10 things you should know about ... copyright

This short article explains the key points of copyright law - those which should be familiar to every website operator. Website operators need to know about copyright law because copyright materials are their stock-in-trade, and because dealing in copyright materials gives rise to legal risks.

Complaints of copyright infringement involving websites are relatively common; and infringement lawsuits can be ruinous. It therefore pays to be careful. Whatever one may think of the law of copyright, ignorance isn't going to impress a judge.

The article is written from the point of view of English law. However, there is a measure of international harmonization of copyright law, and most of the points made can be validly made in relation to the copyright law of most other jurisdictions.

(1) Copyright v other IP rights

Copyright must be properly distinguished from other kinds of intellectual property (IP) right: patents, trade marks, rights in designs, database rights, and so on. Nothing, but nothing, pains the IP expert more than many journalists' apparent belief that the different kinds of IP right are interchangeable.

(2) Copyright protects "works"

Copyright law protects a diversity of "copyright works". It protects the oil painting, operatic symphony and poetic epic with the same principles and rules as the doodle, the advertising ditty, and the slap-dash legal article.

Although "websites" are not a kind of copyright work, their constituent elements are likely to be protected by copyright. Website text and code may be protected as literary works; photographs and other website artworks may be protected as artistic works; website music tracks may be protected both as musical works and through sound recording copyright. A single video clip can accommodate a profusion of different rights.

Simply cataloguing the different copyrights subsisting in a website can be a major undertaking.

(3) The de minimis principle

Copyright isn't concerned with very little things. It does not protect so-called de minimis works, the classic examples of which are titles (such as The Da Vinci Code) and newspaper headlines (such as Small earthquake in Chile, not many killed); nor does copyright prevent "insubstantial copying" from a work which is protected by copyright.

Unfortunately it is often difficult to decide whether a work is really de minimis, or an example of copying insubstantial. Hence the practice, prevalent in some of our cultural industries, of demanding express permission for the least act of copying.

(This is not to say that it's always OK to borrow others' titles etc. Titles may, for example, be protected under the law of trade marks or passing off.)

(4) Ideas and expressions

It is sometimes said that there is no copyright in an idea. This is not entirely accurate, and is more than a little misleading. Although there is no copyright in an idea as such - i.e. an idea which has not been fixed in the form of a copyright work - that is not to say that copyright does not protect the ideas which inhere in copyright works: it does, providing the ideas are of the right kind and are not too general. For example, copyright in a story could be infringed by a person copying the plot of that story, notwithstanding that the copyist takes care to avoid lifting a single phrase from the original story. Note that the ideas underlying a web design,
no matter how specific, are probably of the wrong sort to attract the protection of the law of copyright.

(5) To credit or not to credit?

Do you have a right to be identified as the author on copies of your work? Not necessarily.

This right, the right of paternity, is one of the principal moral rights which arise in relation to copyright works. Moral rights are conceptually distinct from copyright itself. In English law (unusually) the paternity right only applies where it has been asserted by the author. So, if you licence others to use your artwork, but don't assert the right of paternity, they may use it without crediting you!

Some of the statutory defences to a claim of copyright infringement, including the defences of "fair dealing for the purposes of research and private study" and "fair dealing for the purposes of criticism and review", usually only apply where an author has been credited in an appropriate way.

(6) Copyright registration services

Try Googling "copyright registration". You'll find a plethora of different UK companies offering to help protect your works. All you have to do is submit your magnum opus and pay their fees; all they have to do is not lose your submission. Nice work.

The alleged purpose of these services is to provide evidence in the event of a court case. However, the only conceivable evidence such a company could offer is that a work was created before the time of submission. Time of creation is only occasionally an issue in copyright infringement lawsuits. We aren't aware of a single copyright case which has even involved the evidence of such a company, let alone turned upon such evidence. So, don't waste your money.

Note that the position regarding US copyright law is different. Registration with the US Copyright Office, although not necessary, has a number of advantages. See www.copyright.gov for details.

(7) The importance of ©

The Copyright symbol matters little nowadays: in most jurisdictions copyright subsists in qualifying works, irrespective of what symbols they wear. The use of the symbol can be a pre-condition to copyright protection under the Universal Copyright Convention in countries which are not signed up to the Berne Convention - but all the major jurisdictions are now signed up to the Berne Convention.

