COPYRIGHT CONUNDRUMS - PERMISSION: DO I NEED IT?
by Samantha Holman
(Poetry Ireland News November/December 2013)
In a growing online world, where are the lines drawn with what you can do without having to get permission from a copyright holder? The answer is not a lot.
Public Events and the Internet
In the first instance, there is an exception to permit the public recitation of a reasonable extract of a copyright work without having to first obtain permission as long as the author is sufficiently acknowledged. So you can read a poem by another author at a public event. The reading of that poem can be recorded either for private and domestic use or for broadcast, with the permission of the performer. However, it should be noted that the definition of broadcast cannot be definitively said to include internet transmission and organisers of events should err on the side of caution. The reading can, however, be included in a true broadcast or cable service such as television.
There is no issue with writers reading their own work at an event and this event being either streamed live on the internet or subsequently posted on a service such as YouTube. The complications arise with translations and performances of works by someone other than the performer.
Translation of a poem, piece of prose or song lyrics is an adaptation of the work which requires the copyright owner’s permission in advance of the translation being made. When requesting permission to make a translation, bear in mind all the possible uses you might wish to make of the translated work (publication, broadcast, putting on a website) and make sure the permission granted includes these.
There is no special exception that allows you to use a work without permission just because it is used for a non-profit or charitable purpose. Copyright owners often waive or set a low permission fee in these circumstances, but you still need to get permission.
There is a ‘fair dealing’ exception for the purpose of criticism or review. You may use extracts from a work under this exception as long as it is accompanied by a sufficient acknowledgement. The law does not give specific guidelines as to what constitutes a fair dealing but you should take into consideration:
• the length and importance of quotations;
• the amount quoted in relation to your commentary;
• the extent to which your work competes with or rivals the work quoted;
• the extent to which the material quoted is saving you work.
Some years ago the Society of Authors and the Publishers Association in the UK agreed that they would usually regard as a fair dealing an extract of up to 400 words of a prose piece, or a series of extracts – none exceeding 300 words – to total 800 words; extracts to a total of 40 lines from a poem provided this did not exceed a quarter of the poem. These guidelines do not have any standing in law but provide useful guidance.
For quotations you should ask permission to use a ‘substantial part’. Unfortunately, a ‘substantial part’ is not defined but is a matter of fact rather than degree. A short extract may be a vital part of the work (think Finnegans Wake) and it can be considered a test of quality rather than quantity. A few lines from a long novel are unlikely to form a ‘substantial part’ but a few lines of poetry may be.
A publisher may create an anthology for educational use which consists mainly of material in which no copyright exists and include excerpts from copyright works, but no more than two per author. All other anthology uses, including those which consist mainly of copyright works, require permission from the copyright owner.
There is no specific exception for parody in Irish copyright law and for a parody to be successful it is necessary to align closely with the source work. However, if the source work forms a substantial part of the new work then copyright has been infringed. The parodist must conjure up the source work but cannot take a substantial part.
In copyright terms, ‘in the public domain’ means that the work is no longer subject to any copyright restrictions due to expiration of the copyright protection term or because the work pre-dated any international copyright protection legislation. Just because a work or image is publically available online, does not mean that it is free to use or reuse, nor it is in the public domain. Freely available does not equate to free to use.
How long does copyright protection last? For the author, it is their lifetime plus 70 years. For ease of calculation, a work goes out of copyright on 1st January of the 71st year. James Joyce’s body of published work entered the public domain in Ireland on 1st January 2012, 71 years after he died in 1941. In relation to a film copyright expires 70 years after the death of the last of the principal director, author of the screenplay, author of the dialogue and the composer of any music composed especially for the film. Sound recordings, broadcasts and the typographical arrangement of a published edition have related copyright protection for 50 years from the first fixation, broadcast or publication.
In summary, when in doubt, ASK!
Samantha Holman is the Executive Director of the Irish Copyright Licensing Agency (icla.ie), the collective management organisation for authors and publishers. She also teaches copyright both in Ireland and abroad.