Andrew Charlesworth

Director, Centre for IT & Law

Copyright 101 for web designers and developers

Senate House, University of Bristol22 June 2007

2 Intellectual Property Law

• Intellectual property rights (IPRs) allow individuals to claim and exercise rights in their creative and innovative works

• Some IPRs are well known– copyright, patent, designs, and trademark

• Others are known primarily to specialists– trade secrets, geographical indications, semiconductor

chip topography rights, plant varieties and performers rights.

• A work may be protected by several IPRs.• Today, we will be considering copyright.

3 What this session is, and is not.

• It is a ‘quick and dirty’ guide to © and web design/development - not a comprehensive guide to all aspects of © - I’m leaving a lot out.– http://www.britac.ac.uk/reports/copyright/guidelines.pdf (25 pages)

• It is mainly about the use and licensing in of © works - not about the creation and licensing out of such works (but I’ll take questions on the latter)

• It is aiming to provide some initial guidance and to kill some prevalent myths, but it’s not a substitute for seeking appropriate advice.– http://www.bris.ac.uk/secretary/legal/copyright/

4 Copyright and the Internet

• IPRs are often not the same from country to country• There are international agreements e.g. Berne

Convention on ©, but they allow broad variations.– US © law explicitly allows listeners to make digital copies

of lawfully owned music for their personal use, UK © law does not.*

• When designing webpages, remember your pages may be visible worldwide.

• Note: The “51st State mistake”• Note: The Internet is neither your living room or a

classroom

5 Copyright in the UK

• UK primary legislation - Copyright, Designs and Patents Act 1988 (CDPA 1998) as amended.– http://www.ipo.gov.uk/cdpact1988.pdf (324 pages)

• Works covered include: literary, dramatic, musical, artistic works, sound recordings, broadcasts, films, published editions

• Copyright has been expanded (often controversially) to cover new types of works– Computer programs – UK Copyright (Computer Programs)

Regulations 1992

– Databases – UK Copyright and Rights in Databases Regulations 1997

6 Copyright in the UK 2

• UK copyright law – protects ‘expressions of ideas’ not ‘ideas’

– requires that the work be ‘original’ and created in a permanent form

– does not require formal registration

• Duration of © protection varies – Literary works (inc. software) = author’s life + 70 years;

– Sound recordings/broadcasts = 50 years from end of year created or 50 years from end of year first released.

– Databases = 15 years, but may be renewed if substantial change to database

7 Copyright in the UK 3

• Ownership– the original owner of © in a given work is usually the

person who created it.

BUT there are exceptions e.g.

– © in works created in the course of employment - the employer (issue of what is ‘in the course of’)

– © in a sound recording or film - the person who made the arrangements for its creation

– © in a computer-generated literary, dramatic, musical or artistic work - the person who made the arrangements for its creation.

8 Copyright in the UK 4

• Several copyrights may subsist simultaneously in a single item– A song - the words may be © as a literary work, the

music may be © as a musical work, sheet music may be © as a typographical arrangement.

– These ©s might be held by different people, and might have different commencement and expiry dates.

• Webpages are often comprised of numerous works – literary works, artistic works, video, sound recordings etc.

• Note: You’re a publisher, with all that entails.

9 Copyright in the UK 5

• A rightsholder has the exclusive right to do certain things with their work - making a copy, public performance, broadcasting - ‘bundle of rights’.– These rights can be assigned, licensed, inherited etc. as a

bundle, or as individual rights.

• © infringement occurs when you copy a work (or a substantial part of a work) without authority of the © holder (unless legally permitted – fair dealing).

• Licensing of © is common – the rightsholder grants permission to others to do certain things with the work, but retains overall control of it – lawful use of work is conditional on obeying the licence terms.

10 Permitted Acts

• There are things that you can do with a © work without the rightholder’s permission, e.g.– Fair dealing – such as purposes of research, private

study, criticism and review.

