Copyright Law Basics
Legislation in this area aims to balance the rights of copyright holders with the interests of the public who wish to have access to, and use, copyright material. The 1988 Copyright, Designs and Patents Act defines copyright as a property right which can be licensed, given away or assigned (i.e. sold) to someone else, permanently or for a limited period. There are exceptions which allow some limited use of copyright works without infringement (see BIF 218 Copyright).
Length of copyright is covered in BIF 218 Copyright. Music arrangers have copyright in their arrangements, whether the original work being arranged is in copyright or in the `Public Domain'. Before an arrangement of a copyright work can be exploited, permission from the copyright owner of the original work must be obtained.
The licensing of new technologies (e.g. online services) is constantly being developed. Under UK law, material stored on web servers or sent over the Internet is protected by copyright and generally will be protected in the same way as material in other media. The New Technologies Division should be contacted for advice in this area.
Copyright exists in music and separate copyright exists in any lyrics. If sound recordings of music are made, the permission of right(s) owners for any music and lyrics involved is needed. Producers of sound recordings also have copyright in the sound recording and there is also separate copyright in any film including music. If broadcasters wish to use sound recordings, they need permission from the producers and composers Performers have rights similar to copyright in their live performances or recordings of their performances.
Copyright Owners Rights
If you have the copyright to a composition, its arrangement or a recording, you have a certain rights under the 1988 act.
- To be identified as the composer;
- Not to have another's work attributed to you;
- To object to derogatory treatment of your work.
(These rights are limited, so seek legal advice. they do not apply to producers of sound recordings)
Restricted acts. You may (or may authorise others to)
- Copy the work;
- Play, perform or show the work in public:
- Adapt the work;
- Issue the public with copies;
- Broadcast the work or include it in a cable broadcast;
- Rent or lend the work to the public.
In practice, some of these rights (or their administration) are usually assigned to others (e.g. licensing agencies) by the holder of the copyright, although there is no obligation to do this. Copyright is generally infringed by anyone who undertakes a restricted act in respect of a copyright work without authorisation
The Performing Right Society Ltd. (PRS)
The PRS deals with the administration of copyright owned by composers and music publishers.
It issues blanket licence's to music users, broadcasters, etc to use any copyright music which the Society controls. Without these, if you want to play or perform copyright music in public you must get the permission of each copyright owner.
- Licence's are issued for premises rather than individuals, so the owner should apply. If you use others' premises, check that they are licensed.
- The extent of PRS membership and the reciprocal agreements with similar organisations abroad ensures most musical compositions are covered.
- The licence must be obtained before music is played. There is a tariff system of payment. With some publicly performed work a proportion of ticket sales revenue must go to the PRS.
- Some live venues must give the PRS details of all music performed there.
The PRS works on behalf of composers, songwriters or music publishers. Royalties are distributed as far as possible in accordance with the extent of a composer's work performed in public. By joining, you assign to the PRS the rights to: perform your works in public; broadcast them, or use them in cable programme's.
Phonographic Performance Ltd (PPL)
The PPL represents the recording industry, issuing two kinds of licence's:
- Blanket licence's (usually for a year) for the public performance or broadcasting of PPL members' sound recordings. Any business which plays recorded music (e.g. pubs, hairdressers, etc) should have a PPL licence, covering nearly all recordings. The licence will be in your name so you cannot lend your tapes out. You can then play music (in its original format) in public. You cannot play recorded music you have taped or make your own compilations.
- Dubbing licenses, allow you to create your own compilations. These cost about £25,000 pa, and are taken out by companies making up and supplying tapes by subscription, e.g. to aerobics instructors.
- If you own the copyright to record pieces of music (e.g. you run a small record label) and join the PPL, then the licensing is done for you. Licence fees are paid out to record companies to performers.
Video Performance Ltd (VPL) is a division of the PPL. It represents music video producing record companies. On behalf of these companies they issue public performance licence's to those wishing to broadcast on perform music videos in public (e.g. television stations, leisure companies, ere). VPL licence holders have access to several thousand music videos which can be used for public performance
The Music Publishers' Association Ltd (MPA)
The MPA issues its own Code of Fair Practice, agreed between composers, publishers and users of printed music.The Association has agreed with members to allow music copying in some circumstances.
These "permissions" include:
- Orchestral musicians needing to make one copy of a section of work they're performing, because of a difficult page turn may do so. Only part of a work may be copied. If the work is hired, the copy must be returned with the other hired work.
- If the work is to be hired again, a single copy may be made to retain bowing and fingering marks. The copies cannot be used for performance on reproduction.
- If works are damaged before a performance and there isn't time to buy on hire a replacement, then a copy may be made as long as it is destroyed on returned with the hire set after the performance. Publishers may grant other permissions. You should apply in writing.
There are also `prohibitions', including:
- Copying works supplied on approval.
- Copying whole works or movements (with some exceptions).
