Copyright and Moral rights: New legislation (part 2)

Last month, we began to examine the new copyright law (contained in the Copyright Designs and Patents Act of 1988) which will come into force in May or June 1989

looked at the new (1988) arrangements in the fight of the old (1956 Act) arrangements, much of which will continue to be relevant for many years to come, and dealt in particular with what works are and will be protected, for how long, copyright ownership, and movement (Part 1). Time and space did not permit Part I to be completed, leaving international arrangements outstanding. They are as follows:

© Byline: International Protection
The new (1988) law, in common with the old (1956) law, continues not to require makers to claim or register copyright ownership in their original works in order to be protected in this country. However, it is now, and will continue to be under the new law, a prerequisite for protection against copyright abuses abroad, for makers indelibly to endorse their works with: © name and date of creation. Moreover, as we shall see in Part 3 next month, if © byline endorsements are coupled with makers’ asserting moral rights in their works, all necessary legal precautions will have been taken and due warnings given to would-be abusers of copyright and moral rights, both in this country and abroad. All makers should therefore consider endorsing their works, forthwith, with the following or similar form of wording:

©Henry Lydiate 1989
All rights reserved.
No part of this work may be reproduced or transmitted in any form or by any means, or stored in a retrieval system of any nature, without the written permission of the copyright holder.
No part of this work may be modified without the written permission of the author.
No part of this work may be exposed to public view in any form or by any means, without identifying the creator as author.

[The international situation, described above, completes Part 1. We must now examine, in Part 2 below, copyright infringements, exceptions and remedies, especially the new criminal provisions. In Part 3 next month, we will examine the new moral rights provisions, by which time a date for all the legal changes coming into force should be able to be given.]

PART 2-COPYRIGHT INFRINGEMENTS: Copyright Works?

Acts done before the change in law
An infringement occurs when anyone not authorised by the copyright owner does a ‘restricted act’ to a copyright work; but there are exceptions which are not infringements (see: Acts Permitted, below). The copyright owner (or owner’s copyright heir) therefore has the sole legal right to do, and particularly to prevent, the following ‘restricted acts’ in relation to any ‘artistic work’ (for the meaning of which, see Part I, last month):

  • reproducing the work in any material form; or
  • publishing the work; or
  • televising the work (broadcast or cable).

NB: the infringement must be of a copyright work; ‘reproducing’ does not just mean slavishly copying or replicating the copyright work -it is the essence of the copyright image, or part of it, which is protected against unauthorised use; two-dimensional works made into three-dimensions, and vice versa, are also infringing acts; the copyright owner does not need to prove that the infringer intended to do the restricted act, was reckless or even careless about it – the mere fact of doing the restricted act is the infringement.

NB: secondary infringements are also prohibited; these are acts done without the copyright owner’s permission which are not among the ‘restricted acts’ (mentioned above), but which nevertheless damage the copyright owner in a ‘secondary’ way. These are: knowingly importing into the United Kingdom, or another Copyright Convention country, articles made in breach of copyright (i.e. infringing articles); also, knowingly dealing in ‘infringing articles’ (including commercially exhibiting in public) in the United Kingdom or another Copyright Convention country (most countries, but not all, are part of the International Copyright Conventions or Treaties to which the United Kingdom is also a signatory).

Acts done after the change in law
The new law will clarify and improve protection for all copyright works (whether made before or after the change in law) by restricting any of the following acts done after the change in law:

 

  • reproducing the work in any material form – which will henceforth specifically include storing the work in any medium by electronic means, and making copies which are transient or incidental to some other use; or
  • putting into circulation copies of a work not previously put into circulation, in the United Kingdom or elsewhere; or
  • televising the work (broadcast or cable).

NB: ‘reproducing’ will still have the same meaning as under the old (current) law, but the new law clarifies reproduction to include the use of new technology; the meaning of ‘publishing’ is widened to catch anyone circulating in any country elsewhere in the world (not just a Copyright Convention country); there will still be no need to prove intent, recklessness, or carelessness.

