Journalism is the business of turning information into money and the “copyright is the branch of law that enables journalism to exist as a business. Development of effective copyright law is the key to the entire industry. Without copyright law there could be no profit, since giving up rights to copyright is the way in which we are able to charge money for our work, as individuals and as an industry as a whole.” (Ref.2)
As McNae’s essential law for journalists edition 20th gives ‘ Copyright is a branch of intellectual property law and it protects the products of people’s skill, creativity, labour, or time.’ (Ref.1)
Copyright has existed in the UK and US in common law since the early18th century. In common law breach of copyright is similar to theft – it is the act of making beneficial use of somebody else’s intellectual WORK without permission. If a person can prove that their intellectual property has been stolen they can sue for compensation. (Ref.2) And so breach of infringement of copy rights is ‘making beneficial use’ or exploiting someone else’s intellectual work without permission. “The statutes are the 1911 Copyright Act, which made breach of copyright a crime, and the 1988 Copyright, Designs and Patents Act 1988. This gave extended rights to the makers of certain types of ‘intellectual property’ which didn’t really exist in 1911 to make their work protected. “(Ref.2)
According to Intellectual Property Office Copyright applies to: Original works- (most works) must be original to have copyright protection.Websites and the internet- the same rules apply on the internet as with other medium. Written work including software and databases- software and databases can be protected as written work. Theatre- dance and mime can receive protection too. Music- can have numerous types of work capable of protection. Artistic works including photographs- photographs are also artistic works. Spoken word and performers- performers of spoken word may receive protection. And finally, TV and Film - numerous types of work can be protected in the case of TV and film. (Ref.9)
An interesting challenge set by one of our tutors that exercised the rules of Copyright thing was described in an article on BBC News on Friday, August 200, titled ‘How to Copyright Yourself’, written by Chris Horrie (also our director for Journalism course) gives that “film stars are being encouraged to patent their own DNA to stop anyone stealing their identity to make a clone. BBC News Online's Chris Horrie - worried about a similar threat to himself - tried to register himself. (...)” (Ref.7) Chris attempts to see how hard/easy would it be to protect himself from having his genes copied. Chris then writes, ‘there must be millions of people around the globe, I therefore reasoned, who are gagging for my genes and so urgent steps were needed to protect them. (...) “ (Ref.7) First of all Chris had to try to get a print out of his personal DNA an after a number of organisations that Chris had to go through NHS: St Mark's Hospital in Harrow (one of the leading centres for genetic diagnosis and analysis in the country), Human Genome Project and then Patent Office, he says in the article that he was trying to make sure that he would be able to register himself once he had persuaded the Scientists of the Genome to scan him or whatever it was. (Ref.7)
Then he came across ‘more problems’ as he says. He goes onto saying ‘ spokesperson doubted that my DNA would be accepted as unique, since as much as 90% of the pattern was shared with monkeys - if anything it could be argued that I had stolen my persona from them, and so I might end up having to mount a massive class action against the population of London Zoo.
Also, to get my patent, I would have show a clear "technological application" - such as evidence that by throwing myself into a vat of deadly chemicals, I could catalyse some sort of useful chemical reaction.
Another difficulty was that I would have to prove that I was "novel at the time of making the application" - meaning that nobody had ever heard of me or seen me doing whatever result of being Chris Horrie it was that was worth copyrighting. ‘ (Ref.7)
Then Chris tried to put his genes in aspect of being off as a ‘work of art, literature, drama or sculpture but as he says in the article ‘it could only apply to any documents on which my gene pattern was written and not the genes themselves. ‘ (Ref.7)
Chris goes onto writing that ‘ it would be hard to copyright a sheet of computer print-out possibly several miles long if it represented a complete, unique DNA print out.‘ (Ref.7) He then turns to the Copyright Licensing Agency but as he soon finds out ‘the authority mainly deals with the law on photocopying books’ (Ref.7).
His conclusion out of that challenge was that ‘for the time being at least, anyone thinking of surreptitiously obtaining a sample of genetic Chris Horrie material (...) and then producing an army of super-intelligent zombie-clones (...) can do so with legal impunity. “ (Ref.7)
After this witty and interestingly executed challenge we can see that there are probably gaps within the law on the Copyrights that for some reason, essentially allow within a law to copy a sample of someone else’s DNA as they are copyright free (funny, but quite surprising conclusion). Let’s hope that as our technology develops the copyright laws will adjusts to it making sure that at some point we ‘will be lawful owners of our own copy of genes’.
