COPYRIGHT

This work should be cited as: Olwyn Mitchell, The Internet and Electronic Copyright: Fanfiction and the unacknowledged use of copyright material, University of Aberystwyth, 1995. MSc dissertation.
Introduction - A history of British copyright

"Labour gives a man a natural right of property in that which he produces: literary compositions are the effect of labour; authors therefore have a natural right of property in their work."
1 William Enfield in Observations on literary property, in 1774.

Copyright, as indicated in the introduction, is generally considered to cover the economic and moral rights of the author. These include the exclusive right of the creator or author of a work to publish, copy, alter, and be known as the author of the work created. The right to copy is alienable, i.e. it can be sold, licensed or given to a second party. However, the rights to alter a work, and to be represented as the author of that work are inalienable, and under UK law was covered by a variety of laws including passing off, fraud and libel until the enactment of the 1988 Copyright, Designs and Patents Act. 2

The idea of a copy right, that an author continues to have any control over his work despite releasing it to the public, let alone any property rights in the work is a relatively recent concept. The very idea of authors having rights in their works, other than the right to be known as the author is only some three hundred years old. 3 Prior to 1557, the book trade was to all intents and purposes unregulated. Through a Star Chamber decree of 1556 (repeated in 1585), Queen Mary granted the Stationers' Company of London the privilege of regulating the book trade. 4

In return the Stationers' Company submitted to Privy Council censorship on the books its members published. This first regulation of the book trade in no way represented the modern concept of copyright - the author sold the manuscript for a fixed sum, and all rights with it. It merely ratified a standing trade agreement on the regulation of printing and publishing and was partially a form of imposing state control over literature, with no idea of the protection of authors. These early common-law copyrights were perpetual, and were bought and sold as commodities, and for investment, such items as the Bunyan and Milton copyrights fetching great sums as being certain of continuing returns. 5 The so-called "Stationers' Copyright" however merely referred to the exclusive right of the owner to publish the work, no rights were implied regarding alteration of the work.

The first statute in Britain (indeed, anywhere) to refer to the rights of the author, rather than printing and publishing rights, was the Statute of Anne in 1709. 6 This new copyright law was more designed to break the monopoly of the Company of Stationers, than to preserve any authorial rights, but the effect was far more important. The act was clearly modelled on the Statute of Monopolies brought in during the reign of James I, which similarly limited the period for which the creator had exclusive possession of his works. 7 Both acts provided a 21 year period of protection to works which had been printed and published prior to the act, and a renewable 14 year period for those written, printed or published subsequently. The Statute of Anne had little immediate impact, but legal cases began to appear some twenty years later with the cessation of copyright on a variety of authors, such as Bunyan, Shakespeare and Milton, whose works were now in the public domain. Furthermore, the effect of the act as a tool leading to modern copyright was reduced through the long-standing idea that with the sale of the manuscript, the author was considered to have assigned all rights in the work to the publisher. Indeed the act is generally considered to have had the purpose of bringing published material under state control - yet again an attempt at censorship. There was no real belief in the "rights of the author".

It took a series of cases brought by booksellers and publishers "on behalf" of authors, to create the kind of copyright which is meant today, the definitive case settling the matter being settled in 1774 with Donaldson v Becket. 8 Internationally, attitudes varied, where French law included "droits d'auteur", "droit moral" and "droit de suite" as a matter of course, other countries were less generous. The French, in an effort to achieve copyright protection for all French nationals, instituted unilateral copyright legislation, in an imperial decree on 28 March 1852, 9 which gave, at least in theory, copyright protection to all works published in France as if they had been written by a French national.

The efforts to bring copyright protection to British authors publishing abroad, through bilateral treaties, and the similar efforts by other countries led eventually to the Berne Convention on Copyright of 1886.10 The convergence of individual nations' domestic laws on copyright, as they complied with the conditions of the Berne Convention, brought the concept of the author's moral rights further into UK copyright law. The concept of moral rights emerged through case law, long before it came into the UK legislature.

The 1911 Copyright Act clarified the law considerably. Although common law 11 copyright had been effectively eroded in 1774 with Donaldson v Becket, 12 when the pre-eminence of statutory law over the common-law was asserted in the House of Lords, the 1911 Act abolished and wholly replaced it with statutory law. Thus an offence was committed only if the statute had already stated that such an act infringed on copyright. The moral rights of an author were still not included, falling far short of French copyright legislation.

