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Copyright Corner

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Charles Oppenheim answers copyright queries.

Questions raised by The Royals

Fytton Rowland, Lecturer, and Programme Tutor for Information and Publishing Studies, Department of Information and Library Studies, Loughborough University, asked a series of questions sparked off by the publication of Kitty Kelly's book about the royal family

[Charles] Assuming the UK courts state the book is defamatory, in my view the answers to Fytton's questions are:

1. If I go to the USA, buy a legitimate copy of the book in a bookshop, and bring it back to the UK in my suitcase, am I infringing any law, and could customs confiscate it?

No and no

2. If I order it from an Internet bookshop based in the USA and they mail it to me, has any law been broken by either party, and again could customs confiscate it?

Yes, potentially the Internet bookshop is helping to publish and spread the libel and could be sued in a UK court for libel. I don't think Customs could seize as the post office is not liable for libellous material sent through the post - it has immunity against such actions, and the customs could not interfere with legitimate posts.

3. If I get my copy into Britain by one means or another, and subsequently sell it to a friend at a mutually agreeable price, have either of us broken any law?

Yes, you as seller potentially have spread the libel and could be liable. Since only one copy is involved, though, the chances of being prosecuted are minimal.

4. If instead I subsequently sell it to a British secondhand bookshop and they offer it for sale, has either party broken any law?

Comments apply as for 3 above.

5. If a British bookshop buys a number of copies at the full US retail price from a US bookshop, and then offers them for sale in the UK at a mark-up on the American price, have they broken any law? Are they now the UK publishers?

This is more serious as they are spreading the libel more widely, but comments to 3 and 4 apply.

6. If the answer to questions 1-4 is that no law has been broken, but the answer to question 5 is that a law *has* been broken, how many copies does a bookshop have to offer for sale before they become the publisher?

It's not a question of being a publisher, is a case of spreading the libel. Distributing one copy spreads the libel a bit, distributing 100,000 a lot more; the penalty would reflect the number of copies distributed.

7. The EU is supposed to be a single market. Therefore, if the book *is* published in one or more other EU countries, has it not been ipso facto published in the UK anyway?

This misses the point; UK law is all about spreading and redisseminating a libel and nothing to do with who is considered to be a publisher per se.

8. Finally, presumably the Royal Family could sue for libel in the US (or Irish, or Swedish) courts if they wished, so what risks are the publishers avoiding by not publishing the book in the UK?

US law is far more generous to libellers than UK law, so the chances are the Royal Family would fail in a US case. So, by avoiding selling in the UK, where the laws are much stricter, the US publisher is massively reducing the chances of suffering legal action - and that's exactly why they've decided not to publish in the UK!

Steve Hitchcock of the Open Journals Project, Departments of Electronics & Computer Science, University of Southampton, asks for clarification on this topic.

What is the purpose of copyright transfer?

The primary purpose is commercial - the publisher feels it cannot invest in the refereeing, marketing, indexing of the journal if it feels the author is likely to be putting the same article up and available at no charge or even at a charge, thereby damging the commercial publisher's interests. If the publisher ihas no interest in making money out of the articles, there is no need for a copyright transfer. Of course, the transfer need not be complete, i.e "I assign copyright to you, Mr Publisher"; it could be a limited licence, e.g. "I give you Mr Publisher the right to reproduce this material in your 'Journal of Excellent Results', but reserve all other rights to myself." In addition to the commercial motive, there is a legal motive to protect the publisher from the unlikely, but just possible event of an infringement action from the author - see below.

What terms are likely be common to all such agreements?

The standard terms are that the author confirms that the material is indeed his/her copyright (and indemnifies the publisher against legal action if this is not true), and assigns the copyright to the publisher. Such assignments must in law be in writing. Verbal agreements have no validity, and an e-mail assignment may well not be considered a legally binding assignment. It is common to also include a statement that the material has not appeared anywhere before, and is not being submitted elsewhere. This can cause problems if, say, a working draft is already up on the Web - I return to this issue later.

