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Publishing Law
Publishing Law is an authoritative and engaging guide to a wide range of legal issues affecting
publishing today.
Hugh Jones and Christopher Benson present readers with clear and accessible guidance to
the complex legal areas specific to the ever evolving world of contemporary publishing,
including copyright, moral rights, contracts and licensing, privacy, confidentiality, defamation,
infringement and trademarks, with analysis of legal issues relating to sales, advertising,
marketing, distribution and competition.
This new fifth edition presents updated coverage of the key principles of copyright, as well
as new copyright exceptions, licensing and Open Access. There is also further in-depth
coverage of the legal issues around the sale of digital content.
Key features of the fifth edition include:

• updated coverage of EU and UK copyright, including a new chapter on copyright

exceptions following the significant changes in the 2014 Regulations;
• comprehensive coverage of publishing contracts with authors, as well as with other
providers, including translators, contributors and contracts for subsidiary rights;
• up-to-date coverage of the Defamation Act 2013, and other changes to EU and UK
legislation;
• exploration of the legal issues relating to digital publishing, including eBook and other
electronic agreements, data protection and online issues in relation to privacy, and
copyright infringement;
• a range of summary checklists on key issues, ranging from copyright ownership to
promotion and data protection;
• useful appendices offering an A to Z glossary of legal terms and lists of useful addresses
and further reading.

Hugh Jones recently retired as Copyright Counsel to The Publishers Association. A qualified
solicitor, he worked in publishing for fifteen years, for law publishers Sweet and Maxwell and
reference publishers Macmillan Press, before practising for eight years as a publishing and
copyright lawyer at City law firm Taylor Joynson Garrett (now Taylor Wessing). He writes
and lectures regularly, and was for many years Treasurer of the British Copyright Council.

Christopher Benson is a solicitor at City law firm Taylor Wessing. He has been practising for
over 20 years as an intellectual property lawyer. He has considerable experience in the fields
of publishing and copyright and also advises on all aspects of intellectual property law, both
contentious and non-contentious, including copyright protection, trade mark protection and
passing off, brand management, licensing, merchandising, sponsorship, franchising and
advertising. He is a regular writer and lecturer on intellectual property matters.
Publishing Law
Fifth edition

Hugh Jones
and
Christopher Benson
Fifth edition published 2016
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN

Simultaneously published in the USA and Canada

by Routledge
711 Third Avenue, New York, NY 10017

Routledge is an imprint of the Taylor & Francis Group, an informa business

© 1996 Hugh Jones

© 2002, 2006, 2011, 2016 Hugh Jones and Christopher Benson

The right of Hugh Jones and Christopher Benson to be identified as authors of this work has been asserted by them in
accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical,
or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or
retrieval system, without permission in writing from the publishers.

Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for
identification and explanation without intent to infringe.

First published 1996 by Routledge

Fourth edition published 2011 by Routledge

British Library Cataloguing in Publication Data

A catalogue record for this book is available from the British Library

Library of Congress Cataloging in Publication Data

A catalog record for this book has been requested.

ISBN: 978-1-138-80378-7 (hbk)

ISBN: 978-1-138-80379-4 (pbk)
ISBN: 978-1-315-73774-4 (ebk)

Typeset in Goudy
by Swales & Willis Ltd, Exeter, Devon, UK
For our long-suffering partners, families, friends, colleagues and contributors without
whom this would not have been possible.
Contents
Preface to the fifth edition

PART I
The law, and original works

1. Publishing and the law

UK and international law
EU law
UK law

2. Copyright I: key principles

Original ideas
Introduction to copyright
Copyright and intellectual property
From scrolls to screens: a brief history of copyright
The EU copyright directive: core rights and exceptions
Copyright: the way ahead
Copyright works
Literary works
Artistic works
Dramatic and musical works
Sound recordings, films and broadcasts
Internet transmissions and user-generated works
Typographical arrangements
Ownership of copyright
Qualification for copyright protection
Authors and first publication
Duration of copyright
EU harmonisation, UK extensions and revivals
Duration in individual works

3. Copyright II: exceptions, licensing and Open Access

Introduction
 The EU Copyright Directive 2001
UK copyright exceptions after 2014
Copying Orphan Works
Copyright licensing and collective management
Creative Commons licensing and Open Access

4. Other rights of authors and publishers

Moral rights
The right of paternity
The right of integrity
Derogatory treatment
False attribution
The right to privacy of certain photographs or films
Remedies for infringement of moral rights
Database right
Publication right
Human rights
Public lending right
Artist’s resale right (droit de suite)

PART II
Commissioning: publishing contracts

5. Author contracts
How a contract is made
Particular contracts and legal capacity
Author–publisher agreements
The standard author–publisher agreement
Rights granted
Warranties and indemnities
Subsidiary rights

6. Other contracts
Academic/professional/STM authors
General editors
Contributors (text and illustrations)
Translators
 Subsidiary rights contracts
Online access licences
E-book agreements
Aggregator agreements
Other electronic agreements
Agreements between authors and agents

PART III
Delivery, editing and obligations on publication

7. Delivery, editing and obligations on publication

Delivery: acceptance or rejection
Editing and alterations
Permissions
Production and proofs
Obligations on publication
Printers and publishers details
Legal deposit

