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The Basics of How Copyright Works

Gillian Haggart Davies

Gillian Haggart Davies answers questions to draw out some of the legal issues and explain the basics of how copyright works, or should work, for the benefit of the writer.

What is copyright?

Copyright is a negative right in the sense that it is not a right of possession but is a right of exclusion. However, if you know your rights it can be a strong legal tool because copyright law affords remedies in both the civil and criminal courts. Material will automatically be protected by copyright without registration (in the UK) if it is original, i.e. not copied. The onus is on you, the writer, and your publisher to do the work of protecting, policing and enforcing your valuable intellectual property. Copyright is different in every country – registration is not possible in the UK, Japan or the Netherlands; it is optional in the USA (for some works), China and India; and mandatory for some works in other jurisdictions (e.g. for some works in the Kyrgyz Republic, Mauritius and Nepal). Unfortunately, generally speaking, people do not respect copyright and there are ongoing issues to do with copyright, especially online, with large expanses of ‘grey areas’.

Where can I get legal advice?

First steps legal advice may be available from the Society of Authors, the Writers’ Guild of Great Britain, the National Union of Journalists, the Society for Editors and Proofreaders or your local BusinessLink or an intellectual property specialist adviser like Own-It or Artquest (which deals with the visual arts but carries advice applicable to writers too).

If a newspaper pays for an article and I then want to sell the story to a magazine, am I free under the copyright law to do so?

Yes, provided that you have not assigned copyright or licensed exclusive use to the newspaper. When selling your work to newspapers or magazines, make it clear in writing, that you are selling only First or Second Serial Rights, not your copyright.

I want to use a quote from another book but don’t know who owns the copyright. Can I just put it in quotes and use it?

If you cannot identify the source of the quote, we enter the murky waters of ‘orphan works’. A new scheme is now in place whereby you can buy a licence to use an ‘orphan work’ from the IPO (Intellectual Property Office), for an application fee of £20 (for a single ‘work’, e.g. book), up to £80 for 30 ‘works’, plus a licence fee, which will depend on the work and what you say about its use on the application form. The licence will last for seven years, which is the window of time allowed for a copyright owner to ‘claim’ the work (which goes on the IPO orphan works register when it becomes a licensed subject under the scheme).

The IPO will not grant an orphan-use licence if it thinks your use will be ‘derogatory’ of the copyright work, or if you are unable to show that you have made diligent attempts to trace the copyright owner, so the old rules about making such efforts now apply in statutory form. ‘Diligent’ efforts to trace the copyright owner could include contacting publishers, searching the WATCH (Writers Artists and their Copyright Holders) database, and placing an advertisement in the TLS, the Bookseller, etc). Keep a record of all your efforts in case the copyright question comes back to bite you later, and use a disclaimer on your material. In an ideal world, all content would be tagged with details of what is permissible and how to contact the owner.

My publisher has forgotten to assert my copyright on the imprint page. What does that mean for me?

Technically, what is usually asserted on the imprint page is the moral right to be identified as author of the work. This ‘paternity right’ is lost if it is not ‘asserted’, so if it is not on the imprint page or anywhere else you lose the right. Moral rights are copyrights, separate to and additional to what we normally refer to as ‘(‘economic’) copyright’: they protect the personal side of creation, in that they are about the integrity of the work and the person/reputation of the creator. Whereas the ‘main’/economic copyright protection is there to ensure you get revenues from your work, for example licence fees and royalties. Both economic copyrights and moral rights were conferred by the 1988 UK statute and derive from the Berne Convention. They exist separately, so you can keep moral rights and ‘licence away’ copyright (economic copyrights). And so in reverse, even if your moral right to be identified as author is lost, your other rights – economic copyright and the moral right to not have your work subjected to ‘derogatory treatment’ – remain with you. Moral rights cannot be licensed or assigned because they are personal to the author, but they can be ‘waived’; for example, a ghostwriter may well waive the right to be identified as author. Moral rights are very flexible and useful, but are not widely used.

I’ve found an illustration I want to use for the cover of a book that I’m self-publishing. I chose the picture (dated 1928) on purpose because the artist is out of copyright and the picture is in the ‘public domain’. Why is the picture library, which holds the image, charging a reproduction fee?

You have to pay a reproduction fee under copyright law because of the separate copyright issue for photography. Because the original artwork was photographed, copyright vests separately in the photograph (of the artwork) as opposed to the artwork itself. It is a controversial area and one where the UK/US legal systems are split. Make sure that standing behind this is a contract with your publishing services provider identifying you as the copyright holder. Do not cede any rights. You should be granting the publisher a non-exclusive licence to publish your book only.

You should also be aware of changes, due to take effect in the UK in July 2016, which apply to all publishers of any illustrative or photographic pictures of 2D objects (e.g. chairs and furniture), 3D artworks, and possibly architecture. Publishers must now clear UK copyright permissions and pay any relevant fees for use of such images, unless that change to the law is undermined by judicial review, a sort of appeal procedure which could be instigated by, for example, the Publishers Association and/or the designers themselves, artists, photographers, publishers or authors.

I included someone’s work on my blog, but as I blog for free and it’s not a money-making exercise, can I be sued for copyright infringement?

Yes you can. If the person alleging copyright infringement can show she has copyright in the work, that you had access to her work, can show you copied the whole of that work or a ‘substantial part’ of it, and that you did not have permission, you could well be infringing criminal and civil copyright laws. The point of copyright law – the economic as opposed to the moral rights aspect – is to protect the economic interests of the original copyright owner. If she can demonstrate that her position has been undermined by your blog in terms of her market share having diminished and/or that sales have been adversely affected, etc or if she can show that you have not paid her any reuse fee or asked permission or acknowledged her authorship, you are on very thin ice.

This article is an extract from 'Copyright Questions' taken from the Children’s Writers’ & Artists’ Yearbook. To read the full article, as well as dozens more from other authors and industry professionals, purchase the 2017 edition here.

Gillian Haggart Davies MA (Hons), LLB is the author of Copyright Law for Artists, Designers and Photographers (A&C Black 2010) and Copyright Law for Writers, Editors and Publishers (A&C Black 2011).