Copyright licences

 

Licences are an important part of copyright law. “Licence” is basically the legal term for copyright permission. When you grant a licence to someone you are granting them permission to use your copyright work in a particular way.

Licences can be limited in a number of different ways. They can be limited by the type of exclusive rightFor example, you may grant someone permission to copy your work, but not to perform it publicly. Licences can be limited by purpose, so for example I might grant someone a licence to use my work on their blog but not in their conference seminars. They can be limited by timeso you might grant a permission that lasts for one year only then expires. And they can be limited geographicallyso you might grant a licence for use in Australia only, for example.

Licences can have terms attached, such as: “I give you permission to use my photograph so long as you always include a link back to my blog underneath the photograph”. Licences can be granted for free or in exchange for something (usually money). Money paid for a licence is called a “licence fee“.

These limitations are useful for you to know both in your role as potential licensor (the person granting permission) and as potential licensee (the person receiving permission). As licensor, you may wish to place certain limits on the licence you grant to someone in order to maximise the licensing value of your copyright work. As licensee you will want to check that the limits on the licence granted to you do not prevent you from doing what you want or need to do with the copyright work. For example, if you’d like to post someone else’s picture on your blog or in your book, it’s not helpful to have a licence that expires after 6 months.

There are different types of licences, and it’s important to be aware of them because they have different impacts on your rights:

Non Exclusive Licences

These are the most common form of licence. “Non-exclusive” means that the same kind of licence can be given to different people at the same time. For example, I can grant Lisa a non-exclusive licence to post my photograph on her blog, and I can also grant Kristen a non-exclusive licence to post the same photo on her blog.

Non-exclusive licences can be given verbally; they do not need to be written down. However, it is always a good idea to have a written record of anything you agree on with someone else.

Exclusive licence

Exclusive licences are a bit trickier and you should keep an eye out for them. An exclusive licence means that the right is granted exclusively to the licensee. The tricky part is that even the copyright owner is excluded from exercising the right granted for the period of time of the licence and within the jurisdiction of the licence. So if I grant Natasha an exclusive licence to publicly perform my song in Brisbane for a period of 3 months, that means that I cannot perform my own song in Brisbane for the next 3 months and I cannot give anyone else permission to perform the song in Brisbane during that period.

Exclusive licences often arise in publishing contracts – the publisher may take an exclusive licence to publish the book and a non-exclusive licence to copy and adapt the book. This means that only that publisher can publish the book. The author can reproduce the book and give other people permission to reproduce it, but cannot contract with another publisher to also publish the book.

Because exclusive licences are much more restrictive than non-exclusive licences they cannot be given verbally. The law says that exclusive licences must be in writing and signed by the licensor (the person giving the licence).

sole licence

These are exactly the same as exclusive licences, with one small but important difference. Under sole licences, the copyright owner retains the right to do the act covered by the sole licence. So if I grant someone a sole licence to copy my book, they can copy it and I can copy it but noone else can. I cannot grant anyone else a licence to copy my book.


Phew! I know that’s a lot to take in, but it’s important stuff. Licences are highly relevant to your interactions and transactions online. I’ll be highlighting exactly how in future posts.

“No copyright intended”

It is extremely common to see the following statement when people share things online: No copyright intended!. This is especially so on YouTube. In fact, it’s rife there.

no copyright intended

This statement seems to arise from a fundamental misconception about copyright law, particularly among the internet’s younger users, that copyright is simply a claim of title. By writing “No copyright intended!”, the user seems to be saying: “I’m not claiming that this is mine!”

Unfortunately for those users, however, copyright law does not care about intention. Copyright infringement is sometimes called a “strict liability” action, which means that if you exercise one of the copyright owner’s exclusive rights without permission or legal exception then you have infringed copyright – there are no if, buts or maybes about it. The copyright owner doesn’t have to prove that you meant to infringe their work, or even that you knew what you were doing when you infringed. Intention is irrelevant to copyright infringement.

What’s the best thing to do about this? Be aware of your rights and the rights of other creators. That’s what I’m aiming to help you with via this blog. Any questions? – Feel free to contact me.

What is copyright infringement?

stop sign grunge

The general rule for copyright infringement is:

Infringement = exercising one of the copyright owner’s exclusive rights without the copyright owner’s permission or without a legal exception

The most common form of infringement is copying (reproducing) a copyright work or other subject matter. There are some important things to know in relation to infringement by copying:

(1) To infringe a literary, musical, artistic or dramatic work, the copy does not have to be exact. It just has to be substantially similar. For example, let’s pretend that the Mona Lisa is still protected by copyright and is not in the public domain. I could infringe copyright by making an exact copy – e.g. by colour photocopying the painting. But I could also infringe copyright by sitting down in front of the Mona Lisa and trying to recreate it by painting by own version. I won’t be able to make my painting look exactly the same as the Mona Lisa (it would look a lot worse), but I will still be making a substantially similar copy.

(2) Conversely, to infringe a sound recording, cinematograph film or a published edition, the copy does have to be exact. In other words, I can infringe a sound recording by burning a CD or copying an mp3 file. But if I were to sit down and record myself playing the same music from a sound recording on my guitar, that would not be an infringing copy of the sound recording (though it may be an infringing copy of the underlying musical work).

(3) You do not have to copy the entire work to produce an infringing copy. The law says that you have to copy a “substantial part”. This is a little misleading, because it makes it sound like you need to copy a lot to infringe copyright. You don’t. What the law means here is that the part you copy should be more than trivial. Even copying a small part of something can be infringing so long as it is not trivial. What the court looks at is the quality of what is copied rather than the quantity. So, for example, copying the chorus from a song is likely to be substantial because the chorus is usually central to the song and memorable, even if the chorus is not substantial (in terms of quantity) when compared to the length of the verses.

What can happen to you if you infringe copyright?

If you get sued for copyright infringement, there are two main remedies that a court may order against you.

(1) An injunction – this is basically a legal order that you must stop using the copyright work.

(2) Damages – the legal term for money ($). You might be required to pay the copyright owner a certain amount to compensate them for using their work without permission.

Where to from here?

You will be happy to know that this marks the last of the heavily legal posts. Now that we have a foundation in place for a basic working knowledge of copyright law, I’ll be able to get to the posts that are more directly relevant to your interactions online. Coming up soon:

  • Where to find content that is free to use on your blog (such as photographs)
  • How to ask for permission to use a copyrighted work
  • When you don’t need permission (legal exceptions to infringement)

Plus, very soon I’m going to dive into the legalities around collaborations – how to decide who owns what, and things to talk about before you collaborate.  So there are lots of exciting posts on the horizon. Catch you next week!

Image credit: Stop Sign Grunge by Nicolas Raymond, licensed under Creative Commons BY 2.0