Copyright in England and Wales by Nicola Solomon

Copyright only developed in England and Wales after the invention of printing since widespread copying of literary works was previously impossible. A 1483 Statute encouraged the printing of books and permitted their importation but was repealed in 1533 because English printers complained that importation of cheap books ruined their markets. Instead the King set up a system of printing licences which was profitable and allowed the Crown to control seditious works as all books had to be licensed. Copyright has thus from the outset been a property right to protect producers and raise taxes, rather than a moral right to protect creators as in many European countries.

The Licensing Acts created fines against copyright infringers but eventually printers sought the right to confiscate infringing copies as fines are useless when offenders have no assets- as we see today in the need for takedown rather than money damages from internet infringers. The result was the 1709 Statute of Anne, the first piece of copyright legislation phrased towards protecting authors rather than printers. It gave authors a 14 year extendable term in which they had the sole right to print or license the printing of their books. Since 1709 a series of Copyright Acts, (the latest being the Copyright, Designs and Patents act 1988) has extended the scope and term of copyright, but the basic format remains: copyright in England and Wales (Scotland and Northern Ireland have similar but not identical laws) is an exclusive property right.

Copyright is not concerned with reproduction of ideas but of the form in which the work is expressed: work must be recorded in a permanent form to obtain copyright protection. The first owner of copyright is the author, not the person who wrote it down. The author must be a human person: the strange case of Cumins v Bond in 1927 established that if a ghost dictates work to a medium, the medium owns the copyright. The author chooses the form and arrangement of the words- suggesting a plot does not make you an author and in the case of a different kind of ghost writers, those who write reminiscences of famous people, it is the ghost who is the first owner of copyright, not the celebrity. However, the celebrity may well demand an assignment of copyright and there is nothing in English law to protect creators from giving up the rights in their work, nor their moral rights to object to changes or be credited as author.

The EU Study of 2013 showed that the UK is lacking the legal frameworks which protect creators in many other EU countries. It also showed that EU creators are often subject to onerous contracts and do not receive a fair share of the reward for their creativity. The Study says: European authors are in a difficult position as demonstrated throughout this study. This patchwork of national provisions also prejudices exploiters of copyright works due to the uncertainties they face in an industry that is becoming more and more global. The Reda report and the current DSM proposals affirm the importance of fair remuneration for authors and call for improvements to the contractual position of authors and performers. Authors are not in a strong negotiating position. Publishers and platforms are often large multinationals while authors typically work alone. Many contracts are offered on a take-it-or-leave-it basis. Advice from a lawyer is unaffordable for most creators. While agents, unions and professional associations, such as the SoA, seek to address this imbalance the situation remains unsatisfactory for the majority. The SoA is now working with other creator organisations to press for Fairer Terms for creators by legislation to address unfair contract terms. The seven key requirements are C.R.E.A.T.O.R.:

C – Clearer contracts, which set out the exact scope of the rights granted.

R – fair Remuneration. Equitable and unwaivable remuneration for all forms of exploitation, to include bestseller clauses so if a work does better than expected the creator shares in its success even if copyright was assigned.

E – an obligation of Exploitation. Also known as the ‘use it or lose it’ Clause.

A – fair and understandable Accounting terms.

T – Term. Reasonable and limited contract terms and regular reviews to take into account new forms of exploitation.

O – Ownership. Authors, including illustrators and translators, should be appropriately credited for all uses of their work and moral rights should be unwaivable.

R – All other clauses be subject to a general test of Reasonableness including a list of defined clauses which are automatically deemed to be void.

The UK has strong and balanced copyright laws but without a fair deal for creators those laws cannot safeguard an effective creative economy.

By Nicola Solomon

 This blog was originally published on ELit Literature House Europe website on 20 June 2016.

Category: ELit Literature House Europe Observatory


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