Copyright and Moral Rights

The purpose of copyright is to allow creators to gain financial rewards for their efforts with a view to encouraging future creativity and developing new material. Copyright material is usually the result of creative skill, significant labour and judgement. Without legal protection such material would often be relatively easy for others to exploit without paying the creator.

In the UK, there is no official copyright registry and no fees to pay, as in some other countries. Copyright protection is automatic as soon as there is: (1) a permanent record in any form of the newly created material; and (2) the material conforms with the criteria set out in the Copyright Designs and Patents Act 1988 (CDPA 1988).

Copyright is a partial monopoly and the law allows a number of exceptions whereby a copyright work may be lawfully copied without infringing the rights of the author. The wide range of permitted acts, exceptions and the fair dealing defences limit the copyright owner’s rights.

As copyright is statute-based, in every answer students should refer to the relevant sections of the CDPA 1988 as well as to case law authorities. The majority of questions will deal with literary, dramatic, musical or artistic (LDMA) works under Part I of the Act.

Critically discuss the benefits of the copyright law regime and moral rights protection.

Although copyright protection has existed in the UK for several centuries, in modern times the scope of copyright has expanded incrementally to encompass new forms of creative material as well as new ways of disseminating material, made possible by technological advances. Modern copyright law gives the creators the benefit of protection over a wide range of material, such as literature, drama, art, music, sound recordings, films, broadcasts, cable programmes, typographical arrangement of published editions, computer software and databases. In the United Kingdom, copyright law is governed by the Copyright, Designs and Patents Act 1988 (CDPA 1988). Copyright protection provides benefits in the form of economic rights which entitle the creators to control use of their material in a number of ways, such as by making copies, issuing copies to the public, performing in public, broadcasting and use on-line: s 16 CDPA 1988. Copyright also enables creators to obtain an appropriate economic reward such as royalties and licensing fees. In other words, copyright allows an author to protect his original material and stops others from using that work without permission. However, in order to balance the rights of copyright owners with the interests of the general public, the CDPA 1988 permits certain uses to be made of works and subject matter without the permission of the copyright owner. The wide range of permitted acts, exceptions and the fair dealing defences limit the copyright owner’s rights (ss 28–76 CDPA 1988).

Another economic benefit afforded to authors of copyright works is that they are entitled to compensation where their works are loaned by public libraries. This ‘public lending right’ compensates them for lost revenue from sales. This right is administered via a Public Lending Rights Scheme.

The duration of copyright protection varies according to the material protected. But for published literary, dramatic, musical and artistic works, protection lasts for 70 years following the end of the calendar year in which the author dies. The length of copyright protection is a key benefit for author/creators, as they are able to continue to financially control their work for a long period before copyright expires and the work falls into the public domain and is free to copy. It is interesting to note that even unknown authors are recognised by the CDPA 1988. An unknown author is one whose identity cannot be ascertained by ‘reasonable enquiry’ (s 9(5)). The copyright work is known as an ‘orphan’ copyright.

Copyright works are like any other form of personal property: all or part of the rights in a work may be transferred or assigned by the owner to another. This means that copyright can be inherited, so that the author’s beneficiaries will continue to benefit from the author’s economic rights after his or her death.

However, one of the fundamental concepts of copyright law is that copyright does not protect ideas, information or facts, but instead protects the form in which those ideas, information or facts are expressed. The idea–expression distinction has been accepted and applied by the courts in the UK throughout the history of copyright, although it is not explicitly stated in the CDPA 1988. This concept is, however, explicit in Art 2 of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), which states that copyright protection extends to ‘expressions and not to ideas, procedures, methods or operation or mathematical concepts as such’. Where an idea can only be expressed in one particular way, that expression will not be protected since to confer copyright protection would monopolise the idea: Kenrick & Co Ltd v Lawrence & Co (1890). So although copyright protection is broad, it is not without boundaries. At times, it is difficult to state with precision the extent of the creator’s copyright.

Creators of copyright works now also enjoy the benefit of several moral rights included in the CDPA 1988. These are:

• the right to be identified as the author or director of a work (the paternity right) (ss 77–79);
  
• the right of the author or a director of a work to object to derogatory treatment of certain types of work (the integrity right) (ss 80–83);
  
• the right for everyone not to have a work falsely attributed to him (s 84);
  
• the commissioner’s right of privacy in respect of a photograph or film made in private and domestic purposes (s 85).

A new moral right recently came into force in the UK, namely the artist’s resale right. Resale royalties are the rights of visual artists to receive a percentage of the revenue from the resale of their works in the art market. Artists will be able to receive a royalty when their work is bought and sold, thereby profiting from the growing market value of the work. The Resale Right Directive came into force on 1 January 2006 for living artists and from 1 January 2012 for their heirs. The Directive sets out the standard royalty rate to be paid to an artist on resale of his or her work (that is after its first transfer by the artist). This means that when a living artist’s work is re-sold on the UK art market for 1000 euros or more, s/he will be paid a royalty of up to 4 per cent of the sale price. The Resale Right is an optional provision of the Berne Convention (Art 14), where it also applies to writers’ and composers’ manuscripts and scores. It is envisaged that the new laws will greatly benefit struggling artists, without placing heavy administrative responsibilities on the art market. It is important to note, however, that the right does not apply to resales between individuals acting in their private capacity without the participation of an art market professional, nor to those acting in their private capacity selling to not-for-profit museums open to the public.

In summary, it is clear that the benefits of copyright and moral rights protection are substantial, enabling creators to earn a living from their work. It is widely held that strong intellectual property protection spurs creativity, which in turn opens new opportunities for businesses, governments and the general public.

Critically analyse the concept of fair dealing under the CDPA 1988.

Copyright is only a partial monopoly: the law allows a number of exceptions whereby a copyright work may be lawfully copied without infringing the rights of the author. The wide range of permitted acts, exceptions and the fair dealing defences limit the copyright owner’s rights. Fair dealing allows the copying or other use of a work which would otherwise infringe: CDPA 1988, ss 28–76. Sections 28–76 of the CDPA provide a system of general and specific rights. A few examples of the most important of the 50 or so types of fair dealing include the use of copyright material for purposes of:

• research and private study (s 29);
  
• criticism or review (s 30(1));
  
• reporting current events (s 30(2));
  
• incidental inclusion (s 31).

However, the CDPA 1988 does not define the term ‘fair dealing’. According to Lord Denning in Hubbard v Vosper (1972), ‘fair dealing is impossible to define’. Nonetheless, case law suggests that a wide range of factors should be taken into consideration when determining whether the acts falls within the scope of fair dealing.

The relevant matters taken into consideration by the courts are whether the copying deprives the copyright owner of a sale that otherwise would take place, the size and proportion of the work copied and whether the infringer will obtain substantial financial gain from the infringement.

Anyone can make copies of a copyright work for the purpose of their own research or private study provided that it is within the scope of fair dealing (s 28 CDPA 1988). As fair dealing is not clearly defined, the only way to determine if the copy is within its scope is to consider the whole circumstances of the case.

However, if used to convey the same information in a competitive manner this would be unfair and would amount to infringement of copyright. In the Independent Television Publication v Time Out Magazine case, where the defendants attempted to rely on the defence of fair dealing for criticism and review, this failed because the purpose was to provide a television programme listing and had nothing to do with criticism or review. The same point was considered in Pro Sieben Media AG v Carlton UK TV Ltd (1999) where the defendants used a 30-second clip from a programme produced and owned by the claimant featuring a subject who had given an exclusive interview to the claimant. The defendant argued in the Court of Appeal that they were protected under s 30 by fair dealing for the purposes of news reporting, criticism and review. The Court of Appeal held that the degree to which the use of a protected work competed with exploitation of the copyright by the copyright owner was very important in assessing fair dealing.

The decision in Pro Sieben was later considered in Newspaper Licensing Agency Ltd v Marks & Spencer plc (1999). The facts concerned the copyright in a typographical edition of a literary work. Lightman J established a three-stage test for raising a s 30(2) defence:

1. reporting current events;
   
2. fair dealing with copyright work – not an actual exploitation; and
   
3. acknowledgement.

Another factor that should be considered is the status of the copied work – whether it is confidential or published. In Hyde Park Residence Ltd v Yelland (2000) a two-stage test was applied to determine whether the defence of fair dealing was available. First, it was necessary to ascertain the purpose of the act, for example if the purpose of such publication was within the ambit of reporting current events and whether the acts fell within the scope of fair dealing. Secondly, the work had not been previously made available to the public, which was an important indication that the dealing was not fair.

The publication of ‘Digital Opportunity’ follows a six-month independent review of intellectual property and growth, led by Professor Ian Hargreaves it also focused on aspects of fair dealing in copyright works. In particular, Hargreaves was commissioned by the UK Government to consider how the national and international IP system can best work to promote innovation and growth. The Report has recommended updating what it is lawful to copy. This includes copying for private purposes (such as shifting music from a laptop to an MP3 player) and copying which does not conflict with the core aims of copyright – for example, digital copying of medical and other journals for computerised analysis in research. For example an academic working on malaria cannot draw on previous research through data mining because they cannot get permission to copy the datasets they need to mine. If these recommendations are implemented, the fair dealing defences will expand to more accurately reflect the needs of non-rights holders and consumers of copyright works.

In conclusion, fair dealing is important because the courts have often held that taking even a very small amount of work is sufficient for an infringement of copyright. The courts’ findings will rely on key considerations such as the purpose of the use, the proportion of the use, its motive (if it was to compete with the original work it will amount to infringement) and the status of the other work as to whether it is confidential or published material.

In 2006, Anne Smith, a graduate of the prestigious Royal College of Art, wins that year’s £25,000 Jarwood Sculpture Prize with her work ‘Tin’ – a giant tin with the top left slightly ajar. Ms Smith says the work reflects her notion that ‘beyond literal legibility and metaphorical ideas, sculptures should be ambivalent in their meaning and identity’. The winning ‘Tin’ sculpture will be sited in a park near Swindon. Judges praised its ‘great intellectual depth and exceptional beauty’ and said an aluminium sculpture would look ‘outstanding’ in the park.

