Talking copyright with Guild board member Johnny Tunnard

3rd May, 2018

Hi I’m Johnny Tunnard, a Media and Music Law Solicitor at Taylor & Emmet here in Sheffield. I specialise predominantly in music industry matters but often advise other creative individuals and businesses in relation to contractual disputes and intellectual property and copyright issues. 

I thought it may be useful to members for me to provide some guidance on questions which clients pose on a regular basis and to concentrate in particular on copyright and the use of music, photos and videos online. 

Whilst I do not intend to go into legislation and case law at length, I believe it is important to cite The Copyright, Design and Patents Act 1988 as this is where any creative individual or business should refer to if they wish to assert and protect their rights. I would advise to have a read of sections 1-21 of this Act, which you can read at your leisure or ask me further advice on. 

As a general overview, the most common types of copyright works are put into two categories.  The first category, often described as “underlying works”, includes original literary, dramatic, musical or artistic works.  The second category, often described as “derivative works”, includes sound recordings, films or broadcasts.

The Act covers how these works can be used, either by way of broadcast and public performance, copying, adapting, issuing, renting and lending copies to the public. These are known as ‘Restricted Acts’ in that they require the consent of the owner of the copyright works before they can be used in any of the aforementioned ways.  If a person does not obtain the consent of the owner of the works, they would be committing an infringement. 

In many cases, the author (who is the first owner of the copyright) will also have the right to be identified as the author and to object to distortions of his work.

Part iii of the Act sets out some exceptions relating to the “fair” use of the works. 

“Fair dealing” is a term used within the Act to describe acts which are permitted to a certain degree without infringing the work, these acts are:

  • Private and research study purposes. 
  • Performance, copies or lending for educational purposes.
  • Criticism and news reporting.
  • Incidental inclusion.
  • Copies and lending by librarians.
  • Format shifting or back up of a work you own for personal use.
  • Caricature, parody or pastiche.
  • Acts for the purposes of royal commissions, statutory enquiries, judicial proceedings and parliamentary purposes.
  • Recording of broadcasts for the purposes of listening to or viewing at a more convenient time, this is known as time shifting.
  • Producing a back-up copy for personal use of a computer program.

How do you find out if information available online is restricted by copyright, and what should you do if you want to use this?

Unlike registered trademarks, copyright subsists automatically upon its creation. There is therefore no register of copyrighted works. As a result, you should assume that the copyright in any music, photograph, article or video that you find online is owned by someone else who has the exclusive rights over it. 

You should make the appropriate enquiries with, for example the record label or music publisher, in order to acquire a licence to use the copyright work.  Perhaps obvious to many, copyrighted works are accompanied by a copyright notice which will state the name(s) of the individual owner or company, followed by the infamous ©.  

When do you not need to seek permission to use copyrighted contents? 

The answer is straightforward- look at the exceptions in Part III of the Act, as set out above, and if it falls within one of the fair dealing exceptions, go ahead! Again if you have any concerns about this point, please let me know. 
In addition, copyright protection may not last forever.  For example, copyright in literary, dramatic, musical or artistic works expires at the end of the period of 70 years from the end of the calendar year in which the author dies (subject to the further provisions of section 12 of the Copyright, Designs and Patents Act 1988).

So what about the use of copyrighted material on platforms such as Facebook, Twitter or Youtube? 

Facebook state in their Ts & Cs: “For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it…..When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).

Facebook does not therefore own the copyright material of its users but it can essentially do what it likes with this copyrighted material without having to ask the owner for permission.  This licence only ends when the user deletes the copyrighted material or their account, unless the copyright material has been shared with others and they have not deleted it in which case the licence continues.

In more recent good news, Facebook has signed license agreements with major record labels including Sony/ATV, Universal and Warner. These licensing agreements are a big step toward combating copyright infringement issues on Facebook as it means that the musicians signed to those labels will (or should) receive royalties for the performance on social media. 

What is the position when you upload an image onto social media which is not your own image?

Unless an image is created in the course of employment or subject to an agreement to the contrary, the author of an image (i.e. the person who took the photograph or created the graphic design work) is the owner of the copyright in the image.  This gives rise to various exclusive rights including the right to copy the image, the right to issue copies of the image to the public and the right to communicate the image to the public.  As a result, any person who is not the owner of the image will infringe the owner’s exclusive rights if they upload that image to social media sites without first seeking the permission of the owner.

If you took the picture upload that image to Facebook as a user then, under Facebook’s terms of use mentioned above, you would be granting Facebook “a non-exclusive, transferable, sub-licensable, royalty-free, worldwide licence” to use that image.

What about posting comments about others on social media, for example on Twitter? 

There have recently been a number of cases where people have faced prosecution after sharing personal information about others or posting threatening comments on Twitter.

The government recently issued guidelines on this matter in an attempt to clarify what should be allowed under free speech and what should be prosecuted.  The three main circumstances when a case of this nature will be prosecuted are: 1) credible threats of violence; 2) communications which specifically target an individual or individuals; and 3) posts or comments that breach court orders. 

The laws of defamation apply to publications on social media. The comments may also be tantamount to a misuse of private information and/or breach of confidence or harassment.

Under the Defamation Act 2013, you, the claimant, must show the respondents defamatory comments caused you serious harm, (or in the case of companies you must prove serious financial loss). You need to show that (a) a statement was made and (b) it was defamatory. The defendant is then responsible for proving the statement was true or establish a defence for defamation. Defences include:

  • the statements made were true
  • the publication was in the public interest. (Qualified privilege provides a partial defence)
  • the publication was responsible and in the public interest.
  • That any complaints about defamatory statements have been processed in compliance with the Defamation (Operators of Websites) Regulations 2013
  • Absolute privilege. This provides a complete defence for statements made in certain situations, e.g. in Parliament, between solicitor and client, statements to the police in a criminal investigation 
  • the statement made was an honest opinion.

The remedies include: removal, an apology/clarification, damages/ compensation, and an undertaking (promise) not to repeat.  In matters that go to court you can seek damages and an injunction.  On occasions, a statement can be made in open court putting the record straight.

What do to if the poster is anonymous or going under a pseudonym? 

In these circumstances, you can look at other options including asking intermediaries such as Facebook or Twitter to remove the offending content or the scope for seeking a type of court order known as a ‘Norwich Pharmacal Order’ requiring the disclosure of information which might identify the poster.

For any members of the Guild who run companies, you may have heard about cases involving employees who ‘in the course of business’ post damming comments about customers, clients or other individuals. I often get asked
by companies what are the implications for an employer when this happens? 

An Employment Tribunal expects employers to protect their staff in cyberspace in much the same way as they protect their staff at work e.g. by implementing training and rules on Health and Safety.  A responsible employer should therefore have a Social Media Policy in place which they bring to the attention of all staff, and also provide training in respect of social media use. If you require more information on this, I would be happy to advise.  

Of course, an employer cannot reasonably be expected to police the social media activity of all employees outside of work hours or even when their employees are using their own devices for social media activity during work hours.  However, by reasonable monitoring of employee social media activity and by having a social media policy in place together with appropriate training, an employer is protected with a “reasonable steps” defence in the event of any claim.