This excerpt is from chapter three: Obtaining and Managing Copyright Permissions of Pocket Copyright Guide for Publishers. As copyright is the lifeblood of publishers, a basic knowledge of copyright law is crucial to working effectively with authors on such issues as transfers of copyright, terms of copyright, terminations and ownership.
Publishers deal with permissions to use copyrighted content on a daily basis. Chapter 3 addresses permissions to include portions of copyrighted books, articles, etc., in a publisher’s own works as well as granting permission to use works on which the publisher holds the copyright.
This chapter is broken down into tips on Obtaining Permissions as well as Granting Permissions.
Including portions of others’ works in something that a publisher is producing likely requires permission in order to avoid infringement of the copyright. Recall, however, that not everything is subject to copyright protection such as facts, book titles, names of authors, etc. Further, not every use of a copyrighted work requires permission.
Who, What and When
Determining whom to contact for permission may be confusing since identifying who owns the rights to a copyrighted work is complicated. As a general rule, one is obligated to contact the rights holder, i.e., the individual or organization that owns the rights. For literary works, this is most often the publisher, but could be the author, the heirs of the author or an organization. A first step is to check the Copyright Office registration records.
In the case of an orphan work, the copyright owner is either unknown or cannot be located. The 2006 U.S. Copyright Office Orphan Works study recommended that, after someone uses best practices to identify and locate the copyright holder but fails, if the person proceeds with the use of the work without permission, he/she would not be liable for damages.
Proof and Attribution
Attribution means including a statement that credits the author with writing the work. Failure to attribute may result in a plagiarism charge, plus it is not good business practice for a publisher to fail to credit an author for his/her work. Attribution does not substitute for permission to reproduce, however, and could even result in an infringement action.
Courts rely on the custom and practice of the community involved to determine the scope of an implied license. It is risky to rely on an implied license in a commercial setting rather than seeking permission.
Publishers also find themselves on the other side of the table when authors, other publishers, librarians and teachers approach them for permission to use portions of the works they have published. As a matter of business planning, publishers should develop clear policies on what types of permissions it will grant and which ones it will deny.
In-house Permissions Systems
To manage permissions in-house, publishers must dedicate staff time and effort to record permissions granted, handle royalties received, disburse the royalties to authors and others, and to ensure that similar requests are handled in the same manner. Today, computer systems can assist with this task, but still a system is required.
Use of a Royalty Collection Agency
Many publishers rely on the Copyright Clearance Center or iCopyright to manage copyright permissions for them. Both organizations have services for publishers that are discussed in Chapter 6.