publication right 8.3.8 qualification 3.1.1–4 release 4.1.13 revived copyright 2.1.23–26 showing in public 4.2.7–9 sound tracks 2.4.1–2, 2.5.3 substantial part 5.3.3–5 underlying rights 2.4.6–7 Firms out of Business 5.2.18, 7.9.3, 10.3 fixation 1.1.5, 2.1.3, 5.1.7 folksongs 5.4.21 fonts. See typefaces foreign countries. See overseas copyright forms 2.1.16, 2.2.3 formulae 2.1.4 France 1.1.5, 1.2.1 freedom of information 5.3.22, 5.4.4–5 friends’ organizations 3.2.21 Friends, Society of 7.6.3, 7.7.13 Garda 7.7.11 Geneva Convention 1.2.7 geo-fencing 5.2.20, 6.2.3 Gibraltar 2.1.28, 9.1.3 gifts and deposits copies 5.1.15, 5.4.10, 5.4.23 orphan works 7.3.1 records 5.4.25, 7.3, 9.3–4 graphic work. See artistic works Guernsey 2.1.28, 7.1.6, 7.1.8, 9.1.3 headlines 2.1.16, 5.3.5 Her Majesty’s Stationery Office (HMSO)

3.2.30, 3.2.32, 3.2.34, 5.2.8, 8.2.8 Hong Kong 9.1.4 honorary officers 3.2.21, 7.13 equity 3.3.19 hospital records 7.11 Hydrographic Office 5.2.8 ideas 1.1.11, 2.1.4, 5.1.9 image library 3.2.5, 5.2.25 implied assignments. See assignments implied licences. See licences import of infringing copies 5.1.17 improvisation 2.1.3 incidental use 5.3.6, 6.1.2 independent creation 2.1.8 indexes 5.1.8 India 2.1.27, 9.1.4 infringement 1.3.2, 2.1.12 authorizing infringement 5.1.12 cost 1.3.2, 5.5 exhibition or performance 4.2 indirect 2.1.7, 5.1.2, 5.1.7–8 ‘innocent’ 5.1.10 litigation 5.5 non-infringement 5.1.13 overseas 5.1.17 primary infringement 5.1.9–12 restricted acts 5.1 secondary infringement 5.1.14–16 infringing copy 2.1.12, 5.1.9, 5.1.14–15, 5.1.17, 5.3.30, 5.4.12, 9.2 infringing work 1.1.6 inheritance 3.3.1–6, 7.7.4 injunctions 5.1.9 inquiry, public 5.3.22 insolvency 3.3.16 instructions 5.1.2 insubstantial part 5.3.3–6 integrity 8.1.7–8 Intellectual Property Office (IPO) 5.2.20, 5.5, 10.3

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intellectual property rights 1.1.3, 8 international law 1.2.6–9, 3.1.4, 6.2.6 international organizations 1.1.7, 3.1.4 internet 1.2.9, 1.3.4, 6.2 broadcasts 2.6.3 commercial publication 4.1.5 e-mail 6.3 international law 6.2.6 publication 4.1.3, 4.1.8 websites 6.1.6, 6.2.1–6, 6.5.1 interview 2.2.8, 2.2.10, 2.2.14, 2.5.2, 5.2.12 intestacy 3.3.1, 3.3.20 IPO. See Intellectual Property Office Ireland, Republic of census 7.4.3 copyright 7.1.1–5 duration 2.1.28, 9.1.3 exhibition 4.2.2, 4.2.6 police 7.7.11 Isle of Man 2.1.28, 7.1.6, 7.1.9, 9.1.3 Israel 2.1.27, 9.1.4 issue of copies to the public. See publication Jamaica 9.1.4 Japan 9.1.4 Jersey 2.1.28, 7.1.6–7, 9.1.3 Jews, marriage registers 7.7.13 joint authorship. See author joint ownership. See owner journalists. See employers journals 2.1.2, 5.4.16 judgments 7.7.1 judicial proceedings 5.3.22–25, 7.7.1–3 jurisdiction 1.2.5 knowledge 5.1.16 law affidavits 7.7.8 choice of law and jurisdiction 1.2.5,

