Multimedia Products - principal legal issues in relation to content and software

- a legal FAQ from Roger Sinclair

GENERAL

  1. This note is intended as an overview rather than as a definitive statement of every aspect of the relevant law, and should be interpreted in that light.
  2. In this note, the terms 'publication' and 'publisher' are used in a broad sense to refer in general terms to the product and its producer respectively, regardless of the particular medium under discussion.
  3. The section entitled 'Content - Rights Clearances' relates to copyright etc protected works to be used in the publication, where the intellectual property rights in such works are not already wholly owned by the publisher. If all such rights are so owned, that entire section may be disregarded.

COPYRIGHT AND COMMISSIONED WORK

Under English law, copyright subsists in:

(from s1(1) Copyright etc. Act 1988)

"'Literary work'...includes a table or compilations, and a computer program"

(from s3(1) Copyright etc Act 1988)

"The author of a work is the first owner of any copyright in it", provided that where a work "is made by an employee in the course of his employment, his employer is the first owner of any copyright, subject to any agreement to the contrary"

(from s11(1) and (2) Copyright etc Act 1988)

Thus where a 'work' is created by an employee in the course of his employment (ie where one of the things he is employed to do is to produce such works), the first copyright vests in the employer - but in every other case it vests in the author, and formal steps need to be taken to assign it to the publisher.

In particular it should be noted that a Director of a company is an officer of the company; he or she may, or may not, also be an employee of the company.

It therefore follows that:

caution and prudence dictate that formal steps need to be taken to assign copyright to the publisher.

Express provision should be made in all contracts with third parties for the production of Commissioned work for all copyrights to vest in the publisher.

CONTENT - RIGHTS CLEARANCES

  1. 'Rights Clearances' are the "grass roots" licensing arrangements which underlie the publisher's ability to produce and distribute the products at all - the preliminary rights clearances which the publisher will need to obtain from owners of the rights in works comprised in, or used in producing, the multimedia product to enable its distribution to end-users. This is critical to the publisher and its importance cannot be overstated.
  2. Most of the underlying elements incorporated in a multimedia product will be copyright-protected works in their own right, and to the extent these are not already owned by the publisher, he will need to identify and obtain all third party licences and consents necessary to authorise him to incorporate the various works in the multimedia product.
  3. In obtaining clearances, he will need to trace the original authors of the works, and the subsequent chain of title of intellectual property rights from the original authors.
  4. Such licences and consents will need to cover all elements of the copyright works in question - including literary, artistic, musical or dramatic works, moving images, sound recordings, typographical arrangements, computer programs, protected performances, etc.
  5. The scope of such licences will need to be sufficiently broad to cover all the anticipated uses of the material; in particular, it should be noted that they should also cover the world-wide reproduction on the Internet of any extracts which it is envisaged will be displayed on the World Wide Web - even if the product itself were not to be marketed worldwide.
  6. The clearances required will include:
    1. Copyright Licences:
      • Copyright licences will include synchronisation and mechanical use licences, and where a multimedia publisher intends to incorporate existing music in a multimedia product, he will probably need to obtain both. (The former are necessary where music is to be used in synchronisation with moving images, and will be obtained from the copyright owner, often a music publisher or sub-publisher appointed by a foreign publisher. The latter authorise mechanical reproduction of music on record, cassette or CD.)
    2. Performers' Consents:
      • Performers' consents will be necessary if the multimedia product is to contain recordings of any musical, dramatic or variety performances or readings of literary works.
      • The Copyright Tribunal may play an important role in the case of performers whose identity or whereabouts cannot reasonably be traced. In such case, on application to the Copyright Tribunal, consent may be granted on the performer's behalf. Note that such consent applies only in the UK, and the performer's consent will still need to be obtained in respect of reproduction of performances outside the UK. It should also be noted that performers' rights are treated differently from copyright. Whilst an employer will automatically own the copyright in works produced by an employee in the course of their employment without the need for an express assignment, the employer will not be in a position to authorise recordings of an employee's performances unless the employee has effectively transferred all performers' consents to the employer.
    3. Moral Rights:
      • Moral tights are of unique importance in the multimedia arena because of the interactive nature of multimedia products, comprising as they do adaptations of existing works and being designed for further manipulation and adaptation by users. See also my FAQ on Moral Rights.
      • The "paternity right" (that is, the tight to be identified as the author of a work) or the right to object to derogatory treatment of a work may be infringed in this context. (Moral rights will only be infringed where the work is published or performed in public.) The publisher will need to obtain written waivers from the authors of copyright works in which moral rights exist, which ideally should be both unconditional and irrevocable.
      • Moral rights do not arise in the case of all copyright works. Specifically, there are no moral rights where a literary, artistic, musical or dramatic work is created in the course of employment, or where arrangements for a sound recording are made by an employee. In addition, there are no moral rights in the design of typefaces, computer programs or computer-generated works. Note, though, that insofar as computer programs may be used to produce moving images, or sound, etc, moral rights may exist in relation to such other aspects of the program, even if not to the computer code itself.
    4. Personality Rights:
      • Clearance should also extend to personality rights - that is, the right of a person to prevent use of their name, likeness or biography without that person's consent.
      • Although UK law does not recognise personality rights, the laws of a number of other countries (including the US) do and a UK producer of a product intended for international distribution should obtain relevant consents of those whose names appear in the credits or packaging of the product.
      • Insofar as opportunities may exist for further exploitation of the likenesses of individuals, whether in packaging, associated advertising or in other applications, the multimedia publisher should ensure the relevant contractual arrangements permit exploitation by merchandising.
      • In obtaining rights clearances, the publisher should ensure that the licence grants are sufficiently broad to authorise the anticipated exploitation of the multimedia product in the relevant territory, including the development, manufacture, reproduction, distribution, performance, display, promotion, advertising and marketing of the product, the publisher's right to sublicense and (where appropriate) merchandising rights and rights to other language versions.
      • As multimedia products are by their very nature interactive, the publisher will need to ensure that any licence also enables end-users of the product to copy, adapt and manipulate the copyright works comprised within the product. (Copying for the purposes of the UK Copyright, Designs and Patents Act includes storing a work in any medium by electronic means, and making copies which are transient or incidental to some other use of the work, and this will often be the case with respect to the use of eg CD-ROM products.)
  7. Ensure that all licences include clear and unconditional warranties as to ownership of or right to license the rights in question, freedom from encumbrances or liens which could interfere with the rights granted to the publisher, and non-infringement of third party rights, as well as a contractual indemnity against all costs incurred by the publisher as a result of breach of such warranties by the licensor.
  8. The mechanics of obtaining rights clearances: for the time being at least this is likely to be a time-consuming and cumbersome process for the multimedia publisher. Although there is a variety of collective licensing bodies in the UK - including, for example:
    1. the Authors Licensing and Collecting Society (for licensing the exploitation of literary and dramatic works created by members),
    2. the Design and Artists Copyright Society Ltd (for licensing the exploitation of artistic works created by members),
    3. the Mechanical Copyright Protection Society Ltd (for licensing the exploitation of rights in members' musical works),
    4. the Performing Right Society Ltd (for licensing the public performance and broadcasting of members' musical works) and
    5. Phonographic Performance Ltd (for licensing the public performance and broadcasting of members' sound recordings) etc