PART IV
Publish and be damned

8. Defamation and other risks

Defamation
Damages
What is defamation?
Libel and slander
Serious harm
Defamatory meaning
Social context
Context of the statement
Hidden meanings and innuendoes
The repetition rule
Levels of meaning
Identification
Publication
Defences
 Costs
Linking
Summary checklist: defamation
Malicious falsehood
Negligent mis-statement
Obscenity
Blasphemy
Malicious communications
Incitement of hatred on the grounds of race, religion or sexual orientation
Contempt of court
Summary checklist: other risks

9. Confidentiality and privacy

Introduction
Confidential information
Private information
Remedies for breach of confidence and privacy
Data protection
Online issues
The right to be forgotten
Official secrets
Summary checklist: confidentiality and privacy

10. Copyright infringement

Primary infringement
The Digital Economy Act
Secondary infringement
Permitted acts and other defences
Summary checklist: likeliest possible defences
Civil and criminal remedies in the UK
Piracy
International copyright protection

11. Trade marks and passing off

Trade marks
Passing off
Domain name disputes
PART V
Sales and supply

12. Sale of goods, digital content and consumer protection

Sale of goods and digital content
Summary checklist: legal ownership in sales
Summary checklist: descriptions and misrepresentation
Summary checklist: satisfactory quality
Summary checklist: fitness for purpose
Further consumer protection
Summary checklist: consumer protection
Distance selling
Other information requirements on online traders dealing with EU consumers

13. Advertising and marketing

Introduction
Unfair commercial practices
Unfair contract terms
Business protection from misleading advertising
Comparative advertising
Summary checklist: advertising and marketing
Unsolicited goods and services
Data protection
Summary checklist: promotion and data protection

14. Distribution and export

Introduction
Trade and competition
Restraint of trade
EU and UK competition rules
Article 34: free movement of goods
Exhaustion of rights
Summary checklist: competition

Appendix A: A to Z glossary of legal terms and abbreviations

Appendix B: useful addresses and websites
Appendix C: further reading and sources
Index
Preface to the fifth edition
A great deal seems to have happened in the five years since the last edition, not only to
publishing law in the UK but equally to communication and publishing technologies and
platforms worldwide. Copyright, in particular, has been under almost constant scrutiny both in
the EU and the UK. Major extensions and revisions to UK copyright exceptions in 2014
(including extended quotation, research and education and library exceptions, together with
new exceptions for ‘parody’, and ‘text and data mining’) have required a new chapter on
copyright exceptions, licensing and Open Access (Chapter 3), to follow immediately after the
main chapter on copyright (Chapter 2). This replaces the previous coverage of the old
‘permitted acts’ chapter (previously Chapter 9), and we hope this re-arrangement will prove
helpful and more logical. In the process, we now have fourteen rather than thirteen chapters,
but we have tried to delete almost as much obsolete material as we have added new text.
Other new sections include fuller coverage of ‘collective licensing’, ‘Creative Commons’
and ‘Open Access’, together with new discussion of the copyright implications of ‘user-
generated works’ (such as uploads to Facebook, Twitter and YouTube), which are now a major
form of self-publishing on a vast, worldwide, scale. Updating the section ‘Copyright: the way
ahead’ in Chapter 2 remains difficult in a time of constant change, but despite occasional calls
for it to be swept away no-one has yet found a better way of protecting the creativity and
investment of authors and publishers than copyright, providing the essential balance between
protecting rightsholders’ and users’ needs is maintained. Chapter 7 is updated to include the
Defamation Act 2013, while Chapter 12 includes coverage of the sale of digital content and
information requirements on online traders.
Taking account of all this remains a considerable challenge, so this book is increasingly a
collaborative effort between specialist media lawyers and the publishers, authors and others
who have to put it all into practice. We owe particular thanks to the following long-suffering
friends and colleagues: Liv Vaisberg of the Federation of European Publishers, for commenting
on EU material in Chapter 1, to Florian Koempel at the Publishers Association and Hugo Cox
at PRS for Music for detailed comments on Chapter 2, and to Florian (again), Sarah Faulder of
the Publishers Licensing Society (PLS), and Lynette Owen for reviewing, respectively, new
coverage of the 2014 exceptions, new sections on ‘collective licensing’, and new material on
‘Creative Commons and Open Access’ in the new Chapter 3. New chapter 4 on ‘other rights’
benefitted greatly from updated material by Andy Davis of the British Library on the PLR
scheme, and from Reema Selhi at the Design and Artists Collecting Society on ‘artist’s resale
right’. Kate Pool of the Society of Authors and Kevin Stewart of Contracts People once again
kindly lent us their invaluable experience of authors’ contracts in Chapter 5. Mark Majurey of
Taylor & Francis and William Bowes of Cambridge University Press helped us considerably
once again with comments on Chapter 5, while James Shirras of Film Finances Ltd again
reviewed the section on ‘film rights’, and Lynette Owen added her considerable expertise to
coverage of rights in general in Chapter 6. Annie la Paz of Macmillan helped untangle the
continuing need for printers’ and publishers’ details in Chapter 7, and Caroline Brazier and
Andy Davis at the British Library kindly helped to keep the ‘legal deposit’ requirements (now
including e-deposit) up to date.
In the new Chapter 10, Mark Seeley, General Counsel of Elsevier, once again kindly
contributed substantial new material on US copyright law, and Claire Anker of the Publishers
Association reviewed the increasingly important section on ‘piracy’.
Thanks are also due to the following from Taylor Wessing for their invaluable help: Tim
Pinto and Suzy Shinner on defamation, confidentiality and privacy, Adam Rendle on copyright
infringement, Debbie Heywood and Nick Cody on sale of goods, consumer protection and
advertising, Sally Annereau on data protection and Robert Vidal and Louisa Penny on
distribution and competition. Thanks also to Andi Terziu and Olivia Brown for their invaluable
help and contributions.
Any errors and inaccuracies are still all our own work. We have, once again, tried to
foresee at least the major likely developments at the date given below, but this remains a fast-
moving area of law, and if in doubt after that date it may always be wise to check with a
publishing lawyer.
Hugh Jones
Christopher Benson
Brighton and London
February 2016
Part I
The law, and original works
Publishing and the law 1
Anyone can be a publisher in the UK. You don’t need professional qualifications, or letters
after your name, or a practising certificate. All of us ‘publish’ opinions or other information
every time we send an email, or circulate anything that anyone other than the intended recipient
may see (although there may be an argument about personal text messaging). Most of this is
normal Internet and mobile phone traffic, the lifeblood of twenty-first century communication,
and most of it – most of the time – keeps well away from the law. But what if an email you
send to a list of friends or colleagues defames someone’s reputation? Or what if text or
pictures you use on your website infringe someone else’s copyright? The law can quickly
become involved, even in such apparently domestic transactions, so anyone who is part of the
full-scale business of publishing – either as an author, a publisher, or in any other capacity –
needs to keep the law in mind all the time. That is what this book is about, and what it is for –
a roadmap of publishing, for those who wish to stay within the law.
The rest of this book will broadly follow the chronological sequence of most publishing, so
we will start at the beginning, with the author’s first idea, and follow the process through
copyright and contract, to the legal risks of publication to the outside world (such as libel), and
on through sales and marketing to distribution and export (in hard copy or digital form). At
every point, we will find that the law has a habit of getting involved. Those of us who are
familiar with the law will not find this terribly surprising (although there is a school of thought
that some of us should get out more). Those for whom law (especially English law) is an
arcane mystery, may need a few more signposts along the way. So even before our author has
his (or her) first idea, here is a brief introductory map of the legal system which governs most
UK publishing – UK and EU law, linked to foreign laws in many cases via international
treaties such as the Berne Convention.

