Do you need a copyright licence?

28th July 2014

It was reported last year that Brighton and Hove Council had agreed to pay the Copyright Licensing Agency (CLA) an undisclosed sum in respect of retrospective licence fees and legal costs. This has prompted a significant increase in the number of Councils applying for a copyright licence – according to the CLA, 46 local authorities have obtained a copyright licence in the 12 months since the disclosure of the Brighton and Hove case.

Copyright protects the form of expression of ideas. Its purpose is to reward authors of original works where independent effort has been expended by the author in their creation. In essence, copyright prevents those works from being copied without the owner’s consent. Whilst there are copyright exceptions in UK law, these are not extensive and their scope is not always clear. In particular, there is a “fair dealing” exception which permits the reproduction of material for the purposes of non-commercial research or private study, for criticism or review or for the reporting of current events, but the reproduction must be genuinely and fairly used for the stated purpose and must be accompanied by a sufficient acknowledgement.

Because of its uncertain parameters, relying on the “fair dealing” exception is risky. As is reliance upon staff to comply with a “no copying policy”. It is reported that in the Brighton and Hove case, the Council did not consider that it was at risk of infringing copyright because it operated a “no copying policy”. The CLA was apparently able to produce evidence that the policy was not working and copying was taking place.

The CLA acts on behalf of authors, artists and publishers of books, journals, magazines and periodicals (including digital publications) by issuing licences and ensuring copyright compliance. The Newspaper Licensing Agency performs a similar function for national and regional newspapers. The CLA issues blanket licences to organisations on an annual basis in return for an annual fee. This permits:

• photocopying or scanning from books, journals or magazines
• copying or printing articles from a website or other digital content
• emailing copies of articles or extracts from publications
• storing copies of articles or extracts on the organisation’s intranet.

The licence avoids the need to request permission each time a reproduction of a copyright work needs to be made. It also includes an indemnity from the CLA for all copying done within the terms of the licence.

The CLA operates three different types of licence aimed at the public sector:

• Public Administration Licence – for local authorities, public bodies, central government departments and agencies (excluding the NHS)
• NHS Licences – for NHS trusts and health authorities
• Library Licence – for walk-in users at public libraries.

The precise terms of each licence will need to be checked, for instance, the extent to which the copying and re-use of content from digital publications is permitted varies from licence to licence. In particular, copies can usually be made of up to a chapter, an entire article or 5 per cent of the publication, whichever is the greater, although this should be checked along with the licence terms regarding photographs, illustrations and figures. These will usually be able to be copied where they are included in the body of the extract or article.

The CLA’s compliance arm, Copywatch, has been notably proactive in its pursuit of local authorities that it perceives to be non-compliant. Indeed its homepage sets the tone with the banner, “Investigating councils without a licence” and by providing a link for whistleblowers to contact them.

According to the CLA, whilst Councils have been applying for licences in the wake of the Brighton and Hove case, there are still 130 Councils in the UK operating without a copyright licence. It is not credible that these Councils are not, at some point, taking photocopies of copyright material. Those Councils are at risk of substantial financial penalties and reputational damage if they continue to operate without a licence.

If you would like to discuss this in more detail, please contact Alan Harper.