These however currently have only a limited role in the multimedia area, largely because the bulk of the copyright works affected are not controlled by such societies but still by their respective authors - and, of course, because they only relate to the UK.

SOFTWARE

  1. This section relates to the software component of the product; such software serves two prime functions:
    1. it will define the structure within which any data content is contained, within which the data content is updated, and from which it is retrieved
    2. it will provide the means whereby the user can search and read that data content
  2. So far as the first point (structure) is concerned, decisions made at the earliest stages can have repercussions at a later date: for example, the decision to use a database format may result in greater initial complexity of the programming and therefore greater costs, but over the longer term will result in substantial savings when adding, modifying or up-dating material. Any specification to a software developer should make clear the envisaged extent and manner of any future updating to data content, so that an overall structure can be created which will allow such updates with relative ease.
  3. As to the second point, the software to be used by the end user is critical, from several aspects.
    1. Whenever a user uses the product, he will do so using this software. The image this software presents to the user, its ease of use, and its dependability will have a (one might think disproportionately) profound influence on the view the user forms of the product - the content may be world class, but without software meeting similarly high standards, the product might well fail.
    2. Versions of such software will need to be developed for each operating platform for which the product is to be marketed. All such versions must be thoroughly tested. If the product is envisaged to have a long lifetime, versions of such software will need to be developed in the future to run on, and take advantage of new facilities offered by, the operating platforms of tomorrow.
    3. It is a truism to say that there is no such thing as bug-free software. However exhaustive the testing may have been, experience shows that there is a likelihood that undetected bugs may become apparent in the future, and will need to be corrected by developers.
    4. It is also a truism to say that there is no such thing as 'perfect' software; new ideas will always flow tomorrow for improving the product of today.
    5. Many publishers have had the experience of wishing to modify or update a piece of software, only to discover that the firm which produced it has gone bankrupt and the programmers can no longer be contacted.
  4. Thus it is essential that commissioning of the development of any such software will only be on the basis that all Intellectual Property Rights in the software (including the source code) vest in the publisher, and that a fully documented copy of the source code is held by the publisher and is kept up to date. It will then be wholly under the publisher's control, and can be made available to the developers of the publisher's choice for future modification, bug-fixing, and update.

I'd really appreciate your feedback on this FAQ - so mail me and tell me what you think of it, if it's been useful to you, or let me know of any specific problem you have where I may be able to help.

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This page was last updated 7 January, 1997.

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© Roger Sinclair and Egos Ltd - roger@egos.co.uk 1997 - All rights reserved - see full copyright details

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