UK AND INTERNATIONAL LAW

One of the most important things to understand about law is that most laws operate on a
territorial basis – in other words, they are promulgated by nation-states for their own citizens
and to regulate activities within their own territorial boundaries.
They do not generally apply anywhere else. This has strengths and weaknesses – if in the
UK you create or publish an original copyright work (like this book) you will have the full
protection of UK copyright law, but if you find your copyright is being infringed in, say, Turkey
or China, there is nothing UK law itself can do to help you and any legal remedies you may
have will largely be dependent on local Turkish or Chinese law and on local courts. As you
can imagine, some countries have better laws (and offer better protection) than others. In an
Internet age, this worldwide patchwork of very different legal regimes is already proving a
challenge. If material which infringes copyright, or libels someone, is created in New Jersey,
uploaded to a server there, hosted on a UK website and downloaded in France and Saudi
Arabia, whose law should govern the resulting dispute, and whose courts should have
jurisdiction to try the case? This is no tiresome technicality – for publishing today, this can
matter a great deal, since some laws are relatively liberal while others can be positively
restrictive.
Increasingly, of course, the countries of the world have tried to regularise a lot of this by
means of international treaties, so there is an International Court of Justice at The Hague
(mainly referred to for war crimes), and a European Court of Human Rights in Strasbourg.
However, these only operate in certain areas, and (as in the case of the European Court of
Human Rights) their judgments may be regional rather than global, and normally enforced
against individual member states. There is no truly global International Court, applying global
laws. Many think the Internet will eventually require something similar, but it seems we are
still a long way away from persuading all governments in the world to agree on what the
global laws would be, and who should enforce them. Copyright, however, is comparatively
well off, thanks to one of the world’s most successful and longest-running treaties, the Berne
Copyright Convention of 1886, now acceded to by well over 160 countries, which obliges
members to apply reciprocal ‘national treatment’ in their own courts to works of other member
states. National treatment means that the UK, for example, is required to give copyright works
of other convention countries – such as France – the same protection in UK courts as it gives to
UK works – and vice versa. The World Trade Organisation’s TRIPS Treaty also requires
member states to enforce copyright effectively (for more on this, see Chapter 10).

EU LAW
The UK is currently a member of the European Union, comprising 28 countries at the time of
writing (with six more countries currently having ‘candidate’ status for membership –Albania,
Iceland, Montenegro, Serbia, Turkey and Macedonia), and like every other member state the
UK participates in its government, with nominated Commissioners holding portfolios at the
Commission in Brussels, and elects MEPs to the European Parliament in Brussels and
Strasbourg. Equally, apart from its own domestic laws, it is also subject to EU laws. The UK
government at the time of writing is committed to holding a national referendum on the issue of
continued UK membership of the EU by 2017, but it seems unlikely – although not impossible –
that a British exit will happen, or at least happen soon.
European legislation derives from the EU Treaties (so-called EU primary legislation),
which are agreed voluntarily on joining by all member states. The latest Treaty in force, since
December 2009, is the Lisbon Treaty, which was introduced mainly to increase efficiencies in
the decision-making process, give a greater role to the European Parliament and national
parliaments, and increase external effectiveness (e.g. with a single Presidency and foreign
affairs role). The purpose of much EU law is to harmonise legal regimes across Europe, in
pursuit of the famous ‘level playing field’. These EU laws can be on a wide variety of topics –
from fish farming to intellectual property – and (as so-called secondary legislation) commonly
take the form of:

• Regulations, which have direct effect in the member states of the EU, or
• Directives, which as the name implies are directions to member states to amend their own
laws in accordance with given rules.