NB: secondary infringements: considerable changes will occur in relation to ‘secondary’ acts done without the copyright owner’s permission:

 

  • importing, but only into the United Kingdom (not, as before, into other Copyright Convention countries) will be forbidden; however, the new law is widened to catch importers who have ‘reason to believe’ the imported article is an infringing copy (not just those who do so knowingly, as is the law today); in other words, today it is difficult to deal with importers who simply say ‘I didn’t know’, whereas in future, copyright owners will be able to brush aside such claims by asserting that the importer should have known the article was an infringing copy;
  • similarly to importing, the copyright owner will, henceforth, be able to catch anyone who ‘has reason to believe’ (not, as now, ‘knows’) a work is an infringing article when they deal with it; and in future, dealing will include anyone-whether or not they are in business who distributes infringing articles to such an extent as to damage the copyright owner (e. g. when an original copyright work is used without permission as a visual image on hand-outs, flyers, catalogues, brochures, corporate literature, calendars, packages, stationery, posters – even if given away free for charitable, informational, educational or private purposes). (NB: as to the issuing of copies for the purposes of legitimately advertising the sale of a copyright work, see Permitted Acts, below);
  • similarly to dealing, the copyright owner will in future be able to catch anyone possessing the means for making infringing copies ie. who makes/imports/possesses/sells/hires/exhibits any articles specifically designed or adapted for making infringing copies
  • again, having ‘reason to believe’ they are to be used for such infringement purposes;
  • finally, even the transmission of a copyright image by means of a telecommunications system (e.g. by FAX) – again, having ‘reason to believe’ infringing copies will be made after the transmission of the copyright image – will henceforth be caught.

What Acts Are Permitted In Relation To Copyright Works?

Acts done before the change in law
Research or private study: any act done which would otherwise infringe copyright is permitted so long as it is for research or private study and is ‘fair’, e.g. photocopying a book illustration, without the copyright owner’s permission, for inclusion in a thesis – but not if the thesis is published.

Criticism or review: any act done which would otherwise infringe copyright is permitted – so long as it is for the purposes of criticism or review (whether of that copyright work or another) and is accompanied by a sufficient acknowledgement, and is ‘fair’. For example, failure to credit the copyright owner will be an infringement by the publisher of a magazine reviewing an exhibition using a photographic reproduction of a work, but not sufficiently acknowledging the artist and the photographer (both of whom will be copyright owners of the published photographic image of the original work); or, where a television arts review programme broadcasts an image of a copyright work, albeit with sufficient acknowledgement, but so extensively that the copyright work was broadcast to millions of viewers and therefore ‘fairly’ requiring the copyright owner/artist to be financially compensated for such use by the broadcasters.

Background use in Film or T.V.: any act which would otherwise infringe copyright is permitted in a film or television programme – so long as its inclusion is by way of background or incidental to the principal matters represented. For example, a dramatic scene in a room in which a sculpture is shown in the background is permitted, but not if the camera centres exclusively on the sculpture for a long-lingering look at its form, colour or texture.

Judicial Proceedings: a copyright work may be reproduced for the purposes of judicial proceedings or for reporting judicial proceedings, without the copyright owner’s permission.

Educational Establishments: a copyright work is permitted to be reproduced, without permission, by educational establishments for the purposes of instruction – so long as a duplicating process (i.e. using an appliance for producing multiple copies) is not used; and, for the purposes of asking or answering examination questions, copyright works can be used even if a duplicating process is used.

Sculpture and ‘works of artistic craftsmanship’: copyright works of sculpture (irrespective of ‘artistic merit’) and of ‘artistic craftsmanship’ (i.e. having artistic merit, as explained in Part I, last month) are permitted to be painted, drawn, photographed, printed, filmed or televisually broadcast – so long as the copyright work is permanently situated in a public place or in premises open to the pubic; in other words, no one is permitted to make another sculpture or work of artistic craftsmanship. In addition, any such reproduction of a copyright work (permitted by the above rules) may be published or televisually broadcast; no acknowledgement, nor any permission of the copyright owner, is necessary.

NB: these exceptional arrangements do not apply to cable televising of sculpture or works of artistic craftsmanship permanently situated in a public place.

Artist’s residual reproduction rights: if artists do not own copyright (i.e. they become first owner, but later assign their copyright; or never become first owner: see Part I, last month) they are nevertheless permitted to reproduce their original imagery in subsequent works – so long as they do not repeat or imitate the ‘main design’ of their original.

