Ukmi Legal & Ethical Briefing No

UKMi Legal & Ethical Briefing No.7 September 2010

This document provides guidance for MI centres in England. The situation in Northern Ireland, Scotland and Wales may vary in some respects and MI pharmacists in other home countries are advised to seek local advice, where necessary.

Introduction

Copyright is one of four main types of intellectual property (IP). IP allows peoples’ creations to be ‘owned’ (in the same way as someone can ‘own’ physical property), and the owner can be rewarded for its use. IP rights were introduced to encourage production of material which benefits the public at large. Other main types of IP include patents, trademarks and designs.

For IP to be protected an application for IP rights has to be made and granted; however some

IP protection occurs automatically, including copyright.

Copyright is an unregistered right and various international conventions on copyright require that it should be automatic. Therefore, provided a created work falls into one of the categories of material protected by copyright it will automatically qualify for copyright protection.

Copyright law exists for both economic and moral purposes. Moral protection prevents individuals from being able to amend or falsely attribute an author's work. Copyright may be enforced using various legislation, however there is little information regarding the implications of breaching copyright due to limitations in case law. The © logo is not necessary to enforce copyright. More information on IP is available at -

What Material is Protected by Copyright Law?

Copyright law can be applied to literary works, databases, dramatic works, musical works, artistic works, sound, films, and broadcasts. As applied to Medicines Information, copyright law applies to bulletins, lectures, graphics, logos, artwork, databases, software, websites, and presentations.

For a piece of work to qualify for copyright protection it must be original, fixed in some form, and the creator must be a national of a country with reciprocal copyright protection (generally most westernised countries). An idea is not fixed in form and is therefore not subject to copyright protection. Rights in performance also exist. For example, recording a lecture without permission of the 'owner' would be a breach of copyright.

What is Crown Copyright?

Crown copyright permits and encourages dissemination of government information. Acts of parliament, national curriculum material, public records, and press releases are covered by crown copyright. Material can be freely copied or published in any medium without permission or fee providing that:

The official or current version is used.

Information is not used for derogatory or misleading purposes.

Information is not used for advertising, promotion or implying status.

Source of material is acknowledged.

Despite being part of the NHS, outputs from UKMi are not entitled to Crown copyright.

Who Owns Copyright?

The author of the material is usually the first owner of the copyright. For commissioned work the copyright is owned by the author (since 1989). Individual contracts, however, may stipulate different arrangements: this means that much work printed in journals or books belongs to the publisher and not the author.

For works created as part of an individual's employment, the copyright belongs to the employer, not the employee. If an employee produces a piece of work during their employment that is not part of their “normal employment”, as covered by their job description, the copyright belongs to the individual and not the organisation.

What are the Rights of the Owner?

The owner of the copyright is able to freely copy, issue, perform, broadcast (including the Internet), adapt, rent, and lend the work as they see fit. In general copyright lasts for 70 years from the end of the year in which the author of the work dies. However, different rules apply for -(1) sound recordings (50 years from first release),

(2) films (70 years from the last death of either the principal director, author, or composer of music created for the film),

(3) computer programmes (50 years from year first made) and

(4) official publications (125 years after work created or 50 years after work was published). Typography (page layout and fonts) is also copyright for 25 years from the end of the year of publication. Permission to use the copyright material must be obtained from the copyright owner as copyright often covers material that has involved a lot of time, effort, skill, and sometimes expense, to create. If copyright protection did not exist works could be used by anyone without the owner being paid or recognised for their work. There are some exceptions to this however, and certain uses of works may not breach copyright.

What Exceptions to Copyright are there?

Unless a substantial part of a piece of work has been copied, no infringement of copyright can be claimed. Substantial relates to both quality and quantity. Copying without permission is permissible for:

Fair dealing:

Research (any type)

Private study (excludes classroom study)

Criticism or review (limited to single extract of 400 words, or series of extracts up to 800 words, source must be acknowledged).

Reporting current events (news bulletins, clippings service, source must be acknowledged).

Educational Copying: No limit is provided on non-mechanical copying by teachers or students. Setting or answering examination questions is also not restricted by copyright.

Public administration is exempt from copyright. No limits apply when copying for judicial proceedings, parliamentary proceedings, statutory enquiries, and royal commission.

The NHS has obtained a photocopying and scanning licence from the Copyright Licensing Agency (CLA). This permits copying of protected material by NHS personnel who need to use published information for their own use and for the use of colleagues and peers.

Miscellaneous exceptions include abstracts that contain scientific or technical information. These may be freely copied, however this does not apply if abstracts are published separately.

Guidelines for Copying Under the CLA Licence Within the NHS

The CLA is a not-for-profit company that licenses organisations such as schools, law firms and universities for photocopying with the aim of promoting and encouraging respect for copyright.

The CLA is a member of the International Federation of Reproduction Rights Organisations and therefore works within a network of organisations from other countries with reciprocal arrangements. For a licence fee, an organisation can make a specified number of copies from several million titles. Fees are then paid to the authors, publishers and artists by the CLA, and if necessary the CLA can initiate legal proceedings for breach of copyright.

