Clearing copyright
6a. Who has to clear copyright? In other words, who has to request permission to reuse someone else’s work?
6b. Who do I need to make arrangements with regarding copyright?
6c. What do I need to arrange?
6d. What does the Academia licence cover?
6e. What are collecting societies?
6f. Do I have to make arrangements with one of the collecting societies?
6g. What do I do if I cannot trace the right holder?
6h. Am I responsible for clearing copyright in visual material that someone else offers me?
6i. What is Creative Commons?
6j. Where can I find material on the Internet that I can freely use for educational purposes?
6a. Who has to clear copyright? In other words, who has to request permission to reuse someone else’s work?
The person who wants to reuse the work must arrange for permission (i.e. a licence) to be granted by the right holder. It is the producer who is responsible for doing this if he/she wants to use parts of someone else’s work (or works) in his own work. If the copyright in the video accrues to the employer, then it is likely to be the director who is responsible for getting the necessary licences. It is important to note that you may sometimes need to gain the permission of persons other than the right holder regarding their contribution to the video in the form of a collaborator statement, for example people who are shown prominently. (See 5e to 5g.)
If you are a teacher and you want to use someone else’s copyright-protected work in your teaching, you are permitted to do so under the conditions comprised in the three exceptions in 1g. The Academia licence system makes it easy for teachers and students to use TV and radio programmes in an educational context.
6b. Who do I need to make arrangements with regarding copyright?
Permission (i.e. a licence) to reuse material must be arranged with the person who holds the right to the work (or part of the work) that you wish to use; this may be a film, a piece of music, a photo, a work of art, or an audio recording, etc. The copyright holder may be the actual maker or his/her employer, but it can also be someone else to whom the copyright in the work concerned has been transferred in writing. Performing artists, broadcasting organisations, and film producers also hold their own rights to their performances, broadcast programmes, and films, respectively; these are known as “neighbouring rights”. They also need to be asked for permission to reuse the work. In the case of films (including videos) in which a large number of people were involved, it is normally sufficient to gain the consent of the producer.
Many groups of right holders have banded together in collecting societies; you can get a licence from such an organisation to make use of several works at the same time. These collecting societies have lower standard fees for educational institutions (also see 6d). Educational institutions can acquire an Academia licence which enables them to make use of TV and radio programmes by public broadcasters for educational purposes.
6c. What do I need to arrange?
One important thing to consider is that when arranging for the transfer of copyright or for a licence or other kind of permission – for example a collaborator statement (see 5e to g) – it is important to clarify how the material will be used. If you intend reusing the video (or the raw footage) at a later date, it is a good idea to say so in the agreement. When the right holder grants a licence, it is in the interests of the user (but not of the right holder) for the permitted types of use to be defined as broadly as possible. Where the copyright is to be transferred, the user can ensure that this is done by having the right holder transfer the “copyright in the broadest possible sense” in writing. Transfer of copyright requires the signature of the right holder.
6d. What does the Academia licence cover?
The Academia licence allows staff and students at affiliated institutions of higher education to make use in their teaching and studies of material from Dutch public broadcasters that is held by the Netherlands Institute for Sound and Vision (Nederlands Instituut voor Beeld en Geluid, NIBG). The NIBG maintains archives of both old and new material. An educational institution can acquire an Academia licence in return for an annual fee proportionate to the number of students and staff.
6e. What are collecting societies?
Collecting societies administer the exploitation rights of certain groups of right holders. They issue licences for the reuse of works in return for payment of standard fees. These fees are lower for non-commercial educational institutions than for commercial organisations. The best-known of these organisations in the Netherlands is Buma/Stemra, which administers the copyright of composers and lyricists (www.bumastemra.nl). The Stichting Beeldrecht provides a similar service for artists, photographers, and architects (www.beeldrecht.nl, as from 2008 its name will be Pictoright). By approaching one of the collecting societies, you can quickly arrange for permission, on payment of the fee, to use various works by a number of different authors.
6f. Do I have to make arrangements with one of the collecting societies?
Getting a licence from one of the collecting societies is sometimes the only way of being able to legally use copyright-protected works. This is because in most cases these organisations are the exclusive representative of their members. The advantage is that they are quick and efficient. Some collecting societies actively monitor whether works by their members have been reused without permission. If they discover that that has been done – i.e. that the author’s copyright has been infringed – they send the user a bill for the necessary licence fee.
6g. What do I do if I cannot trace the right holder?
If you have made a serious attempt to find the copyright holder but have been unsuccessful, then – from a strictly legal point of view – you are not permitted to make use of his/her work. Fortunately, use of copyright material in an educational context is sometimes permitted by invoking the exceptions in 1g. If no exception applies, then the work of a right holder who cannot be identified (an “orphan work”) is often simply used anyway. A disclaimer is then placed on the product or on the website that includes the orphan work, saying that the institution has done its best to trace the right holders of all the works that have been used but that it has not been successful in every case. An address is then given where such right holders can identify themselves.
The basic rule is that if the right holder does identify himself, he will be paid the appropriate fee. However, you cannot always adopt this as standard procedure. An estimate needs to be made of the financial risk for each work used and you also need to consider that it is possible that you may not in fact be able to reach agreement with the right holder. (See also 5i.)
6h. Am I responsible for clearing copyright in visual material that someone else offers me?
If you want to reuse visual material that has been offered to you by someone else, you must make sure that that party holds all the relevant rights to the work. If you want to incorporate that work into your own production and if major financial interests are involved, then it is a good idea to get the party providing the work to sign an “indemnity statement”. The party concerned then states that he holds all the rights to the material or that he indemnifies you in respect of any claims that other parties may assert to the material.
6i. What is Creative Commons?
Creative Commons (CC) is an organisation that has developed a number of copyright licences so that an author can grant permission beforehand, without requiring payment, for reuse of his/her work. There are four different types of licence:
- The name of the author must always be mentioned with the work.
- Only non-commercial use is permitted.
- Adaptation is not permitted.
- An adaptation must be covered by the same CC licence as the original work (“share alike”). This licence promotes the increased use of CC licences.
These four types of licence may be mutually combined. See www.creativecommons.nl.
If you are the right holder to a work that you want to upload to the Internet, you can decide to make it subject to a CC licence, for example the licence that provides that only non-commercial use is permitted. Other people can then make free use of your work for educational purposes. Use of a CC licence for your own material is heartily recommended, provided that you in fact hold all the relevant rights to that material.
6j. Where can I find material on the Internet that I can freely use for educational purposes?
You can find this sort of material at http://search.creativecommons.org. Photos with CC licences are also available at: http://www.flickr.com. Also see: http://commons.wikimedia.org.
NB: You should always check carefully to see which licence applies to a particular work. Attribution is almost always required. Some repositories also allow you to freely reuse material for educational purposes. However, not all repositories state clearly what you can or cannot do with their content.