6.2.6, 9.3.1–2 court reports 7.7.6 courts 1.2.5, 5.5, 7.7.1–3 exhibits 7.7.9 international law 1.2.5–9, 3.1.4 internet and applicable law 6.2.6 judgments 7.7.1 judicial proceedings 5.3.22 legal advice 5.5 legal records 7.7 litigation 5.5 national protection 1.2.5, 1.2.9, 3.1.4 ownership 3.2.2 writs 7.7.7 lawful user 8.2.12 lecturers. See education legal advice 5.5 legal records 7.7 legislation 1.2.1, 1.2.3, 7.1.1–5 lending. See rental and lending length of copyright. See duration letters 2.1.5, 2.2.2, 3.2.4 liability for infringement 5.1.10 libraries 1.3.3 copying 5.4, 6.1.3–4, 6.5.2, 9.2 databases 8.2.17–22 declaration 9.2.1–2 definition for copyright 5.4.7 licences 5.2.2–16 acquiescence 5.2.23 by archivists and records managers 7.3.5, 9.3 collective licensing 5.2.12–15 contractual 5.2.2 copying 5.3.20, 5.4.1 Creative Commons 6.2.4 Crown copyright 5.2.7–8 databases 8.2.22 digitization projects 6.5.4 fees 5.2.24 gifts and deposits 7.3.1

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licences (continued) image libraries 5.2.25 implied 2.3.32, 5.2.2–3, 5.2.23 invalid 5.1.9 model licences 9.3 orphan works 5.2.20 responsibility 5.2.16 to the archivist 7.3.5 tracing the rights owner 5.2.16, 5.2.18–19 limitation periods 5.2.2, 5.2.23, 5.4.12 limitations. See exceptions literary works 2.2.1–2 abridgements, paraphrases and précis 5.1.8 adaptation 5.1.7 author 2.2.6–15, 2.5.5 co-author 2.1.23, 2.1.25, 2.2.14 computer programs 6.6 databases 8.2.3–6 definition 2.2.2 diaries 2.1.2, 5.2.4 duration 2.1.19–28, 2.2.16–33 educational use 5.3.19–20 exhibition 4.2.2, 4.2.6 fair dealing 5.3.7–14, 5.3.19 filming 2.4.7 moral rights 8.1.3–9 performance 4.2.7 presumptions about subsistence and ownership 3.2.39 publication right 8.3.5 qualification 3.1.1–4 revived copyright 2.1.23–26, 5.3.29 sound recording 2.5.5 local authorities councils 7.13.2 legal records 7.7.3 licensing 5.2.10 records 7.5 reorganization 7.5.4–10

logos. See artistic works London Transport 7.12.2 magistrates’ courts 7.7.2–3 maker 2.4.4, 2.6.7–9, 2.6.12, 2.6.16, 8.2.8 manor courts 7.7.3 records 7.10 manuscripts 2.1.7, 3.2.3–4, 3.3.3–4, 4.1.10, 5.3.18, 5.4.8, 5.4.13, 5.4.18, 7.1.3 maps 7.14 as artistic works 2.3.2 as (literary) compilations 2.2.3 copying 5.3–4, 7.14.7 marriage registers 7.7.13 material form 2.1.3 MCPS. See PRS for Music measures 2.2.30–31 Mechanical Copyright Protection Society. See PRS for Music medals 2.3.4 mediation 5.5 medical records 7.11 members of Parliament and other bodies 7.13 Metropolitan Police 7.7.10 migration of electronic materials 5.4.10–11, 6.5.8 ministers (church) 7.6.3, 7.6.5 ministers (government) 3.2.28–29, 7.1.3, 7.1.7, 7.13.2 ministry, religious 7.6.5 monopoly 1.1.11, 1.2.1, 8.6.1 moral rights 6.1.5, 8.1, 8.5.3 Motion Picture Licensing Corporation (MPLC) 5.2.12 Music Publishers Association (MPA) 5.2.12 musical works 2.2.1 adaptation 5.1.7 author 2.2.6–15, 2.4.9, 2.5.5 co-author 2.1.23, 2.1.25, 2.2.14

