Permission & Exclusions
When copying, sharing or distributing work, it’s important to understand what you do and don’t need permission for – and how to go about gaining that permission. Here’s what you need to know.
Quoting copyright work without permission
You need permission to quote from works that are in copyright. For quotations other than those in the limited circumstances described below, you should ask permission to use any ‘substantial’ extract from a copyright work.
The difficulty is that the meaning of ‘substantial’ is not defined in the Copyright Act but is a matter of fact and degree. A short extract may be a vital part of a work and it has often been said that the test is much more about quality than quantity. A few sentences taken from a long novel or biography are unlikely to constitute a ‘substantial part’, but a few lines of poetry may be. It can be helpful to imagine you are the rightsholder – how would you feel about the proposed use?
The fact that a work has been reproduced on the internet (whether that use was authorised or not) does not alter its copyright status. The only safe course, if in doubt, is to ask permission.
The law allows for the following exceptions:
You can quote without needing copyright permission if all of the following apply:
- the work you are quoting from has been previously published;
- the use is fair dealing;
- you quote ‘no more than is required by the specific purpose for which it is used’;
- the use is genuinely for the purpose of quotation; and
- you include proper acknowledgement.
You can use extracts of a copyright work for purposes of parody, caricature or pastiche, provided that:
- the use is fair dealing;
- you rely on no more than a limited, moderate amount of the underlying work;
- you include proper acknowledgement (generally the title and the author’s name);
- your work is not defamatory;
- it does not infringe any trademark rights (particularly beware if you are making use of existing characters);
- it could not be deemed ‘passing off’ (which would arise if the public is confused into thinking it had been created or licensed by the copyright owner of the underlying work and that copyright owner has suffered financial loss as a consequence);
- it does not breach any rights of confidentiality or privacy, and that it does not give the impression that it has been created by, or has the approval, of the original copyright owner. This could be an infringement of that author’s moral rights not to have their work subject to ‘derogatory treatment’ and not to have work falsely attributed to them.
You can copy extracts of works in any medium for the purposes of teaching as long as:
- the work is used solely to illustrate a point;
- the use of the work is not for commercial purposes;
- the use is fair dealing; and
- it is accompanied by sufficient acknowledgement.
This means minor uses, such as displaying a few lines of poetry on an interactive whiteboard, are permitted, but uses which would undermine sales of teaching materials (for instance, photocopying material to distribute to students) would need a licence. Schools, colleges and universities still have to pay for third party teaching materials which are available under licence.
Using copyright works on a website – for individuals, educational establishments and businesses (for-profit and not-for-profit)
Displaying content on a website is a form of ‘making available on the internet’. If the content posted on the website is someone else’s copyright, then this is a form of ‘republishing’ and subject to the same rules that apply to any other sort of republishing. It cannot be done under an educational exception – even if the website owner is an educational establishment – and the rightsholders’ permission must be sought and paid for as appropriate. Without this permission, your website will be infringing.
Note particularly that just because an item (for example, a photograph) appears in many places on the internet, this does not mean any of the copies are legitimate nor ‘in the public domain’. To avoid infringing copyright, you must find the source copy, who owns it and what terms and conditions are associated with its use.
Using copyright works for business (for-profit and not-for-profit)
While there are copyright exceptions for individuals conducting individual research and for the provision of education, such exceptions do not exist for businesses. Typical uses of copyright material in businesses include:
- receipt and dissemination of media monitoring content (for example, press coverage of your business to be shared with staff and/or customers/clients)
- sharing of published research within the organisation
- sharing of published research with customers/clients/collaborators
- reuse of text and images from the internet in presentations and reports within the organisation
- reuse of text and images from the internet in presentations and reports for distribution to customers/clients (republishing)
- posting content on the website (republishing)
Many of these activities (but not republishing) are covered by an ICLA or Newspaper Licensing Ireland (NLI) licence. When your business does not have such a licence, or the use is beyond what these licences allow, then you must contact the original copyright holder for permission.