As we found out from Chris’s quest personal DNA is not copyright covered but what we know for sure is that Copyright protects intellectual property as mentioned earlier and the intellectual property – “is a residual right that every citizen has” (Ref.2) and it is protected as. Any work you do belongs to you (you own it– it is a residual right) until you sell it to somebody else. (Ref.2)
The Intellectual Property Office states that things protected by copyright are:
• literary works, including novels, instruction manuals, computer programs, song lyrics, newspaper articles and some types of database
• dramatic works, including dance or mime
• musical works
• artistic works, including paintings, engravings, photographs, sculptures, collages, architecture, technical drawings, diagrams, maps and logos
• layouts or typographical arrangements used to publish a work, for a book for instance
• recordings of a work, including sound and film
• broadcasts of a work (Ref. 8)
Also, ‘under 1988 Act, there is copyright in spoken words, even if they are not delivered from a script, as soon as they are recorded, with or without the speaker’s permission. The speaker, as the author of a literary work, owes the copyright in his/her words, unless he she is speaking in the course of his/her employment.’ (Ref.1) Of course the speaker that reads from the manuscript is also covered by the copyright (e.g. sending the copies of the Quinn’s Christmas day message that was sent to The Sun and other newspapers).
Copyright free things:
Things that are not protected by copyright (no copyright) are for example undeveloped ideas, slogans or catchphrases as the copyright only applies to things that had already been done. For example if you reproduce a film which is copyrighted (or any part of it, with the exception of pieces of the film for purpose of review) then you are in breach of copyright. There is no copyright in facts or information, or in particular numbers or particular words.
Why do we care as journalists:
We care as journalists because without copyright protection, journalism would never have flourished, copyright materials exclusively. Copyright gives our product a value and so we should always respect other people’s copyright in the hope they respect ours. Also we care for self representation as we have a lot to lose like money for example, reputation or even being left with embarrassment. “In the entertainment industry the compensation claims can be massive – eg Napster and unsuspecting parents who suddenly get massive bills from record companies because their children have been stealing lots of music using Limewire or similar. “ (Ref.2)
Selling the rights to use intellectual work
You can sell the rights to use your intellectual work but you are more likely to license the use of your work in return for payment. “There are three ways this would normally work.
1. If on the staff (fully employed with legal employment protection) of a broadcaster or newspaper or website almost always your contract of employment (...) will either state that you surrender the rights to commercial exploitation of your work. (...)You have been paid wages (...) and the employer then re-sells that article for a lot of money; you will not be paid any more. However, since the 1988 Copyright Act, you do retain ‘moral rights’ – you must be identified as the author of the work, and you have a right to prevent the article being altered in such a way that you would be denigrated if identified as author of the work.
2. Therefore as a journalist/photographer/author, etc, you can negotiate a different contract of employment, which gives you some rights to money if your work is re-sold. (...) More likely you can be a ‘freelance’ journalist (...) you retain the rights to your work, and license the use to publishers or broadcasters – either exclusively (...) or non-exclusively (...). You then retain the copyright so that after an agreed period of time the copyright in the work will return to you. (...)” (Ref.2)
There are also a specific durations that pieces of work can be can be potentially used. The duration: For literary, dramatic, music (scores), films or artistic works (1988 statute) for example is 70 years after the death of the author; for sound recordings and broadcasts is 50 years from the year in which the work was created (compilation CDs of songs from the World War II which are all non copyright). (Ref.2) Also before a release of a film there is a two/three week gap when there is a possibility of access to film footage through the trailer (bond film and car package example). (Ref.3)
Generally speaking, before using any material it is important to always carry out copyright checks and recognise if there is a risk or issue of copyright matter (think about how to go about it if needed) and remember that contacting right holders takes time and you should tell others you cleared the issue.
“LIFTING” (fair dealing)
There is no copyright in the facts of a news story, though the actual words (especially quotes and even more especially bits of video, or clips of interviews) are protected by copyright. The reason is that the actual way in which the news story is written is the work of the journalist, as are the actual words in the quotes and as is the interview which may have been captured on film. (Ref.2)
“There is a very strong defense to breach of copyright when reporting the news and writing about matters in the public interest. This is the defence of ‘fair dealing’ which covers the old journalistic practice of “lifting” quotes from a newspaper report carried by a rival paper.” (Ref.2) Papers have been ‘lifting’ each others’ stories for years in very constrict criteria as you can ‘lift’ stuff as long as you obey certain principles of ‘fair dealing’. The fair dealing is for the purpose of reporting current events. As long as we follow these rules we "can safely lift” a short, sound-bite type quote from another newspaper or from a broadcast news bulletin and include it in your report under fair dealing so long as you give proper attribution to the source, and that you do not “pass off” the quote as your own work’ (Ref.2) ; we also have to do it in public interest and the usage must be fair (this is how newspapers have been ‘sharing’ things and there is legal underpinning for it).
"You do not have to name the rival title, but you must NOT give the impression that the quote was given exclusively to you. You have not heard the actual quote yourself, so you should not give the impression that you have as that would be malice. (Ref.2)
THE DA VINCI CODE CASE
“The point that there is no copyright in ideas, concepts, plot outlines, etc and only in the actual work was strengthened in a 2007 High Court appeal case where Dan Brown was sued by two authors who claimed that they had already published the gist of lot in the The Da Vinci Code some years before in a non-fiction book called The Holy Blood and The Holy Grail (essentially that Jesus had children who escaped the middle east ruled as monarchs in the South of France in the middle ages, protected by secret societies and secret knowledge – or at least that such a thing was believed). The two books are in fact very similar in what they allege. But The Holy blood people lost their case, because there was no copyright in an idea of this sort; and it had not been proven that Dan Brown had lifted anything substantial from the earlier book.” (Ref.2)
When talking about the ‘FAIR DEALING you can use copyrighted materials only in the following ways: (from the statute)
* Private and research study purposes.