(Designs: time and space permit but a whisper about copyright works which are also ‘industrial designs’ i.e. drawings/prototypes used or intended as models or patterns to be multiplied by an industrial process. Before the law changes, such ‘designs’ have copyright protection of 15 years only, but may be further protected by being registered under the Registered Designs Act 1949, so as to achieve monopoly protection for 15 years against all merchandising competitors; however, ‘designs’ of spare parts needed to repair equipment – e.g. motor cars – have no copyright protection, nor can they be registered under the 1949 Act)

Acts done after the change in law
Research or private study: same rules, but tighter and clearer restrictions on librarians and their assistants in supplying single (not multiple) copies of publications (including illustrations) – so long as they are paid for.

Advertisements of artistic works for sale: a radical new provision permitting copyright works to be copied for the purposes of advertising their sale; thus enabling catalogues, posters, even televisual representations, of artistic works offered for sale, to be made without the copyright owner’s permission. NB: such acts will only be permitted after the change in law; before then, the copyright owner’s prior permission will still be necessary to avoid infringement.

Criticism or review and newsreporting: criticism or reviews continue as before; however, newsreporting current events will in future be allowed to include copyright works (but not photographs) without the copyright owner’s permission – so long as the copyright owner and work are sufficiently acknowledged, and the use made in the newsreport is ‘fair’; moreover, in the case of film or televisual reporting, no acknowledgement of the copyright owner or work is required.

NB: photographers retain their rights to be paid for the use of their images in film/TV newsreporting; prints made by a photographic process, before the law changes, are also ‘photographs’ for these purposes – although such prints made after the law changes, will not be ‘photographs’ for these purposes, as discussed in Part I last month.

Incidental use in Film, TV, or another artistic work: the film/TV rules continue. However, after the law changes, an artist/craftsperson will be permitted to use the copyright work of another artist/craftsperson – so long as such use is incidental to the main image of their new work. A revolutionary change, enabling makers of collage, montage, mixed media works and so on, to include the copyright works of other artists in their own and to reproduce and publish such new works without the permission of the original artist/maker. Moreover, this new provision will apply to works made or existing before the law changes as it will apply to works made after the change in law. In other words, although incidental inclusion of one copyright work by another artist in their work (say, in a collage image made through a photo-lithographic process) made or existing before the law changes will be a breach of copyright, after the change it will no longer be an infringement.

Public administration: judicial proceedings continue as before; to which has been added Royal Commissions, statutory enquiries, certain public records, and statutorily authorised matters.

Education: a complete reform; a copyright work may be copied without permission in the course of instruction or preparation for instruction, not just in educational establishments – so long as the copying is done by the deliverer or receiver of instruction and no reprographic process is used. Copying for examination questions and answers will continue to be permitted, as before, whatever process is used (including reprography).

Sculpture and ‘works of artistic craftsmanship’: same rules as before; but cable televising has been added to the permitted activities in relation to such permanently sited works.

Artist’s residual reproduction rights: continue as before.

Designs: the current law, described above, will change radically in relation to original non-commonplace designs of the shape or configuration of articles which are to be used commercially or industrially. A new ‘Design Right’ is to be given to all such designs – except those which are ‘must-fit’ or ‘must-match’ designs of spare parts for equipment or products. This new right will last for 5 years from the creation of the design, and then for 10 years after its first making and marketing. The right will be automatic, not requiring any registration; however, ‘truly aesthetic’ stand-alone designs will also be capable of being registered under the continuing, but improved, Registered Designs Act 1949 so as to achieve monopoly protection for 25 years – not 15 years, as now.

NB: if the design is for an artistic work, whether in a traditional, graphic or photographic medium, or is a work of artistic craftsmanship, then the new Design Right provisions do not apply and copyright will be available – unless and until such an artistic work is produced commercially and marketed after the change in law, in which case copyright will be lost 25 years after first marketed. Craftspeople, therefore, authorising their original handmade works to be reproduced commercially and marketed, should take heed – as indeed should sculptors – when offered merchandising deals for their images after the change in law – because all copyright in the original will cease 25 years after it has been marketed.

© Henry Lydiate 1989

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.