What is/is not copyright?

[Kristal]

Can I copy an article/information etc. for a proposed free magazine which would also carry some advertising,, from anything that is NOT copyright, without reverting to the originator? Are articles/stories in magazines copyright?

[Gmcd01]

Everything that you type is prima facie copyright, subject to the conditions of originality being filled (If you make a 'copy' of another work). Thus, any work you take is a copyright infringement under the Copyright, Designs and Patents Act 1988 unless you can show it is 'fair dealing'. What exactly is it you want to do? Is the magazine to make money? For a charity/education establishment? There's a whole host of issues to be considered.

[Kristal]

Thank you Gmcd01. The community magazine will be free and delivered to homes. It will carry advertising which will be paid for by the advertisers. At least half the content will be articles and info.

I thought it might be in order to simply copy small, interesting stuff from other sources (recent or very old) without reverting to the sources for permission.

Any further input ?

[Gmcd01]

Do you have any ideas on what the actual articles will be?

[Kristal]

Gmcd01. Would like to duplicate short pieces of general interest, ie home, garden, children. food , how to whatever, origin of spectacles (eg) - the list can go on. There will also be original contributions.

I have some mags from 1966 which have some stuff, how about those? The copyright holder might be dead.

Looks like 'I may have to deal via Intellectual Property people on each publication but really wanted an overview.

If this gets too onerous will deal with original articles only.

[Gmcd01]

I do understand your frustration! The only reason I mastered in IP (Although I would never work in the field) was because it was challenging to learn. Explaining it is just as hard!
I'm afraid that copyright in a literary work lasts until 70 years after the author's death (s12(2) CDPA 1988), so as nice an idea as the old articles are, it wouldn't help.
As the UK does not have a general defence of 'fair use' (Only acts such as research use that equate to fair use), you must show that your use falls under a protected catergory. These are:
s29- Research and Private Study
s30- Criticism, news reporting and reviews
s31- Incidental (or secondary) inclusion in a s30 work
As you can see, the questions I was asking was to attempt to determine the possibility of raising a defence, should it come to that.
Under s16, your use would fall under a breach on 2 counts:
s16(1)a- 'to copy the work'
s16(1)b- 'to issue copies of the work to the public'.

I don't want to make you contemplate suicide with the further statute details (of s17 & 18), but I'm afraid to conclude that your use of the work is a primary infringement of the author's exclusive rights, to which you have no defence. If you do feel that you could argue one of the defences named above on your facts though, please let me know which and I'll see if it would be possible. Other than that, any use of those articles could potentially render you liable to a lawsuit.
Hope that is an accurate enough overview for you. :-)

[Kristal]

Gmcd01. Thank you - all that studying not used - well. Most useful to me though and now I know. One last thought - on the jisclegal.ac.uk site and I quote, "In addition to Fair Dealing there is a general statutory exemption for insubstantial use, where the amount copied and its significance is so small as to be of negligible consequence to the rights holder."

I will follow through the proper channels if the magazine needs other than original articles, but do you agree that the above would be a good defence ?

[Gmcd01]

It's a very fine line to walk. There has been no large scale legislation on that point to date, although as a guide:
4 lines of a 20 line poem have been said to be insubstantial (As there was no significance in the lines used), although 8 bars of a Beethoven symphony (The one used in WWII on radio announcements, the name escapes me) were infringed as although the 8 bars are a fractional part, they were integral to the piece. It all comes down to the use that you foresee and how well known the piece is.
The best obiter to date on the point that always stuck in my head was:
National Licensing Agency v Marks & Spencer: "It is not safe to say though, that copying an insubstantial part will always be fair dealing."

[Kristal]

Have you sprained your knee too and are stuck at home? Naw, you probably work from there.

I take on board all you say and again thank you for your valuable input.

[Gmcd01]

Haha :-) No I just have my computer, a stack of case papers to file and poor supervision. I think I'm in the wrong job!