I want to use what I think is a copyright work—what can I do with it?

Finding a document or an image, perhaps online, that perfectly fits the project you are working on can be deeply satisfying. However, various questions arise (or should arise) such as: how do I know I can use it, are there any restrictions on use and do I need to do anything before I use it?

 

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https://www.flickr.com/photos/86979666@N00/

What is a copyright work?

A sensible starting position would be to acknowledge that copyright may exist in a work. Copyright recognises the skill and labour expended by an author in creating a work but this is not so much about ideas as about the way they are expressed. In the UK, copyright is not a registered right: it arises automatically in specified categories of works. These categories are original literary, dramatic, musical or artistic works, sound recordings, films or broadcasts, and typographical arrangements of published editions. A degree of skill, judgment and labour is required for copyright to subsist but there is a low standard for this in the UK. It is likely that an 'arty' image or a published article would have copyright protection.

A work may in fact, be comprised of many works, each with its own copyright protection. For example, audio-visual works such as film and television works, may contain moving and still images, speech and music.

If a work is protected by copyright it gives the owner a right to restrict what happens to that work. If a work is protected by copyright you can't copy the work, issue copies of it to the public, rent or lend it, perform, show or play it in public, communicate it, adapt it, or do any of the restricted acts just mentioned in relation to an adaptation, without permission.

Is it in copyright?

It is more likely than not that the target work is in copyright. Some works are in the 'public domain'. This means that they were protected by copyright but the term of copyright has expired, or copyright doesn’t apply for another reason such as because they are Crown works. Copyright lasts for a long time compared to other rights. As a rule of thumb, copyright expires, in for example a literary work, 70 years from the end of the year in which the author dies.

Modifying or changing a protected work

You cannot take all or a 'substantial' part of a protected copyright work. The person reproducing the derivative work based on, for example, the code, literary article or image should ask themselves, (as a rule of thumb) why they are taking that original work or part of it, and creating something from it. The beautiful or clever bit is most likely the bit that is protected, recognising the skill and effort that went in to producing it: it's a qualitative assessment so taking small amounts can suffice.

Producing a translation of a protected work can result in copyright infringement.

Seeking permission

If you believe that copyright does subsist in a work you should obtain permission from the owner (this is not always the author) of the work before using it unless you have obtained the work from a legitimate source that already expressly gives permission, or unless you are permitted to use it for another reason (see permitted uses below). The current or last known publisher is often the best place to start your search. Websites such as Flickr exist to promote the sharing of user-generated images but this is subject to their terms and conditions (for Flickr called 'community guidelines'). While you may be able to use an image, there maybe restrictions attached to that use. Therefore if you find your target work (an image or another work) on a website you should check the terms and conditions of that website or contact the webmaster for guidance on use.

For more mainstream works or works that are more widely available, the best way to obtain permission is often to contact a collecting society who will be able to provide you with a licence if it deals with the work in question. This may be done on-line.

When you locate the copyright holder, permission for use may or may not be granted. You may have to pay royalties.

If you undertake a search on the internet or by approaching a collecting society with the aim of obtaining permission or a licence to use a work, but cannot locate the owner of the copyright work, then you may be dealing with an 'orphan work'. There are plans to introduce legal provisions and schemes to deal with orphan works in the UK, and the EU has also adopted a Directive on certain uses of orphan works which has to be implemented in the UK by October 2014. For the timing being the primary position is that if the orphan work is protected by copyright, to use it would be an infringement (unless you are otherwise permitted).

Moral rights are about reputation and integrity of the author and exist separately to copyright or any other intellectual property rights in the work. You should also deal with moral rights when seeking permission for use.

Permitted uses

Some protected works can be used or copied without permission. There are a number of specific exceptions to copyright infringement known as permitted acts. The main permitted acts are fair dealing for the purpose of non-commercial research and private study and fair dealing for the purpose of criticism, review and news reporting. This kind of permitted act is done for personal study, or for public interest reasons, hence the requirement for fairness and for sufficient acknowledgement of the author. Educational and Incidental copying are also permitted in certain circumstances.

New permitted acts and changes to existing permitted acts are due to come into force (some on 1 June 2014 and some a little later on in the year)  including an exception to copyright infringement for personal copying for private use (for the purpose of format shifting). This will not come into force on 1 June 2014; it's been delayed slightly.

Creative commons

Some copyright protected works such as educational course materials, photographs, songs and even blog posts are available for use via a Creative Commons (CC) licence. CC licences may have some or no rights reserved, for example all use including commercial use might be permissible as long as the source is attributed. For more information see the CC website.

The availability of a CC licence will usually be indicated on the website on which the work appears. CC does not collect content or track licensed material. However, CC has a technical tool that allows the public search for and use works licensed under its licenses. search.creativecommons.org is not a search engine, but offers access to search services provided by other independent organisations, for further details see CC search.

Infringement

If you do one of the restricted acts in relation to a copyright protected work, without permission, and no other exception applies then you may be liable for copyright infringement and infringement of other intellectual property rights. If the case goes against you at a trial, you may have to pay damages and legal costs. Although many cases of infringing use go unchallenged, the Intellectual Property Enterprise Court (formerly the Patent County Court) has seen a rise in low value copyright infringement proceedings being issued.  Damages may not be awarded where the infringement is shown to have been innocent because the defendant did not know of the intellectual property right or had no reasonable grounds to believe it existed. However, the innocent infringement defence is applied very narrowly by the court and rarely succeeds.

Linking to a work

Linking, which creates a copy of a website page on the receiving user's computer when the link is opened, may result in copyright, database right and/or trade mark infringement, passing off and breach of terms and conditions of use of websites. Most linking to materials freely available on the internet is permitted, even where use is commercial.

What's next?

Because we live in a digital age, using the work of others with or without permission, has become much more commonplace. The law is changing (new copyright exceptions are due to come into force on in June and (possibly) October 2014 in the UK and a review of exceptions at a European level is coming) and at the same time there is movement towards a more collaborative culture when dealing with digital works. This is one factor that may be taken into consideration when scoping the risks of using a copyright protected work. Another factor you may consider, is the availability of content identification systems, making it easier for copyright owners to track use of their content online.

This piece is taken from a wider note on the subject available from Lexis®PSL IP & IT 

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