Barry Barking, a journalist, writes an article in an arts magazine that is highly critical of Smith’s sculpture. The article includes photographs of a series of four everyday tins and falsely claims that they are ‘other works of genius by Anne Smith’. The sculpture is placed in the park, but when it is secured to the ground, the top of the giant tin closes and is no longer slightly ajar. Smith is devastated and claims that her work has been ruined. Meanwhile, Carol, a local Swindon potter, having seen the ‘Tin’ sculpture on display in the park, decides to recreate it in clay in a miniature version. She gives one of her clay ‘Tin’ sculptures to her new neighbour as a housewarming present. A buyer for Harrods sees it while visiting the neighbour’s house and places an order for 100 more for the London store.

   Advise the parties as to whether or not any of them have infringed intellectual property rights, and any remedies that may be available.

In order to protect her work, a sculpture, Anne will have to show that copyright subsists in the work. Copyright comes into existence, or subsists, automatically when a qualifying person creates a work that is original and tangible. Section 1 of the Copyright, Designs and Patents Act 1988 provides that literary, dramatic, musical and artistic works be ‘original’. An artistic work such as Anne’s Tin sculpture must be original in the sense that it originates from her: University of London Press v University Tutorial Press (1916). Expending skill, labour and judgement in creating the work is enough to deem the work to be original. Further, even though it looks like a commonplace tin, it will be protected as a sculpture because it has been made for the purpose of sculpture: J&S Davis (Holdings) Ltd v Wright Health Group (1988). A sculpture is protected as an artistic work under s 4(2) irrespective of its artistic merit (s 4(1)(a) CDPA 1988). Therefore, it is clear that copyright will subsist in prize-winning sculpture, as it is likely to be original and not copied from another source: CDPA 1988 s 1(1)(a).

As creator of the artistic work, Anne will be regarded as its author and as the owner of the copyright in it (s 9(1) CDPA 1988). Accordingly, Anne has the exclusive right to do certain restricted acts in relation to her copyright work during her lifetime, and her heirs will benefit for a further 70 years following her death. The restricted acts are set out in s 16(1) CDPA 1988 and include copying, issuing copies to the public, renting or lending the work, for example. Anne can prevent a third party from carrying out any unauthorised activities concerning her sculpture.

Barry Barking has written an article in an arts magazine criticising Anne’s sculpture. Does writing an article about Anne’s sculpture infringe her copyright? This is unlikely here because Barry will be able to claim that his dealing with the sculpture is fair in that he is using the work for the purposes of criticism and review. This is a permitted act under s 30(1) CDPA 1998. Barry does not require Anne’s permission to refer to her work in the magazine article. Indeed, Barry probably has copyright in his own article (a literary work within s 1(1)(a) CDPA 1988).

Moral rights are personal rights conferred by s 94 CDPA 1988 on the authors of primary copyright works and the directors of films. Moral rights are quite separate from the economic interests in the work. They are also distinct from the copyright in the work. Moral rights are concerned with protecting the personality and reputation of authors. An author’s moral rights are protected as breaches of statutory duty, not, as copyright is, as a property right. The aim of moral rights is to protect an author’s artistic reputation and integrity. Before the CDPA 1988, authors in the UK mainly had to rely on their common law rights in contract, defamation, passing off, injurious falsehood and breach of confidence to protect their reputation and integrity.

Has Barry infringed Anne’s moral rights? By falsely attributing work to Anne by publishing pictures in his article and claiming that they were ‘other works of genius by Anne Smith’, Barry has infringed Anne’s right against false attribution. Moral rights are separate from any economic interest in the work in question. They are concerned with protecting the personality and reputation of the author and are therefore protected as a breach of statutory duty and not as a property right. Anne has the right for the works in the photographs accompanying Barry’s article not to be incorrectly attributed to her (ss 84–86). Here the false attribution is expressed by use of the caption. There is no requirement that Anne need have suffered any damage to assert the right: Clark v Associated Newspapers (1998). Anne may wish to consider bringing an action against Barry for infringement of this moral right.

The Tin sculpture is placed in the park, but when it is secured to the ground, the top of the giant tin closes and it is no longer slightly ajar. It would appear that Anne’s moral right of integrity may have been infringed. Past cases have involved the removal of site-specific artistic works. Sections 80–83 of the CDPA 1998 provide that Anne can object to the derogatory treatment of her work if the work has been added to, altered or deleted (s 80(2)) in such a way as to amount to a distortion, mutilation or otherwise prejudicial treatment. In Pasterfield v Denham (1998) Overend J held that distortion or mutilation must have harmed the honour or reputation of an artist, and that a subjective sense of grievance did not suffice. This was later affirmed in Confetti Records v Warner Music (2003). Here, as the Tin sculpture is a prize-winning sculpture, any change to its composition will be likely to harm Anne’s honour or reputation.

Meanwhile, Carol has recreated the ‘Tin’ sculpture in a different material (clay) and in a smaller size and gives one to her neighbour as a gift. Only Anne, however, has the exclusive right to copy the work and issue copies to the public: s 16(1) CDPA 1988