Section 2. Copyright and Rights Management
2.3 Defining works under copyright: classifications, terms and ownership
To determine if a work is in copyright and to gain permissions for its use, it is necessary to discover:
Copyright Law classifies works into different headings according to medium, and this is where the issue of copyright can become complex, as each classification has subtly different rules.
The main classifications are:
Literary works is an important class and covers:
There is no implication of literary merit, but the work must be of a minimum length. This means that single words or a single sentence do not have copyright (for advertising - words, logos and sentences are ‘trademarked’). Also individual facts do not get copyright, e.g. address details, telephone numbers. This is a common sense approach in that although individual facts do not acquire copyright, collections of such facts do acquire protection under the new Database law (see section 2.6).
Artistic works include:
As is the case for literary works, there is no implication of artistic merit. There is, however, some confusion about the status of works and which classification scheme they come under, and this is a really important issue that has to be understood. A photograph, for instance, is classified as an artistic work, but when this has been digitised (and thus becomes machine readable code), the digital image is then classified as a literary work. If this digital image is then printed out, it becomes an artistic work again. As there are different rules for artistic and literary classes, this can make copyright hard to keep track of.
Each classification for copyright has a term i.e. a fixed time span for which copyright will last. Once copyright expires, the work falls into the ‘public domain’ and can be used by anyone as they so wish.
For literary and artistic works, it is typically for 70 years from the end of the year that the creator died, when the creator is known. If the creator is anonymous, then the rule of 70 years applies from the end of the year the work was first published. There are, of course exceptions, such as: crown copyright, computer-generated work, published special editions, and photographs.
A subsequent amendment to the 1988 Copyright Act confused the issue of lifetime of copyright by acting retrospectively. This amendment came into effect on 1st January 1996. This meant that some materials that had come out of copyright suddenly gained copyright again. It increased the term of copyright (for some works) from 50 to 70 years from 31st December of the year the creator died. For anonymous works it is 70 years from the end of the year of original publication.
To determine if an item is in copyright it is best to refer to the law in operation at the time the material was created. For example if a poster design was produced in 1956, then you should refer to the 1956 Copyright Act to define the copyright owner and who to approach for clearance.
As the Introduction 2.1 stated, there is no need to register a work for it to be protected by copyright. The consequence of this is that there is no national register or database in the UK where interested parties can research copyright ownership, although there are a number of useful organisations available (see Section 2.9).
As a guide, the creator is usually the copyright holder, unless the work has been carried out by an employee under a term of appointment, whereupon the employing organisation is usually the copyright holder.
This situation can be further confused if a subcontractor carries out the creative work. As freelancers are not an ‘employee’ they usually own the copyright. The onus is on the commissioner to negotiate rights when contracting freelance work. The commissioner needs to acquire a letter from the freelancer assigning the copyright to them. Assignment of copyright must always be in writing.
In the case of image work, particular care should be taken when subcontracting. For example, freelance photographers will not usually automatically assign copyright. Instead they will license the use of the commissioned photographs for a specific act(s). The freelancer thus retains the right to use the images for other purposes and also has the right to prevent unauthorised usage or to re-negotiate terms with the original commissioning party if other uses are desired.
It is always in the commissioners' interest to determine their immediate and long term needs and to negotiate any contract to make sure the requisite rights to materials are acquired, including the rights for electronic capture and dissemination, if that is the intention. (See Section 2.7 for more information on licencing.)
As copyright is a property right, ownership can change hands many times. It is important to remember this when trying to trace copyright ownership for work that you wish to use. Copyright can be sold, bought, given away or bequeathed in a will. This means that it can be difficult to know who owns the copyright at any particular time. The Act only tells you who owned the copyright at the creation of the work. It is also important to bear in mind that the present owner of an object, e.g. painting, or sculpture, may not be the copyright owner, as the object and copyright can be given, sold, bequeathed etc. separately.
Thus, one of the first steps in clearing copyright, will be to identify who is the current copyright owner for any material in question. (See Section 2.9.)