Thursday, 29 January 2015

The protection of artistic works and the myths behind copyright

Oh, the endless debate to copyright law and artistic works, but should it really be so vague? When reading online it seems you can hear conflicting viewpoints all over the place, but a simple qualified check can be the answer to solving many of the myths associated with copyright and 'art'.

So here are some FACTS when dealing with copyright law, taken from the International Berne Convention of which the US, the UK and many other countries are a member of.

So what is the Berne Convention?
The Berne Convention is for the protection of Literary and Artistic Works and was adopted in 1886 as an international agreement to protect the rights of authors who are nationals of the countries who are members of the convention. You can find the full list of country members here.

So what rights are protected?
An author or designer from any of these countries within the convention is awarded the same rights, of which cannot be carried out without permission, and these include;
  • The exclusive right to reproduce the work, (though some provisions are made under national laws which typically allow limited private and educational use without infringement).
  • The right to authorise translations of the work
  • The right to authorise public performance or broadcast, and the communication of broadcasts and public performances
  • The right to authorise arrangements or other types of adaptation to the work
  • Recitation of the work, (or of a translation of the work)
  • The exclusive right to adapt or alter the work
An author or designer from any of these countries within the convention is also awarded moral rights, of which include;
  • The author has the right to claim authorship
  • The right to object to any treatment of the work which would be ‘prejudicial to his honour or reputation
The last point is an interesting one, because those who argue that their own copyright laws are different, and can do what they like with finished items made from a designer's work, may fall fowl of this moral right. Reproducing work from a design and reproducing it, in what the designer may consider, low quality may have a case that their reputation has been damaged.

MYTHS

There are many myths that circulate the internet from those who wish to profit from designers work, and argue that they can do so regardless but these are often warped viewpoints from wishful thinking, a few of which are;

Everything on the internet is in the 'public domain' and thus free to use.

No, this is a common misunderstanding. A work only falls into the public domain when the copyright expires, typically many years after the author's death. While work published on the Internet may be publicly accessible, it is certainly not in the public domain.

Anything without a copyright notice is not protected

Copyright will apply whether there is a copyright notice or not. In the US, a notice was required to retain copyright on works published before January 1st 1978, but this was the exception not the norm, and is certainly no longer the case. Also, once the US signed up to the Berne convention, US law was amended, and the use of copyright notices became optional on work published from March 1st 1989

Having said this, it is still certainly worth placing a copyright notice on your work. A copyright notice reminds others that copyright exists, and may therefore help to deter infringement..

If I change someone else’s work I can claim it as my own

This is restricted. Any adaptation will be legally regarded as a derived work; so if you simply adapt the work of others, it will still be their work, and they have every right to object if publish such a work when they have not given you permission to do so. They are also entitled to reclaim any money you make from selling their work.

So the advice is always to create something unique and original, it can still be inspired by the original work, or seek permission from the rights owner however this may incur a fee or royalties.

I can legally copy 10% without it being infringement

No. Unless it is explicitly allowed under fair use or fair dealing rules, any unauthorised use of copyright work can potentially lead to legal action.

It’s OK to use copy or publish other peoples work if I don't make any money out of it

You may be surprised to know that again, no you cannot except in specific circumstances permitted under fair dealing/fair use rules. Any copying or publication without the consent of the copyright owner is an infringement, and you could face legal action and a claim for damages to reclaim lost revenue and royalties.

It’s hard to prove copyright infringement (so I'll be ok)

This is not the case, copyright law is principally civil not criminal law. Civil law requires a lower burden of proof, actually making it easier to prove infringement. In a criminal case, the defendant is innocent until proven guilty beyond any reasonable doubt. However, in a civil case, the plaintiff must simply convince the court or tribunal that their claim is valid, and that on balance of probability it is likely that the defendant is guilty.

Final points

Ultimately it will come down to the individual circumstances between the plaintiff (the designer) and the guilty party, and the final decision of the judge's rule, and even then many copyright infringements are settled out of court, but it is always advisable to err on the side of caution when reproducing a creator's original work without permission in ANY form.

This information has been taken from the UK Copyright Service.

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