It was not until the Treaty of Rome in 1928 that authorial moral rights took a higher profile in international treaty, which would gradually come to be reflected in domestic law. Italian and French law both allowed for the moral rights of an author already: most other nations' domestic law did not, but the clause was pushed through. However, this had little immediate impact on British domestic copyright law. It was not until 1956 that copyright legislation was fully revised again. The 1956 Act brought the question of an author's moral rights into the statutory framework although it only provided for the protection of the author from false attribution of his work. 13

Finally, the 1988 Copyright, Designs and Patents Act made the explicit connection between the physical or economic rights of an author over his work, and his moral rights in the same work, protecting both from infringement, bringing the UK in line with the provisions of the Berne Convention.

UK Copyright Law
Current British copyright law regarding written works ("Literary works" in CDPA88 (14)) takes two basic directions, confusingly described as "rights of the copyright owner" and "moral rights" in the CDPA88. 15 First there is the right, based on the Lockean arguments of property, of the author to benefit from what Rose calls "the fruits of his labours".16 That is, the author of a literary work has the exclusive first right to print and publish that work, to assign the exclusive right to print and publish the work, to benefit from such publication, and to prevent others from printing, publishing and benefiting without his permission. In essence this means that an author's work cannot be copied and published without his permission. There is however a let out in that copying is permissible, as long as it is done for the purposes of private study or academic research, and complies with the notion of "fair dealing". Thus far only wholesale copying has been mentioned: the reproduction of an entire work, or large parts of that work without the permission of the author. This right, what might be called the economic copyright, applies to the content and form, the specific expression of the ideas included in the work, thus the work is protected in every format, typescript, font and medium, without adaptation. The exclusive right of the author to adapt substantially is part of these rights, although this begins to blur into the second broad area of copyright protection: the author's moral rights. All such economic rights can be sold, (whether permanently assigned or temporarily licensed), or given away.

Moral Rights
The moral rights explicitly incorporated for the first time into the UK legislature in the CDPA88 are a significant step forward in the area of intellectual property. 17 These rights are generally speaking inalienable, that is, no matter what happens to the economic copyright of a work, the moral rights remain with the author permanently, and after his death with his estate, for the period of the copyright. The moral rights of an author in Britain are the right to be identified as the author of his work (paternity), and the right to object to defamatory treatment of the work, or treatment likely to reduce his reputation or standing (integrity). The author could protect against such acts prior to the 1988 enactment through use of the law of passing off, and the libel laws, but these were cumbersome processes, expensive, and especially in the case of libel, notoriously hard to substantiate.

Registration Requirements
Under UK law, as in all countries signatory to the Berne Convention, there is no registration requirement for the protection of a work. However, under the Universal Copyright Convention, 18 there is a registration requirement before a work gains copyright status. The USA was signatory to only the UCC until 1989, and so the use of the symbol was made to indicate that the work was registered as copyright in the US and in other countries which were not signatories to the Berne Convention. The use of the copyright symbol is not necessary for copyright protection in the UK, as long as other requirements of eligibility to copyright are satisfied.

Period of Copyright
A literary work which has a known author currently has a period of copyright which consists of the author's lifetime, plus fifty years. This is the minimum that the Berne Convention requires, and less than recent EEC Directives19 have required, although more than some other countries have implemented. The law in the UK has recently changed to give the EEC standard of protection of 70 years, whilst American legislators are considering increasing the period of protection to 120 years. The work of an unknown author is protected for a period of fifty years from the date of first publication. A work of multiple authorship has copyright according to the nature of the contribution. If the separate authors can be clearly distinguished (e.g. each has written a chapter or similar), copyright runs for each section as a single separate author. If the contributions are inseparable, then copyright runs for the life of the authors plus fifty years after the death of the last surviving author. If copyright resides in the editor or publisher of a work, the same conditions apply as for anonymous works. Copyright also applies to particular editions of works, i.e. the particular arrangement of notes, introduction, typescript, and lasts for twenty-five years. Works produced as part of a contract, or in the course of employment are generally considered to have the employer as the owner of the copyright, although the author continues to have the moral right to be known as the author.

