S. J. Farthing

www.farthing.me.uk

Copyright

Introduction

This page is intended as a contribution to a debate on copyright, and not a full assertion of legal facts. Although I know more than the average person about copyright, I am not a lawyer.

I think that genuine bona fide copyright should be respected. However there are cases where people may claim copyright with only dubious entitlement for various reasons. Some people find it safer to claim copyright on something to which they are not entitled, or to be vague about exactly which part of the work they are claiming copyright on. I would advocate at least challenging such copyright claims.

Copyright in general

The scope of copyright

Copyright applies to artistic and creative work, and not to mere data or something produced merely by some machine or automatic process. For example taking a photocopy of a document will not give you any copyright rights. Taking a photocopy is a mechanistic process which involves no artistic judgement.

The method of working is all-important

The question of whether you are breaking the copyright of another work depends on the method you use, and not on what you end up with. Consider for example map making. The map must depict what is really there, so it is likely that you will end up with a map similar to other maps of the same area. Provided your method was entirely independently done it is OK.

Copyright is automatic

Copyright is automatic. There is no need to register a copyright but in practice it is important to have some proof of your entitlement to the copyright which might be used in the case of a dispute.

The duration of copyright

Typically copyright lasts until 70 years after the death of the author. This was increased from 50 years quite recently. There are variations between USA and Europe, and it depends on the type of material which the copyright applies to. In any case it will be at least 50 years after the work is created. Some people believe that this is too long and I agree.

The thinking is that royalties from copyright should benefit the dependents of the originator. In the end, this is at the expense of the rest of the population who are denied free use of the material, and the beneficiary has done nothing to earn his entitlement.

Copyright of photography, sound recording, and video

In the case of photography the copyright is owned by the photographer. If the photograph is of a person, however important, that person has no copyright rights over the photograph. Thus you can take a photograph of a celebrity and print it on T shirts and sell them. The celebrity has no rights over this. The position of sound recording is similar. However unfair it may seem, the sound recordist is the owner of the copyright of a sound recording, not the performer. However in the case of sound there may be issues concerning rights over musical composition.

Dubious Copyright Claims

There are numerous cases where people claim copyright where their entitlement is questionable. One example is in facsimiles of work which is old and so not copyright. There will usually be a copyright statement at the start of the book, and indeed some material in the book will indeed be copyright, but the statement may not make it clear that there is other material in the book which is not. Sometimes collections of non-copyright historic photographs are put on a CD with some additional software, then copyright is claimed on the CD as a whole.

Another area where dubious copyright claims are made is when copyright is claimed for a contents list. It may depend on the method used to create the list. Scanning the original contents list from the book may be a breach of copyright, whereas writing out the list from observation of the contents may not. A particular case is when a CD consists of historic recordings which are not themselves copyright. The record company might claim copyright simply on the order in which the tracks appear. I believe they do this in order to place a misleading copyright message on the disc hoping people will believe the actual tracks are copyright. You can see the absurdity of this, because it would be possible for anybody to list an arbitrary order of tracks for an imaginary CD, and if this is legitimately copyright the record company could not make a CD with that order of tracks.

I would contend that mere data should not be subject to copyright. There was a case where British Telecom tried to prevent others from using the contents of the telephone directory. Similarly the BBC has tried to prevent publication of television schedules.

Sometimes people publishing non-copyright material may intentionally alter it slightly, for example by adding a logo to a picture, and then claim copyright on the whole picture.

Enforcement

It is the method of creating the work which determines whether copyright is being breached. Sometimes it is impossible to know how the end product was achieved. There is a sort of poetic justice here, because if someone tries to claim copyright on something which is easy to do, and has little artistic merit, it will be easy for another to legitimately repeat the work independently and end up with exactly the same thing.

In the end, whether enforcement of copyright is worthwhile will depend on the monetary value of the material. There are plenty of examples on the web, where technically copyright is breached but it is not worth enforcing. On the other hand there are cases where it IS worth enforcing. The music industry provides some excellent examples. The main product of the music industry, the thing they sell, is the music itself in the form of sound. Copyright owners and their agents will not tolerate the distribution of sound files. On the other hand, they are much more easy-going when it comes to lyrics. There are hundreds of sites which reproduce lyrics of songs which are copyright, but little or no action is taken.

Protecting Copyright

The traditional way of protecting one's own copyright is to send it in a secure self-addressed envelope and leave it unopened. However there are other ways.

It is fortunate that often the original creator of the work has something used in the process of creating it which proves his entitlement. Traditionally in photography for example there are the negatives. The key is to not give away this evidence. Handing over negatives of photographs is tantamount to relinquishing the copyright.

What is happening more generally is that there is some sort of one-way process which is applied to the original work so that only the output of the process is given away. Posession of the unprocessed version will prove the authorship of the published version. A simple example is to crop a photograph, or to publish it in a reduced size or quality. In this case it is impossible for another person to replicate the original. Something similar can be done with sound recordings and video. Handing over the original files taken with a digital camera is similar to handing over the negatives of conventional photographs.


Links

The UK Patent Office. Includes copyright and other intellectual property. Much accurate information.
www.patent.gov.uk

The Office of Public Sector Information - successor to HMSO.
www.opsi.gov.uk

Copyright designs and patents act 1988 at the above site, (at time of writing:)
www.opsi.gov.uk/acts/acts1988/Ukpga_19880048_en_1.htm

Very interesting article about complex issues arising from differences between USA and UK copyright law. Specifically about tarot card copyright, but more widely applicable.
www.sacred-texts.com/tarot/faq.htm