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musical works (continued) definition 2.2.5 duration 2.1.19–26, 2.2.16–32 educational use 5.3.19–20 examination 5.3.19 exhibition 4.2.2, 4.2.6 fair dealing 5.2.7–14, 5.3.19 filming 2.4.7 moral rights 8.1.3–10 performance 4.2.7 presumptions about subsistence and ownership 3.2.39 publication right 8.3.5 qualification 3.1.1–4 revived copyright 2.1.23–26 sound recording 2.5.5 names 2.1.16 National Health Service 5.3.22, 7.11.1–3 New Zealand 2.1.27, 9.1.4 news reporting 5.3.12 Newspaper Licensing Agency (NLA) 5.2.12 newspapers 2.1.10, 2.2.3, 3.2.11, 3.2.25–27, 5.2.3, 5.3.12, 5.4.10 non-infringement 5.1.13 non-parochial records 3.3.19, 7.6.3 Northern Ireland Assembly 3.2.38 bona vacantia 3.3.20 census 7.4.2 civil registration 7.7.12–13 Crown copyright 3.2.28–30, 3.2.33 freedom of information 5.4.4 legal records 7.7.2 police 7.7.11 probate 7.7.4 public records 5.3.2 office-holders 7.7.3, 7.13

official use 5.3.22–25 online access 5.3.20, 6.5.3 opera 2.2.1, 2.2.4–5 oral history 2.2.8, 2.2.10, 2.5.2, 5.2.12 Ordnance Survey 5.2.8, 7.14.7 Organization of American States 3.1.4 originality 1.1.6, 2.1.6–15 databases 8.2.3–4 manuscripts 4.1.10 presumptions about subsistence and ownership 3.2.39 quality 5.2.5 orphan works definition 5.2.17 diligent search 5.2.18 EU scheme 5.4.20, 7.3.1 licensing scheme (UK) 5.2.20 overseas copyright 1.2.5–10, 2.1.27–28, 3.1.1–4, 9.1.3–4 overseas infringement 5.1.17–18 owner 1.1.8 assertion of ownership 3.4 assignment 3.3.8–10, 3.3.13–14, 7.3.6–8 bankruptcy and insolvency 3.3.15–16 Crown copyright 3.2.28–33 diligent search 5.2.18 documents 3.2.3–6 electoral registers 7.8.2 employer 3.2.12–16 equity 3.3.17–19 first owner 3.2 inheritance 3.3.1–6 joint ownership 3.2.8–9, 3.2.15 journalists 3.2.24–27 lecturers 3.2.22–23 manorial records 7.10 office-holders, volunteers and members 3.2.21, 7.13 orphan works 5.2.17–18 Parliamentary copyright 3.2.34–38

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owner (continued) presumptions about subsistence and ownership 3.2.39 revived copyright 2.1.24 rights 5.1, 7.3.1 succession 3.3.7 teachers 3.2.23 tracing 5.2.18–19 unknown 5.2.17 universities 3.2.22 paintings. See artistic works PAMRA. See Performing Artists Media Rights Association paraphrase 5.1.8 parish records 2.1.5, 3.3.19, 7.6.2, 7.6.4 Parliament 5.3.22, 7.7.3, 7.13.2 Parliamentary copyright assignment 3.3.12 author 2.2.15, 2.3.11, 2.4.8, 2.5.6, 2.6.14 broadcasts 2.6.14 copyrights owned by Parliament 3.3.12 duration 2.2.31, 2.3.30, 2.4.18, 2.5.10, 2.6.14 films 2.4.8, 2.4.18 joint authorship 3.2.9 licensing 5.2.9–10 owner 3.2.34–38 proceedings 5.3.22 sound recordings 2.5.6, 2.5.10 typographical arrangement 2.6.16 parody 5.3.14 part-time staff. See employer passing-off 8.1.9, 8.6.9 pastiche 5.3.14 patents 8.6.7 paternity. See attribution performance 8.5.2 and archives 4.2.1 and publication 4.1.6