- Copying to evade hiring on buying.
- Copying under a blanket licensing scheme.
Copyright disagreements can go to arbitration. If you are unsure about the identity or whereabouts of a copyright owner, consult the MPA for help and for further information.
The Mechanical Copyright Protection Society Ltd. (MCPS)
The copyright in a sound recording is separate and distinct from the copyright that exists in the original musical composition. MCPS represents thousands of music composers and publishers (i.e. music copyright owners) in the UK and throughout the world. They license anyone wanting to make recordings of its members' musical works, collecting and distributing to them any royalties earned.
- The making of a recording (and any subsequent duplication) is known as the Mechanical Rights and, as such, MCPS operates a wide range of licensing schemes to cover the varied ways in which `users' may wish to record musical works (whether for retail sale on incorporation into broadcast material, corporate videos, etc).
- If you wish to record musical works for manufacture of audio products (e.g. CDs, Mini disc, etc) for retail sale, you should submit an `Application For Licence' form to MCPS. This will be processed to ascertain where MCPS members' repertoire is used, whereby MCPS can give the licence for those works and invoice you for the necessary royalties.
- If you own the copyright to the musical works you are recording for release, MCPS will still process your application, but will not charge any royalties. Remember that MCPS does not represent all copyright owners; the onus is on the "user" to ensure that necessary clearances are obtained for works not licensed by them. Often, MCPS can provide useful contact information. The licence is valid upon payment of the MCPS invoice, allowing manufacturing to begin. You shouldn't manufacture unless you have obtained necessary clearances from all copyright owners. The licence is valid only for the quantity of product that you are manufacturing; if you wish to repress, you should submit an Application for Repress Licence' (requiring further payment).
- If you are using music in other ways, e.g. in a broadcast or audio-visual production, corporate videos, advertising material, etc then the licensing process is not as standardised, and further advice should be obtained from the MCPS Non-Retail Licensing Department.
- MCPS membership is relevant if your works are unpublished, but are to be commercially recorded and released, (although your music publisher may already be a member). No membership fee is charged, however to cover administration costs a commission is deducted on all royalties collected and processed. As a member, you should register details of your copyright works; MCPS records and uses these for the licensing and royalty collection processes. Members retain the rights to their compositions; the MCPS simply acts as an agent on their behalf, performing the function of licensing and royalty collection.
Copyright Law Overveiw.
UK legislation is based on the Copyright, Designs and Patents Act 1988 which defined copyright as a property right which can be given away, licensed or sold. The following are the main pieces of legislation that add to the scope and detail of the 1988 Act: There is no copyright protection for ideas or concepts as such. It is only when those ideas are expressed in a form from which they can be reproduced or copied i.e. as a literary work, that they are afforded copyright protection. The term literary work means any work, other than a dramatic or musical work, which is written, spoken or sung, and includes tables or compilations, computer programs and databases. “Original” means that the work originates with the author. It is their own creation: not copied, but the result of exercising independent or collaborative talent, skill and creativeness.
- The Copyright (Computer Programs) Regulations 1992 extend the definition of literary work to include design material for programs, allow some back-up copying of licensed software, and provide for limited 'de compiling' of licensed programs to make them work with other programs.
- The Duration of Copyright and Rights in Performances Regulations 1995 harmonise copyright and related nights across member states.
- The Copyright and Related Rights Regulations 1996 implement EU Directives on rental, lending and other rights in the copyright field and on copyright and related rights in relation to cable and satellite broadcasting.
- The Copyright and Rights in Database Regulations 1997 determine the circumstances for copyright protection and/or the new "sui generis" right (a 'database right'), to apply to databases.
- EU legislation is constantly being developed and reviewed to deal with the impact of new technologies such as online services, database s, etc in relation to copyright. A proposal for a Directive on Copyright an I Related Rights in the Information Society is under discussion after being presented by the Commission on 27 January 1998.
- The broadcasting Acts 1990 and 1996 made certain changes to the 1988 Act, particularly to introduce a statutory licence for broadcasting of sound recordings where copyright owners licence this use collectively.
- International conventions give UK national copyright protection in most countries, subject to national laws
What Copyright Covers.
Copyright protects the works of creators (artists, composers, writers and producers, e.g., publishers, broadcasters, film and record producers). It covers original literary, dramatic or artistic works, sound recordings, films, broadcasts, cable programme's and the typographical arrangement of published editions. Artistic works encompasses sculpture, collage, photographs, graphic work, building or models of buildings in architecture and work of artistic craftsmanship.
Computer programs are protected as literary works. This protection includes storage in a computer, transient and permanent copies so that unauthorised loading and downloading generally infringes copyright. A database which by reason of the selection and arrangement of the contents constitutes the author's own intellectual creation is protected as a literary work. Where there has been substantial investment in obtaining, verifying or presenting the contents of a database, database right applies.
