General questions about copyright
1a. When does copyright become relevant for a teacher or student?
1b. What is copyright?
1c. What protection does copyright offer? Exploitation rights and personality rights
1d. Who are protected by copyright?
1e. What consequences does this have for video, audio, and still images?
1f. How long does copyright last?
1g. Do special rules apply to the use of material in education?
1h. Where can I get more information about copyright?
1a. When does copyright become relevant for a teacher or student?
Copyright becomes relevant when you want to do any of the following with a video or audio recording or with an image:
• use it for your own study or private purposes (see part 2);
• use it in your teaching (see part 3);
• deposit it in a media centre or (video) library (see part 4);
• create it yourself, for example a video or audio recording (see part 5).
1b. What is copyright?
Copyright is the exclusive right that the maker (the legal term is the “author”) of an original work has to publish it or reproduce it. “Authors” include such people as directors, composers, photographers, writers and artists, but you yourself are also an author if you make (for example) a video recording. In order to enjoy the protection of copyright, you do not need to register the work or register it anywhere; the author automatically holds copyright if the work is original. Copyright is also referred to as “intellectual property”.
The term “making available to the public” covers any way of showing the material (in the case of video or images) and any way of allowing it to be heard (in the case of music or other audio). Broadcasting material on TV or radio, or streaming it via the Internet, but also publicly playing it on an audio or video recorder or DVD player are all considered to be acts of making avaliable. The same is true for the publication of a work by the distribution of physical copies (for example on CD-ROM, DVD or videotape), for example by selling CDs or CD-ROMs.
As soon as you legally possess a physical copy (DVD, CD, CD-ROM, videotape etc.), for example through buying it, you are allowed to sell this same copy again without infringing the copyright holder’s making available right. This is because your copy has already been published (this is known legally as the “exhaustion” of the making available right). However, this applies only to physical copies of a work; it does not apply to a digital environment. Whenever you want to publish a work digitally, for example on the Internet, you basically require the permission of the right holder. (This does not apply if you only use a hyperlink to link to a work on someone else’s website.)
The term “reproduction” covers all types of copying, including digitising and downloading, but also making a compilation, storing a work (or parts of a work) in a database, or reusing parts of a work in a new work.
The author of a work can charge for giving permission for his/her work to be reproduced or published, or he/she can allow this to be done free of charge (see 6i). The permission granted by the author for agreed use of a work is known as a “licence”; if a fee is charged, this is known as a “licence fee” or “royalty”. The rights to reproduce or make a work available to the public are therefore known as the “exploitation rights”. Rather than grant a licence for a work’s reproduction or publication, its author can also transfer those rights comprehensively and exclusively to another party – for example a publisher – so that that party can then exploit those rights by charging royalties. It is important to note that the author can only transfer his exploitation rights in writing. A licence, however, can also be granted orally (although for proof purposes it is better for this also to be done in writing).
1c. What protection does copyright offer? Exploitation rights and personality rights
The term “copyright” generally refers to “exploitation rights”, i.e. the protection afforded against reproduction or publication. In fact, however, copyright consists of two different components:
1. exploitation rights
2. personality rights (or moral rights).
Personality rights protect the close relationship between the author and his work. On their basis the author is the sole person who can decide whether or not his work should be published, and that if it is published he has a right to have his name mentioned. The author can also oppose any distortion of his work. The author cannot transfer these personality rights to another party; he continues to hold them even if he transfers the exploitation rights to his work. After all, he is the best person to protect the integrity of his work.
1d. Who are protected by copyright?
The basic rule is that the person who creates an original work holds the copyright in that work. There is an exception in the case of someone who creates a work in the course of his/her employment: in that case, the copyright in the work is held by the employer, although the creation of such works then has to be part of the employee’s job description. A freelancer retains the copyright in works that he has created for a client, except if he has agreed (in writing) to transfer the copyright to the client.
If more than one person makes an original contribution to it, a work can have several authors (“co-authors”). Works frequently do in fact have more than one author, for example in the case of an illustrated book with not just a writer but also an illustrator and a photographer. In the case of a video film, there will very often be a whole group of co-authors: the director, the scriptwriter, the cameraman, and the editor. Besides the co-authors, performing artists like actors and musicians also have rights. In the case of such people, we speak of “neighbouring” (or “related”) rights; these are very similar to copyright.
The situation is often even more complicated. Videos frequently make use of other works (or parts of other works), for example pre-existing music and/or fragments taken from other videos. The authors of the pre-existing works retain their copyright, even if it is only parts of their work that are incorporated into the new work. This means that, in principle, the author of the new work is required to gain their permission to incorporate the section of their work that he uses in that new work.
In the case of photos and video recordings, one also has to remember that there may also be rights regarding what is in fact shown. If you show a painting, for example, it is the painter who holds the copyright in that painting, and people who appear in your film or video have a “portrait right” (see 5e and 5i).
1e. What consequences does this have for video, audio, and still images?
Unlike photos, video or audio recordings often have a whole group of authors:
• The authors of a music recording (composers and lyricists) usually transfer their exploitation rights to a record company (in return for a fee) or to a collecting societies (in the Netherlands: Buma/Stemra, www.bumastemra.nl). That is where you can arrange copyright permissions for the reuse of musical compositions. Performing artists like musicians have “neighbouring rights”. In the Netherlands, copyright in their performances can be cleared with SENA (www.sena.nl).
