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Working your way through the copyright maze


GAVELChanges in technology and a plethora of EU Directives have combined to make copyright a complex area of law – Louise Birkett takes a look around the copyright maze, and attempts to lead members through it.

As trainers, how often do you think about copyright? When you want to include clips from films in your presentations? When you see a colleague's slides that encapsulate an idea so well you want to incorporate some of them into your own presentations?

At we've certainly seen questions about using other people's material on 'Any Answers' but have you ever thought about others breaching your copyright?

Unfortunately, the sheer complexity of copyright law can be off-putting. An illustration can be seen on the website of the United Kingdom Intellectual Property Office where there has been an attempt to consolidate the Copyright Designs and Patents Act with the Statutory Instruments which implement the seven EU Directives passed between 1991 and 2001. Then there are two further UK Acts, more EU legislation and yet more legislation which doesn't directly concern copyright but does affect it. In total this consolidation attempt runs to 334 pages!

"the handouts you prepare, even for extremely technical bespoke courses, could be copyrighted as literary works."

And that doesn't include common law – there are cases where judges have felt a wide interpretation of the categories of work covered is preferable to an injustice being done. Add all those judgments to the 334 pages of legislation and you're talking either very sore eyes, lots of paper or a specialist lawyer.

For example, one of the eight categories of work protected by copyright is literary works (the others are dramatic works, musical works, artistic works, films, sound recordings, broadcasts and published editions – typographical layouts). The concept of a literary work isn't confined to books: according to the Copyright Designs and Patents Act 1988, it's 'any work, other than a dramatic or musical work, which is written, spoken or sung'.

The criteria are that it must either offer information and instruction or pleasure in the form of literary enjoyment. The meaning must be intelligible and there's no requirement that the work must be good. As the work doesn't have to be intelligible to everyone, judges have decided that a random series of letters which formed part of a game is copyrighted because it provided information to people who understood the relevant game.

For trainers, this means that the handouts you prepare, even for extremely technical bespoke courses, could be copyrighted as literary works. This prompts some further questions: are they copyrighted? Who does the copyright belong to? And if you have been commissioned to produce work, what usage rights does the client have?

To be copyrighted, literary works must be:

  • Recorded in a material form

  • Original

  • Connected to the UK

  • Not excluded on public policy grounds

If your handouts are on paper, not libellous, immoral or blasphemous and you are based in the UK then you will have passed three of the four tests. That just leaves the problematic question of originality, which has been a requirement since 1911. Lionel Bently and Brad Sherman, authors of 'Intellectual Property Law', explain the crux of the problem: "It is difficult if not impossible to state with any precision what copyright law means when it demands that works be original."

Unlike patents, which look at the invention and state-of-the-art requirements, copyright looks at the relationship between the author and the work and simply says that the author must have expended labour, skill or judgment in producing the work. Unfortunately, as Bently and Sherman point out: "It should be noted that it is a form of words that is not used with great precision." It's also a form of words which may not be used at all – Bently and Sherman's list of replacements includes: work, capital, effort, industry, time, knowledge and experience.

The concept of copyright originality doesn't necessarily mean something that's innovative – a 1916 case decided that exam papers which contained questions remarkably similar to previous exams were still original.

With British copyright law being concerned with the expression within a work, there’s an oft-repeated principle that you cannot copyright ideas. But there’s a problem: because we use words to express ideas, how far can we really move away from the expression to create something that’s original?

It's a fairly abstract point but quite important because in copyright cases the originality of the claimant's work may be examined. In British law there are limitations relating to how much of other people's work you can use for free.

For instance, this piece is not entirely original – but I've been careful to say (repeatedly) where the non-original elements have been drawn from, so providing sufficient acknowledgement. I've also been careful to limit my usage to a few sentences of both a 1,130-page book and a specialist website, so it is unlikely that either would be considered a 'substantial' part of another's work.

If you are a trainer in an educational establishment – a school or somewhere defined as having educational status by the secretary of state – you will benefit from the fair dealing defence. But if you are independent or employed by any other type of organisation this will not apply to you. Therefore, if you are planning to use substantial extracts from someone else's work for commercial use, you will need permission either directly from the author or from a licensing agency.

Copyright is like speeding in that it's a strict liability offence. It doesn't matter whether you intended to break the speed limit or breach copyright, it's enough that you do.

"Copyright is like speeding in that it's a strict liability offence. It doesn't matter whether you intended to break the speed limit or breach copyright, it's enough that you do. "

That brings us to the question of ownership. Usually, the creator of the work owns the copyright – unless the work was created in the course of employment, in which case the employer owns the copyright. So there are benefits in being self-employed!

The third question concerns usage. If you commission work then, unless you agree it as part of the contract, the copyright will still rest with the creator. You would be licensed to use the work for the purpose for which it was created but would, theoretically, be required to seek permission from the copyright owner if you wanted to use it for anything else.

With the volume of copyright law out there, there's still a range of subjects in the copyright maze that this article hasn't managed to touch – titles, anything other than literary works, duration, moral rights…the list goes on.

But here's a parting thought for you: the 1988 Act states that literary works include databases. Databases are defined as a collection of independent works, data or other materials which are arranged in a systematic or methodical way and are individually accessible by electronic or other means.

So, if you have been collecting a series of works on training and have indexed them in a way that enables you to retrieve them individually then, even if it's not on a computer, you have created a database.

Useful link:
Intellectual Property Office -

Louise Birkett FCB LLB is a freelance journalist and internal communications consultant, which gives her a practical interest in copyright. She is also working on a post-grad research degree looking at gender preferences in communications and their legal aspects


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