Flashcards in Media Law 22: Copyright Deck (59):
main legislation for copyright law
- Copyright, Designs and Patents Act 1988
types of work covered by CDPA 1988
- original literary, dramatic, musical or artistic works
- sound recordings, films or broadcasts
- typographical arrangements of published editions
what counts as 'original'
- author's own work
- doesn't have to be strikingly imaginative, unusual or new
what counts as a 'literary work'
- 'any work, other than a dramatic or musical work, which is written, spoken or sung'
- essentially 'literary' means it's capable of being written down
- common examples: books, newspaper and magazines features, stories, interviews, speeches, song lyrics
- less obvious: computer code, databases, tables
what thing of words does NOT count as a 'literary work'
- anything without substance (e.g. catchphrases or slogans)
what if two works are very similar?
- can still both be copyrighted
- so long as similarities arose accidentally
what counts as artistic works?
- photographs, maps, graphics, drawings
- MUST have some tangible item produced as a result of the work
what counts as sound recordings?
- any recording of sound, regardless of how it is made
what counts as film?
- any recording of moving images, regardless of how it is made
what counts as broadcast?
- any transmission of images/sounds/info to public
- NOT internet transmission UNLESS part of concurrent live event or another transmission
what niche activity is specifically prohibited in the CDPA 1988?
- 'screen grabs'
DEF: typographical arrangements
- way a page is laid out
- protects against unlawful photocopying
why is copyrighting ideas very limited
- ONLY if they are in a tangible form
- NOT ideas in non-permanent form
- NOT words spoken but not written down
where should journos be most careful about idea copyright?
- pitching to editors (although this can be covered under confidentiality)
is news/information covered by copyright? why/why not?
- NO, just the way the story is written
- BUT can't just lift wholesale (e.g. use substantial bits of original writer's words or quotes without mentioning them)
- public interest in news being spread as widely as possible
when (and when aren't) speeches and interviews copyrighted?
- if speech written down, speaker owns copyright
- if speech recorded, recorder owns copyright of recorded words
- if speaking off the cuff, copyright only occurs once accurately written or recorded (words belong to speaker, tapes/notes belong to reporter)
DEF: copyright covering documents published on behalf of Government
- Crown copyright
- licence usually issued to allow small amount of document to be published
in which official information does copyright law rarely apply?
- documents designed to be available to public scrutiny (usually)
- words in Parliament
- reporting words spoken in court
when does copyright kick in?
- as soon as the work is created
who has ownership of copyright?
- usually the creator
- UNLESS created as part of employment, then employer usually owns it
- sometimes publications buy copyright with the article (known as buying 'all rights')
- can use in any way they please, without further payment or permission
- freelancer can refuse this and give permission for publication once
- if they haven't stated otherwise, readers give permission to publish their letter
- the reader still owns copyright
who owns copyright of photograph
- after CDPA: photographer (this includes wedding/school/family photos)
- before CDPA: whoever commissioned it (so a wedding photo would probably be owned by the couple)
what other area of law is covered by photos
- privacy (if photo commissioned for 'private and domestic purposes')
ways of transferring copyright
what is an assignment?
- essentially selling your copyright, so the work is owned by someone else
- has to be written and legally binding
- regular freelances often sign form, others do it on article-by-article basis
what is a licence?
- permission to use a work in a particular way / for a particular length of time
- licence granting exclusive use of material must be written and legally binding
things to remember when commissioning work
- permission for magazine does not cover your website
- photographs cannot be used again without permission
- sending a commissioning form needs to be done at time of commission for it to have legal effect
what is the most important infringement of copyright for journalists?
- copying (reproducing 'substantial part' of another's work)
how is 'substantial part' defined when accused of copying
- NO set definition
- quality (i.e. importance to original work) is considered as much as quantity
parodies and copyright
- can be breach of copyright if too similar to original
- courts more lenient with political/topical comment than parody for commercial purposes
DEF: condition given with licence restricting use of work before certain date
limits to length of copyright (brought in by CDPA 1988)
- literary/dramatic/musical/artistic works: 70 years from creator's death
- if creator unknown: 70 years from publication
- sound recordings: 50 years since they were made
- film: 70 years from death of last to die out of director, writers, composer of original score
defences against breach of copyright most useful to media
- fair dealing / news and review
- incidental inclusion
- public interest
- reproduction of speeches and interviews
when can you use fair dealing (news and review) defence
- material used for purpose of current affairs or criticism/review
- copyright holder receives 'sufficient acknowledgement'
- amount used is fair
- material already public
what material can be used in fair dealing (news and review)?