Both these forms of EU law take precedence over the national laws of member states
(including UK law). The E-Commerce Directive of 2000 and the Copyright Directive of 2001
are examples of laws which particularly affect publishing in the EU. They are enforced by the
Court of Justice of the European Union, which sits in Luxembourg, with 28 judges, one from
each of the member states, and 9 Advocates General. A General Court (formerly known as the
Court of First Instance) was also established in 1988 to help with the case-load problem. In
addition, there are Decisions, binding on those to whom they are addressed, and
Recommendations and Opinions which have no binding force but which result from
references by national courts to the European Court of Justice for interpretation. Recently there
have been more frequent Communications on EU policy proposals, such as the 2015
Communication on ‘A Digital Single Market Strategy for Europe’, which contained advance
proposals for significant changes to EU copyright law (for more on which, see Chapter 2).
Such ‘soft law’ instruments have become the most frequent tools used to develop EU policies
in recent years, in particular relating to issues affecting publishing.

HUMAN RIGHTS LAW

The UK has been a signatory to the European Convention for the Protection of Human Rights
and Fundamental Freedoms since 1950. However, in October 2000 the Human Rights Act 1998
came into force, thus bringing convention rights such as freedom of expression and privacy
more directly into UK law. When courts now interpret the law, they must do so in a way which
is compatible with the 2000 Act and the Convention. In doing so, they must take account of the
decisions of the European Court of Human Rights. There have recently been proposals from the
UK government to repeal the 2000 Act and replace it with a stand-alone UK Bill of Rights
(largely to avoid the supervisory role of the European Court) but at the time of writing the UK
is still a member of the Convention and the 2000 Act is still in force.
This, then, is the international and European context in which UK law now operates.

UK LAW

‘COMMON LAW’
After the Romans departed (taking Roman law with them) the islands now making up the UK
were a pretty lawless place. But over the centuries a body of Anglo-Saxon, and then Norman,
law developed, based on cases decided by judges, and increasingly following set rules.
 This became known as the common law of England (a key part of English law) and was
administered by common law courts. Separate laws developed in Scotland (Scots law) and
Northern Ireland. Actions for breach of contract or negligence were (and still are) common
law actions. Separate ecclesiastical courts regulated matrimonial law, and Courts of Equity,
such as the Chancery courts, could be appealed to for remedies (such as injunctions) based
less on rules than on basic fairness and justice (hence ‘equitable’ solutions). The judges,
however, played a crucial role. Meanwhile, on the Continent, the codified rules of Roman law
continued to be influential, so a separate civil law tradition grew up (and still operates, e.g. in
France and Germany, based on civil Codes containing general principles, rather than a body of
fact-based case law).

STATUTES

Although much of publishing law is still based on common law and equity, nowadays an
increasing amount comes from Acts of Parliament (also called Statutes), passed by
Parliament in Westminster, and subsidiary orders or Regulations made under those Acts,
called Statutory Instruments (or S.I.s). Examples of Statutes relevant to publishing law are
the Copyright, Designs and Patents Act 1988 (still the primary source of copyright law in the
UK, although much amended), the Trade Marks Act 1994, and the Defamation Act 2013. Most
of this legislation is introduced into Parliament in the form of government Bills, usually in the
House of Commons, but Bills are sometimes introduced in the Lords, or often appear as
Private Members’ Bills: the Copyright (Visually Impaired Persons) Act 2002 began life as a
backbench MP’s Bill.
Often, the legal principles contained in Acts of Parliament need fleshing out in more detail,
so may be followed by Regulations, which amplify – and perhaps amend – the original Act.
The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 – one of
several 2014 Regulations extending UK copyright exceptions (dealt with in Chapter 3) – is a
good example. Such Regulations are often accompanied by government Guidance Notes,
designed to explain to people directly involved, and the public, in (fairly) plain English what
the changes actually mean.
Here is an example of how the EU and UK legal systems currently work together:

• The UK term of copyright under the 1988 Copyright, Designs and Patents Act was ‘Life
plus 50’ (more precisely, 50 years after the end of the year in which the author died).
• In October 1993, the EU Parliament passed EU Directive 93/98/EEC (the Term Directive,
sometimes called the Duration Directive), harmonising the term of copyright throughout the
EU at ‘Life plus 70’. Member states had until July 1995 to increase their copyright terms if
necessary.
• This required an amendment to the UK’s 1988 Act, so the required changes were
introduced by the UK government in part by a Statutory Instrument called the Duration of
Copyright and Rights in Performances Regulations 1995, which came into force (late) on 1
January 1996. From that moment, the UK term of copyright for most works was increased
 by 20 years, to Life plus 70, in line with the rest of the EU.

It will be seen from this how Acts of Parliament passed in Westminster come to be amended
by laws created in Brussels, and also how important it is to keep track of any amending
Regulations, many of which change the law quite dramatically.

