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Copyright Permissions Demystified
By LESLEY ELLEN HARRIS, Copyrightlaws.com
You need to make 150 photocopies of an article for an in-house seminar.
You plan to scan and post a photograph on your enterprise's Intranet.
Each week, at your office meeting, you distribute 20 copies of an article for discussion purposes.
For all these uses, you need permission from the copyright holders of the works. If you find that many different kinds of uses of copyright-protected materials occurs throughout a work day, rather than look at each reproduction/permission issue on its own, your enterprise should consider a single consistent approach to copyright permissions. This procedure should deal with when permissions must be sought, and with the procedure and form in which they are obtained.
Is Permission Necessary?
Your first consideration is always--is permission necessary? Although this is a legal question, when you should obtain permission to use a copyright-protected work is also a policy or interpretative matter for your enterprise. Copyright law is not always clear. There are many gray areas, like the notion of fair use. When does fair use come into play? You can interpret fair use narrowly or broadly. If your enterprise is risk adverse, fair use will only come into play for very small uses like quotations from works.
Otherwise, your enterprise may interpret fair use much more broadly. Your attorney can advise you on your enterprise's permissions procedures. Consider taking your attorney's advice and preparing a plain English written permissions procedure. This, of course, could be part of a copyright policy or a broader intellectual property policy. It can help educate your employees and also help prevent unauthorized uses of copyright-protected works in your enterprise.
Permissions Issues
Below are guidelines when developing your permission procedures policies. If the answer is YES to the questions below, you may need to obtain copyright permission before using the work. In addition, take into account the special considerations also discussed below.
- Are you using a work that is protected by copyright?
Tip: Ideas, history, and facts are not protected, just the words used to express them.
- Is the duration of copyright still running or is the work in the public domain?
Tip: Copyright protection lasts 50 years (in Canada) or 70 years (in the U.S.) after the author's death; if using the work on a Web site, get permission for life-plus-70 years.
- Is the work an adaptation or translation of a public domain work?
Tip: Adaptations and translations may be copyright-protected works even if they are based on public domain works.
- Are you using a substantial portion of a work?
Tip: Generally, very small uses of works, such as quotes, do not require permission.
- Are you using the work in a copyright sense?
Tip: Reproducing, publishing, scanning, posting electronically, performing in public, or adapting a work are copyright uses.
Special Circumstances
- Is there an exception in the law that exempts you from obtaining permission?
Tip: Exceptions are generally limited and vary from country to country.
- Are you using the work in a country where an author has moral rights? If so, are you modifying the work in a manner that may be prejudicial to the honor or reputation of the author, and does the author's name appear in association with the work?
Tip: If possible, obtain a waiver of moral rights if you are using the work on a worldwide basis.
Timing
It is never too early to plan a project and set out a list of copyright-protected works which you wish to use. Then you can systematically go through the list and begin obtaining permissions. Since obtaining permission may take some time, requests for permission should be made at least six weeks before they are needed, or earlier if possible.
Finding the Owner
If permission is required, you will need to locate the owner, or representative, of the materials. The copyright office of your country is a great resource if the copyright owner has registered his work. Other research tools are telephone books, online directories, and professional associations. For print uses, a copyright collective such as Access Copyright (in Canada) or the Copyright Clearance Center (in the U.S.), may be of help. Such collectives also have reciprocal arrangements with similar organizations around the world and may provide you with permission to use works from other countries. Many copyright-protected works have copyright information about the owner somewhere on the work, so look there first. Also, online content may have a link to click for copyright permission or may work with a company such as icopyright which is a click through method of obtaining copyright permission.
Once you have located the copyright owner or his representative, you should call him or her or send a fax, letter, or e-mail, with the following information:
- Title of the source for the material (book, magazine, painting title, etc.).
- Creator/author of the item.
- A description of the item you wish to reproduce.
- The page number(s) of the item (if appropriate).
- The ISBN (in the case of a book) or ISSN number (in the case of a magazine).
- Year of publication (also include the month or season in the case of a magazine) and edition, if applicable. This enables the copyright owner to identify exactly what it is you wish to reproduce.
Also include:
- The purpose for which you wish to reproduce the item (research, commercial, educational, etc.).
- Whether the use is for profit or not.
- How the item is to be reproduced (photocopied, retyped, or scanned). Where the item will appear (on a Web site, in an online or print-based course). It is also important to specify if the item is to be distributed mechanically (photocopied) or digitally (via a list-serv or Web site).
Consider creating a standard permissions letter or form. This could be appended to your copyright policy.
An Electronic Database
It is always prudent to obtain permission in writing. After obtaining permission, keep all written requests and responses on file, particularly any written agreements outlining the rights granted to you and any limitations on use. Also keep any records of payment of fees. Consider creating an electronic database so others in your enterprise can easily search the database prior to using a copyright-protected work to see if permission has already been obtained by your enterprise.
Acknowledging Permissions
It is a good idea to include a credit line or credit list for example: From Doe, Jane. Corporate Humor. Published by Laughing Press, 2004, pp. 210-220. Reprinted by permission.
 Lesley Ellen Harris is a copyright lawyer/consultant who works on legal, business, and strategic issues in the publishing, content, entertainment, Internet, and information industries. She is the editor of the Copyright & New Media Law Newsletter and the author of several books, including Licensing Digital Content: A Practical Guide for Librarians. She often speaks at conferences and teaches online courses on copyright and licensing. For more information, visit http://www.copyrightlaws.com.
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