available to the public 4.1.11 broadcasts 4.2.9 films and sound recordings 4.2.8 literary, dramatic and musical works 3.2.7, 4.2.7 moral rights 8.1.11 public 4.1.2 qualification 1.2.7 rental and lending 5.3.18 restricted act 5.1.5, 8.5.3 performers’ rights 1.2.7, 3.2.7, 8.5 Performing Artists Media Rights Association (PAMRA) 8.5.7 Performing Right Society. See PRS for Music performing rights 8.5.1 permission. See licences perpetual copyright 1.1.7 petty sessions 7.7.2–3 photocopy 2.1.11 See also copying photographs artistic works 2.3.3 author 2.3.7, 2.4.3 commission 3.2.19 documentary 2.1.6 duration 2.1.19–26, 2.3.13–14, 2.3.17–19, 2.3.23–25 exhibition 4.2.4 films 2.4.1, 2.4.3 moral rights 8.1.3, 8.1.10 news reporting 5.3.12 originality 2.1.6, 2.1.11 orphan works 5.2.17–18, 5.2.20, 5.4.20 revived copyright 2.1.25, 5.3.29 photo-lithograph 2.3.3, 7.14.5 picture library 5.2.25 piratical copy 2.1.12, 5.1.17 planning applications 5.3.22–24 plans. See maps playing in public. See performance

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INDEX 357

plays 2.2.4 PLR. See Public Lending Right PLS. See Publishers Licensing Society police 7.7.10–11 police courts 7.7.2–3 poster 2.2.3, 2.3.2 précis 5.1.8 prerogative, Royal 3.2.30 prescription period 5.4.12 preservation. See copying presumptions about subsistence and ownership 3.2.39 prints. See engravings privacy 8.1.10, 8.7.5 private copying 5.3.30 private study 5.3.7–9, 5.4.12–13, 5.4.16 probate 7.7.4 property 1.1.3 PRS for Music 5.2.12 pseudonymous works. See anonymous works public 4.1.2 public domain 3.3.11, 5.3.2, 6.2.4 public inquiry 5.3.22 public inspection 5.2.7, 5.3.23–25 public interest 5.3.26–28 Public Lending Right 8.4 public performance 4.1.2 public records 7.4 copying 5.4.2–3, 5.2.7 databases 8.2.20 licensing of Crown copyright 5.2.7–8, 5.2.10 public sector bodies 5.2.10 information 3.2.30, 5.2.130 publication announcements 4.1.7 anonymous works 5.2.21–22 checklist 1.3.6 commercial 4.1.5

copying 4.1.9 definition 4.1.1–3, 4.1.6, 4.1.9, 4.2.7 electoral registers 7.8.5 exceptions 4.1.6–7, 4.2.7 internet 4.1.8, 6.2.2, 6.5.1 licensing 5.2.16, 5.2.11–20 manuscripts 4.1.10 orphan works 5.2.17–20, 5.4.20 publication right 4.1.4, 8.3.2 published works 4.1.6, 4.1.10, 4.2.7, 5.4.16–18 qualification 3.1.3 release 4.1.13 restricted act 5.1.3 transmission 4.1.14 without licence 5.2.16, 5.2.21–22 publication right 4.1.4, 4.1.11, 8.3 published editions. See typographical arrangement published works 4.1.6, 4.1.10, 4.2.7, 5.4.16–18 Publishers’ Licensing Society 5.2.12 qualification author 3.1.2 definition 3.1.1 place of publication 3.1.3 presumptions about subsistence and ownership 3.2.39 quality 5.3.5 quantity 5.3.4 quotation 5.3.11 railways 7.12.2 readers 1.3.1, 5.2.16, 5.4.22–23, 6.5.3 reasonable enquiry 2.1.18, 3.2.1, 5.2.1, 5.2.21, 5.3.29, 8.2.11 recording, author 2.2.10 records 1.3 See also archives, documents, manuscripts, public records

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records management 5.1.15, 6.5.6–9 registers, public 5.3.22–25, 7.6.4, 7.7.12–13, 7.8 registration of copyright 1.1.5, 1.2.1, 2.1.18, 9.1.4 release. See publication religious bodies 7.6 rental and lending 5.1.4, 5.3.18, 8.2.15, 8.4 reproduction rights 3.2.6, 4.1.5, 5.2.25–26, 7.3.6 Republic of Ireland. See Ireland research 5.3.7–9, 5.3.15, 5.4.12–13, 5.4.16 restricted acts copyright 1.1.9, 5.1 databases 8.2.6, 8.2.9 performances 8.5.3 publication right 8.3.4 reversionary interests 3.2.19, 3.3.13–14 review. See criticism revived copyright. See duration rights clearance 1.3.6, 5.2.16, 5.2.18–19, 6.5.4 digital rights information 6.5.5 digital rights management 6.1.7 tracing owners 5.2.16, 5.2.18–20 rights of the owner confidence 8.7.3–5 designs 8.6.3–4 moral rights 8.1.5, 8.1.7 patents 8.6.7 trade marks 8.6.8 See also restricted acts risk management 2.1.17, 5.2.16, 5.2.19, 6.5.4 Roman Catholic Church 7.6.3, 7.7.13 Rome Convention 1.2.7, 3.1.3 royal commission 5.3.22 Royal Irish Constabulary 7.7.11 Royal prerogative 3.2.30 Royal Ulster Constabulary 7.7.11 Russian Federation 2.1.27, 9.1.4

schoolchildren. See education Scotland bona vacantia 3.3.20 census 7.4.2 civil registration 7.7.12–13 Crown copyright 3.2.28–29, 3.2.32 freedom of information 5.4.5 legal records 7.7.2–3 local government 7.5.9 probate 7.7.4 public records 5.4.2 Scottish Administration 3.2.32 Scottish Parliament 3.2.37 sculptures 2.3.4, 4.2.5 See also artistic works seals 2.3.4, 4.1.3 See also artistic works search for a rights owner 5.2.16–19 secretary 2.2.8 self-service copying 5.1.12, 5.4.22–23 showing in public. See performance signatures as copyright works 2.1.16, 2.3.2 Singapore 2.1.27, 9.1.4 skill 2.1.6–7, 2.1.11, 2.2.3 societies and clubs 4.2.8 software 2.2.2, 6.5.1, 6.6 songs 2.1.2, 2.1.23, 2.2.2–3, 2.2.5, 2.2.14 sound recordings author 2.5.4–5 commission 3.2.20 copying 5.4.9, 5.4.13, 5.4.15, 5.4.19 definition 2.5.1–2 duration 2.1.23, 2.5.7–10 educational use 5.3.20 film sound tracks 2.4.1–2, 2.5.3 originality 2.1.13 performance 4.2.8 performers 2.5.7, 8.5.5