In legal terms, how necessary is this transfer of rights to the publishing process?

As I indicated earlier, there is less of a legal requirement for an assignment, than a commercial one. But there is one legal angle; the publisher would be well advised to get some sort of agreement from the author, even if it is just a limited licence to reproduce in 'Journal of Excellent Results'. If there is no agreement at all, then the publisher is technically infringing the author's copyright if it reproduces the article. Beware of anyone who tells you that by submitting an article to a publication the author is giving an implied licence to reproduce; court cases have shown this is NOT the case. On the other hand, it would be a strange author indeed who decided to sue having sent an article to a publisher and the publisher then publishes without an assignment or licence. The damages such an author would get would probably be trivial.

Given the proliferation of electronic versions of journals, what new terms, or allowances, are publishers commonly adding to these agreements?

Some publishers are making it explicit that the assignment of copyright does not just apply to the print journal, but to any publication in any medium that may exist now, or any time in the future. This type of clause may or may not be valid in law; the New York Times versus Tasini case in the USA (which I describe in more detail in my "Lislex" column in 'Journal of Information Science', issue due out January 1998) has been a primary cause of such clauses. Of course, it is up the author to accept, reject or amend any clauses imposed by publishers. Many publishers are flexible on this matter.

What terms or amendments should authors seek if they wish to give only partial rights, print publication rights, say, but not electronic rights?

The 'Aslib Guide to Copyright', written and edited by Oppenheim, Phillips and Wall Section 5.9.1. has an excellent model form of words to be used. I cannot of course copy it in my answer here, because that would be an infringement of Aslib's copyright :-)

What terms should authors avoid? Some agreements cover not just transfer of rights but issues such as legal liability and costs of publication.

Publishers will usually insist that the author acknowledges it is the author, owns the copyright, that the material does not infringe copyright and is not defamatory. Such terms are entirely reasonable and should not be disputed - but you must have wording that any indemnity the author gives on this basis is null and void if the publisher makes any changes to the material without the express written permission of the author. The author also will not know the defamation laws in other countries, and should quite reasonably restrict his/her liability to the laws of the country in which he/she lives. Authors should never agree to clauses that give the author right of first refusal on further things the author may write. It is difficult to answer your question because there are no standard clauses and each publisher takes a very different approach. I would be happy to advise any author who has worries on these points.

A particular problem arises if you submit an article and it is already available on the Web, say. Many publishers include a clause that you acknowledge that the material is not available anywhere else. You should if these circumstances apply delete or amend this clause and hope the publisher does not reject your article for this reason.

From a librarian:

I have a query which whilst not currently 'electronic' may be if the answer is on my side!

We microfiched our old card catalogues when one of our sites closed and the material re-distributed to here, our second site, and beyond. We constructed a new automated catalogue dating back to 1975 partly as a stock-take of the 'new' libraries.

The microfiche catalogues date back to the founding of the Institute in 1919. Many of the early cards are rich with annotation, whilst the more recent stuff is more standard.

My query relates to whether or not we have the copyright to this compilation of material? In particular, one section of the catalogue was originally kept separate (and this is the nuts and bolts of the query). All the stock was accessioned, catalogued and classified, and maintained by the library staff, but some of the material referred to in the catalogue was material used to produce an abstracting service.

I would like to make copies of the entire set for sale. It is an unsurpassed resource of material much of it not covered by any other product (most CDs etc only begin in 1973, and are not as comprehensive), and we are often asked for access to it.

Ultimately I would like to produce a searchable CD, or raise it on the web.

Is the compilation our copyright? Whether on microfiche or any other form (the original cards have been reluctantly destroyed due to lack of space - we're talking 30 full-size filing cabinets-worth!).

Charles' reply:

This is not actually a copyright question, but a question about employment law! Copyright in employee created material automatically belongs to the employer, assuming the employee was paid to do this work as part of his /her duties. I presume the library staff were paid to create catalogue entries, with added value if need be, and so copyright automatically belongs to the employer. So the real question us: who was the employer at the time? Assuming the employer was your organisation (or some direct precursor of it) then you organisation owns the copyright.

