Copyright Conundrums: Kathleen Jones gets Legal

Copyright Law is a writer's nightmare.  It simply hasn't kept pace with the rapid growth of technology or the multiplications of the World Wide Web. Almost every country has its own laws, but there are no territories on the internet.  The law of Copyright is struggling to keep up.

As a biographer, writing books full of quotations, permissions are my biggest headache.  Publishers and the executors of literary estates charge a fortune for extracts. As an Indie author you will have to pay these fees yourself, but even traditionally published authors have to pay at least half of the total for quotes and all of the fees for photographs.  For my Katherine Mansfield biography, almost the whole of my advance was spent on permissions.  I had to pay another fee when I re-published it as an e-book.

The Copyright Octopus

Recently there have been big changes to Copyright Law in the UK and Europe - changes that will affect all writers - and we need to be aware of them.  It's not just that we might want to quote other writers and poets in our own books, but others may want to quote our work. How much should we allow as Fair Dealing and when should we issue a Take-Down notice for unauthorised use?

The new legislation passed in October makes things a lot clearer.

Until October 2014 you could only quote a limited amount of text 'for the purposes of comment and review' without permission.  The amount you could quote was supposed to be whatever was considered 'fair-dealing' - the trouble was no one had a clue what the 'limited amount' was, or what defined 'fair-dealing'.

Now you can quote a 'substantial amount' without permission providing the work is properly acknowledged, has been previously published, is solely for the purposes of quotation, and is 'no more than is required for the specific purpose for which it is used'.  You can also quote for the purposes of 'parody, caricature and pastiche' providing the work isn't defamatory.

You can also now freely reproduce work on your computer, photocopier etc for educational purposes so long as the work is within the 'fair-dealing' guidelines, solely to illustrate a point, its use is non-commercial and it's properly acknowledged. This makes it less of a headache for writers in school, or running workshops, but you will still need permission to photocopy large extracts for teaching purposes.

Canada's laws changed in 2013.

Fair-dealing for work published in the UK has also been clarified.  It only applies to work that has been published and the user should be able to demonstrate that they have quoted only the minimum required to illustrate the point. The Society of Authors and the Publishers' Association have further qualified this.  You will be allowed to quote an extract of 400 words.  If you're quoting a series of extracts, none of them should exceed 300 words each, up to a total of 800 words.  In poetry you can't quote more than one quarter of the poem, or a maximum of 40 lines from a longer work.  You can apply this under the new law even if you'd previously been refused permission.

The most welcome change is where the owners of copyright can't be traced.  These are now 'orphan works' and, provided you can demonstrate that you've tried to find the owners, you can quote without permission.

This is a rough guide but you need to check individual territories

When is a work out of copyright?  In the UK and the USA it's 70 years after the death of the author, with much more complicated provisions for work unpublished in the author's lifetime. US law states that all work published before 1923 is out of copyright.  Elsewhere in the world it's 50 years after the death of the author, but you will need to check specific territories on the internet. Once a work is out of copyright you can quote and re-produce freely so long as the author is acknowledged.

There are different regulations for song lyrics.  The fees for quoting even a few words are punitive. Avoid song lyrics in your books if at all possible.

How tightly should we hold on to our work?  We have to strike a balance between earning from it and publicising it.

Copyright can be a stranglehold

I recently had to deal with a literary estate - the copyright holders (the heirs of the original author) and their agents.  The agents were very pro-active and charged a great deal for quotes.  Un-authorised quotes on the internet and elsewhere were mercilessly tracked down and removed.  The copyright holders were quite inexperienced and simply acted on the advice of the agent.  They were puzzled at the way the author's work had fallen into obscurity since his death.  But there was no way that readers could discover the work, or any information, since any mention - even non-commercial ones - were not allowed to exist. The result was that there was no public presence at all.  Someone like Seamus Heaney however, has poetry all over the internet - you can find it easily.  And his estate is still making money.  It just proves that it's well worth allowing some non-commercial use for the purposes of visibility.

Most of us are quite happy for people to re-blog our blogs and share poems and extracts that have originally been put up with permission, providing that they're properly acknowledged - after all, it gives us a lot of publicity.  But, if you believe someone has put your work up on the internet in a manner that infringes your copyright you can serve them with a Take Down Notice which you can download here.

(I'm presuming you all use the copyright symbol alongside your name and date on all published work, a copyright statement inside all your published books and a creative commons statement on your blogs and web pages? If not you may find that your work has found its way into the Public Domain!) 

With thanks to the Society of Authors and
the Publishers' Assocation for information.

Kathleen Jones is a poet, novelist and biographer, currently Royal Literary Fund Fellow in the Creative Writing department at Lancaster University.  You can find her blog at 'A Writer's Life'
She has a website at www.kathleenjones.co.uk
This is her Amazon Author page
You can find her on Pinterest
and on Twitter at @kathyferber