* Performance, copies or lending for educational purposes.
* Criticism and news reporting.
* Incidental inclusion.
* Copies and lending by librarians.
* Acts for the purposes of royal commissions, statutory enquiries, judicial proceedings and parliamentary purposes.
* Recording of broadcasts for the purposes of listening to or viewing at a more convenient time, this is known as "time shifting".
* Producing a back up copy for personal use of a computer program.
* Playing sound recording for a non profit making organisation, club or society.
Most of these rights are lost if you are doing it for profit (eg, journalism).‘ (Ref.2)
Fair dealing allows wider reporting of stories in public interest; criticism and review of copyright material; broadcast news or even bits of film (stars can use famous movie clips for free).
CREATIVE COMMONS MOVEMENT is a way of using copyrighted material for free with permission. You must respect moral rights, and share profits if they arise. The license is usually time limited. You must inform the license holder (Ref.2)
Photography and film footage
‘Where a photograph is commissioned from a freelance or commercial photographer today, the copyright is owe by the photographer (or his employer) unless there is an agreement to the contrary. ‘(Ref.1)
Photographs (stills and video) are never a subject to fair dealing and therefore it is of our concern as journalists, which are now also so easily available on the internet. “Until 1988 the copyright in a photograph belong to the person who supplied the original photographic plate, or photographic film. The 1988 Act changed that so that photographers had “moral rights” over their own photography. “ (Ref.2) ‘If the photograph was taken before the 1988 Act came to force, however, the copyright will be owed by the person or company who commissioned it, even thought the photographer or his employer will own the negatives or film.’ (Ref.1)
To use someone’s photograph just as it is with video footage we have to have a permission for it (license) or sometimes even pay for it. ‘The reason for the 1988 act was the outdated copyright law as it applied to photography. But it also applies to all “intellectual property” including ‘literary’ work, dramatic work, drawings, works of art, sound recordings, video, design, etc.’ (Ref.2)
COPYRIGHT USED BY BUREAUCRATS TO PREVENT INVESTIGATIVE JOURNALISM
If you get a leaked document from a government department, then they may allege breach of confidence and seek an injunction to stop you publishing the story (Goodwin case look in here: Breach of Confidence and secrecy – studying media law week 5 (part I)). They may also allege theft both of the actual document (Sarah Tisdall case), and also infringement of copyrighted words in the document. They may also prosecute for theft of electricity (even a minute amount) if you hack into a computer remotely to obtain copyrighted information (or any information for that matter). (Ref.2)
Sarah Tisdall case:
In 1983, the The Guardian newspaper “was at the centre of a controversy surrounding documents regarding the stationing of cruise missiles in Britain that were leaked to The Guardian by civil servant Sarah Tisdall. The paper eventually complied with a court order to hand over the documents to the authorities, which resulted in a six month prison sentence for Tisdall. “(Ref.6) she served only four. Peter Preston who was the editor of The Guardian at the time, argued that ‘the paper had no choice because it "believed in the rule of law". ‘(Ref.6)
The right of freedom of expression under the Article 10 of the European Convention of Human Rights was held by Sir Andrew Morrit, Vice Chancellor, in 2001 to provide no defence for infringement of copyright over and above the defences provided by the Copyright act 1988. The decision was upheld in the Court of Appeal. (Ref.1)
References:
Ref.1) McNae’s, Essential law for journalists, D.Banks, M.Hanna (20th Edition 2009)
Ref.2) Notes from the Media Law section on Winchester Journalism site for third year ba students (updates, year 3, BA Journalism 2010) week 5 http://journalism.winchester.ac.uk/?page=102
Ref.3) Media Law Lecture ba Journalism, year 3, week 6
Ref.4) Breach of Confidence and secrecy – studying media law week 5 (part I) http://veronicafryd.blogspot.com/2010/11/breach-of-confidence-and-secrecy.html
Ref.5) Preston, Peter (5 September 2005). "A source of great regret". The Guardian (London) http://www.guardian.co.uk/media/2005/sep/05/pressandpublishing.politicsandthemedia
Ref.6) Wikipedia: The Guardian http://en.wikipedia.org/wiki/The_Guardian#cite_note-33
Ref.7) ‘How to copyright yourself’ by Chris Horrie for BBC News online http://news.bbc.co.uk/1/hi/uk/1494746.stm
Ref.8) Intellectual Property Office: http://www.ipo.gov.uk/types/copy/c-about.htm
Ref.9) Intellectual Property Office: http://www.ipo.gov.uk/types/copy/c-applies.htm
