Copyright is one type of intellectual property right (others are patents and trade marks) which applies to written, visual and many other works which display a minimal level of creativity (ss 3-8, Copyright, Designs and Patents Act 1988).
Copyright, as its name suggests, allows the owner of the copyright (subject to certain exemptions and qualifications – see Chapter 3 of the Act) to prevent others from copying and dealing in other ways with the protected work (ss 16-22).
Provided the work is an appropriate form and embodies the minimal level of creativity required, copyright arises automatically in the work without its author needing to do any more. There is not, at this point in time in the UK, any need to register a work for a person to have a copyright in it.
The person who owns the copyright (of which more later) may however allow another person to use the protected work and may impose conditions on their use of the work (including as to payment) by a process commonly known as licensing.
Equally a person may transfer their copyright in a piece of work to another person so that the copyright is now owned by someone other than the person who originally owned the work.
While people tend to speak of charities as a discrete type of organisation, in practice, charities can take a number of different forms and it is perhaps more helpful to refer to charity as a status than as a particular type of organisation.
There are various types of bodies which can acquire charitable status, including trusts, companies limited by guarantee and, in Scotland, the Scottish charitable incorporated organisation (a SCIO – see Chapter 7 of the Charities and Trustee Investment (Scotland) Act 2005). In Scotland, a charity is required to have a recognised charitable purpose (2005 Act, s 7) and to provide some public benefit (s 8). Of the various forms of charitable organisation, many are able to own property and this can be both physical property (land, office equipment etc) and intangible things such as investments, cash assets and intellectual property rights.
In order to accomplish its purposes, a charity may well employ staff to work for it. The distinction between staff (who are employed by the charity) and volunteers is likely to be important in a number of contexts, but it is particularly significant in the copyright context. That is because while an employer (including a charity) will generally own the copyright in the work of its employees (1988 Act, s 11), it will not automatically own works made by its volunteers (and complex issues may arise where there is a mix of staff and volunteer contribution to a work). Works made on commission by a consultant or freelancer who is not employed by the body also require careful consideration, as the charity will not immediately own them. Charities may therefore wish to consider having volunteers assign copyrights in work made for the organisation to them.
A person may own a work and choose not to license it to others, or only to license it to others for a fee. A person who holds copyright in a work may also stop others from dealing with it and seek damages for any infringement (1988 Act, Chapter 4).
However, the copyright owner may also choose to take the more benevolent course of making a work freely available to the public. This is generally done by the copyright owner offering the public the chance to use the work subject to a very permissive licence, which may among other things include:
- refusing to charge for the use of the work;
- allowing for others to republish the work for a range of purposes;
- allowing for others to remix, adapt or create derivative works;
- requiring the work to be credited to the original author or not; or
- imposing (or not) conditions on how any derivative works are to be licensed.
There are various movements and labels attached to the act of making copyrighted works freely available to the public (copyleft, open-source, free software etc). For software (which is a type of media covered by copyright), the movement is generally known as either free software or open-source. There are special issues associated with copyright in software and this has led to specialised public, permissive licensing regimes such as the GNU Public Licence and the Berkeley Software Distribution licences.
For literary, musical and visual works, the most prominent movement for public, permissive use of copyrighted works is the creative commons licensing regime (creativecommons.org/). Under this set of licences, the owner of copyright in a work may make it available for public use in a variety of ways and subject to various conditions (requiring the crediting of the original author, indicating whether the work may be altered or remixed etc).
Bringing it all together: charities, copyright and creative commons works
Creative commons (and similar regimes for software) can potentially be important to charitable bodies in two respects: as copyright users and as copyright creators.
Using freely available materials such as images, musical works and software can offer significant cost benefits to charities whose resources may not allow them to pay significant licensing fees that might otherwise be required to use copyrighted works. Where charities are creating promotional materials involving the use of images or music, they may wish to use freely licensed works rather than paying fees to a licensing body.
Equally, however, charities may produce copyright works which are of use to others, and making these available to be freely used or adapted by others may offer another axis along which charities can extend their benefit to the wider public. There are a variety of ways in which this could be done, and various materials may be more or less suitable for freely licensing depending on the charity’s focuses.
Some charities might wish to openly license large bodies of content where, for instance, their purpose is digital preservation of historical materials. Others might have put considerable time and effort into devising their own policy and governance documents and wish to make these available to other charities to reuse or adapt, so as to minimise other organisations reinventing the wheel.
Adopting a strategy of making copyrighted works freely available for others to use will also need to be balanced against the overall strategy and any value of the charity’s intellectual property which might provide an additional source of revenue. Where a charitable body has a large body of materials in which it owns the copyright and which might be licensed for considerable financial benefit, open-sourcing these materials may be less appropriate. Such cases may however be relatively rare and it may be that a large number of charitable bodies can find an additional, albeit more minor, method of contributing to their communities through the use of copy-left licensing.
While care will need to be taken in ensuring that a charitable body’s ownership of copyright materials is clear, and some materials may never be either useful or suitable for wider use, there is value in thinking about how charities might extend their public benefits by freely licensing works created by them.
Fergus Whyte is an advocate at Arnot Manderson Stables with a background and interest in commercial, intellectual property and information technology disputes. This work is licensed under CC BY-NC-SA 4.0