Copyright for Educators, Cycle 2 - Mar 2010

What's the best way for us to communicate, and allocate the work?

Hi David. Good talking to you.

As agreed, I've had a go at a first draft response. Please add, amend, comment, or disagree. Basically I've just applied the provisions of CDPA 1988 to the facts as far as I could (section references in square brackets was probably overkill, but it helps me to keep track of the various rules).

1. Identify the types of copyright works or other subject in the material she wants to use.
(a) Extracts from Charles Darwin's personal diaries and notebooks - this is original “literary work” which means any work, other than a dramatic or musical work, which is written, spoken or sung [s 3(1)]
(b) Images of Darwin etc from http://www.guardian.co.uk/science/interactive/2009/feb/12/charles-darwin - this is “artistic work” which means a graphic work, photograph, sculpture or collage, irrespective of artistic quality [s 4(1)]
(c) Extracts from Darwin's book "the Origin of the Species" - this is a literary work. If Zanele copied the typographical arrangement from a published edition, we would also need to consider copyright in 'the typographical arrangement of published editions' of the work [s 1(1)(c)].
(d) Genetic Code Chart from  http://www.indiana.edu/~ensiweb/lessons/psa.gc.pdf - if this represents a standard presentation of widely known scientific information, then it may not qualify as an 'original' literary work which can be protected by copyright.
(e) A clip from the BBC TV science documentary series “Life" with David Attenborough she taped from television. - this is a "broadcast", meaning a transmission by wireless telegraphy of visual images, sounds or other information which is capable of being lawfully received by members of the public, or is transmitted for presentation to members of the public [s 6(1)]
(f) Clips from the film " Creation” - there is copyright in a “film” meaning a recording on any medium from which a moving image may by any means be produced. [s 5(1)]
(g) Her own original drawings and photographs of animals, trees and fauna - these would be "artistic works" since they are graphic works or photographs, irrespective of artistic quality.
(h) Her own original quizzes, research, teaching notes and text about Darwin - these are 'Literary works'

2. Identify the copyright owner for each category of work or other subject matter.
(a) Darwin would own the copyright, as the author of his diaries and notebooks.
(b) the photos of Darwin were taken in the 19th century, but the captions on the Guardian website refer to 'Corbis' and 'Getty Images'. Presumably these are picture agencies which have produced digital images from the original photographs.
(c) Darwin would own the copyright in the literary work. If Zanele copied the typographical arrangement from a published edition, the publisher of the particular edition would own that copyright.
(d) If the work is not sufficiently original to be protected by copyright, then there would be no copyright owner.
(e) in the case of a broadcast, the copyright owner is the person making the broadcast, [s 9(2)(b)], which is the person transmitting the programme, if he has responsibility to any extent for its contents [s 6(3)]. In this case, that would be the BBC.
(f) In the case of a film, the owner is the person 'by whom the arrangements necessary for the making of the recording or film are undertaken' [s 9(2)(a)]. Presumably this would be the film's production company.
(g) Zanele owns the copyright in her own drawings and photographs, unless she created them in the course of employment.
(h) Zanelle does appear to have created her teaching materials in the course of employment, and so the copyright would be owned by her employer [s 11(2)], subject to any agreement to the contrary.

3. Identify which of the above works or other subject matter are still in copyright.
(a) copyright in a literary work expires at the end of the period of 50 years from the end of the calendar year in which the author dies [s 12(1)]. Charles Darwin died in 1882, so the copyright would have expired.
(b) The author of the original photographs probably died more than 50 years ago, but if the photo agencies have produced new digital images of the old photographs, I expect that these are still in copyright.
(c) As above, copyright in a literary work expires at the end of the period of 50 years from the end of the calendar year in which the author dies, so the copyright would have expired. Copyright in the typographical arrangement of a published edition expires at the end of the period of 25 years from the end of the calendar year in which the edition was first published. [s 15].
(d) Probably not an original work, so not still in copyright.
(e) Copyright in a broadcast expires at the end of the period of 50 years from the end of the calendar year in which the broadcast was made [s 14(1)], so the programme is still in copyright.
(f) Copyright in a sound recording or film expires at the end of the period of 50 years from the end of the calendar year in which it is made, or if it is released before the end of that period, 50 years from the end of the calendar year in which it is released. [s 13(1)]. Therefore the film is still in copyright.
(g) Zanele's copyright does not expire until 50 years after her death, so her artistic works are in copyright.
(h) The employer's copyright in the works produced by Zanele would also not expire until 50 years after the death of the author (Zanele).

4. Is Zanele Dube's resource protected by copyright?
The resource seems to be a distinct work, although it includes copies of other copyright works within it. She combined the different elements into a new work, but since she did it in the course of her employment, the copyright would be owned by her employers.

5. Does the Publisher need permission to reproduce the resource and/or any of the above included in the resource ?
The resource as a whole could not be copied without the permission of Zanelle's employer. To th extent that the resource contains copies of works which are currently within copyright, the publisher would also need permission of the copyright owners for the different elements.

Fair dealing with a work for the purpose of criticism or review, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement [s 30(1)], so if the extracts from the broadcast or film were presented as part of some critical commentary on the way in which Darwin or his ideas have been represented, then this may not infringe copyright.

Section 35 allows recording of broadcasts by educational establishments for educational purposes, and there may be a specific licensing scheme in force. This may be sufficient in relation to copies made for Zanele's students, but not for any copies produced by the educational publisher. Under s 35(3), a copy made for educational purposes may be treated as an infringing copy as a result of subsequent dealing by sale or hire.

Phil, this is a comprehensive answer to the task, and I've run out of time to add anything of substance, so I say go ahead and submit it. I'll take the lead on the second week's task.