CONTRACTS

All this important-sounding government activity should not blind us to the fact that we can
make laws too. Or at least, that we can enter into agreements that the law will enforce, called
contracts. Publishing is crowded with contracts, of course, from licences, which permit or
authorise us to do things, to more complex agreements such as author contracts, which grant
rights in return for a promise to publish and (usually) remuneration, to agreements not to do
things at all, such as restrictive covenants. Some contracts need to comply with certain
formalities (an exclusive licence needs to be in writing, and signed by the person granting it,
for example), but as a general rule contracts do not necessarily need to be written at all. All
this is set out in detail in Chapters 5 and 6.
The law will enforce most reasonable contracts, so if one of the parties to a contract fails to
comply with significant terms of that contract, the other party may bring a legal action against
him (or her) for breach of contract. Usually, if the value of a case is less than £10,000 it will
generally be allocated to the small claims track or (for claims between £10,000 and £25,000)
to the fast track, both of which are within the County Court. Claims for over £25,000, or
complicated claims, are allocated to a ‘multi track’ and can be heard in the High Court,
depending on the claimant’s choice of court and the nature of the claim. There is an appeal
from there to the Court of Appeal, and from there in some cases to the Supreme Court
(formerly the judicial committee of the House of Lords). Where cases involve questions of
interpretation of EU law, the UK courts at the time of writing can make references to the
European Court of Justice. Decisions of these court cases are reported and published, and
judgments – particularly of the higher courts – are followed by judges in later cases, thus
establishing a system of judge-made law, known as precedent. So although an increasing
amount of our law derives from politicians passing Acts of Parliament, judges still have a very
important role in interpreting the law in order to reach decisions in individual cases.
If a breach of contract is proved, claimants are entitled to a remedy sufficient to restore them
to the position they would have been in had the breach not occurred.

TORTS

Tort is the French word for wrong, so since Norman times a tort has meant a civil wrong (as
opposed to a criminal wrong, which is a crime). Examples of torts are libel, negligence,
nuisance, copyright and trade mark infringement, breach of confidence, malicious falsehood or
passing off – wrongful or harmful acts which we may do to each other, and for which we may
take legal action against each other in the civil courts (as with breach of contract, above).
Successful claimants in a tort action are generally entitled to a remedy so far as possible
sufficient to restore them to the position they would have been in had the tort not occurred.

CRIMES

Criminal offences, on the other hand, like murder or assault, are regarded as so serious by the
state that prevention and punishment are taken out of our hands altogether in order for those
concerned to be prosecuted, usually by the Crown Prosecution Service, or H.M. Revenue
and Customs (formerly the Inland Revenue and H.M. Customs and Excise). Obscenity,
indecency and incitement of hatred on the grounds of race, religion or sexual orientation are
criminal offences, all of which may affect publishers (see Chapter 10). Certain activities
infringing copyright, such as importing or possessing infringing equipment, are also criminal
offences under the 1988 Copyright Act, for which there are set penalties, including fines,
seizure or destruction of stock, and even imprisonment. Offences involving illegal importation
are usually the responsibility of H.M. Revenue and Customs. Offences such as selling illegal
or bootleg copies, e.g. of books, CDs or DVDs, are usually prosecuted by Trading Standards
Officers, as are offences under the Trade Descriptions Act. So reputable publishers, as well
as more recognisable criminals, may commit criminal offences.
On which happy note, we should perhaps complete our tour of the legal system which
governs publishing in the UK, and turn our attention, in the next chapter, to an author starting to
write an original work.
Copyright I 2
Key principles

ORIGINAL IDEAS
All published works start with an original idea, and all ideas have an author. The Oxford
English Dictionary equates author with ‘originator’: in the classic publishing hierarchy, the
inspiration of authors is the beginning, the process starts here. This is the classic blank sheet of
paper (or the blank screen) which all authors encounter, in the back bedroom, on the kitchen
table, or (in J.K. Rowling’s case) in the Edinburgh coffee bar. When – finally – the original
idea appears, is it protected at all by the law?
It is not at all easy to protect original ideas as such; as a general rule, there is no copyright
in an idea, and the less developed it is, the harder it will be to protect in any other way.
Some possible ways include:

• Trade mark protection – for a new children’s character, for example (see Chapter 11).
• Confidential information – concepts, plots and other ideas imparted in confidence may be
protected by the law of confidence in appropriate circumstances (see Chapter 9).
• Copyright – particularly for material set down and developed beyond the idea stage,
perhaps to substantial drafts, sketches or works in progress (see below).

INTRODUCTION TO COPYRIGHT
We saw above that there is no copyright in an idea. However, there might be copyright
protection for some kinds of more developed material, once something is put into concrete
form or given tangible expression. Copyright law will not protect you just for having a good
idea, but it may protect you for doing something positive to express it – in effect, for putting it
into a form where it can be shared with the rest of the world. The law recognises that doing
this requires an investment of time and effort, and also some skill (and possible costs,). It also
carries with it a serious risk: once expressed in tangible, physical form, an idea can be copied
by others. This is particularly true in an Internet age. So the law provides protection against
copying for those who make that investment and take that risk, and thus an incentive for them to
invest their efforts in more ideas in the future. This is one of the most important truths to grasp
about copyright, and UK copyright in particular. Although it protects authors and their works –
quite rightly – it is not only a reward for authorship, but a protection for investment. This
explains why UK copyright law has developed in the way it has over the centuries, and it is
unlikely that the UK’s worldwide publishing business in its present form could exist without it.
What is copyright then, and why is it so important to publishing?
COPYRIGHT AND INTELLECTUAL PROPERTY
Copyright should, literally, be the right to copy; in fact in legal terms it is better to think of it as
the right to control copying by others. Put a little more precisely, copyright in the UK is the
exclusive statutory right, given (usually) to those who create original works, to exercise
control for a specified period of time over the copying and other exploitation of those works. It
therefore gives creators two different, but matching rights:

• an exclusive, positive right to copy and exploit their own works, or license other people
(such as publishers) to do it for them; and
• a negative right to prevent anyone else from doing so without their consent, coupled with
powerful legal remedies for copyright infringement if they do.

It is important to remember that UK copyright is far from being an absolute monopoly, and
was never intended to be; as well as a limited duration, after which works revert to the public
domain, there are clear exceptions for purposes beneficial to society, such as ‘fair dealing’ for
research and private study, or library and educational exceptions. (We will look at the various
permitted copyright exceptions under UK law in Chapter 3, and for copyright licensing, see p.
71 below.)
Copyright may thus be grouped with the protection given to the owners of patents and the
proprietors of trade marks, which (together with registered and unregistered designs, database
rights, rights in performances, publication rights, moral rights and confidential information)
traditionally make up the area of law known as ‘intellectual property’. This term is not very
precise, or very accurate, but it is a useful label for the increasingly important legal protection
given to products of the mind: intellectual creations which, when applied commercially or
industrially, are of some value to society, and worth protecting legally. In today’s Internet
society, intellectual property (the more scientific rights such as patents are sometimes called
‘industrial property’) is an increasingly important form of national and international legal
protection for trade in all kinds of goods and services; not only for books, e-books, websites
and databases, but also for films, DVDs, computer software, distinctive trade brands, new
drugs and other inventions. It is a key issue for all trading countries, and for trading blocs such
as the EU and for international organisations like the World Trade Organisation, and
intellectual property is normally fairly near the top of the agenda in international trade
negotiations. Some developing countries, whose lack of infrastructure puts them on the wrong
side of a growing ‘digital divide’, have suggested that intellectual property should be diluted
to allow easier access, primarily to generic drugs, but this would equally harm local authors
and publishers, who need copyright protection (for example, against piracy) even more than
their colleagues in the West.
Before looking at modern copyright law in detail, it may be helpful to explain how we have
got to this point, and how copyright law has developed over the centuries to meet the
challenges of a fast-moving digital society.
FROM SCROLLS TO SCREENS: A BRIEF HISTORY OF COPYRIGHT
Although authors had a limited form of copyright and moral rights in the ancient world
(plagiarism being punishable in Ancient Greece, for example), and Chinese block-printed
books dating from the eleventh-century Song Dynasty have been found with copyright claims,
copyright only really started to develop as an organised system of legal protection in Europe
when commercial copying first became possible in the fifteenth century with the invention of
the printing press. In England the new printing process – introduced here by William Caxton –
quickly came under the control of the Stationers Guild as part of a royal licensing system
which, by the time of the Catholic Queen Mary, had as much to do with the suppression of
heresy as the propagation of literature or learning. Parliament finally refused to renew any
further Licensing Acts in 1694 after the Glorious Revolution, and the Stationers therefore
lobbied Parliament for a proper statutory form of copyright protection.
The result was the first Copyright Act, the Statute of Anne of 1710. Under that Act, authors
were given ‘the sole right and liberty’ of printing books for a fixed (renewable) term of 14
years, or 21 years for works already in print. Works still had to be registered at the time with
the Stationers Company. This provided initially only a brief statutory monopoly, and continuing
arguments about common law copyright were only finally resolved in favour of a fixed
statutory term for published works in the historic case of Donaldson v. Becket in 1774. The
term was progressively increased through the eighteenth and nineteenth centuries, and extended
to other works, such as paintings and photographs, but it remained, as today, a fixed statutory
term, although increasingly this varied depending on how long the author lived.
To this developing national protection, the Berne Convention in 1886 added for the first time
an international treaty system of reciprocal copyright protection, now (after a hundred years)
accepted by over 160 nations. Key elements are:

• fully reciprocal ‘national treatment’;

• no requirement for formalities, e.g. registration, but works must be ‘original’;
• minimum protection for life of author plus 50 years.

A watered-down version of these requirements was included in the 1952 Universal

Copyright Convention (UCC), established largely to accommodate the then two superpowers,
the USA and Russia, neither of which had yet joined Berne (they both since have). The UK
joined the UCC in 1957.
The twentieth century was otherwise a century of rapid technological change, during which
new advances such as films, sound recordings, broadcasts and computer programs were
successively given statutory protection. The current UK Act, the Copyright, Designs and
Patents Act, was passed in 1988 and came into force on 1 August the following year (referred
to throughout the rest of this book as the ‘1988 Act’). It has already been heavily amended to
take account of various EU directives, providing among other things for rental and lending
rights, legal protection of databases, and for extension of the term of copyright protection from
life plus 50 years to life plus 70 for most works. Some of the most significant changes came
when the UK implemented the EU Copyright Directive (below), designed to harmonise
copyright protection across the expanding EU and enable full accession to the 1996 WIPO
Copyright Treaty, bringing the Berne Convention more fully up to date with digital society.
Further significant changes to UK copyright exceptions came in 2014 (on which see Chapter
3).
In addition, the World Trade Organisation has now replaced the old system of GATT trade
negotiations, not only adopting Berne as the minimum copyright standard for member states, but
also (via the 1994 TRIPS Agreement) requiring member states to provide sufficient and
effective copyright enforcement. For more on this, see Chapter 10. In an Internet world, this
continues to prove a challenge.