- written / spoken words
- film clips
- 'artistic works'
- government / local authority reports available to public
what is NOT covered in fair dealing of current affairs?
- this includes any family snaps another publication may have gotten hold of
what material can be used in fair dealing for criticism and review?
- obviously the work itself
- other copyrighted material to show themes of work being reviewed
CASES with fair dealing defences
- Pro Sieben Media AG v Carlton UK Television Ltd (1999)
- Fraser-Woodward v BBC (2005)
Pro Sieben Media AG v Carlton UK Television Ltd (1999)
- Pro Sieben had rights to TV interview with Mandy Allwood, British mother of octuplets
- Carlton used interview in own show about chequebook journalism
- judge ruled this was OK because Allwood had been paid by newspapers for her story
- Pro Sieben logo in corner was controversial defence
- only 30 secs of 9-minute interview
Fraser-Wooddward v BBC (2005)
- photograph agency sued BBC for using their images in report on tabloid press
- judge ruled it was a criticism of work of tabloids, so worked under fair dealings defence
what counts as a 'current event'?
- NOT just events at or near time of reporting
- Diana and Dodi relationship years after death (still news...)
- dodgy meetings, etc, only just coming to light
rules about 'sufficient acknowledgement'
- often doesn't count for sound/film where not practicable
- MUST name the source (e.g. not "the author of a book on the subject...")
- if anonymous or unpublished, no need to acknowledge if reasonable enquiry made
- no need to thank source, just to name
what is 'fairness' in fair dealing defences? what do courts look at?
- about quantity of material used (NOT what's written about it)
- cannot be 'illegitimate exploitation'
- courts look at whether that amount of material had to be used
- whether it impact commercially on copyright owner
BBC v British Satellite Broadcasting Ltd (1992)
- BSB paid lots of money for World Cup 1990 matches, which BBC then showed in news reports
- judge ruled sports reporting was current affairs
- resulted in industry-wide agreements about using each other's sports footage
what if material was acquired in unauthorised way?
- fine as long is it wasn't illegal (i.e. theft)
public availability in 'fair dealing'
- MUST have already been available to public for defence to work
- can count as a number of people having seen it
- does not count if it was made available to public via 'unauthorised act'
what do broadcasters do that can make fair dealing NOT count?
- draw up agreements allowing/prohibiting use of each others' materials
what is 'incidental use' in copyright law?
- small amount of copyrighted material it would have been hard to avoid
what rules apply to media using spoken words they've recorded (though speaker owns copyright)?
- must be direct recording of words, not of another recording
- speaker hasn't said a recording should not be made
- words themselves do not breach existing copyright
- speaker has not prohibited use of words before they were recorded
- person who made recording has given consent
where has public interest in copyright come from?
- NOT the CDPA itself
- courts recognised it over the years (e.g. review of potentially misleading drink driving device)
what is acquiescence in copyright law?
- owner of copyright knows work is being used and doesn't make complaint at the time
what happens in innocent infringement defences in copyright law?
- defendant didn't realise material was under copyright (e.g. wrongly believed material had gone out of copyright)
- copyright owner can claim account of profits, but NOT damages
remedies for copyright infringement
- interim injunction (prevent publication going ahead)
- permanent injunction (prevent further publication)
- account of profits
types of damages that can be awarded
- 'infringement damages' amounting to copyright fee that would have been paid
- 'flagrant damages' higher to note court's disapproval
DEF: rules about right to be credited for work
- right of paternity
- NOT automatic like copyright
- covers authors but NOT journos (why there's no automatic right to byline)
- if fair dealing defence, author doesn't have to be credited (unless they own copyright)
DEF: rules about right to influence how work is used/altered
- right of integrity
- NO 'unjustified modification', has to be 'reasonable' and not affect author's reputation
- NOT applied to newspapers/magazines (e.g. photos for news)
DEF: writing words in such a way that gives misleading idea of who wrote them
- false attribution of authorship
- doesn't matter if it affects reputation or not (unlike defamation)