The use of the symbol does however have the effect of reminding people about copyright protection. If accompanied by the name of the copyright owner, it lets users know who owns the copyright - and from whom a licence should be taken. It also looks rather neat and professional.

(8) When must a licence be written?

In English law, permissions to use copyright works (also known as licences) do NOT need to be in writing. For instance, when you make a website available to the world, you grant an implied licence to internet users to copy that website for the purpose of viewing it on a web browser. However, the exact scope of implied and unwritten licences may be unclear.

There is one exception to the above rule: statutory "exclusive" licences must be in writing signed by or on behalf of the copyright owner, as must assignments (transfers) of copyright ownership.

(9) Acts of infringement

Copyright infringement isn't just about copying. There are lots of different ways to infringe someone's copyright, and many of them don't directly involve copying. For instance, selling over your website CDs that someone else ripped may be copyright infringement. Again, making an adaptation of a copyright work, for instance recreating a motion picture as a cartoon strip, can infringe copyright, even if there is no literal copying.

(10) Copyright crimes

Contrary to the impression given by certain content industry propaganda, copyright infringement isn't usually a criminal offence. Broadly speaking, in the UK, copyright infringement is only a crime if it is done deliberately in the course of a business or on a significant scale. So, downloading an infringing track for personal use may be copyright infringement, but it isn't usually a crime.

This is a revised version of an article was originally published on www.website-law.co.uk in November 2006.

Comments

Hi,

I'm looking to produce a piece of software but noticed it will have a similar layout and design to a competitor of mine. Mine however is considerably more advanced and specifically targets a different audience.

The design similarities only revolve around an Outlook calendar type design and using a colour coding meeting type request. Do you think I will have a problem?

Thanks

Roge

I'd need to compare the designs to answer this question with any confidence. However, I can say that: (a) the layout of software user interfaces isn't usually protected as by copyright, at least under English law (see http://www.lexisnexis.com/legalnewsroom/intellectual-property/b/copyrigh...); (b) if the design elements are used in lots of different software applications by lots of different publishers, that's a good indication that they are not protected by copyright; and (c) nothing in your description of the situation raises any red flags.

Hi, I am in the ecommerce space and we intend to sell products of various companies through our site. We need some clarification on a particular product vertical ie books. We would like to have the picture of the cover of the book loaded on the website so that customers are able to related with the book. Would this be a copyright infrigement. We are not making any modification nor selling any copy of the product. We are selling the original book procured through authorised distributors of the publishing house. Please advise.

If a book cover is protected by copyright (as many are), then the publication of an image of the cover would usually infringe copyright, unless you have the permission of the copyright owner. See also:

http://www.seqlegal.com/blog/product-photography-and-copyright-law

Hi, I have developed a software solution, entirely from my home, which greatly improves an aspect of my work (health service) dealing with patient care, and using software writing skills I learnt a number of years ago (I'm not employed in IT). The idea was primarily as a working demonstration of what could be done to greatly improve things. There is currently no alternative automated solution, and in fact, the existing manual method carries not insignificant patient-safety risks. The software was developed and tested using artificial permutation tables at home (no real data used). My work is very interested in using this solution to the extent that it's use is about to be included in a Standard Operation Prodedure (it's in official draft format at the moment)

For just over 1 year my work has been using this solution - I installed it at the two primary users sites (on a test basis (for functionality testing), and nothing discussed on an ownership basis).

In order to provide its intended functionality the artificial tables used at home are replaced by a real data table while at at work. A small amount of testing takes place by myself before pushing out as an update. This was done by myself for the last several years, and more recently, I have designed an auto update facility to do this automatically (the source tables change over time). 

Could you let me know where I stand on copyright...by allowing my workplace to use this (as a testbed) have I lost ownership?

For an outline of the rules on ownership of copyright, see:

https://www.gov.uk/guidance/ownership-of-copyright-works

In general, you cannot transfer copyright without a written and signed document.

So, it seems likely (although I cannot be certain without getting more details) that you retain ownership of the copyright in the software you created.

Your employer is likely to have a licence of some description to use the software. Without anything being in writing, it is difficult to know what the terms of the licence are. I suggest that you consult a suitable experience lawyer with a view to agreeing written licensing terms. If you would like the name of someone, let me know (eg using our website contact form).