How copyright applies to unpublished work
Any original work by a creator that is recorded or exists in a fixed and tangible form is automatically protected by copyright. If the work is then 'published', including during the copyright period, post mortem copyright continues until the 71st year after the author’s death. If unpublished, the rules have been less clear, but Irish copyright law was updated in 2019 and this included greater clarity on this issue.
Section 34 (the Copyright and Related Rights Act, 2000) states, 'Any person who, after the expiration of the copyright in a work, lawfully makes available to the public for the first time a work which was not previously so made available, shall benefit from rights equivalent to the rights of an author, other than the moral rights, for 25 years from the date on which the work is first lawfully made available to the public'.
However, the legislation clarifies that the work must be made available with the permission of the owner of the physical copy of the work. This right was introduced to provide a financial incentive for publishing previously unpublished works.
How to find out who the copyright holder is
Establishing the copyright holder of a recent, formal publication (book, magazine, journal article) is relatively straightforward. For a book or magazine, take a look at the ‘copyright page’ (usually the back of the title page in the case of a book) and it will tell you who the copyright holder is, the publisher, and to whom ‘all rights are reserved’.
Please note that if a book was first published by a different publisher to the publisher of the copy you are using, this will be the primary licensor and – should you be seeking permission to use an extract, for example – this is the rightsholder to approach. The subsequent publisher will simply refer you back to them, and that will have wasted your time and effort.
Journal articles generally carry individual copyright messages depending on the arrangements the authors have made with the publisher. They may have chosen to make their work ‘Open Access’ or for the publisher to control rights.
The content of magazines will generally be the copyright of the publisher. However, individual photographs or images may have been licensed by the magazine for use, and it is safest always to assume that rights are owned by the creator or a picture library acting as their licensor.
Most publishing agreements allow the publisher’s rights in a work to revert to the author when the relevant publication goes out of print/is no longer made available by the publisher. They also revert to the author when a publisher stops trading or goes into administration. If you need to contact the copyright holder it is therefore safest to contact the author and/or their agent, if they had one, and or their family if the author is no longer alive, in the first instance. If the author is/was from Ireland please contact us at ICLA as we may be able to put you in touch with the right person.
Just because content on the internet is free to access does not mean it does not have an owner who needs to be asked for permission to re-use it and may request a payment. Where an image may be out-of-copyright from the point of view of its creator the copy on the internet may still have an owner be it the photographer of the original or the owner of the original. Finding out who that owner is can be difficult because copies on the internet may not have any associated labelling (metadata) that tells you this, especially if those copies are infringing in themselves.
An example of useful information would be the caption for a painting on an art history website:
Johannes Vermeer, Girl Reading a Letter by an Open Window, ca. 1659. Courtesy of the Staatliche Kunstsammlungen Dresden.
This lets you know that you will need to contact the museum in Dresden.
Where this information is not available, we advise you to search for alternative copies on the internet until you can identify who owns the original. If you cannot find this, we would recommend you seek an alternative image or piece of text (or substantially rewrite the text) if you wish to be sure you are not infringing copyright.
Due diligence in seeking a copyright holder
Copyright owners are recommended to practise due diligence with regard to recording what they own, for how long and how this may be being exploited. There are many rights management IT systems now available that streamline this.
Users of copyright works similarly need to keep records of permissions they have sought, how they have done this, what responses they have received and what they may have purchased.
There may be instances when permission has been sought and no reply has been received, or when it has been impossible to trace the copyright owner in order to contact them. If it remains essential to use this copyright material you will need to consider the risks of doing so without permission and be aware that the copyright holder may contact you at a later date and seek remuneration and/or compensation. To lower the risks involved, it will be important to have done the following:
- Where the rightsholder is known, send recorded/verifiable communications to the correct address(es) (author and publisher if relevant) at least three times.
- Where the rightsholder cannot be traced (the work is an ‘orphan’), keep a date-specific record of all efforts to find the rightsholder and ensure this includes the publisher, the author or author’s estate, and any representative body (author society, publisher society, collecting society etc) in the rightsholders’ country that might be able to identify the owner.
The Schedule to Regulation 5.1(b) of the Orphan Works regulations sets out diligent search for each type of creative work.