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INDEX 359

sound recordings (continued) playing in public 4.2.8–9 presumptions about subsistence and ownership 3.2.39 qualification 1.2.7, 3.1.1–4 release 4.1.13 sound tracks 2.4.1–2, 2.5.3 South Africa 9.1.4 Stationers’ Hall 1.2.1 statutes 11.2 statutory inquiry 5.3.22 statutory instruments 11.3 statutory use 5.3.22–25 students. See education substantial part 1.1.10, 5.3.3–5 quality 5.3.5 quantity 5.3.4 successor bodies 3.3.7 summaries 5.1.8 Switzerland 9.1.4 synagogues 7.6.3, 7.7.13 tables 2.2.2 teachers. See education technological measures 6.1.7 temporary copy. See transient tenants in common 3.2.8 term of copyright. See duration text and data mining or analysis 5.3.15 theme. See ideas three-step test 5.3.1 time-shifting 5.3.31 tithes 7.14.10 titles 2.1.16, 5.3.5 tracing rights owners 5.2.16–19 tracings 5.1.2, 5.1.8, 5.4.24 trade marks 8.6.8 transcripts 2.5.1, 5.1.8, 5.4.24 transient 5.1.2, 5.3.6, 6.1.2 transitional provisions 1.2.4 translations 2.1.4, 2.1.7, 2.1.12, 3.2.7,

5.1.7–8 transmission. See publication transport records 7.12 treaties 1.2.6–7, 10.3, 11.1 TRIPS Agreement 1.2.6, 10.3 triviality 2.1.16 trust. See equity Turkey 9.1.4 typefaces as artistic works 2.3.2 duration 2.3.32 use for printing 2.3.32 typographical arrangement author 2.6.16 definition 2.6.15 duration 2.6.17 fair dealing 5.3.7–14, 5.3.19 originality 2.1.15 qualification 3.1.1–4 substantial part 5.3.3–5 underlying work. See derivative work uniqueness 1.1.6, 8.6.1 United Nations 3.1.4 Universal Copyright Convention 1.2.7, 10.3, 11.1 universities 2.2.33, 3.2.22–23 unknown authorship. See anonymous works unoriginal work 2.1.7 unpublished works artistic works 2.3.13–26, 7.14.4–5 civil registers 7.7.12 common law 1.2.2, 3.2.16 communication to the Crown or National Health Service 5.3.22 copying 5.4.2, 5.4.6–14, 5.4.20–24, 6.5.2, 9.2.1, 9.2.3 Crown copyright 2.2.21–22, 2.3.21–26, 2.4.18, 2.5.9, 5.2.7–8

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unpublished works (continued) definition 4.1.3 duration 1.1.7, 2.1.23–28, 2.2 passim, 2.3 passim, 2.4.14, 2.4.17, 2.5.8–9, 9.1 films 2.4.14, 2.4.17–18 folksongs 5.4.10, 5.4.21, 9.2.3 literary works 2.2.17, 2.2.20 orphan works 5.2.17–18, 5.2.20, 5.4.20 outside the UK 2.1.24, 2.1.27–28, 3.1.2, 3.1.4, 7.1.5–9, 9.1.3–4 Parliamentary copyright 3.2.35 publication 5.4.6, 5.4.15 publication right 8.3.1–2 sound recordings 2.5.8–9 USA 1.2.1, 2.1.27, 9.1.4 Valuation Office 7.14.11 visually impaired persons. See disabled persons voluntary service 3.2.21, 3.3.19, 5.2.2, 7.13 waiver 3.3.11, 8.1.4 Wales bona vacantia 3.3.20

census 7.4.2 civil registration 7.7.12–13 Crown copyright 3.2.28–31 freedom of information 5.4.4 legal records 7.7.2 local government 7.5.5, 7.5.8 probate 7.7.4 public records 5.4.2 WATCH 5.2.18, 10.3 Welsh Assembly 3.2.36 Welsh Assembly Government 3.2.31 websites. See internet wills 2.2.14, 3.3.1–6, 7.7.4–5 WIPO 1.1.1, 1.2.6–7, 4.1.2, 5.1.4, 5.2.1, 10.2–3, 11.1 witness statements 7.7.8 works 1.1.4, 2.1.1–3, 2.2.1–5, 2.3.1–5, 2.4.1–2, 2.5.1–3, 2.6.1–2 World Intellectual Property Organization. See WIPO Writers, Artists and Their Copyright Holders. See WATCH writing 2.2.2, 2.2.4–5, 2.3.2 writs 7.7.7

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