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LEGAL ISSUES RELATING TO THE DEVELOPMENT AND USE OF WORLD WIDE WEB TECHNOLOGY AT EDUCATIONAL SITES
Copyright and Associated Rights (cont)
Who owns the rights ?
In theory, the original owner of copyright in a given work is the person who created it. There are however, exceptions; in many cases, works created in the course of employment will be owned by the employer - universities are unusual in that by convention much of the literary copyright remains with academic authors. It should be stressed however, that this is a convention, and should University authorities be so minded, they could acquire copyright in literary works created by academics in the course of their employment, by virtue of their being an employer (20). Ownership of copyright in a work can change hands after its initial creation, and like any property, can be sold or assigned and may be passed on in a will.
Table 2: Ownership of Rights in a Work created under the CDPA 1988 regime
The rights in a literary work are owned by the author, unless it is created in the course of his employment, or unless otherwise assigned.
Sound Recordings and Films
The rights in sound recordings and films are owned by the person by whom the arrangements necessary for the making for the recording or film are undertaken, unless otherwise assigned..
The rights in broadcasts are owned by the person making the broadcast, unless otherwise assigned..
The rights in cable programmes are owned by the person providing the cable programme service in which the programme is included, unless otherwise assigned..
The rights in typography etc. of published editions of literary, dramatical and musical works are owned by the publisher, unless otherwise assigned..
This is subject to the proviso that works created prior to 1988 may be covered by different regimes, as UK copyright law has not been retrospective in nature. Thus, under the 1956 Act, copyright in a photograph belonged to the person who owned the negative film, unless the photograph was taken under commission.
How long do the rights last ?
All works will eventually emerge from copyright protection. However, different types of works have different lengths (or terms) of copyright protection. Also, despite the role played by international agreements such as the Berne Convention, different countries apply different lengths of copyright protection to works. The CDPA 1988 made changes to the length of protection for various in the UK works but, as it did not apply retrospectively, it still remained necessary to be aware of the relevant provisions in the 1956 Act and the 1911 Act. Equally, there are various variations and exceptions, a particularly irksome one being Crown Copyright, which can be considerably longer than normal copyright term(21). It is the issue of Crown Copyright, and the restrictive approach of HMSO Publications, which until recently prevented the placing on the WWW of any significant amounts of UK legislation(22). This may be contrasted with the situation in the US(23), Canada(24) and Australia(25), where large amounts of legislation and other government material are already available on the WWW. The problem lies with the fact that HMSO Publications is, not unsurprisingly, unwilling to relinquish its lucrative role as monopoly rights holder and licensee of UK legislative and other governmental material.
Directive 93/98/EEC and the Duration of Copyright and Rights in Performances Regulations 1995
The provisions of Directive 93/98/EEC (26) on Term of Protection of Copyright were required to be implemented by the EC Member States by July 1995. This Directive, designed to harmonise Member State copyright laws, extended the basic term from author's life + 50 years to author's life + 70 years(27). It has been implemented in the UK by way of the Duration of Copyright and Rights in Performances Regulations 1995 SI 1995 No. 3297 (28). It appeared that the provisions of the Directive would have retrospective effect, which would have meant that some material which had fallen out of copyright in the UK would be, as it were, recopyrighted, and it was unclear as to how this may effect those who have acted in reliance on the material being out of copyright(29) S23, 24 and 25 of the Regulations address these issues(30).