Hello. I am building a website for which the client has indicated some images he wishes to use. As the images have been sourced from another site, and are submitted to that site by the photographers, it is certain that these images are copyright. My client is happy to await a 'cease and desist' letter, but as the site builder what, if any, is my liabilty?

You would be primarily liable for an infringement as developer and/or host (along with your client). I suggest you ask the client to get stock photography from one of the many stock sites.

Thank you for your response. I had already told my client I would not be happy working with copyright images, and had located a local photographer who offered free use of original photos. This offer was declined.

It may interest (amuse?) you to know that my client is a barrister.

My husband was commissioned to paint 4 works of art in oil on canvas for a local restaurant. The process to arrive at the particular final images, (in this case cows), was first suggested by my husband the artist and also researched by him. He provided images of cows to the client and discussed the direction with the client. The client liked this direction and when presented by my husband the various digital layouts of the cows, the client  "tweaked" his ideas / compositions and then claimed that her sketched "tweaks" made her an co-owner of the finished paintings. She since reproduced the cow paintings to hang in all her restaurants without our knowledge or consent. 10 restaurants in total. Is she a co-author or is this copyright infringement?

This question is impossible to answer without seeing the images and seeing the client's tweaks - and might be difficult to answer after seeing them.

Works of joint authorship are defined in s10 of the Copyright, Designs and Patents Act 1988: "in this Part a “work of joint authorship” means a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors". Presumably the client's contributions here are not distinct from the work as a whole.

Contributions don't need to be equal or nearly equal. However, if one person's contribution is entirely trivial then that person would not be a joint author. 

I'd like to write sports books detailing results and history of sports organisations. How would I go about this? Would I be infringing trademarks or copyright laws if I was to release a book with season-by-season statistics on a professional sports team?

I have an idea for my website. I will take pictures of my books, convert them into PDFs and upload it to my website. Is this legal or illegal? Please let me know.

This could, in principle, infringe copyright in book cover artwork. The exact issues/risks will depend upon how the pictures are used.

I have come across a web site selling my books online. They have not asked my permission, and they have not reached an agreement with me, unlike Amazon etc who agree to sell my books at a set price, with a proportion being returned to me. What is the best approach to ask them to stop marketing my word without agreement from me? Are they in breach of copyright?

Are these ebooks or physical copies? If the latter, how has the web site obtained the copies?

Hi

I regularly take photographs for a client with whom I issue a 'License to Use' the photgraphs for xyz for x number of years with the appropriate t's and c's. The client has now stating issuing purchase order numbers with various t's and c's one of which says:

'All Intellectual Property and other rights in and to the product of the Services (including the Deliverables or any part of them) or which otherwise arise under or in connection with the Contract and its performance shall be the property of the Customer, and the Supplier hereby assigns (or agrees to procure that any relevant third party will assign) absolutely with full title guarantee all such Intellectual Property and other rights to the Customer. The Supplier shall however, be entitled to use the same for the purpose of performing the Services for the duration of the Contract.' 

This looks to me that agreeing to their terms I would be handing over my copyright.

My question is who's t's and c's take precedence, mine with the invoice and License to Use or my clients Purchase Order t's and c's?

What do you think?

Many thanks

Paul

It's not really possible to say which document takes precedence without full knowledge of the contracting process, and even then there may be uncertainty. See:

http://www.drukker.co.uk/publications/l/standard-terms-of-business-count...

It is usually best to expressly agree the licensing terms with the client.

Hi

I would like to make a fashion blog, with pictures I take from the internet. Impossible to contact all picture rights holders. I will sell access to my fashion blog, so this will be a commercial website.

I heard that some countries have not signed the Berne Convention and have no copyright protection laws on pictures.

If I base my company which owns that website in one of these countries, would I still do something illegal?

Marco

I am looking to run a photographic competition with some students and I will be using some of the winning photos on my website and future marketing materials. What legal disclaimer/documentation do I require the competitor to sign in order to allow me to do use their photos?

Hi Joanne,

The key document would be a licence or permission of some kind. This would set out the basis upon which you coul use the photos, stating what you can do and what you can't do. Depending upon the context, you may want competition rules governing the details of the competition.  See:

http://www.website-contracts.co.uk/permissions-letter-general.html

http://www.website-contracts.co.uk/prize-competition-rules.html

I want to develop a site that displays news headlines from other rss sources mentioning the sources and having link to them (the their original article).

