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A note on copyright

An 'author' (eg, a writer or an artist) who puts his work into the public domain needs to have some knowledge of the law of copyright for two reasons:
(a) to protect his own rights (if necessary), and
(b) to avoid infringement of the rights of others.
I put together the following notes to help myself to understand the law. I have set them out here in the hope that others may find them useful. I should warn readers that the law of copyright is complex and that these notes may contain errors. There are certainly many areas of the law that they do not cover.

Before delving into the law of copyright it is useful to briefly consider the relationship between plagiarism and fraud, and the position on patents. In the UK infringement of copyright is a civil offence and the remedy has to be found in the civil courts. Fraud, which involves deception or misrepresentation to gain an advantage or to injure the rights of others, is a crime for which the perpetrator can be punished by a fine or by prison. In the USA the position is slightly different, there the wilful infringement of copyright for commercial advantage or private gain may also lead to a fine or imprisonment. This illustates the fact that the line between the breech of copyright and fraud is very narrow. The protection of rights by patent is also closely related to that of copyright. Governments grant patents to inventors to give them ownership rights for a limited period. To be patentable an invention must be totally new and capable of being used in some kind of industry. In the UK and Europe an invention has to be a physical object whereas in the US it can also be an algorithm, a method, or a way of doing something.

Most advanced countries have their own copyright laws and following notes are principally concerned with the position in the UK. But there are international conventions, which create a degree of conformity. One of these is the Berne Convention, the other is the Universal Copyright Convention (UCC). The former has higher minimum standards than the latter but neither, I think it is fair to say, is as universal as some in the West might like! Both of these conventions were brought up to date at a meeting in Paris in 1971. The main principle behind the conventions is the creation of reciprocal rights for the nationals of a member state in the other member states. Under the UCA copyright lasts for the life of the author 25 years after his death. Under the Berne Convention it lasts for 50 years after the death of the author. Some countries extend these provisions. For example, in the UK, EU and the USA, copyright protection lasts for 70 years after the death of the author.

Copyright law affords protection to a range of categories of work. Those with which I an concerned here are "original literary and artistic works". What that phrase means, in this context, is that the work is the result of the skill and effort of the author. It does not necessarily have to be innovative or have artistic merit. The initial owner of the copyright in a work is its author, that is, the legal entity that created it. This may be an individual person but it may also be a group of people or an organisation such as a company.

The copyright to any work produced by an employee of an organisation is owned by the employer. For example: some years ago some writing I did, when employed by a body funded by the Government, was published - I had no rights in relation to that work, nor did I expect to. In certain circumstances, such as when working to a commission, the author may relinquish the copyright of a work. This is usually done at the commencement of a project.

There are a number of ways in which the author may transfer restricted rights to a third party. The rights may be licensed to another person for a period of time, for a particular geographic region or to a particular publication. For example, in the UK the author of an article may sell the ‘First British Serial Rights’ to a magazine. This means the magazine has the first use of the article but as soon as it has been published the rights revert to the author. The author can then sell the rights in any way he/she pleases. I believe a similar arrangement exists in the USA. I have always sold my articles on this basis. No authors should sell the whole of the rights of articles unless they are satisfied that the fee is sufficient to take that into account.

In contrast to articles the copyright in a book is usually licensed to the publisher either for a fee, for royalties or, sometimes, both. Usually the license will be restricted to a particular geographic area. It may also be restricted to specific applications; thus the rights may be split between such things as hardback and softback books, translation into other languages and film or television.

Copyright gives authors the ownership of their works and the right to sell, or otherwise dispose of them, in the manner described above. This enables the author receive some recognition for his/her work and, possibly, to obtain some financial reward. Without this right there would be little incentive to produce the work. In the case of articles relating to woodturning infringement of this right will usually be the result of plagiarism (i.e., copying). Proof of copying is usually substantiated by showing that there are close similarities between the alleged copy and that claimed to be the original. In the case of the written word this means that permission from the owner of the rights should usually be obtained even for relatively short quotations. Photographs, drawings and plans are protected in a similar manner. There are certain exceptions to this. In many countries these are concerned with the concept of ‘fair use’. This means that permission may not be required for limited use for such things as non-commercial research, private study, teaching, criticism and reportage.

It should be noted that copyright protection is concerned with the form in which an author expresses his ideas, but it does not protect the ideas themselves. So, for example, if I write an article on how to turn beads and coves the form of the words I use would be protected but not the idea of such and article. If this was not the case then my article would infringe the rights of others as such an article has been written many times.

In the UK copyright does not protect industrial (as opposed to artistic) products although it may protect the drawing from which the article is made. Thus, it seems that copying an artistic work such as a piece of sculpture would be an infringement of copyright, but copying an industrial design for something, such as a new bicycle, would not. However, the legislation does provide for a ‘design right’. This applies to a design which is original and not commonplace. Like copyright, it is an automatic right, but it is effective for only a very limited period. A design right can be registered with Patent Office for a small fee. This extends the protection and the time for which it lasts.

As far as written work is concerned the position in regard to copyright is relatively clear. What is much less clear in the UK (and probably elsewhere) is the status of woodturning techniques and objects such as a piece of turnery. It seems that in the woodturning world that as soon as new techniques or new forms are introduced they quickly become widespread. There seems to be little that the originator can do (if he/she so wishes) to retain the rights. In woodworking magazines I have noticed that an author will sometimes state that the readers have the right to make one copy of the article described providing it is not for sale. Such restrictions will, however, be difficult to enforce. This being the case I think that most authors of instructional articles for making specific objects have to accept that readers might make multiple copies and, possibly, offer them for sale.

Unless a criminal offence has been committed, such as fraud, the remedy for infringement of copyright has to be found in the civil courts: (a) to put a stop to the infringement and (b) to obtain compensation. The problem for most woodturners is that the cost of such an action, and the uncertainty of the result, would mean that it would not be worth undertaking. However, it might be worthwhile to have a solicitor send a letter to the copier that made it clear that the author was aware of the infringement and demanding that the copying be terminated. In the case of published works such as books the publisher, being the owner of the copyright, may decide to take action.

In most countries copyright exists as soon as a work has been recorded in an appropriate medium; as a consequence it is not strictly necessary to put a copyright notice on a written work. Nevertheless, it is advisable. In the first place it may act as a deterrent to copying. In the second place, if damages should be sought, the absence of a copyright notice might mean that the compensation awarded would be reduced. The copyright notice should be comprised of three elements: either the copyright symbol © or the word ‘copyright’; (b) the name of the owner of the copyright; and (c) the date of first publication.

© Brian Clifford, December 2005 (revised 3 January 2007)