THE EU COPYRIGHT DIRECTIVE

Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in
the information society (the EU Information Society Directive, generally referred to as the EU
Copyright Directive) was passed on 9 April 2001 after many years of unprecedented lobbying,
and implemented in the UK (late) via the Copyright and Related Rights Regulations 2003. The
following summary sets out the basic structure of this key Directive (now fully implemented by
all EU member states), together with references to the UK Regulations where appropriate. At
the time of writing, the Copyright Directive is still under review in Brussels, both by the EU
Commission (following its 2015 ‘Digital Single Market Strategy for Europe’), and the
European Parliament (following the Reda report of the same year), both of which may lead to
further proposals, probably in 2016. The Digital Single Market Strategy focuses particularly
on portabilility of legally acquired content and cross-border access for consumers to avoid
territorial restrictions, wider use of Text and Data Mining (for more on this, see Chapter 3),
and the role of platforms and intermediaries.
Further details of EU and UK copyright exceptions are included in Chapter 3 and, for
copyright enforcement provisions, in Chapter 10.

EU CORE RIGHTS

Adopting wording drawn directly from the WIPO Copyright Treaty 1996, the Directive
required member states to provide the following key rights for authors:

• Reproduction right (Article 2). The exclusive right to authorise or prohibit direct or
indirect, temporary or permanent reproduction by any means and in any form, in whole or
in part. This was largely already covered in the 1988 Act.
• Right of communication/making available to the public (Article 3). The exclusive right
to authorise or prohibit any communication to the public of their works, by wire or
wireless means, including the making available to the public of their works in such a way
 that members of the public may access them from a place and at a time individually chosen
by them. This was new, and has resulted in changes to sections 16 and 20 of the 1988 Act
(set out fully in Chapter 10).
• Distribution right (Article 4). The exclusive right to authorise or prohibit any form of
distribution to the public by sale or otherwise (already dealt with under the 1988 Act).
• Technical protection rights Articles 6 and 7 required member states to provide protection
against circumvention of technological rights or measures, such as encryption, and rights-
management information. Both these provisions were implemented in the 2003 Regulations.
Article 8.3 (also implemented) further provided for sanctions and remedies, which must be
‘effective, proportionate and dissuasive’, including remedies against service providers,
which it is hoped will lead to effective Notice and Takedown provisions suitable for the
Internet age. The Publishers Association’s Publishing Infringement Portal, although
primarily based on the E-Commerce Directive, is a good example (see Chapter 10).

UK CORE RIGHTS

Most of these EU core rights are now included in amended section 16 of the UK’s 1988
Copyright Act, which lists the ‘Restricted Acts’ which are the exclusive right of UK owners in
relation to most copyright works. These currently include the exclusive right to do the
following things:

• copy the work;

• issue copies of the work to the public;
• rent or lend the work to the public;
• communicate (or make available) the work to the public; and
• make an adaptation of the work.

Fuller individual treatment of all these Restricted Acts is included in Chapter 10.

EU EXCEPTIONS

In addition to the EU’s core rights (above), there are 21 possible or optional exceptions under
EU law, set out in Article 5.
The first (5.1) dealing with temporary copying, is mandatory; the other 20 at present are
optional, forming an à la carte menu from which the (currently 28) member states now required
to implement the Directive are inevitably making different selections – thus seriously limiting
the chances of any real harmonisation. It is at least an exhaustive list, so that no further
exceptions within the EU are possible at present, although this may change in the context of any
EU copyright reform (see above).

• Temporary reproduction: (Article 5.1) This exempts from the reproduction right
 temporary acts of reproduction ‘which are transient or incidental and an integral and
essential part of a technological process and whose sole purpose is to enable [network
transmissions or lawful uses] . . . which have no independent economic significance’. This
mandatory exception was included almost verbatim in the UK Regulations (regulation 8),
giving a new UK exception of ‘Making Temporary Copies’ under a new section 28A of the
1988 Act (see Chapter 3 for more on this). It is generally felt to be a workable compromise
between the interests of rightsholders to protect their works against economically
significant misuse, and the legitimate need for intermediaries, users and
telecommunications companies to have a workable exception that will enable the Internet
to function.
• Optional exceptions: There is not space here to set out all 20 optional exceptions,
particularly since the UK initially selected very few, sticking broadly to current ‘fair
dealing’ exceptions, plus existing educational and library exceptions, many now subject to
express ‘non commercial’ criteria. UK exceptions were, however, significantly extended in
2014 (on which, see Chapter 3).
• The ‘three-step test’: One very important proviso applying to all 21 exceptions is
contained in Article 5.5., providing that each exception should only be applied (1) ‘in
certain special cases (2) which do not conflict with a normal exploitation of the work or
other subject-matter and (3) do not unreasonably prejudice the legitimate interests of the
rightsholder’. This wording is an increasingly important yardstick for future interpretation
in the UK and across the EU. For more on this, see Chapter 3.

