An introduction to copyright for freelance writers

What is copyright?

Copyright is the exclusive right to do, and to authorise others to do, certain acts in relation to certain types of work such as reproducing, selling and hiring the work. One of the types of work which copyright protects is “literary works”, which covers written materials including articles, books and newsletters.

When a person creates original work such work is automatically protected by copyright – there is no requirement that the work be registered or even marked “copyright” or “©”, although this is often done in practice.

How long does copyright last?

The duration of copyright protection depends upon the nature of the work. In the case of literary works copyright protection lasts for 70 years from the end of the calendar year in which the author of the work dies.

What amounts to copyright infringement?

Where work has been copied without the permission of the copyright owner and such copying is “substantial” the copyright is said to have been infringed. There is no clear definition as to what amounts to “substantial” and the Courts decide cases on a case by case basis. In some cases the reproduction of small amounts of a piece of work has been held by the Courts to be “substantial” and it is not necessary for the copying be exact.

Ideas are not the subject matter of copyright, but only the form in which ideas are expressed.The copyright owner, therefore, has no monopoly in the subject matter and others are at free to produce the same result, as long as they do so independently. However, freelance writers should exercise caution when adopting ideas expressed by others as distinguishing between an idea and the expression of an idea is not always as easy as it may seem.

Who is the copyright owner?

The author of the work will normally be the first owner of the copyright unless he is an employee and the work was created during the course of his employment. For these purposes “employee” means an employee under a contract of service or apprenticeship. A freelance writer will not, therefore, fall within the definition.

Ownership of copyright can be transferred to another person by way of assignment. However, an assignment of copyright will not be legally binding unless it is in writing and signed by or on behalf of the “assignor” (the person transferring the copyright).

Copyright and the internet

Material posted on websites is covered by copyright in the same way as material contained in a book or newspaper is. Freelance writers should, therefore exercise the same measure of caution when carrying out internet based research as they would when using more traditional methods of research.

When the Communications Act 2003, as amended by the Digital Economy Act 2010, comes into force Internet Service Providers (“ISPs”) will be expected to tackle online copyright infringement and may be able to suspend or restrict their users accounts.

Copyright licences

It is permissible to use material if the copyright owner has granted a licence to use such material. Licenses can be “exclusive” or “non-exclusive”.

Non-exclusive licences allow certain people to use material, normally for limited purposes. Non-exclusive licences can be express or implied. Quite often websites will contain a “copyright statement” (usually found in the terms and conditions of use on the website) setting out what amounts to permitted use and what does not (such a statement will amount to an express non-exclusive licence). If a freelance writer writes for a publication and no discussion has taken place regarding copyright then when the freelance writer submits articles to the publisher for inclusion in the publication the publisher will have an implied non-exclusive licence to publish the articles.

Exclusive licences permit a person, to the exclusion of all other persons including the person granting the licence to exercise a right which would otherwise be exercisable exclusively by the copyright owner. For an exclusive licence to be binding it must be in writing and signed by or on behalf of the copyright owner and must authorise the licensee, to the exclusion of all other persons including the person granting the licence, to exercise a right which would otherwise be exercisable exclusively by the copyright owner.

Can material ever be used legally without obtaining the copyright owner’s consent?

In certain circumstances it is permissible to make use of copyright material. Where material is used for the purpose of non-commercial research or private study the use of such material may be covered by the exception known as “fair dealing”. Research carried out by freelance writers will generally be of a commercial nature since such research will be for monetary gain or for commercial purposes.

 

Criticism, review or the reporting of current events is also covered by the fair dealing exception. Freelance journalists can, therefore, copy ideas taken from other sources of news provided that they express it in their own way. However, the use of photographs is not covered by the fair dealing exception.

What can a copyright owner do if his copyright has been infringed?

If a copyright owner’s copyright has been infringed it is open to him to bring a claim against the person who has infringed the work in the Civil Courts. There are a number of remedies available to the Courts including the power to grant an injunction prohibiting any further infringement and the power to award “damages” (compensation).

Where there is a deliberate intent by a person to infringe copyright in a commercial context that person may face prosecution through the Criminal Courts, which could result in a fine and/or imprisonment.

If a copyright owner is concerned that infringing copies of his work may be imported into the UK from abroad he may be able to persuade HM Revenue and Customs to treat the material as “prohibited goods” and, therefore, prevent the importation of such works.