– Certain uses in education

– Certain uses by librarians or archivists

• These exceptions are very tightly constructed and construed, and most are not going to be applicable to publishing on the Internet.

• Note: Fair dealing is probably the most misunderstood and misused term in ©

11 Simple Copyright Myths

• Using other people’s work without permission:– It didn’t have a © Joe Bloggs, 2006 on it so it’s not

copyrighted.

– It’s on the internet, that means there’s no copyright in it and I can use it for anything.

– It’s only a short piece of music, there can’t be a copyright in that.

– It’s from an out-of-print book – it’s in the public domain

– I asked for permission and didn’t get a response, so it’s OK

– If there’s a problem, I’ll be able to get permission later.

12 Advanced Copyright Myths

• Using other people’s work without permission:– It’s work for a local charity, and I’m not charging for it, so

it’s OK.

– It’s work for the University so if I put ‘for educational purposes only’ on it, it’s OK.

– My sister’s husband says his mate at the pub reckons any © materials can be used if I credit the author - it’s something called ‘fair dealing’.

– OK, I used the work, but I altered it a bit so it’s a new work.

– It's okay to use anything as long as I take it down if the rightsholder objects.

13 Use of Web-based materials

• It is not currently a breach of UK © to:– make an incidental (cache) copy of a webpage while

accessing it (fair dealing)

– link to another’s public webpage without permission, (despite some website assertions to the contrary) but thought needs to be given to:

• Deep linking to some publicly accessible pages (politeness)

• Deep linking to private protected pages (licence)

– link to .pdf files on public webpages

– provide a link to a page that contains infringing works (but probably unwise)

– download/print a webpage for personal study.

14 Use of Web materials 2

• It may be a breach of UK © to:– link to image files so as to make them appear on your

webpage

– frame webpages in such a way as to make them appear part of your website

– to use another’s © text as a hyperlink – headlines.

• It is a breach of UK © to:– Cut and paste material from another’s website to put it on

your own (unless the fair dealing defence applies or the use is insubstantial);

– Copy, print or download part or all of webpage for non-fair dealing purposes unless permission is granted.

15 The Creative Commons

• Creative Commons Licences are © licences.– work can only be CC licensed by rightsholder

– can’t be used to prevent © exceptions - fair dealing

– can’t be used to protect things not protected by © - ideas

• Creative Commons licenses are non-revocable.• Works under a Creative Commons licence must be

used by licencees in accordance with its terms.• Key CC terms:

– Attribution, NonCommercial, NoDerivatives and ShareAlike

• CC licences can vary considerably in scope.

16 Assignment and licensing in

• If you wish to use a work in which the copyright is owned by a third party, you can seek: – an assignment of the rights in the work

– an ad hoc licence between yourself and owners of copyright works

– a licence to use particular works on a case-by-case basis from a collective licensing agency

– a blanket licence enabling access to a range of works under a fixed set of terms

– access under a Creative Commons licence

17 Enforcement of Copyright

• The primary remedies under UK law are civil remedies e.g. injunctions and damages – Many infringements are inadvertent – infringer is unaware of

© in a work, or ignorant of © generally - they are still potentially liable

– The burden of proof in a civil case is lower than a criminal case - balance of probability

– If a case goes to court legal action tends to be both lengthy and costly (and poor PR)

• Note: 1st rule of litigation - don’t sue poor people.– Exception: unless the client wants to prove a point

• Note: Universities aren’t perceived as poor.

18 Final thoughts

• Just because a work available on the internet is shown as ‘public domain’ or CC-licensed, doesn’t mean it is – it’s a common sense call.

• Some rightholders are willing to actively seek out possible Internet-based infringers…– http://netcopyrightlaw.com/

• …others are building automated tools for them:– http://www.virage.com/news/releases/2007/2007-04-05.xml

• A basic understanding of © law, and a certain amount of record keeping can go a long way to preventing that nasty TLA - the CLM.