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Copyright

Copyright basics

Copyright is the right to copy. Copyright only exists in the concrete expression of an idea, not in the idea itself. It is automatic; you do not have to register it. The © symbol is not necessary, although it does tell the reader who owns the copyright, and when the period of copyright began.

The protection given by the law to the owner of the copyright, in recognition of the time and effort taken to create the work, ensures a fair balance between the needs of the copyright user and the rights of the copyright owner. People need to be able to copy material produced by others, but if there were no limits in place, the owners of the copyright material would not be remunerated for their work, and there would be no incentive to create further work.

Literary works

Copyright in literary works covers anything which is in written form, either print or electronic, and so includes articles, books, websites and unpublished documents. There is no implication of literary merit - the idea simply has to be expressed in words. Copyright lasts for 70 years from the death of the author.

Artistic works

Copyright in artistic works covers photographs, diagrams and charts. There is no implication of artistic merit - it simply means ideas which are represented graphically.

Typographical arrangement

Copyright in the typographical arrangement refers only to the layout of the words on the page, and not to the words themselves. There could be instances where the words themselves are out of copyright (for example, one of Shakespeare's plays), but the typographical arrangement is still within copyright. Copyright lasts for 25 years after the publication of the item.

Database right

Database right refers to copyright in databases, which actually includes any arrangement of facts or figures, both print or electronic. In practice, however, it really only applies to electronic databases, as a printed source, such as a directory, has virtually no value when it is no longer current. Database right lasts for 15 years from any 'substantial' revision of the database, which for a source such as our journal databases, is an ongoing process, and as such, copyright in databases can be considered to be infinite.

The copyright is 'owned' initially by the copyright owner, which is often the author, but ownership often passes to someone other than the author, for example as part of an author's contract with a publisher when the work is published. If this happens, the original author has no more right to make copies than anyone else, although in practice the publisher will usually give the author dispensation to make reasonable use of the work.

The copyright of works produced during the normal duties of employment usually belongs to the employer, rather than the individual author, unless special provisions for the author to keep his or her own copyright have been agreed in the contract of employment.

Copyright is protected under the terms of the Copyright, Designs and Patents Act, 1988 (and subsequent amendments), and is intended to protect the moral and financial interests of the copyright owner, as well as to permit the users of such work to copy within reasonable limits. These limits are governed by a provision called fair dealing, while other rights assigned to the copyright owner are called moral rights.

Should the owner of a copyright-protected work feel that their copyright had been infringed, they would sue (i.e. take civil, rather than criminal action), but they would have to demonstrate that financial or moral damage had been done.

Under the terms of fair dealing, individuals can make single copies of a portion of a work for their own private and non-commercial use, provided that the amount copied is not ‘substantial’. The law uses the term 'substantial' to refer to quality, quantity, and proximity of time, without ever clearly defining it. This is deliberate, allowing individuals to argue for the legality of their particular copying, should they be accused of infringement.

Another important aspect of fair dealing is the fact that the purpose of the fair dealing provision is specifically to enable individuals to copy reasonable amounts from copyright-protected works for their own use. Under the terms of fair dealing, you cannot copy substantially the same material, at substantially the same time, for substantially the same purpose. This generally translates to an agreement that more than one article or one chapter of a book would be substantial, but that copying within the accepted limits would not. However, when the concept of substantiality is applied to photographs, diagrams or charts (known as artistic works), it makes it virtually impossible to copy an 'insubstantial' portion, and so in theory, copying of artistic works is not really feasible under fair dealing. However, bearing in mind the basic principles governing copying for personal, non-commercial use, and copying which will not subsequently be re-published in any way, reasonable personal copying of artistic works would be unlikely to be considered infringing.

It is also an infringement to copy more than the permitted amounts 'at substantially the same time'. This means that if you were to copy one article from an issue of journal one day, and another article from the same issue the next day, you would be infringing copyright because the copying could be judged to be being done at substantially the same time, although it could be argued that such copying could be legal, if it were for completely different purposes.

As well as limiting the amount that can be copied, the law also gives the author a number of moral rights, and an author can also sue if his or her moral rights have been infringed.

The author of the work has the right to be recognised as such; you may sometimes see the phrase "The author asserts his (or her) moral right to be identified as such in accordance with the terms of the Copyright, Designs and Patents Act 1988", but the right is automatic, and there is no requirement for the statement to be present. This means that an author can sue for copyright infringement if someone else presents a 'substantial' (in the view of the presiding judge) portion of the work as their own.

The author has the right not to have their work amended, or subject to derogatory treatment. This means that an author can sue for infringement if work which is clearly theirs has been re-typed and amended, or if results or findings are changed, or if the language is altered, or if it is misrepresented by being used in a misleading context.

It is also a moral right not to have something wrongly attributed to you, and a company might sue under this provision if counterfeit (and therefore inferior) products were being sold under their name. This is also known as 'passing off', i.e. passing one idea, product or service off as something else.

If fair dealing exists to permit individual use of copyright protected works, the re-publication of such works is by definition an infringement (with the exception of insubstantial and properly attributed quotations), and such use would require the written permission of the copyright owner.