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Social Media Law – Interview with Pete Bott Part 1

2 December, 2012

Interview with Pete Bott, Blacks Solicitors LLP, Leeds on Social Media Law [*Pete is no longer at Blacks, see updated edit below] 

I have recently been inundated with queries around the use of photos, music, and videos online. Social media offers huge opportunities for sharing and promotion, but many people and organisations remain in the dark about the pertinent laws and regulations around sharing copyright material online.

Only last week, a hoax Facebook copyright notice went viral, illustrating that many people, despite being anxious about their rights, remain uninformed on the subject.

I thought this would be a great opportunity to find out exactly what the law currently says about sharing photos, music and videos online – what we can and can’t do, and how to make sure we don’t infringe copyright or break any privacy laws.

Pete Bott is a Solicitor in the Music, Media & Entertainment Department at Blacks Solicitors LLP in Leeds, UK. He is also the former front-man of Leeds electro band, Heads We Dance, and a one-time label-mate of Little Boots, Plan B and The Streets, so he knows the industry inside out.

I caught up with Pete and asked him to answer some common questions around music, media and entertainment law:

Q: Could you explain the different types of levels of copyright, with regard to content such as music, photos and videos, which are posted online?

A: In the UK, the most common types of copyright works are put into two categories.  The first category, often described as “underlying works”, includes original literary, dramatic, musical or artistic works.  The second category, often described as “derivative works”, includes sound recordings, films or broadcasts.

As a result, a recorded piece of music, for example, will usually embody: 1) a musical work, 2) a literary work (the lyrics) and 3) a sound recording work.  Those three separate works may be owned by three separate people.

There are no “levels of copyright” as such but the owner of a copyright work has various exclusive rights including the right to copy the work and the right to issues copies of the work to the public.

It is worth taking a look at sections 1-21 of the Copyright, Designs and Patents Act 1988 for further details.

Q: How do you find out if information available online is restricted by copyright, and what should you do if you want to use a particular piece of copyrighted material for your own purposes?

A: Unlike registered trademarks, a copyright work does not have to be registered, as copyright (subject to certain requirements) subsists automatically. 

As a result, you should assume that the copyright in any music, photograph, article or video that you find online is owned by someone who has the exclusive rights set out in the first answer above. 

You should therefore make the appropriate enquiries with, for example the record label or music publisher, in order to acquire a licence to use the copyright work.  Many works are accompanied by a copyright notice (©) which should identify the owner of the copyright.

Q: Are there any cases in which you are allowed to use or sample parts of copyrighted content available online without seeking permission?

A: Yes, there are various exemptions which are set out in Part III of the Copyright, Designs and Patents Act 1988 and include “fair dealing” with a work for criticism, review and news reporting.  Some owners of copyright works also expressly permit use without seeking permission.

In addition, copyright protection may not last forever.  For example, copyright in literary, dramatic, musical or artistic works expires at the end of the period of 70 years from the end of the calendar year in which the author dies (subject to the further provisions of section 12 of the Copyright, Designs and Patents Act 1988).

Q:Can you explain what is covered under the remit of PRS?

A:PRS for Music collects royalties in respect of the performing rights of its members, which are songwriters, composers and music publishers. 

Essentially, royalties should be paid to songwriters, composers and music publishers whenever their music is played or performed in public (this includes online, TV, radio, in a shop or pub, or at a gig).  PRS for Music therefore licenses organisations to play, perform or make available copyright music on behalf of its members and distributes the resultant royalties to those members.

Q: The rules have recently changed with regard to live music – could you explain the changes, and how it would affect the recording and posting of live performances online?

A: The Live Music Act 2012 came into force on 1 October 2012 with the effect that venues in England and Wales with a capacity of less than 200 people no longer need a licence for live music. 

The Live Music Act 2012 in effect seeks to remove some of the restrictions on live music put in place by the Licensing Act 2003 and thereby make it easier to put on pub gigs and small live performances.  However, the Live Music Act 2012 does not affect the copyright la ws in relation to recording and posting live music online.

Q: In the example of a primary school class wanting to sing a pop song at their school concert, where only parents and teachers would be attending (so non-commercial use, in a non-public environment) – what permissions need to be sought? Would the rules change if this school then uploaded a video of the concert to its Facebook page?

A: Section 34 of the Copyright, Designs and Patents Act 1988 provides an exemption to copyright infringement for performing, playing or showing of literary, dramatic or musical works before an audience consisting of teachers and pupils at an educational establishment.  However, this does not cover pupil performances to audiences of parents.  As a result, in the example you have given where there is a mixture of teachers and parents, the permission of the copyright owner is required. 

The copyright laws in relation to uploading a video of the concert are as set out above, subject to Facebook’s terms and conditions of use.

Q: Do Facebook really “own” all the image and video content that people and organisations upload to their site?  If so, would that mean that companies and charities need to seek Facebook’s permission to use their own photographs that they uploaded?

A: According to Facebook’s most recent terms of use, all Facebook users grant Facebook “a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any [copyright material] that [users] post on or in connection with Facebook”.  Facebook does not therefore own the copyright material of its users but it can essentially do what it likes with this copyright material without having to ask the owner for permission.  This licence only ends when the user deletes the copyright material or their account, unless the copyright material has been shared with others and they have not deleted it in which case the licence continues.

In light of the above, companies and charities do not need Facebook’s permission to use their own photographs.

Q: Is there anything that people or organisations can do to prevent Facebook from using images they (people and organisations) have uploaded to the site for Facebook’s own promotional purposes?

A: Please see above.  The people or organisations would have to delete the images and ensure that the images were also deleted from all other Facebook accounts.

Read Part 2 of this interview here

*09/12/15 edit

Many thanks to Pete Bott for this interview. Pete is currently Music and Media Specialist Solicitor at Swan Turton commercial solicitors in London, UK. But at the time of this interview, Pete was a Solicitor in the Music, Media & Entertainment Department at Blacks Solicitors LLP in Leeds, UK. 

Find Pete on Twitter at @PBottMusicLaw.

As usual feel free to discuss anything to do with Social Media with me (Jonny) on 0113 320 21 21. What questions do you have on Social Media and the Law?

 

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