Copyright Guidelines

1 Introduction

1.1 The Copyright Licensing Agency (CLA) and the Newspaper Licensing Agency (NLA) are bodies set up by groups of publishers to licence and collect royalties for the copying of copyright material published by their members. Not all copying of such material, however, requires their licence. Where a licence is required both the CLA and the NLA operate schemes under which a licence may be obtained to allow copying of all works in their respective repertoires.

1.2 The purpose of these guidelines is to outline to members of the Bar their rights and obligations when considering copying printed works administered by the CLA and the NLA. In particular, their purpose is to identify the kinds of copying which are permitted without licence and those which will require the licence of the CLA and the NLA.

1.3 These guidelines apply to newspapers, other periodicals and books. They do not apply to non-printed, particularly electronic, works or to artistic or musical works, sound or video recordings or photographs. The guidelines are not intended to be taken as legal advice and any member of the Bar who is in doubt about his or her rights should seek specific advice on any particular problem. Following these guidelines should avoid liability for infringement of copyright in works administered by the CLA and the NLA.

1.4 The NLA scheme covers all national newspapers and many regional and local newspapers. The CLA scheme covers most (but not all) books and periodical publications published in the UK and some foreign publications. The CLA website contains a description of the scope of its scheme. Anyone unable to determine whether the works they wish to copy are within one of the schemes should check with the scheme administrator.

2 Copyright

2.1 Copyright subsists in virtually all written works. It lasts in general from the creation of the work until 70 years after the author’s death. A significant exception to this consists of works in which Crown Copyright subsists which lasts for 125 years from the creation of the work. Reproduction of the whole or any substantial part of a work is an infringement of that copyright. A substantial part of a work is one having substance in its own right and the assessment of substantiality does not depend on the length of the work from which an extract is taken. There is no general rule that the taking of a short extract from a long work is permissible.

2.2 It follows that the copying of almost any printed material which has been created in the last 100 years or so is likely to involve an infringement of copyright unless licensed by the owner of the copyright or permitted by a statutory exception. Accordingly, members of the Bar should not copy such material unless satisfied that they are entitled to do so under one of the statutory exemptions identified below or that they have the licence of the copyright owner.

2.3 The CLA and NLA licensing schemes cover only facsimile reproduction of the publications within their repertoires. It is the Bar Council’s understanding that reproduction of reasonable extracts from such publications by way of retyping or resetting is outside the scope of these schemes. If a member of the Bar is considering copying a sufficiently large extract from a published work outside the scope of the statutory exceptions identified below to require the licence of the copyright owner, then he or she should satisfy themselves that they have the necessary permission.

3 Statutorily Permitted Copying

3.1 The Copyright, Designs and Patents Act 1988 contains a significant number of exceptions from copyright protection permitting copying in certain specified circumstances. Only a few of these are relevant to the majority of barristers and accordingly only those are considered here.

3.2 The primary exception of relevance to barristers is copying for the purposes of parliamentary and judicial proceedings or the proceedings of a Royal Commission or statutory inquiry1. The definition of judicial proceedings2 includes proceedings in any court, tribunal or person having authority to decide anything affecting legal rights. This exception accordingly permits the copying of any material required for use in court or in any tribunal before which members of the Bar are likely to appear. It means that material for use in such proceedings may be copied without infringement of copyright. It should be noted that a customary exception to this rule is that transcripts of proceedings before the courts may only be copied with the permission of the transcriber or the court may refuse to receive at the copies provided.

3.3 It is also permissible to copy copyright works by way of fair dealing for the purposes of research and private study3. To come within the scope of this exception, only one copy may be made and the copying must be done either by the researcher himself or by someone acting on his behalf (who may be a librarian). Insofar as it covers “research” the exemption was restricted to non-commercial research by the Copyright and Related Rights Regulations 2003 (SI 2003 No. 2498) which came into force on 31 October 20034. The effect of this restriction is unclear.

3.4 The British Library and the CLA have issued a note indicating that any research which is commercially funded or intended to be commercially exploited is now outside the exemption5. If this interpretation is correct, members of the Bar would not normally be entitled to the research exemption. However, we believe that the view of the British Library and the CLA may be unduly restrictive. We think it more likely that research is only “commercial” where the copied material is to form part of the research product and sold. The approach adopted in the British Library note would have the effect that two researchers in a university would be treated differently depending on whether their research is commercially or non-commercially funded. In our view such a result is unfair, makes little sense and would be difficult to apply.

3.5 We are accordingly of the view that a member of the Bar researching matters of law or fact for the purposes of advising a client would be covered by the exception. What is not within the exception is to give a copy of the material obtained by the barrister to the client.

3.6 Copying by way of fair dealing for the purposes of criticism or review of a copyright work is permitted without infringement of copyright provided that the source of the copy is acknowledged6. The courts have held that criticism and review are broad terms and should be liberally interpreted. By statute, the criticism may be not only of the work copied but also of another work and from the authorities it is clear that the criticism may be of the underlying philosophy of the work or its author, the reasons for its creation and, indeed, anything connected with the nature or existence of the work or the use to which it has been put. We consider that this exception permits members of the Bar to copy extracts from works which are the subject of an advice or which have a bearing on the advice being given.

3.7 Finally, an exception which may be of assistance in a small number of cases is that it is not an infringement of copyright to reproduce the abstract of a scientific or technical paper which was originally published with the full paper7.

4 Examples of Copying Generally Requiring a Licence

4.1 The examples given here are not exhaustive. They are intended only to identify copying of a kind likely to be done by members of the Bar which requires the licence of the copyright owner. Anyone considering engaging in such activities should ensure that they have that licence before doing so.

4.2 Copying of published material for general or specific distribution within a set of chambers will require the licence of the copyright owner. This includes copying of law reports from newspapers or other sources. It also includes the distribution of selected cuttings from newspapers containing news and other items of interest or relevance to members of chambers.

4.3 Copying of published material for distribution with lecture notes or as part of a publication by individual barristers or members of chambers requires the licence of the copyright owner. Copying of copyright material for publication is not covered by the licensing schemes operated by the CLA and NLA.

4.4 Use of published material on a chambers website requires the licence of the copyright owner. This copying is not currently covered by the CLA and NLA schemes.

4.5 Distribution of copies of published material (including law reports and extracts from textbooks unless for the purposes of judicial proceedings) to clients and instructing solicitors requires a licence.

5 Summary

5.1 Copying of published material from newspapers, periodicals and books is generally an infringement of copyright. To avoid infringement, anyone proposing to carry out such copying should obtain the licence of the copyright owner. The CLA and NLA operate blanket schemes under which licences may be obtained for the copying of such material. These schemes are available for use by members of the Bar and their chambers. The schemes do not cover copying for publication or the use of material on websites.

5.2 There are statutory exceptions for copying for use in parliamentary, court or tribunal proceedings. There are also exceptions for fair dealing by way of research and private study and criticism and review. These exceptions permit much of the copying that barristers are likely to undertake as part of their general practice. They do not permit copying of material for distribution within chambers, to clients or instructing solicitors or on a chambers website.

5.3 Any member of the Bar who intends to copy published material and is unsure whether he or she requires a licence to do so should either seek specific legal advice or obtain an appropriate licence from the CLA or the NLA. If the work to be copied is not covered by one of these schemes, a licence from the copyright owner will be required unless the copying is covered by one of the statutory exceptions.

1 Sections 45 and 46.
2 Section 178.
3 Section 29.
4 This SI brings the law into conformity with the EC’s Copyright Directive (2001/29/EC).
5 cla.co.uk/directive/BL-CLA-FAQ.doc
6 Section 30.
7 Section 60.