Talisman

Carol Higgison, TALiSMAN Co-ordinator, passed on these questions which were submitted on-line prior to the seminar on Copyright and the Web.

Given the recent interim ruling on the "Shetland Times" case, what is the copyright position on:
  • Maintaining lists of bookmarks for your own use?
  • Maintaining and distributing lists of bookmarks to students?
  • In the second case, could it be argued that they are the same as reading lists, refernces lists or bibliograpies?

The current legal position in Scotland seems to require obtaining the permission from a 'web site' before you can link to it from your own web pages.

  • Who do you approach? The webmaster, the author of the material, the organisation who provide the web space and may own the copyright (ie employer of the author)?
  • Is it legal to obtain permission via email? Is this legally binding?
  • Is it legal to send an email saying for example, if I don't hear from you in 14 days I will assume you don't object?

Since the Shetland Times case only offered an interim injunction, merely stating that there was an arguable case, it would be wrong to draw too many conclusions. The full hearing was due to be held in November 1997 (settled out of court 12th November). For the time being, as long as what you are copying is for your own private use, I think it is safe to continue to bookmark. Offering bookmark lists is no different from offering bibliographic citations. URLs are facts and there is never copyright in facts, so go ahead and offer such lists to students.

Email is unsafe as a means of doing legal business. if you are going to approach someone for a licence, always do so by post. The idea that if you don't receive a reply in 14 days there is no objection is totally invalid in law and should never be used. Failure to reply implies refusal, not consent.

Is there a legal difference between citing the location a web resource by providing the URL address as text and making it an active link?

Yes, potentially there are differences, but in most country's laws it would not be considered infringement of copyright to provide an active link. It may be considered an infringement of Moral Rights if the link is between two sites that one of the site owners considers impugns that owner's reputation. Generally, though, installing active links should be safe.

A Graduate Business School has a large print- based MBA course, very similar to the OU's courses. In the MBA course we have a number of collections of material, over 500 A4 pages, from such sources as Harvard Business Review. We are making plans to develop an online version of the MBA. Will we be able to retain the articles, chapters etc in our readers, for a reasonable fee, of course, when we go on-line?

You'd have to approach the copyright owners for permission. Don't be surprised if it takes a long time, some owners refuse permission, or demand extremely high fees.

Where does liability lie when an authorised user of a University website places information which is defamatory or inflammatory on these web pages? If the University, upon receiving notification that such information is on its web pages, immediately instructs the user to remove the offending article/s - does it have any further obligation to the aggrieved party?

The University has liability if it knew, or had good reason to know, that the material would be illegal. Thus, if a University routinely checks up on materials posted by students and staff, then it would have good reason to know. Perversely, then, the University might be better advised to turn a total blind eye to what is put up and then it could claim it did not know and could not have known what was going on. However, a Court may be unconvinced by this. On the other hand, if a University both removes the offending material AND punishes the offender (by expelling or sacking them), then a Court may well decide it was not liable to further punishment. There is a dearth of cases, so it is difficult to be more precise on this issue.

NetMuse has copyright clearance on several thousand objects. How do you negotiate to do this without having someone working full time seeking permissions?

You probably need to employ someone full time.

Author details

Prof Charles Oppenheim,
Co-Director, International Institute of Electronic Library Research
Division of Learning Development
De Montfort University
Hammerwood Gate, Kents Hill
MILTON KEYNES
MK7 6HP
charles@dmu.ac.uk
Date published: 
19 November 1997

This article has been published under copyright; please see our access terms and copyright guidance regarding use of content from this article. See also our explanations of how to cite Ariadne articles for examples of bibliographic format.

How to cite this article

Charles Oppenheim. "Copyright Corner". November 1997, Ariadne Issue 12 http://www.ariadne.ac.uk/issue12/ccc/


article | by Dr. Radut