In organisations where employees produce copyright material in the normal course of their job, copyright is owned by the employer. If a third party produces work for the company (e.g. a freelance draftsman), copyright belongs to the third party unless a written assignment of copyright is agreed. If copyright is infringed only the person holding or having been assigned the copyright can launch proceedings. A solicitor can provide a sample of a written assignment.
Industrially produced articles are generally protected by unregistered design right, not copyright. If an industrial design is commissioned (e.g. a product of which more than 50 are to be made) the employer owns the unregistered design right unless he/she has signed a contract giving it away.
How Long Does Copyright Last?
- Literary, dramatic, musical and artistic works - 70 years after the author's death.
- Jointly authored works - 70 years from the death of the last surviving author.
- Published editions - 25 years.
- Cable programme's, sound recordings and broadcasts - generally 50 years.
- Films - 70 years after the death of the last surviving principal director, screenplay and dialogue authors or composers of any music created specifically for the film
Where copyright had expired before 31 December 1995, it may have been revived for any remaining part of new longer terms (e.g. copyright in literary works was formerly life plus 50 years), but such works are then subject to use as of right subject to reasonable royalty.
Fair Dealing and Copyright Exceptions
Fair dealing is a concept which allows some unlicensed copying and other use without infringing copyright. The economic impact of the use on the copyright owner is an important factor which the courts consider when deciding whether use is fair dealing.
- Some copyright works may be used (e.g. photocopied), to a limited extent without infringing copyright, for research and private study, even if for commercial ends (except where work is a database). Making single copies of short extracts of a work or a single article from a journal may count as fair dealing. Copying by someone other than the researcher or student is not allowed if copies will be given to more than one person, at about the same time for about the same purpose (e.g. for a training session).
- Fair dealing with works for the purpose of criticism or review doesn't infringe copyright if acknowledgement is made.
- Reports on current events can use acknowledged copyright material, except photographs to the extent that this constitutes fair dealing. No acknowledgement is required for reporting by films/sound recordings broadcasts/cable programme's.
- Other copyright exception,; exist e.g. where a work is act dentally included in an artistic work, sound recording, film broadcast or cable programme.
Copyright Permission and Licensing
Fair dealing aside, permission to copy (e.g. in the form of a licence) is usually needed. This can be obtained from: individual rights holders; organisations of authors, composers and publishers acting collectively to offer blanket licence's; and specialist copyright clearance firms. Major issuers of copyright licence's include:
- The Copyright Licensing Agency (CLA) - it licenses business, education and government copying of extracts from books, journals and periodicals, paying authors and publishers their share of fees. If necessary, the agency will instigate legal proceedings to enforce rights entrusted to it. Licence's allow, e.g.:
- Copying one book chapter or one article (under thirty pages) from a periodical. Copying up to five percent of a publication.
- Up to nine photocopies of extracts from books, journals or periodicals.
- Copies only from published originals, and not from faxed or photocopied books, journals or periodicals.
- Supply of copies to colleagues and those outside the organisation working together on related matters. (Copies made under the licence cannot be sold.)
If an organisation needs to exceed the limits of their licence, the CLA Rapid Clearance Service (CLARCS), generally allows payment case by case. CLARCS may also need to be used if the material is to be used in a mail shot or if the copy will be on a non-paper substance, e.g. acetate. The CLA's Licensed Works include all books, periodicals, and journals published in the UK, and other countries where a reciprocal agreement exists. However, there are exceptions including: works on the Excluded Works List; newspapers; maps, charts or books of tables; printed music (including words); public examination papers; workbooks, work cards or assignment sheets; industrial house journals and works published overseas where there is no agreement.
The Newspaper Licensing Agency (NLA) - Licenses the photocopying of newspapers. The British Library Document Supply Canter - operates a Copyright Cleared service. You pay for a form, plus a flat rate fee (currently £3.1 i per copy) which is passed on to the CIA. The service has some advantages over a standard CLA licence.
The Performing Right Society (PRS) - issues licence's and distributes fees on behalf of music copyright holders. Those who need a licence include anyone playing or performing music in public (even if it is just a radio in a shop or factory).
The Music Publishers' Association Limited -issues its own Code of Fair Practice agreed between composers, publishers and users of printed music. It covers music from this country, if the copyright owner's name is listed in its code appendix.
Mechanical Copyright Protection Society (MCPS) - anyone wanting to record copyright musical works should contact the MCPS, which licenses the recording of copyright music.
Phonographic Performance Ltd (PPL) - issues licence's for the public performance or broadcasting of sound recordings. Generally, any business which plays recorded music should have a PPL licence.
Video Performance Ltd - issues licence's for the public performance of video recordings.
Where users or prospective users of copyright works which are licensed collectively are dissatisfied with the terms or conditions of licence's or licensing schemes operated by collective licensing bodies, they can apply to the Copyright Tribunal for independent adjudication on the matter.
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