• In the case of films (including films on video), television programmes and documentaries – genres that may involve an even larger number of participating authors and performing artists (such as actors) – the law provides that all those involved are deemed to have transferred their exploitation rights to the producer. To gain permission for reuse, one generally need only contact the producer. This applies unless the authors have made different arrangements with the producer regarding their copyright. TV programmes are also subject to neighbouring rights for the broadcasting organisation concerned. This means that one needs to approach not only the producer but also the broadcasting organisation for permission to reuse the material.
• In the case of photographs, the copyright is generally held by the photographer. In the Netherlands, many photographers are members of the collecting society called Stichting Beeldrecht (www.beeldrecht.nl, as from 2008 its name will be Pictoright), where users can arrange licences for the reuse of photos. If the photographer took the photo in the course of his/her employment, then it is the employer that needs to give permission for it to be reused.
1f. How long does copyright last?
Copyright in a work (exploitation rights and personality rights) takes effect when the work is created and runs until seventy years after the death of the author (this applies throughout the EU). After the author’s death, the copyright is exercised by his/her heirs. The exploitation rights pass to the heirs automatically, and they can then grant licences or transfer the rights exclusively to another party. This is different to the personality rights, which only pass to the heirs if the author has explicitly provided for this in a will or other written document. If the author has not done so, the heirs cannot exercise these rights anymore.
If the author created the work in the course of his/her employment, meaning that the employer holds the copyright, then the copyright lasts for a shorter period, namely seventy years from the date of first publication of the work.
1g. Do special rules apply to the use of material in education?
You do not always need to ask the permission of the right holder in order to use his/her work; this is because certain exceptions apply if it is to be used for educational purposes. The Dutch Copyright Act [Auteurswet] provides for three exceptions (“exceptions”) that you can take advantage of as a teacher:
1. A copyright-protected work can be displayed or rendered without the copyright holder’s permission in the context of non-profit education (section 12(5) of the Dutch Copyright Act: display exception). This applies to audiovisual works such as films, videos and television programmes; audio works such as music or other sound recordings; and still images such as photos and works of art. The display of the work must form part of the study programme, and it must also take place physically within the educational institution itself. This exception means that you can show a film taken from the Internet in a classroom during a lesson, but it does not allow you to upload it to Blackboard so that students can watch it at home.
2. You are permitted to copy and publish parts of works (of any kind) as explanatory material for non-commercial education (section 16 of the Dutch Copyright Act: education exception). In such a case, the display or making available does not need to take place physically in the classroom. This means that you can publish a copy via Blackboard if you do so solely for educational purposes, for example in a restricted environment to which students only have access with a password. You can only use the parts of the works concerned to provide information in an educational context. This means that they must only be supplementary to and not in place of teaching. The law provides in connection with this education exception that the copyright holder should receive fair payment in return for the use of his/her work. (An agreement can in fact be made with the copyright holder that the fair payment should amount to zero.) In the case of textual material for readers (including digital readers), payments are collected centrally by the Stichting Publicatie- en Reproductierechten Organisatie, PRO. This exception provides that entire works can only be used in an educational context if they are short works, photos or works of art. Compilations – for example digital readers and databases (including image databases) – may only include very few short works by one and the same author. If you want to play a long video or audio recording in the classroom, it is therefore better to invoke the display exception (exception 1); this also does not require any payment. The education exception also requires that you acknowledge the source in each case. The work may not be altered, and it must already have been published; you are not permitted to make use of an unpublished work.
3. The “right to quote” is also subject to three conditions: acknowledgment of the source, no alteration of the work, and previous publication (section 15a of the Dutch Copyright Act). The right to quote makes it possible to include protected works in a “scientific treatise” free of charge and without the permission of the author. This may be interpreted broadly; for example, it includes a PowerPoint presentation in an educational context. A quotation must, however, be functional: it must serve to supplement the content of the treatise, i.e. not just be decorative or intended to brighten up the text. The length of the quotation must also be related to its purpose: you may not use long programmes or texts but you can use short video, audio, or text fragments. You can also “quote” works of art or photos in their entirety.
NB: An increasing number of television, radio and film programmes produced by public broadcasters may be used in an educational context by means of special licensing schemes (with a fee being paid). These schemes are called Academia or Teleblik. If your institution has an Academia or Teleblik licence, for example, you no longer need to check to see whether you can validly invoke one of the three exceptions.
NB: If you buy a video in a shop or download it from a website where it is offered legally – i.e. with the permission of the copyright holder – you will normally need to comply with various user conditions. The licensing conditions for a DVD are indicated on it, and you generally need to agree to such conditions before you can download something (for payment) from the Internet. These conditions sometimes prohibit the use of the film in an educational context; DVDs are often subject to the condition that they should only be used in a domestic setting. The question which then arises is what takes precedence: the restrictive licensing conditions or the exceptions provided for in the Dutch Copyright Act, which do permit use in an educational context? Unfortunately, judges and lawyers have not yet come up with an answer to this question. Some of them consider that it is the licensing conditions that take precedence, while others say that these conditions can be set aside in favour of the right of freedom of information, which entails that we all have the right to receive information without restriction, for example in an educational context.
1h. Where can I get more information about copyright?
You can find more information on the following websites (in Dutch):
http://www.auteursrecht.nl
http://www.surf.nl/auteursrecht
http://www.taskforce-archieven.nl/projects/juridischewegwijzer
The text of the Dutch Copyright Act and the Dutch Neighbouring Rights Act [Wet op de naburige rechten] are available at:
http://wetten.overheid.nl
http://www.justitie.nl