1. Headlines are not copyright protected, so doing this it does not consist copyright infringement, am i correct?

2. Also, if i want to reproduce a small part of the original article what is the de minimis number of words i can use without violating copyright? Would be ok to e.g. use as an excerpt an up-to 20 words sentence of the article?

3. If i create an automatic summary combining in one new paragraph 2-5 random sentences of the original article, is this a copyright infringement?

I appreciate your answer

1. Headlines may be protected.  See:

http://www.fieldfisher.com/publications/2011/02/headlines-and-extracts-f...

2. There is no specific word number that means you know you are in the clear.  The test is qualitative not quantative.

3. Potentially, yes.

The T&Cs covering the RSS feeds may however give you the required rights: you would need to check them on a case-by-case basis.

Hi, i recently purchased from a marketing company, a little video of a bear that looks like a well-known movie bear and it says some things about my store but the sound does sound like the well-known bear speaking. Will this get me in trouble?

Whether it could get you into legal hot water, and exactly how, will depend upon the details.

For background on the US legal position, see:

http://www.trademarkandcopyrightlawblog.com/2013/03/superheroes-of-copyr...

I wanted to ask: if there is a product image on Amazon and I wanted to use it on Instagram online retailing business. So, can I use that image ? 

Unless you have permission to do so, that will likely be an infringement of copyright. Short answer: no.

Good day. Can an author use public images found on the internet, such as Pinterest or Instagram for example, to use for his/her book cover without infringing upon copyright violations?

Thanks in advance.

No. This is likely to violate copyright.

I posted content (articles) written by myself on a friend's website; the working relationship is no longer productive and I would like to move my work elsewhere. Who owns the content I wrote? Can I publish the content elsewhere? Can the person request I do not publish it elsewhere? Do I need to give credit back to the original website? Can I ask to have the content I wrote removed from the original website? I am unsure of my rights, there was no written agreement. The work I would like to republish will not be for financial gain; the website my work was originally published is in the USA, my website is in the UK.

I am writing an e-book that will have two or three quotes from an online dictionary, which I will reference. Would this be considered "Fair Use" or would I need to get specific permission from them?

It depends on all the circumstances.

The UK position on copying is set out in legislation:

http://www.legislation.gov.uk/ukdsi/2014/9780111116029/regulation/3

https://www.gov.uk/government/uploads/system/uploads/attachment_data/fil...

For a summary of the US legal position, see:

https://en.wikiquote.org/wiki/Wikiquote:Copyrights

Hi, I want to describe the main events of the film Forbidden Planet in my novel. The description will be interwoven with remarks and comments made by two of the novel's characters as they watch the film on DVD. Would this description constitute an infringement of the film's copyright?

Copying ideas isn't usually infringement (although you do have to be careful here where you are talking about literary/plot ideas) and there may also be a defence - fair dealing for the purposes of criticism/review. See:

https://www.gov.uk/guidance/exceptions-to-copyright#criticism-review-and...

I suspect you'd need to ask a lawyer to look at your work to get a firm opinion on this question.

Hi Alasdair,

I'm in the process of writing a non-fictional book on a company following its products and services.

The overall tone is fairly critical of the company in question. Beside the libel concerns, I'd like to know two things about copyright infirngement, please.

1. Can I use parts or entire comments (from one sentence to ten, sometimes with snippets **[...]** inbetween) taken from/posted on discussion websites such as forums (or in the comment section under articles and reviews) by users (and identifying them of course) under the fair use doctrine?

As I intend to quote users comments taken directly from the company website, and considering the (negative) tone of my book, asking for permission is out of the question.

I will obviously place them in context and comment them. They are quite essential to prove and illustrate the claims/arguments and explanations I make in the book and thus needed. They could even help against libel maybe?

2. Same question but about exerts from articles (and also  comments under them), reviews or studies. Can I use quote from them on the fair use basis knowing that I couldn't get authorization because of the negative depicting nature of my analysis and (my) comments on their articles, studies or reviews?

What about if I treat positively the article (and the writer of the article or comment) I quote from, can I forego asking for the authorisations too?

If you could answer, that would be of great help, thank you.

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