Copyright Licensing and Information and Communications Technology

 

Jane Lambert

I am delighted to have been invited to contribute to a short webinar on Copyright Licensing and ICT hosted by Creative North Wales and North Wales Tech on Wednesday 21 April 2021 between 15:30 and 16:00.  The other contributor will be Carwyn Edwards of North Wales Tech, He is a systems architect and software engineer.

Copyright is defined by s.1 (1) of the Copyright Designs and Patents Act 1988 as 

"a property right which subsists in accordance with this Part in the following descriptions of work-- 

(a) original literary, dramatic, musical or artistic works, 

(b) sound recordings, films or broadcasts, and 

(c) the typographical arrangement of published editions."

Unlike a patent, trade mark or design there is no need to register a copyright with the Intellectual Property Office or any other government department.  The only conditions for the subsistence of the right are that it should be created by a citizen or resident of the United Kingdom or some other state with which the government has concluded an agreement to protect the works of British nationals. Since most countries of the world are party to the Berne or Universal Copyright Conventions, that is pretty much everyone.  By virtue of those Conventions the books, broadcasts, buildings, choreography, compositions, computer programs, films, plays and sound recordings of British artists, authors and publishers are protected automatically everywhere,

Those rights last a very long time.  In the case of an artistic dramatic, literary or musical work copyright subsists for the life of the author plus 70 years.  Thus, copyright still subsists in the wedding photo of Dylan Thomas taken in 1937. It came as a nasty surprise to the owner of a website advertising holiday cottages in Southwest Wales who had used the photo to underscore the region's associations with that great literary figure  (see Pablo Star Media Ltd v Bowen [2017] EWHC 2541 (IPEC) (13 October 2017)).

The consequences for infringing copyright can be draconian.  In addition to compensatory damages for the depreciation of the value of the copyright as a thing in action, a court can award additional damages under s.97 (2) of the Copyright, Designs and Patents Act 1988 where the justice of the case so requires or art 13 of the enforcement directive (Directive 2004/48/EC on the enforcement of intellectual property rights),.  In some circumstances, an infringement of copyright can be a criminal offence carrying heavy prison sentences and unlimited fines.  Even that is not the end of the story because the photo of Dylan Thomas was protected in the Republic of Ireland by Irish copyright law and in the USA by the Copyright Act of 1976  The unfortunate holiday cottage website owner faced demands for massive statutory damages that are available in those countries.

Most of the creative industries, artists and their publishers regard copyright as a very good thing.  Many of them have established organizations known as collecting societies that sell licences for the performance or other use of their members' works.  Pubs, cafés, restaurants, retailers and other businesses that pipe muzak to the public often display decals with the initials "PRS" which shows that they have been licensed by the Performing Right Society and the Mechanical Copyright Protection Society to play such music. Most of those organizations have agreements with collecting societies in other countries so the works of British artists and publishers are protected around the world and those of other countries are protected here.   Failure to obtain such licences and pay the licence fee can lead to litigation or worse.

In contrast to other creative industries, there has been a measure of ambivalence towards copyright and other intellectual property rights in the computer industry.  While many have been quick enough to asset their rights, others regard it as an unwelcome interference with their work.  

Until the early 1980s, nobody paid much attention to intellectual property in software because there was no way of copying software. In the very early days of computing, software was bundled with hardware. Even after unbundling software was recorded on very bulky media such as punch cards or later heavy magnetic drums the size and shape of fruitcakes. Programmers tended to share handy little programs for calculating dates and similar tasks.  That was the original meaning of "freeware" and it was an issue in Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd and others  [1994] FSR 275 as late as the early 1990s.

The coming of personal computers in the early 1980s  changed all that.  Applications could be distributed on floppy discs or even online.  There was for a time some doubt as to whether copyright could protect software but the Copyright (Computer Software) Amendment Act  1985 settled such uncertainty in the UK.   As a result of this legislation and advances in technology informal collaboration between programmers was no longer possible.  

It was in response to such challenges that the Free Software Foundatiion was established in the early 1980s. It promoted mass collaborations such as the GNU project that enables users to run, copy, distribute, study, change and improve their software.  The Foundation was joined by the Copyleft movement from which Prof Lawrence Lessing established Creative Commons.  In the last 20 years, there have been many other projects that have enabled copyright materials to be made available to the public free of charge. Some are operated by national governments such as Open Government licence in the UK.