It has also been reported recently that following the implementation of that directive in the EC Member States, measures taken in accordance with the GATT related TRIPS agreement:
"....[a provision of GATT] will restore copyrights on a number of foreign books, paintings, films, photos and sketches that are currently in the U.S. public domain. The rule, scheduled to go into effect Jan. 1, 1996, will apply to works still protected by copyright in the country of origin. It could have a "big impact on multimedia rights," says the acting general counsel for the U.S. Copyright Office. France and Mexico have already said they intend to restore copyrights on all movies, and works by artists such as Picasso and Matisse could be covered if they were created within the past 75 years.(31)"
Table 3: The period of protection extended to various types of works
Literary, Dramatic and Musical Works
The author's life and 70 years after his/her death. (amended by Directive 93/98/EEC & SI 1995 No. 3297)
Works of Joint Authorship
70 years from death of last author to die. (amended by Directive 93/98/EEC & SI 1995 No. 3297)
The author's life and 70 years after his/her death. (amended by Directive 93/98/EEC & SI 1995 No. 3297)
70 years from first publication. (amended by Directive 93/98/EEC & SI 1995 No. 3297)
70 years from the death of the last to survive of the principal director, the author of the screen play, the author of the dialogue and the composer of the music specially created for the film. (amended by Directive 93/98/EEC & SI 1995 No. 3297)
50 years from first publication, but 50 years from fixation, if unpublished during that time. (amended by Directive 93/98/EEC & SI 1995 No. 3297)
Broadcasts and cable programme services
50 years from when broadcast first made or programme included in a cable service.(unchanged - as per the CDPA 1988)
Computer Generated Works
50 years from first creation (unchanged - as per the CDPA 1988)
25 years from first publication of that edition. (unchanged - as per the CDPA 1988)
Publication or communication to the public of a previously unpublished literary, dramatic or musical or artistic work or film in which copyright has expired
25 years from first publication. (introduced by Directive 93/98/EEC & SI 1995 No. 3297)
The implications for electronic publishers.
A multimedia or WWW publication may include some or all of the following copyrightable components:
It will be obvious therefore, that in many circumstances, the prospective publisher of a multimedia work will have to engage in a carefully planned process of rights acquisition or licensing. Amongst the rights that may have to be obtained for each work are:
- Literary elements - protected as literary works
- Dramatic elements - protected as dramatic works
- Musical elements - protected as musical works
- Artistic work (graphics, photographs, drawings and models) - protected as artistic works
- Moving images - protected in the same way as films
- Sound recordings - protected as sound recordings
- Typographical arrangements of published editions of literary, dramatic or musical work
- Computer program - protected as a literary work
- Choreographic routine - protected as a literary work
- the right to copy the work
- the right to issue copies of that work to the public and a limited right to let them copy it (32)
- the right to adapt the work
- the right to perform the work in public (dependent upon the medium to be used for publication)
- the right to broadcast that work (dependent upon the medium to be used for publication)
The process described above, however, may only scratch the surface of the identification and acquisition of rights process. For example, there is the issue of performers rights, a right associated with copyright.
Under the CDPA 1988, performers rights exist in musical works, dramatic performances, readings or recitations of literary works, and performances of variety acts. As a result, where a multimedia product includes recordings of such performances, various consents may be required from differing categories of performers. Obtaining such consents may be difficult particularly where one is dealing with older material. Problems include both identifying performers(33), and identifying rightholders(34). Further, while copyright in literary, dramatic, musical and artistic works produced in the course of employment transfers automatically to the employer, performance rights do not. Consent should therefore be obtained contractually(35). In certain circumstances, the Copyright Tribunal under CDPA 1988 can give consent on behalf of untraceable or unreasonable rights holders, however, such consent can only apply to the United Kingdom.
Other areas to consider include:
- Copyrights in films and sound recordings
- These belong to the person or persons who undertook the arrangements which resulted in the film being made, and the principal director(36). Multimedia producers should therefore ensure that it is clear in contracts of employment that such arrangements are undertaken on the understanding that they are on behalf of the producers.
- Outside hours work by employees
- Where employees undertake work outside their strict working hours, works created in that time may not be covered by the employers' right to the copyright. Contracts should thus ensure that this eventuality is catered for.
- Personality rights(37)
- The right of a person to prevent their name, likeness or biography to be used without their consent. therefore individuals mentioned in credits and packaging should give consent as should those featured in a multimedia product.
- The use of music in a multimedia publication may require the obtaining of synchronisation licences(38) and the payment of mechanical royalties(39). Commissioned music by the multimedia producer can avoid both these problems, and may lead to potentially lucrative spin-offs (40).
