British Academy: The UK's National Academy for the Humanities and Social Sciences

Part 2: Copyright in Some Common Situations

In this Section:

18. Databases
19. Editorial work
20. Unpublished correspondence and private papers: literary estates

18. Databases

18.1 Databases are becoming increasingly important to the arts and humanities as well as the social science communities. Much relevant printed source material is being gathered together in commercial databases, to which access is only possible on payment of subscription or other charges. This occurs in some cases even when the content is out of copyright, but from the publishers point of view the collection, selection and arrangement may still require significant investment.

Databases are protected, not only by copyright, but also by a sui generis database right. The essential differences between the two forms of protection are as follows:

(a) a database has copyright in the selection and arrangement of its contents, provided that that selection and arrangement manifests an intellectual creation of the maker (generally taken to be a somewhat higher standard than the ordinary originality - that is, not copied, authors own skill and labour in expression - of normal copyright). So only the selection and arrangement are protected against the restricted acts, and then only if an intellectual creation. The restricted acts follow the usual pattern, however, as do the exceptions, including non-commercial research, private study, criticism and review (see section 14). This is without prejudice to the copyrights which individual items of content may also enjoy. Copying includes the making of transient copies or that incidental to some other use of the database; so accessing the database may amount to a restricted act if, for example, this is done on the Internet so that the entire database is reproduced when accessed. However an exception for temporary reproduction is probably available in such cases.

(b) a database failing to meet the 'intellectual creation' standard may nonetheless have the special sui generis right, provided that the maker has made a substantial investment in the 'obtaining, verification or presentation of the contents' of the database. The European Court of Justice has recently ruled that 'creating' data is not 'obtaining' for these purposes; a significant limitation. Thus sporting organisations annual fixture lists were not protected by the special sui generis right, the data having been created rather than obtained. 'Obtaining' occurs when the creator of the database seeks out and collects existing independent materials, i.e. it is a process of research. The right restricts extraction (i.e. transfer of content to another medium, even if the content in question also remains on the database afterwards) and re-utilisation (i.e. making the database contents available to the public, covering any form of unauthorised distribution). Both of these restricted acts relate explicitly to the contents of the database, so the special sui generis right gives a wider form of protection for the database than copyright. It does not matter whether or not individual items of content have copyright. The sui generis right is also available even if the database also enjoys copyright. The right lasts only 15 years, but in a dynamic database there is renewal each time a further 'substantial investment' occurs.

18.2 The general exceptions already several times discussed apply to the copyright in databases; but the sui generis right has its own exceptions, related only to the restricted act of extraction:

• fair dealing by a lawful user (e.g. a person previously licensed to use the database) for the purpose of illustration for non-commercial teaching or research provided that the source is indicated.

No exceptions relate to re-utilisation.

18.3 There are important, and potentially confusing, distinctions between the exceptions applying to the copyright in a database and those applying to the special sui generis right. For example, only a 'lawful user' may enjoy the non-commercial research exception to the special sui generis right, whereas there is no such limitation in relation to the copyright in the database. Again, the lack of exemptions in relation to reutilisation is not in parallel with the copyright exemption for non-commercial research if that exception allows the user to publish copies of the material obtained in the course of the research, provided there is sufficient acknowledgement. Finally, the special sui generis right makes no provision for an exemption allowing criticism and review. Since all copyright databases in which there has been substantial investment also have the special sui generis right, this inconsistency in the application of exemptions remains a significant source of uncertainty, for academics and publishers alike

19. Editorial work

19.1 It seems to be the law that an editor's skill and labour in producing an edition of a pre-existing text is capable of producing an editorial copyright for that edition, relating to both text and the editors annotations and introduction, even if the pre-existing text is itself out of copyright (or never had it). That at any rate was the view of the courts in recent cases about editions of the Dead Sea Scrolls and modern performance editions of early music. The editor's work is literary in character and involves skill and effort. The fact that the aim of editorial work is often to produce a text as close as possible to the original being edited does not preclude the result being an original work. The editor as owner of a copyright may prevent unauthorised reproductions of his edition of the text.

19.2 In the case about performance editions of early music already mentioned, the copyright owner was able to prevent the issue of sound recordings of performances according to the edition. The copyright will of course be subject to the usual exceptions, enabling copying and quotation for purposes of private study, non-commercial research, criticism and review. The editor's editorial copyright does not extend to the original source or sources forming the basis of the editor's work: the freedom to copy that, or to quote from it, will be dependent on whether that original itself is in copyright.

19.3 There is also a rule conferring a special, limited copyright on any European Economic Area national who publishes for the first time in the EEA a previously unpublished literary, dramatic, musical or artistic work or film, despite that work having itself fallen out of copyright. The right is known as publication right, and lasts for 25 years from the end of the calendar year in which the publication took place. Publication is here given a wide meaning, including not only issue of copies to the public but also making the work available by means of an electronic retrieval system (e.g. a database), rental/lending to the public, performance, exhibition or showing of the work in public, or communication of the work to the public (i.e. broadcasting or Internet transmission). The difference from the editorial copyright described in the previous paragraph is that mere publication is enough; there is no need to show editorial skill and labour. The fair dealing exceptions apply to publication rights as to copyrights.

19.4 The editor's copyright in his editorial version of the text must be distinguished from the publisher's typographical copyright in the entire published edition.

20. Unpublished correspondence and private papers: literary estates

20.1 Literary estates use copyright to manage access to, or reproductions from, the unpublished correspondence and/or private papers of writers and public figures. As noted in section 4.6 (see also sections 6.1 and 7.2), the owner or custodian of an individuals personal papers is not obliged to allow access to them, and copyright owners are not generally bound to license reproduction. Where access has been granted, the exceptions for private study and research come into play, however, and, as discussed in section 14, these copyright exceptions should enable a researcher to quote from copyright materials without any need for the copyright owners licence, subject to the conditions of each individual exception. The exception for criticism and review does not apply to unpublished works, however (see section 14.5B). It is in this kind of case, therefore, that issues about quantity and quality of quotation are likely to be at their most acute. For many, if not most, literary estates copyright fees will be a prime source of revenue; but it is hoped that negotiations with researchers would recognise the importance of the fair dealing exceptions and the support they give to research and freedom of expression. Further, as already remarked (section 14.5), the research may help draw attention to the deceased persons contribution to public life and letters which may in turn lead to continuing public interest in his or her work and benefit its sales.