One of the problems of self-publishing is the somewhat complicated business of copyright. Having spent the last 35 years struggling with the complexities of international tax law, I have to say that I found the do’s and don’ts of UK Copyright Law, confusing. Especially when you consider the similar but slightly different rules applying to texts, photographs and other creative works. There are also seems to be a world of difference between the rules for commercial publishing, posting on the internet, education and so on.
If you are writing a novel, we assume that it is the font of your creative endeavours, so providing you have not plagiarised the ideas from somebody else, you are probably okay. Anyway, novels are not my theme here. I have been sporadically writing one for the last 35 years and never got very war. I am interested in writing non-fiction historical works. Clearly, I have not made it up a work of history I need to refer to previously published secondary works, original works, archives etc. I have copyright over the structure of my book, original ideas and how I have organised other people’s material; however, the original underlying material could belong to somebody else.
I am researching the lives and deaths of Captain Edward Brittain M.C. and Captain William Howard Lister D.S.O. , M.C., both men with strong connections to Buxton who both served with the British Italian Expeditionary Force and who both died within a couple of months of each other on the Asiago Plateau in Italy in 1918. I needed to refer to previously published material, so was interested to know just what you can and cannot do in terms of copyrighted works.
So before storming in and quoting published works left, right and centre I thought I would some research. It turns out I am treading through a copyright minefield and that even if you are referring to material published a hundred years ago, the copyright is not entirely free from doubt. I may also have been fairly naïve by thinking “if it-s already published on the Internet it is probably okay”. Wrong in so many ways.
I have to preface this blog, by saying, I am not a lawyer and the following is a personal view aiming to highlight some of the risks that authors my come across while using multiple sources. Anybody with specific complex copyright queries should probably consult a qualified legal person. While there are some excellent general guides on the internet, there also seems to be a hoist of conflicting material. I think anybody googling copyright should be particularly careful that what they are reading also refers to UK copyright, since there is quite a lot of material about the historically different US copyright rules
Creative people have to make a living somehow and copyright ensures they can at least benefit economically and protect their works. In order to make some money from their ideas or to protect their original work from being abused or mutilated by somebody else, an author will want to assert their copyright. Generally a publisher will pay money (royalties or as advance on royalties) for the economic rights to use a copyright work. If the work is popular enough this should guarantee some revenue. However, copyright also protects the original work, by preventing other people from doing a number of things with the work. UK Copyright Law is currently based on the 1988 Copyright Act. The author of a copyright work has an author the exclusive right to authorise or prohibit the following acts:
Reproduction of the work[1]
This covers copying a work in any way. For example, photocopying, reproducing a printed page by handwriting, typing or scanning into a computer, or taping recorded music.
Distribution[2]
This covers issuing copies of a work to the public. This would include, for example, a book being sold in a bookshop. This right only applies the first time a copy of a work enters into commercial circulation and so would not prevent the re-sale of that copy, for example by a second hand shop.
Rental and lending[3]
This covers renting or lending copies of a work to the public. For example, renting from a video store or loaning a CD from a library.
Public performance[4]
This covers performing, showing or playing a work in public. This would include performing a play in a theatre, and playing sound recordings or showing films in public. This right does not extend to the exhibition of literary, dramatic, artistic or musical works (for example, in a museum or gallery).
Communication to the public[5]
This covers communication of a work to the public by electronic transmission. This would include broadcasting a work or putting it on the internet.
Adaptation[6]
This covers the making of an adaptation of a work. This would include making a film out of a novel, transcribing a musical work, translating a work into a different language or converting a computer program into a different computer language or code.
Works often mean more than just the economic value they can generate from their exploitation they can be very special to the person who creates them as they have invested a lot in the work, emotionally and/or intellectually. Moral rights protect those non-economic interests. Unlike economic rights, moral rights cannot be sold or otherwise transferred. However, the rights holder can choose to waive these rights.