There are three important copyright issues relating directly to aspects of the WWW itself. It would seem that the actual layout of a webpage, as opposed to it's content, would be capable of protection as a published edition, in that there is copyright in the typography and layout of a work. Thus to copy the layout of a web page, something that the browser technology makes very easy, is potentially a infringing action. This may be ameliorated to some degree by the fact that a the moment the HTML standard is still a fairly limited technology, and thus there are only limited ways of designing a page(41).
Another as yet unresolved question concerns the issue of a webserver which does not itself contain any infringing material, but which has links to sites that do. Does the owner of that website incur any liability with respect to the infringing material by virtue of providing links which users can follow to that material at other sites, especially where the links explicitly refer to the fact that the material is infringing?
Finally, there is the issue of caching. One of the solutions to the slow WWW link times, especially to transatlantic websites, has been the development of various levels of local storage of copies of resources held on remote websites. At the simplest level, this may simply be storage of copies of recently visited webpages on a user's PC, either in RAM or in a hard disk cache. At a somewhat higher level, some sites, such as HENSA in the UK, store large numbers of webpages in their caches, users can then set their browsers to check if pages are stored in those local caches, before attempting to access the remote website. However, a possible problem arises out of this clever workaround, in that the CDPA 1988 states that rights exclusive to the owner of a copyrighted work include its reproduction in any material form, and further that this includes storing the work in any medium by electronic means(42). Whether or not this apparent infringement of intellectual property rights will affect the use of caching technology remains to be seen, although web sites with "revolving" commercial advertising(43) - may see caching as a threat to their future viability(44).
20 Indeed, as the HE funding obtained from the government continues to decrease, Universities are likely to look increasingly to alternative forms of revenue generation, and their attitude towards the ownership and exploitation of intellectual property rights may then become less informal.
21Up to 125 years from the end of the year in which the work was created. If the work is published commercially before the end of 75 years after its creation, the term is 50 years from the end of the year of publication.
22A limited amount of legislative material may now be found on the HMSO Publications server
23 See the URL http://www.pls.com:8001/d2/kelli/httpd/htdocs/his/2.GBM (as of 14/11/95).
24 See the URL http://canada.justice.gc.ca/Loireg/index_en.html(as of 14/11/95).
25 See the URL http://austlii.law.uts.edu.au/austlii_sources.html (as of 14/11/95).
26 OJ1993 L290, adopted in October 1993.
27 The Community having decided to adopt the highest level of term protection amongst the Member States, that of Germany.
28 SI 1995 No. 3297. This substitutes the Copyright, Designs and Patents Act 1988, s5, s12, s13, s14; amends s57(1)(b), (2)(b), 79(4), 80(6), 81(5), 85(2), 105(2), 117, 124, 154(3), 179, 191, 211(1), 212, .Sch 1, para 9. and adds s15A, s66A, s172A.
29 The UK Patent Office issued a consultation paper with regard to this issue. See (1995) 11 CLSR 107. for details.
30 See Appendix XX
31 Wall Street Journal 27 July 1995, section A1
32 That is, a limited right to make RAM and hard disk copies, so that the electronic publication can be used by a computer, but not a general right to copy and distribute.
33 As performer's rights can include not just featured performers, but also backup musicians and singers, chorus girls and crowd extras.
34 Where a performer has died, the right of consent may well have been transmitted to their heirs.
35 Note that consent applies only to 'first fixing' although this problem can in turn be overcome by copyright.
36 SI 1995 No. 3297
37 Applies in the US and a number of other jurisdictions, but not the UK.
38 The consent of the copyright owner to use music and lyrics in synchronisation with or timed relation to moving images.
39 Payment above and beyond that for the synchronisation licence for each use of the music.
40 A example of this would be the music commissioned for the video game "Super Mario Brothers" which has since been used in a successful dance mix record.
41 Although it has been suggested in the computer software copyright debate that the fact that there are only a limited number of ways of creating a work does not necessarily prevent an individual gaining a copyright. See Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd  FSR 275;  1 Masons Computer Law Reports 2.
42 CDPA 1988 s16.
43 Where each time a web page is accessed a new advertising logo is seen.
44 Although apparently it is possible to add code to a webpage which in effect tells the caching software that the owner of that page does not wish it to be cached, see Wired 3.12 December 1995.
Virtual Environments Visualisation