Carwyn and I have only 15 minutes each on Wednesday, .  I shall stick to the legal issues and Carwyn to the technical ones.  That is not enough time to explore the topic in any depth but if the talk goes well we may hold another longer one with experts from the industry and academia.

Anyone wanting to sign up for the talk should register here.  Those wishing to discuss this article or its contents should call me on 020 7404 5252 during office hours or send me a message through my contact form.

Copyright Licensing

Menai Science Park

© 2018 Jane Elizabeth Lambert (all rights reserved)

 

Jane Lambert

On 9 Feb 2021, I was the guest of the Menai Science Park's Enterprise Hub.  I had been invited to give a talk entitled "What every Business in Wales should know about Intellectual Property" which I had previewed in my article of 7 Jan 2021.  I had prepared some slides on the topic which I posted to Slideshare this morning.

Considering that we started the talk at 17:45 we had a good turnout.  Our group would have been a very tight fit had we met in the M-SParc boardroom though there were not enough of us to have filled the training room. It was, therefore, the ideal size for a two-way discussion.  I used the first few slides to start the discussion.  Before long the questions came rolling in.

One of the most interesting questions was about licensing.  An artist told me that she was familiar with the Creative Commons scheme but she really wanted to earn some money from her work.  She asked whether there were any schemes like Creative Commons that generated revenue.  I told her that there were indeed associations of copyright owners that licensed their work on standard terms and distributed the royalties or licence fees to their members.  She could check out some of them but if none of them suited her she could instruct a lawyer to draw up a licence agreement.  

In either case, I stressed the advantage of inserting a copyright notice on her work or its mounting or container to put third parties on notice that copyright subsisted in the work and that she owned that copyright.   This consisted of the word "copyright", an abbreviation or the "©" symbol, the year in which it was created and the name of the copyright owner.  For example, I took the photo of M-SParc that appears at the topic of this article when I attended the Anglesey Business Festival in October 2018.  It will be seen that I have inserted the symbol, year and my name.

Associations of copyright owners that license the use of their work on standard terms are called "collecting societies".  Most people will have heard of the Performing Rights Society ("PRS")  and the Mechanical Copyright Protection Society ("MCPS").  They may have seen their decals "PRS for music" in pubs, cafés and gyms.  They draw up terms for the licensing of their members' works and visit premises that are likely to need their licences to collect the appropriate fees and royalties. Businesses that fail to cooperate may be sued.   They instruct specialist solicitors and counsel and nearly always win their claims.

Although the PRS and MCPS are probably the best-known collecting societies, other societies exist for other copyrights and related rights.  Wikipedia maintains a List of Copyright Collecting Societies from most parts of the world including the United Kingdom.  Freelance writers, for example, might wish to check out The Authors Licensing and Collecting Society ("ALCS").   Artists may want to contact the Artists' Collecting Society ("ACS").   Although it is not strictly a collecting society, designers should be aware of ACID (Anti Copyright in Design) who protect designers and makers against unauthorized copying and dealings with their designs.

Many of these organizations have reciprocal arrangements with foreign collecting societies.   They can help to protect IP owners' works and revenue not just in the UK but in many other markets around the world.

Although collecting societies and similar organizations are great for authors and designers they are not necessarily good for consumers and other users because they create monopolies and impose conditions that some consider to be unnecessarily restrictive.  Licensing schemes are therefore regulated by Chapter VII of Part 1 of the Copyright, Designs and Patents Act 1988.   Some users such as broadcasters and universities are also very powerful and they may challenge a licensing scheme under the Act.   A body known as the Copyright Tribunal resolves disputes between copyright owners and users under Chapter VIII of Part 1.   One case that might interest Welsh speaking readers is BBC v EOS  17 Feb 2021.

Sofie Roberts has invited me to speak at a seminar on licensing for the North Wales creative network on 19 April 2021.   If Covid 19 infections reduce sufficiently to allow M-SParc to reopen it will be great to deliver this talk in person.   If not, I shall deliver it over the internet.   Anyone wanting to discuss this article or any point arising from it may call me on 020 7404 5252 during office hours or send me a message using my contact form.