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Legal Issues of WWW & Electronic Publishing

Andrew Charlesworth

It should be noted that this is not a truly exhaustive list of the issues that may need to be taken into account. In electronic publishing, as in traditional forms of publishing, there are a myriad pieces of legislation which must be taken into account, including those concerning liability for content of publications, covering such topics as defamation, obscenity, blasphemy, and provisions with regard to sex discrimination and advertising standards. Defamation is discussed in this piece and obscenity touched upon, but space and time constraints prevent a full examination of the others. However, as the magazine Gay News discovered in the 1970's, there is still life left in the blasphemy laws, and Salman Rushdie and his publishers found out that, even though UK blasphemy law does not provide for Islamic sensibilities, publishing still holds many risks. The areas covered here are those in which there have been either ongoing or recent developments which have been of relevance to those working with the WWW. Readers in Scotland should be aware that certain of the topics discussed here are discussed only in relation to the law of England and Wales. This document should not be considered as a substitute for more comprehensive legal advice.

Intellectual Property

In any discussion of electronic publishing, it is inevitable that the issue of the role of intellectual property in this sphere will be raised, for it is probably the single largest problem facing electronic publishers, and, of course, those who actually hold, and wish to protect, those intellectual property rights.

Copyright and Associated Rights

What may be protected?

Literary Works
Literary works for this purpose include not only novels, poetry and non-fiction books but also all sorts of other written works which are original. Their literary merit is unimportant. This means that letters, memoranda, directories, e-mail messages and WWW pages may be protected. It should also be remembered that computer programs and code are protected as literary works.
Dramatic Works
Dramatic works for this purpose include plays and instructions for dance or mime. There must be some spoken words or described actions to perform to distinguish a dramatic work from a literary work. However the fact that a play does not contain any dialogue does not prevent its qualification as a dramatic work
Artistic Works
Artistic works for this purpose include graphic works, photographs, sculptures, collages, maps, charts and plans. These are protected regardless of artistic merit. However, works of architecture and of artistic craftsmanship require artistic quality in the work to qualify for protection
Musical Works
Musical works for this purpose include musical scores including any annotations and directions. Lyrics, however, are not as they are protected as literary works.
Sound Recordings
This category covers every type of sound recording on any type of medium from which sounds can be reproduced.
'Films' in this context covers any medium from which a moving image may be reproduced. As the definition of film under the 1956 Act was similar video recordings appear to be covered from the time of their development.
'Broadcasts' includes any transmission by wireless telegraphy which is capable of lawfully being received by members of the public. This clearly therefore includes satellite transmissions.
Cable Programmes
These are defined as transmissions carried as services via cable, including on-line services.
Published Edition
There is copyright in the typography and layout of a literary, dramatical and musical work.
Perfomers' Right
While these rights are not technically copyrights, they provide protection to performers and persons who hold recording rights in a performance. These Rights are included in the CDPA 1988.

Who owns the Rights?

In theory, the original owner of copyright in a given work is the person who created H. 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 much of the literary copyright remains with academic authors 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.

Subject to the provisos above:

As noted above this is subject to the proviso that works created prior to 1988 may be covered by different regimes. 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 does not apply retrospectively, it still remains 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 longer than normal copyright term.

A rough and ready guide to terms of copyright:

Literary, Dramatic and Musical Works
The author's life and 50 years after his/her death.
Works of Joint Authorship
50 years from death of last author to die.
Anonymous Works
50 years from first publication.
Artistic Works
The author's life and 50 years after his/her death.
Computer Generated Works
50 years From first creation
prior to 1988 - 50 years From when taken
after 1989 - 50 years from the year of release.
Sound Recordings
prior to 1988 - 50 years From when made
after 1989 - SO years from the sound of release.
prior to 1988 - 50 years From when made reportage)
prior to 1988 - 50 years from the death of the author of film script
after 1989 - 50 years from the year of release.
Broadcasts and cable programme services
50 years From when broadcast first made or programme included in a cable service.
Published Editions
25 years from First publication of that edition.

Directive 93/98/EEC

From July l99S, the term of copyright in the EC wH1 be harmonised, extending the basic term from author's life + 50 years to author's life + 70 years. a appears at present that this will have retrospective effect which will mean that some material which has fallen out of copyright in the UK will be, as it were, recopyrighted. It is unclear as to how this may effect those who have acted in reliance on the material being out of copyright.

What does this mean tor multimedia/WWW publishers ?

A multimedia or WWW pulication may include some or all of the following copyrightable components

Worst case scenario

A WWW home page dedicated to a biography of Margot Fontayn, including mpeg excerpts from a film of Swan Lake, photographs of her performances and ballet music by several composers, living and dead, including pictures of the musical scores.

What rights does the multimedia producer/WWW publisher have to obtain under copyright law?

Where things start to get complicated

Performers' consents

Where a multimedia product includes recordings of performances, various consents will be required from differing categories of performers. At UK law (but not US law) performers rights exist in: Obtaining this consent may not be easy especially if dealing with older material. Problems include: In certain circumstances, the Copyright Tribunal under CDPA 1988 can give consent on behalf of untraceable or unreasonable rights holders - but only for UK.

Rights of employees of multimedia p1 producers and independent contractors

While copyright in literary, dramatic, musical & artistic works belong to the employer, and independent contractors can be required to assign copyright, performance rights are more complicated - in the case of the employee they do not automatically transfer to the employer, consent should therefore be obtained contractually. Note that consent applies only to 'first fixing' although this problem can be overcome by copyright.

Copyrights in Films souund recordings

These belong to the person or persons who undertook the arrangements which resulted in the S1m being made. 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, be that making of arrangements under C above or creating works under B above, these may not be covered by the employers' right to the copyright. Contracts should thus ensure that this eventuality is catered for.

Personality Rights (US & other }jurisdictions - not UK)

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.

Music in Multimedia

Synchronisation licences - the consent of the copyright owner to use music and lyrics in synchronisation with or timed relation to moving images. Mechanical royalties - payment above 3nd beyond that for the synchronisation licence. Commissioned music by the multimedia producer can avoid both these problems and may lead to potentially lucrative spin offs - Super Mario music.


Many companies throughout the world have symbols and logos which they have protected by registering them as trademarks ( | ). For example, Windows, M5 and M5-005 are registered trademarks of the Microsoft Corporation. Companies register such symbols & logos in order to prevent other companies from using them to 'pass off their product or service as a product or service of the original company. As a result many firms are touchy about individuals using trademarked logos on WWW pages etc. unless their explicit permission is given, and the logo is stated to he a trademark of the holder.


Patent did not appear to be a major influence in the area of the WWW, until the case of Unisys's patent on the mathematical algorithm which underlies the .gif picture compression format widely used by WWW users. It is clear that the US Patent Office's decisions with regards to the granting of computer software patents (often for algorithms for which there would appear to be 'prior art'), and the use of 'submarine' patents may well have a significant effect in the way in which software in general, and WWW software, which has generally been available as freeware, in particular, develops.
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