UK EXCEPTIONS

The UK as an EU member state is fully subject to the EU rules and limits above, and any new
or amended UK copyright exceptions must comply with them. There is not space here to set out
all the current UK exceptions, but these – including the significant extensions in 2014 – are
fully covered in Chapter 3.

COPYRIGHT: THE WAY AHEAD

In recent years, copyright has been under almost constant scrutiny in the UK, EU and
internationally. Aspects of copyright such as the extent of copyright exceptions in a digital age
have received (and, at the time of writing, still receive) particular attention. This is in many
ways a good thing, in a fast-moving digital age, with new formats and rapidly developing
business models: most commentators agree on the importance of maintaining the essential
balance in the UK copyright system, between (1) the need to protect exclusive rights from easy
cybercrime, and (2) the legitimate expectations of users and society for reasonable access,
increasingly in digital formats.
Following the Hargreaves Review in 2011, broadly accepted by the UK government’s
‘Modernising Copyright’ report in 2012, the government legislated in 2014 for wide-ranging
extensions (and additions) to existing copyright in the UK, including for the first time in the UK
a personal copying exception (although this has now been quashed by the High Court),
exceptions for Text and Data Mining, and Parody, together with extended educational and
library exceptions, and an extended exception for print disabled people. For more on all the
2014 changes, see Chapter 3.
Meanwhile, in Europe, at the time of writing copyright remains a high priority, with frequent
Communications and White Papers on topics such as fragmented cross-border licensing, mass
digitisation, orphan works (on which, see Chapter 3), extended collective licensing (Chapter
3), and possibly publishing contracts (Chapter 5), all combined with an overall concern to
protect consumer rights, as well as keeping Europe competitive, in a digital world.
Perhaps a broader issue for copyright remains: that of public awareness and acceptance.
Unlike previous generations, twenty-first-century users rightly expect quick and easy access to
information, and the difference between (free) public information and (possibly restricted)
copyright content is often a difficult act to sell. As ever, as we have seen above, technology
itself increasingly has the answer (for example, in the Copyright Hub, and digital rights
management), but there is no doubt that much consultation and negotiation between
rightsholders, users and governments lies ahead.

COPYRIGHT WORKS

INTRODUCTION: TYPES OF WORKS

Initially, as we have seen above, copyright only extended to books and other printed matter.
However, definitions based on traditional packages such as ‘books’ are no longer specific or
flexible enough for modern content industries like publishing, where individual creations may
now need to be re-used and adapted in different combinations and in different forms (such as
online services or websites). Each original work may also be created and owned by quite
different people, who may wish to exploit them in different ways; it is important therefore to
identify who owns the rights in each constituent part and deal with those rights separately. For
this reason, it is better to think of books, e-books, journals, or websites not as ‘works’ at all
but as packages or bundles of works, each of which may need different treatment.
What copyright works, then, does UK law protect? Not every creation counts as a work. The
works which may currently be protected are set out in section 1(1) of the Copyright, Designs
and Patents Act 1988. Three general categories of works may now be protected:

(1) original literary, dramatic, musical or artistic works;

(2) sound recordings, films, or broadcasts; and
(3) the typographical arrangement of published editions.

There is a separate publication right in previously unpublished works, and a separate

statutory database right, both dealt with in Chapter 4. Copyright may still cover some original
databases, dealt with below.
If you want to secure copyright protection for a work in the UK, therefore, the first thing you
will need to do is make sure that it falls into one of the above categories. There are other
qualifying criteria which each individual work will also need to fulfil (see below), but these
three categories are the essential starting point. Many of the categories have been defined quite
widely over the years – so that literary works, for example, now include computer programs
and compilations – and we will examine each of the categories most relevant to publishing in
turn. As will become obvious, a modern publication may contain several different types of
copyright works.

LITERARY WORKS

Of all copyright works, literary works are still the most important for authors and publishers,
although others (such as artistic works) are important too as we shall see. Under section 3 of
the 1988 Act, a ‘literary work’:

• means any work (other than a dramatic or musical work) which is written, spoken or sung;
• includes a table or compilation (other than a database) and a computer program;
• includes a database which by reason of the selection or arrangement of its contents,
constitutes the author’s own intellectual creation;
• must be recorded, ‘in writing or otherwise’.

‘Written, spoken or sung’

A work does not need to be ‘literary’ in the colloquial sense in order to be a literary work, as
long as it is written, spoken or sung. Some very un-‘literary’ written matter indeed has been
given copyright protection in the past, such as business letters, football coupons, trade
advertisements and examination papers: indeed, it is possibly more useful to think of ‘literary’
in the broadest context of sales ‘literature’ or business ‘literature’ than as having any necessary
connection with Dickens or Proust. It merely needs to be written (or spoken or sung) and
recorded, in writing or otherwise (see below). There is no requirement for written matter to be
written in any particular language or notation, or even to use words at all: mathematical
symbols and equations, scientific formulae or even circuit diagrams will be equally protected.
However, a single invented word will not be sufficient to constitute a literary ‘work’, although
it may make a good trade mark (see Chapter 11). Under section 178 of the 1988 Act ‘writing’
and ‘written’ include any form of notation or code, whether by hand or otherwise, and
regardless of the method or the medium used.

Tables and compilations

Tables and compilations have been given copyright protection as literary works since the 1911
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