Copyright, wrongs and bits between

January 10, 1997

As the world's pictures are digitised and powerful interests jockey for electronic rights, Charles Oppenheim explores the maze surrounding ownership of diverse works, Roy McKeown describes progress in image library cataloguing and Anne Ramsden recounts the Excalibur search engine's academic and business conquests.

Copyright in computer generated images is, according to the 1988 Copyright Designs and Patents Act, initially owned by the "person by whom the arrangements necessary for the creation of the work are undertaken", a curious phrase untested in the courts.

Images are known as "artistic works" in United Kingdom law. The term carries no implication of artistic merit and includes works as varied as a sculpture, an engineering drawing and a person's signature.

Audiovisual and multimedia items have complex copyright protection. This is especially true of films, where there is separate copyright protection for the screenplay, the music, the sound track, the moving images and stills taken from the film. The definition of a film under the act makes it clear that videotapes, videodiscs and videocassettes holding moving images are included, as are stills from films. In some cases, related rights known as performers rights apply to images. They cause fewer problems than most other rights, as permissions are generally handled by licensing agencies.

Copyright in most artistic works lasts 70 years after the death of the creator. An individual may make copies of artistic works under "fair dealing" for the purposes of research or private study, criticism or review, or reporting current events. However, by a curious anomaly in the UK, fair dealing cannot be applied to photographs for the purposes of reporting current events.

The copyright ownership of photographs, and the lifetime of that copyright, for material created before 1988 is particularly complex and is not discussed in detail here. It causes major problems for organisations handling photographic images.

Until 70 years after the death of the artist, a work is in copyright and unauthorised photography is an infringement. Nonetheless, the photograph itself enjoys copyright, owned by the photographer.

The original artist cannot stop someone photographing a sculpture, model of building or any "work of artistic craftsmanship" if that work is in a permanent display available to the public as of right, for example a sculpture in a park. A museum is perfectly entitled to prohibit photography of any of its exhibits but this has nothing to do with copyright law.

The 1988 Act introduced "moral rights" including the right of the author of a work to be acknowledged as the creator, and not to have his or her work subjected to derogatory treatment. There is also a right to not be falsely attributed with the authorship of a work one did not create. Moral rights do not apply if the copyright ownership belongs automatically to an employer, or in certain other cases. The issue of derogatory treatment is particularly important; someone who crops or amends a digitised image could be accused of infringing this moral right. Scanning, transmitting, amending and printing out images without the relevant permissions are all technically illegal. It is possible, though often time consuming, to obtain permission from the copyright and moral rights owners. The onus is on you to obtain the clearances. You cannot rely on informal verbal replies. A lack of response is not an implicit agreement. Much publicity has recently been associated with the attempts by Corbis, a company established by Bill Gates, to gain rights to major art collections in machine readable form. But it appears that art galleries are signing non-exclusive licence deals with Corbis. It will be open to organisations to gain permission to digitise the same images. Higher education institutions are both owners and users of images of all kinds, whether scientific, technical, artistic or literary. Many of the legal issues need to be sorted out; for example, the ownership of images created in research projects by academic staff; the ownership of images created as part of teaching materials; and the problems of digitising course texts that happen to include images within them.

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