There are four moral rights recognised in the UK under Chapter IV of The Copyright Act:
This is the right to be recognised as the author of a work. This right needs to be asserted before it applies. For example, in a contract with a publisher, an author may state that they assert their right to be identified as the author of their work.
Derogatory treatment is defined as any addition, deletion, alteration to or adaptation of a work that amounts to a distortion or mutilation of the work, or is otherwise prejudicial to the honour or reputation of the author.
This is the right not to be named as the author of a work you did not create. This would prevent, for example, a well-known author being named as the author of a story they did not write.
This right enables someone who has commissioned a photograph or film for private and domestic purposes to prevent it from being made available or exhibited to the public. For example, this would allow you to prevent a photographer from putting your wedding photographs on their website without your permission.
So here we get to the nub of the problem, if we are using previously published (or indeed unpublished works) how long dies the copyright last. Under the 1988 Copyright Act. Copyright on a published work expires at the end of the period of 70 years from the end of the calendar year in which the author dies, ( the 70 plus one year rule) .
If the work is of unknown authorship, copyright expires—
(a) at the end of the period of 70 years from the end of the calendar year in which the work was made, or
(b)if during that period the work is made available to the public, at the end of the period of 70 years from the end of the calendar year in which it is first so made available,
Typically, the first owner of a copyright is the person who first creates a work, for example, an author poet, photographer or even a letter writer.[7] Specific rules apply to works created by employees during their employment; here the copyright holder would normally be the employer. [8] This explains why I do not hood the copyright on any of the external or internal publications, I might have written for my employer over the years.
As noted above, copyright does not generate any money, but it gives the creator rights over the commercial exploitation of their work. Copyright does not necessarily have to be held by an individual. In order to make money, a copyright holder either assigns copyright or receives payments from the publisher for the use of their copyrighted material. Importantly copyright can also be assigned or inherited. Look inside the cover of a James Bond novel, it does not say copyright Ian Fleming. Fleming was, of course, the author and creator of James Bond, but he assigned (or we assume sold) the copyright to a company called Glidrose Publications Ltd,( now Ian Fleming Publications Ltd) . Therefore, Glidrose controls the rights to the Fleming Bond Novels, even though the copyright is based on Ian Fleming’s lifetime. One would assume that there were good tax reasons for this as well, by assigning the copyright to a limited company Fleming was not entitled to royalty payments taxable on him as an individual but they would have been taxed in Glidrose at corporate tax rates. Interestingly, Glidrose were unsuccessful in their attempts to copyright the character of James Bond- but that becomes a matter of Trademarks rather than Copyright. The film rights to the novels were treated separately, which makes for another interesting story, but is out of my scope here. Digressing for a minute, the copyright went into Glidrose’s Balance Sheet as an Intangible Asset, and is then amortised over the years. This is not an exact science, you might expect the copyright to be amortised over 70 years, -but in fact that is not the case. With a book, the sales and royalties are likely to be higher immediately following publication and decline thereafter, so the copyright is amortised over a shorter period than that. Looking back at historical Glidrose Accounts from the 1950s you could probably tell how much the copyright was originally sold for.
The laws of inheritance and intestacy also cover copyright[9]. Where an author maintained their own copyright ( i.e. they had not assigned it or sold it to somebody else) then the copyright , other intellectual property rights over unpublished works, film rights and papers of intrinsic interest pass to their estate. Because of all this complexity an individual might appoint a literary executor to look after the literary side of their estate, UK law allows for more than one executor of an estate,, so a family member might be the executor for real property , cash and other tangible assets, while a different person can act as Literary Executor. So this is why you see the copyright attributed as © The Literary Estate of xyz or © the Literary Executors of xyz. Often, the Literary Executor has a far wider role than just receiving royalties. They may in fact be acting as the gatekeeper for papers and protecting the reputation. Going back to the example of Ian Fleming again- the copyright in the James Bond Novels was assigned to Glidrose, while the copyright on his other works, personal letters etc. is held by the Ian Fleming Literary Estate.
Crown copyright is defined under section 163 of the Copyright, Designs and Patents Act 1988 as works made by officers or servants of the Crown in the course of their duties. Crown copyright covers material created by civil servants, ministers and government departments and agencies. This includes legislation, government codes of practice, Ordnance Survey mapping, government reports, official press releases, academic articles and many public records. The National Archives provide extensive guidance on Crown Copyright.
In the case of unpublished works, the position gets even more confusing. Especially where they are published posthumously. While legally, the recipient of a letter is its owner, the copyright of a letter belongs to its writer. Therefore, one of the claims made by Meaghan Markle against the Mail on Sunday regarding the publication of a handwritten letter she sent to her father, is that they have not only have they violated her privacy – but also her copyright on the letter she wrote to her father. While the Mail on Sunday would no doubt squeal a public interest defence in the content of the letters ù8 unjustifiably) , they would appear to have no wriggle room on the copyright. Bit like Al Capone, if you cannot get him for racketeering get him for tax evasion.
Writing about Edward Brittain, I might reasonably want to quote from the letters he wrote during his unfortunately brief lifetime. Edward died in June 1918, with his letters unpublished at the date of death. I would also like to quote from a poem by Roland Leighton. . Roland’s poems were unpublished at the time of his death. Had they been published, the 70 plus one year rule would apply and as he died in 1915, Roland would be well out of copyright. Except that, the rules on unpublished works are different.
Clearly, Vera Brittain assiduously saved all of Edward’s correspondence and we owe her a great debt for that. These collections are physically located at McMaster University Library in Hamilton Ontario. In the published collection, “Letters from a Lost Generation; First World War Letters of Vera Brittain and Four Friends”, “copyright to the Vera Brittain material is attributed to Mark Bosridge and Rebecca Williams as Literary Executors for the Vera Brittain Estate 1970. Since Edward Brittain died before 1st January 1969 and his written works , including letters had not been made available to the public by the time of his death in June 1918, but were posthumously published they remain in copyright for 50 years from the end of the year in which they were first published. In this case, if the letters were first published in the book “Letters from a Lost Generation “ , the date of first publication would be 1998, so they remain copyright until 1st January 2049. –however, some of the letters were included in “Testament of Youth” first published in 1933, so I wonder how that affects the situation. Are some letters copyright until 2048 and others until 1983? Or does the fact that they are included as in a published work by Vera Brittain (who died in 1970) keep them in copyright until 2041? I must admit, I have no idea but am trying to find out.
If the position with text is complicated, the use of image the use of images is not much easier. Photographs as creative images are also covered by copyright and the same 70 years plus one, applies. The position with photographs is becomes more complicated because one might not know who took the photograph in the first place or when they died. For example, if a photograph was taken during the First World War in say 1918m by a photographer aged 25. Hopefully they survived the war and went on to live a long a profitable life and maybe died at 80 in 1973- that photograph would still be in copyright in until 2043, so rights would be required. For previously unpublished photographs the copyright may theoretically run until 2029
The situation with old postcards is different again. A postcard that has been on sale has been published. where the date of publication is known, but the name and date of death of the photographer are not known the starting date can be assumed as the date of publication for counting the 70 years. If the date of publication is not known, you might have to male an educated guess (from the date of posting if that applies- or from the detail in the photograph- cars, costume etc.) So counting backwards, post cards first published before 1949 should be out of copyright if the author is not known.
Clearly the solution of this is to take your own photographs which I was we did with the material included in Breaking Stone. For example, rather than using a stock image of the former German legation is London or Cannock Chase Cemetery, we actually took our own photographs, so we got to have an interesting day out in Cannock Chase, take some photographs without any risks of copyright violations. I was doing the same thing on my trip to Asiago .Either my father or I would have copyright over those photographs, as having composed and created the photo. At least we are sure that we don’t have to search for the rights on those.
In order to quote from a copyright work, you need to have permission. Permission is required to quote any “substantial part “of a copyright work. However, unfortunately “substantial” is not defined and is open to interpretation. I have seen indications of percentages or numbers of words given as rules of thumb. However, there is no hard and fast rule. You can quote without permission for a copyright work where the following apply;
the work you are dealing with has been previously published,
The use is fair dealing
You quote no more than is required by the specific purpose for which it used
The use id generally for the purpose of quotation
You include the proper acknowledgement
Again as with substantial, the term fair dealing is not further defined in the legislation. Without going through all the case law, in order to establish fair dealing it is necessary to establish whether
Does the new work affect the market for the original work? If use of the new work acts as a substitute for the original causing the owner to lose revenue , it is unlikely to court as fair dealing
Is the amount of the original, which is being used reasonable and appropriate, was it necessary to use the amount taken ?
One of books, which I found to be an extremely useful background to the Italian Expeditionary Force, was Hugh Dalton’s “With the British Guns in Italy”. This is an admirable first-person account of Lieutenant Dalton’s service with the Royal Garrison Artillery in Italy in 1917-18. The book was originally published in 1920, but Hugh Dalton went on to have a long and productive life, including serving as Chancellor of the Exchequer. He died in 1962. Therefore, “With the British Guns in Italy” although out of print and available as a free copy on the internet, is still, very much in copyright.
If I was to copy the whole of Mr. Dalton’s work, simply adding a new introduction, I am causing the rights holder to lose revenue- because it might affect the sales of a future issue. So clearly, that would not be fair dealing. Even though it is an old book, the rights holder might want to try one last republication, before the copyright expires. So obviously, I cannot just print the whole thing.
On the other hand, if I was to publish “On the Tracks of Hugh Dalton’s “With The British Guns in Italy”” which was based on my own travels observations and photographs, with some quotations from Mr Dalton’s original book. That might be legitimate. It may even be that by doing that I am creating a new market for the book and this doing the rights owner a favour. I suppose the fair dealing aspect, would be arguable the more of the original text I quoted.
If, I am using short properly acknowledged quotations for a published work, in a specific context. I might be okay. For example, the use of a couple of specific and judicious quotes about the British Army in Italy, is probably within the realms of fair dealing
Of course, that is just by opinion, and I would not really want to test it in court.
For the background to Edward Brittain’s service and the 11th Battalion of the Sherwood Foresters, the most comprehensive source is “The Men From The Greenwood” – by Percy Fryer (which is based mainly on the Battalion’s War Diaries). It was originally published in 1920 and scanned copies can be found online. Unfortunately, it is difficult to find out much about Percy Fryer. Assuming, Percy was maybe in at least his thirties or forties when he wrote the book- chances are he may have died in say the 1960s or 1970s, so the book may just about me in copyright. On the other hand, if Percy was around 50 when he wrote the book- maybe he died around 1950 and the book would by now be out of copyright. The publishers Creswell and Oaksford, do not show up any searches- in fact they only show up with reference to this last publication, so I am not sure they would be of much help anyway. The Society of Authors give useful guidance on conducting a “Diligent Search”, where the copyright holder cannot be found. If such a diligent search turns up nothing, the work might be considered as an orphan work for copyright purposes.
The full legislation for the 1988 Copyright Act
http://www.legislation.gov.uk/ukpga/1988/48/contents
Guidance on use of material from National Archives (UK)
www.nationalarchives.gov.uk/documents/information-management/use-of-tna-materials.pdf
Further Guidance on Crown Copyright
http://www.nationalarchives.gov.uk/legal/copyright/
Guidance on Copyright from the Society of Authors
[1] Section 17 of the 1988 Copyright Act
[2] section 18 of the 1988 Copyright Act
[3] Section 18A of the 1988 Act
[4] Section 19 of the 1988 Act
[5] Section 20 of the 1988 Act
[6] Section 21 of the 1988 Act
[7] S11 (1) 1988 Act
[8] S11 (2)
[9] S90 (1) of the Act- provides that Copyright is transmissible by assignment, by testamentary disposition or by operation of law, as personal or moveable property.