Separate CLA licences have been obtained by the NHS in England, Scotland and Wales and Northern Ireland. There are subtle differences between the 3 licences. The CLA treats the NHS in the each of the four countries as one single licensee having numerous sites. The licences can be viewed and downloaded from the CLA website –

England:

ScotlandWales:

Northern Ireland:

The licences permit NHS personnel to photocopy and scan works that are covered by the licence and exchange paper or email copies between Trusts in the individual countries for NHS internal purposes. The licence applies to most books, journals and periodicals.

CLA has agreed with NHS Connection for Health (CfH) a central licence for the NHS in England which runs until31 March 2011.

Supporting documentation can be found at:

Corresponding guidance is also available for NHS Scotland and Wales and Northern Ireland Health & Personal Social Services.

How much can be copied?

The NHS must own an original copy or copyright fee paid copy of any publication that may wish to be copied. Photocopies or scanned images can be made, and as many copies as are required can be distributed on/for each separate occasion or purpose, subject to the following conditions and limits -

one chapter from a book

two articles from an issue of a journal or periodical

any number of articles dealing with a particular theme within an issue

one entire case from a published report of judicial proceedings

or up to 5% of the publication, if greater than the above
if you hold a copyright fee paid copy – you can make as many copies from it as you need, now and in the future.

Certain publications are not included in the licence, examples are -

Original digital publications e.g. e-books and e-journals

Maps

Newspapers

Internal house journals and other free publications

Unpublished material

Material not covered by this licence can be found on the Copyright Licensing Agency website -

Who can make and receive copies?

Paper copies

All full time, part time and temporary staff working for the NHS including officers, directors, lay representatives and individuals providing a consultancy service to the NHS.

Any GPs and their staff employed or contracted to the NHS.

Members of a designated committee within a Trust (one of whom must be an NHS staff member). This includes executive committees with non-NHS staff who have an advisory, consultative, tribunal or executive function.
Patients and carers/guardians of patients may be provided with a single paper copy in connection with their treatment or condition.

Digital copies

All of the NHS employees outlined above who are authorised to have access to the NHSnet or other internal email system or any other NHS intranet by way of a secure log-in process.

Who can not make and receive copies under the NHS licences?

Persons from another organisation or business who are not employees or consultants of the NHS.

Employees of the NHS in England, Scotland, Wales or Northern Ireland can not exchange information under the terms of the licences.

General public or a patient requesting copies of specific material.

More Information

More than one person can copy the same material at the same time – but it must be for a different purpose. No copies must be sold, hired out or used for external marketing or other purposes. No specific advice regarding copies sent as email attachments has been located but disclaimers used by major libraries such as the British Library and the BMA have used wording such as:

1. Delete the attached file from your computer as soon as you have either made a satisfactory printed copy, or forwarded this e-mail to the end-user of the document.

2. If you are forwarding the document in computer-readable form for the end-user to print out, you must explicitly pass on to him/her the obligation to comply in full with (1) above, and not toretain or pass on multiple copies of the document without the explicit permission of the copyright owner.

XXX will not be liable in any way for the failure of any library or individual to comply with these requirements.

If you have any enquiries about the above, or you have received this in error, then please email XXX

Limitations on the use of scanned/digital copies

A scanned copy of an article must be a direct, unaltered copy of the original extract, work, photograph etc. no amendments or changes are permitted.

Digital copies cannot be placed on any publicly accessible website or be linked to or from any external or third party website. Digital copies cannot be stored on a server, or systematically indexed with the intention of creating an electronic library or similar resource.

More information about the Copyright Licensing Agency and the different licences available to the NHS, business, public administration and educational establishments can be found on the CLA website at -

There are now a number of sources for accessing digital copies of published information –NLH My Journals service, e-journals purchased by NHS Trusts included in the NHS Framework Agreement, open access repositories and licences with publishers and rights holders held by individual organisations. It is often important to check the terms and conditions of the licenses as there are similarities and differences between them.

To access articles via NLH, individuals need an NHS Athens account with a username and password.

The NHS Framework Agreement for e-journals permits the licensee (often an NHS Trust) to make single copies of articles for NHS internal purposes by a wide range of users and also to distribute copies of individual articles in print or electronic form for teaching purposes or a journal club.

Multiple copies

Not all copyright licences permit multiple copies so it is important to check what is allowed. Where the original article is a printed document in a journal covered by the NHS CLA licence and the copy is being made by an NHS employee for other NHS employees, multiple copies may be madeand there is no upper limit.

There is a useful summary on copyright tips for multiple copies on the National Library for Health website -

This summary covers a number of issues that may be relevant to MI pharmacists who have to copy printed documents in response to enquiries or requests for information. It is not comprehensive as copyright law is a very complex area. If you have any questions concerning copyright, your NHS Trust Library Manager would be a useful person to consult.

This document is based on the UKMI Legal and Ethical Briefing on Copyright produced in May 2003 and information available on the NHS Librarians section on the National Library for Health website -

Additional data may be found at:

( UK Intellectual Property Office website)

This update was produced by Katie Smith, Director, East Anglia Medicines Information Service and Elena Grant, West Midlands Medicines Information Service. Comments were obtained from Shantilal Shah, Licensing Administrator, Copyright Licensing Agency ,Susan Thomas, Librarian, Health Promotion Library, Welsh Assembly Government andGwen Giles, Learning Resources Manager, Heart of England NHS Foundation Trust