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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
- '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
- '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:
- Literary Work is owned by the author.
- Sound Recordings and Films are owned by the person by whom the arrangements necessary for the making for the recording or film are undertaken.
- Broadcasts are owned by the person making the broadcast.
- Cable Programmes are owned by the person providing the cable programme service in which the programme is included.
- Published Editions published editions of literary, dramatical and musical works are owned by the publisher.
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
- photographs
- 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.
- Films
- 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
- 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
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?
- the right to copy the work
- the right to issue copies of that work to the public and to let them copy it (limited)
- the right to adapt the work
- the right to perform the work in public
- the right to broadcast that work
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:
- Musical works
- Dramatic performances
- Readings or recitations of literary works
- Performances of variety Acts
Obtaining this consent may not be easy especially if dealing with older
material. Problems include:
- Identifying performers (includes not just featured performers, but also
backup musicians & singers chorus girls and crowd extras - note rock
concert exclusions).
- Performer may be dead - right of consent is transmittable to heirs
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.
Trademarks
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
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.
Contents
Graphics Multimedia
Virtual Environments Visualisation
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