Licenses
Permission to copy, print, use or adapt a work must be in written form, and if there is more than one author, permission must be received from all authors affected. Such permission is known as licensing, and bodies exist to supervise the licensing of copying in small quantities as in photocopying. Authors may license use of their work, giving someone else the right to adapt their work, but the licensor does not have any copyright in the resultant work, that is the property of the licensed author of that work. Unlicensed use of the original work is an infringement and may involve the use of as little as a single phrase if it is particularly significant to the work as a whole. The question of "substantial" infringement was covered in the 1966 case of Frisby v British Broadcasting Corporation. The BBC had purchased a play from Mr Frisby with an understanding that a particular line of the play gave form to the entire play, and was crucial to the work as a whole. When the BBC in fact removed the line from the play, Frisby sued for copyright infringement and won. The judge decided that the author's opinion of the cruciality of the line, and the clear direction the author had given to the purchaser, meant that a single line of that particular play could, and indeed did constitute a "substantial" part of the work within the meaning of the act, even though the BBC had paid for the use of the play, and even though the part in question was quantitively small - substantiality was an issue of quality as much as of sheer quantity. 20

UK Copyright Law and Fan Fiction
Fan fiction does not necessarily copy an author's work, so much as mimic it. Thus an integral question is whether fan fiction impinges on the legal economic rights of an author, the legal moral rights, or is in fact merely an interesting ethical issue, with no implications in law. A further problem is that of the original author inadvertently infringing the copyright of a fan fiction, while creating fiction set in the milieu the original author invented. This may sound unlikely, but has already come close to happening in America.21 Probably the area which causes most of concern to both original and secondary authors, is that of moral rights, but the entire question of copyright and fan fiction will be dealt with more fully in chapters 3 and 4 below. Licensed fan fiction is not a problem in copyright terms, but unlicensed fan fiction has several distinct difficulties regarding copyright. It is a fluid area, and each case has to be judged individually.

International Copyright Conventions
International conventions on copyright now form the backbone of UK copyright law. The first such convention was the Berne Convention for the Protection of Literary and Artistic Works.22 It was produced in 1886 partly as the result of a burgeoning interest in universal law during the 19th century, but mostly through the impetus of authors who were losing money due to the prevalence of the piracy of their works abroad. The International Authors Association (ALAI), at an international literary gathering in June 1878,23 decided that some agreement was required to rationalise the wide variation between domestic copyright laws, and stop the piracy of literary works - American piracy of British works, Dutch of German works, and Belgian of French works, principally. Of the fourteen countries attending the meeting, twelve became signatories, America and Japan remaining as observers (although Japan subsequently signed in 1889). In 1952, partly in an effort to bring the United States into the international copyright fold, a second international convention, the Universal Copyright Convention,24 was set up. As mentioned above, the UCC had far less rigorous treatment of copyright, reduced requirements for the period of copyright, and a registration requirement. The Stockholm revisions (1967) of the Berne Convention were incorporated as the 1971 Paris document, when the UCC and Berne became virtually identical. Although Britain has abided by the provisions of the Paris revision, the treaty was not in fact ratified until 1988, when, with the enactment of the Copyright, Designs and Patents Act, the UK ceased to be in abrogation of its duty to implement the provisions of the convention in its domestic law.

Following the Second World War the issue of copyright was incorporated in the United Nations Declaration on Human Rights, at Article 27 which declares

2: Everyone shall have the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author25

The "material interests" mentioned amount to the right of an author to be the sole beneficiary of any economic advantages arising from his authorship as described previously. The moral rights in international law are summed up in Article 6bis of the Stockholm revision (Paris 1971) of the Berne Convention:

Independently of the author's economic rights, and even after the transfer of said rights, the author shall have the right to claim authorship of the work, and to object to any distortion, mutilation or other modification of, or derogatory action in relation to the said work, which would be prejudicial to his honour or reputation.26

Copyright and the Electronic Format
The question of copyright in the electronic medium has been a major question for the last thirty or more years. The 1971 Paris Revision of the Berne Convention refers to a working party on the subject, and there are a number of international copyright bodies which have concerned themselves with it. The World Intellectual Property Organisation has established an experts' group to consider a possible new protocol to the Berne Convention,27 the EEC Esprit program is examining the problem in its CITED project (Copyright in Transmitted Electronic Documents).28 Legally speaking, the consensus appears to be that electronic media, whether software, CD-ROM, floppy disk or Internet site is simply another "printed" medium. Copyright exists in it, as in any other format. The problems arise not in regard to the existence of copyright, but in the protection of works and the enforcement of the law on copyright. There are three principle areas of difficulty in electronic copyright: