Educational use

It is not an infringement of copyright to copy a work in the course of instruction or preparation for instruction, provided the copy is not made by a reprographic process and is made by the person giving or receiving instruction. The 1988 Act defines `reprographic process’ as a process for making `facsimile copies’ (including reduced or enlarged copies) or involving the use of an appliance for making multiple copies. No photocopying or copy photography is allowed. It is permitted to copy onto a chalkboard, but not to make photocopies. It seems probable that this section was written with the express intention of encouraging licensing schemes which would provide some economic return to rights owners and indeed, such schemes are in place, notably from the Design and Artists Copyright Society.

Multiple copying by anyone, by any method, for the purposes of setting or answering examination questions, is permitted and no identification of the rights owner or source is required although it is common practice to do so. The Act does not require rights owners to supply an image for examination purposes but where an image is held by someone who intends to use it for setting or answering examination questions they may copy it even if the material is exclusive or rare unless there are contract terms or confidential conditions of supply to prevent this.

Copies made for educational use may not be used for any other purpose.

Library, archive and museum services – research or private study

There are detailed rules for libraries, archives (and museums with these services) which are `not conducted for a profit’ to enable them to copy material for research or private study upon request. Only one copy per person can be made and that copy may not be used for any other purpose. It is advisable to consult the wording of these rules to see if they apply to you.

Library, archive and museum services – conservation work

Libraries, archives (and museums with these) may copy anything in their permanent collection `in order to preserve or replace it’ or `in order to replace in the permanent collection of another prescribed library or archive an item which has been lost, destroyed or damaged’. It should be noted that these rules do not permit any form of copying, storage and use of photographs or other artistic works appearing in published or unpublished works for use separately from these items. In other words it is not within the scope of the rules to strip out and use separately for loan or consultation, copies of any of the photographs or other artistic works in a book, magazine or other document! `Prescribed’ generally means a non-profit- making organisation. Again, it is advisable to consult the wording of the rules to see if your organisation or service comes within the scope of this provision.

Advertising a work for sale

It is not an infringement of copyright to issue photographs of an artistic work to the public to advertise it for sale, but these photographs may not be used for any other purpose without the permission of the copyright owner. Such purposes would include continued sales of a catalogue of works after an auction or a sale is completed.

Works on public display

Sculptures, models for buildings and works of artistic craftsmanship (such as stained glass), if permanently situated in a public place, or in premises open to the public and buildings (which includes bridges) may be freely photographed, though in fairness to the sculptor, architect, designer, engineer or artist and in the interests of researchers in the future, captions should identify them where appropriate. In some cases a credit may be required if the artist’s moral rights have been asserted. It should be noted that photographs on public display are not covered by this exception so photography of photographs, on say headstones in a graveyard is not permitted without the consent of the copyright owner. Works which are on private property but are visible from public places, continue to enjoy full rights protection. This can constitute a problem when the work is in a private garden and is clearly visible from a public right of way. If the work is permanently displayed in a public place, there are no restrictions on photography. But a private garden, unless it is opened to the public, is not a public place and the Act will apply. The work should not be photographed for publication unless its inclusion in the photograph is `incidental’. (See the section on `incidental inclusion’ below).

Trespassing upon private property to take photographs without asking permission, can lead to an action for trespass but the photographs taken remain the copyright property of the photographer, who is not generally under any obligation to hand them over if caught. `Trespassers Will Be Prosecuted’ is usually an empty threat since trespass is only a criminal offence in special circumstances. The owners of premises open to the public may make a charge for entry or place prohibitions on photography as a condition of entry. These prohibitions could be printed on the ticket, be displayed on a board by the gates or be published in membership literature in the case of premises offering season tickets. Photographs taken despite the restrictions will nevertheless remain the copyright property of the photographer but the photographer will be liable to be sued under contract law if they are subsequently published or otherwise exploited for economic gain. In some cases publication of photographs will be prevented under the laws of confidence.

Incidental inclusion

Copyright in a photograph is not now infringed when it is incidentally included in another photograph, artistic work, film, or broadcast. Equally, photographers are not in breach of copyright if they include other people’s copyright material in their own work without permission, provided its inclusion is only incidental.

Inclusion of a copyright work would not normally be regarded as incidental if it is a deliberate or an important feature of the exercise. There is no definition of `incidental’ and the legal position may not be clear cut. However a basic guideline can be applied. Imagine a photograph of a person in front of a well known, copyright photographic print. The inclusion of the print in the background is unlikely to be incidental unless it quite genuinely just happened to be there. Whether or not the background is in focus and the size of the print in relation to the whole picture will also be relevant. If in doubt, it is usually better to err on the safe side since getting it wrong could be costly!

Public administration

No permission is required for various uses of copyright works in relation to the following:

Parliamentary and judicial proceedings
Royal Commissions and Statutory Inquiries
Material communicated to the Crown in the course of public business
Public Records
Most of these activities speak for themselves. However, if use is made of copyright material for gain, or for purposes other than that for which it was originally required, it is possible to seek redress.

It is also possible to seek anonymity in these contexts, which, in some cases, may be essential to protect a photographer from the wrath of those who have faced prosecution because photographs have been used as evidence.

Compliance costs

This book is intended to give general guidance on the do’s and don’ts of copyright law, and how to comply with this. Under all circumstances the law does not expect an intending user of a photograph to spend a disproportionate amount of time and money on tracing a possible rights owner. There has to be a balance between the expected economic gain of using a work and the cost of tracing the rights owner. If, as a minimum, an intending user keeps a record of all enquiries made to trace an owner, makes enquiries of appropriate sources, possibly advertises in a relevant newspaper or periodical and sets money aside which reasonably reflects the amount a rights owner might expect to gain from the use of their work, then they may be seen to have done everything they reasonably could. Such actions will be taken into account if there is any dispute over a use which is serious enough to go before the Copyright Tribunal or any other court. However, as a matter of law, the copyright owner of a work normally has the final say on usage and if they do not agree to this they may be able to insist on the withdrawal or destruction of unauthorised copies.

< Previous chapter | Index | Next chapter >

Download the ABCD of Copyright as a PDF