Permission to use copyright material in ways that are otherwise restricted are also known as “licences” or “clearances”.They must be obtained from the copyright owner, or from someone they have authorised to give permission. This may include a publisher, manager or collecting society.
Before contacting the copyright owner, you should check whether you do indeed need to gain their permission, or whether your proposed use is covered by an existing licence. It’s a good idea to familiarise yourself with the fact sheet “How to Stay Copyright Compliant.”
How to obtain permission
It is recommended that you always obtain permission from the copyright owner in writing. Although a formal legal contract is not always necessary, it is sensible to at least exchange letters or emails. Keep copies of all your communications to and from the copyright owner, to ensure there is a record of the agreement.
Your letter to the copyright owner should be reasonably detailed, to avoid any confusion. Matters to cover in the letter include:
- The date.
- The name and contact details of the copyright owner.
- A brief description of yourself and why you want to use the relevant work.
- Detailed information about the work (or specific part of the work) that you want to use. Include ISBN numbers to identify editions of books and URL links for works found on the Internet. Where possible, include page numbers, chapter titles, quotations etc.
- A precise description of how you want to use the work, including which parts of the work. For example: how many copies you want to make; where you wish to perform the work and for which audience; how you wish to adapt the work; or how you propose to distribute the work (such as uploading it on your website, selling printed copies for profit etc).
- Request confirmation that the person to whom the letter is addressed is the only copyright owner in relation to the work. Request information on any other copyright owner that you may need to contact.
- Request permission to use the work as you have described.
- Ask if there is any preference about how you credit the work.
- Ask the copyright owner to respond to you by a nominated date. Give a reasonable time for your letter to be considered and a reply sent. Remember that the copyright owner is not obliged to reply to your letter or give permission to use the work.
- Your contact details.
These are guidelines only. There may be additional issues that need to be addressed. If you are not sure, you may need to get legal advice.
Remember: always keep a record of all communications, including documentary evidence of any permissions you receive.
It’s always a negotiation
Obtaining permission to use copyright material is a matter of negotiation with the copyright owner. The copyright owner does not have to give you permission. They may refuse or only grant permission subject to certain limitations and conditions, including the payment of a fee. If you don’t have permission, you cannot legally copy or communicate the work.
What if permission cannot be obtained?
Paraphrase or reduce: If you have been unable to obtain permission to reproduce copyright material, it is prudent not to include it in your work. However, in many cases it may be feasible to paraphrase the content rather than make a direct copy. Remember it is not an infringement of copyright to refer to someone else’s work or to ideas discussed in it. Another option is to reduce the amount of material copied so that it is not a “substantial” amount.
Provide URL links: Simply providing a URL link to material you are referring to is not reproducing the material so there is no risk of copyright infringement.
Acknowledgment no substitute for permission: In all cases it is important to reference the material you reproduce or quote from. However, it’s important to note that merely acknowledging the creator or the source of a work is no substitute for obtaining permission from the copyright owner and no defence to a claim of copyright infringement.
If you cannot identify or find the copyright owner
Generally, the fact that you cannot identify or find a copyright owner is no defence to a claim of copyright infringement. Here are some tips for when you can’t immediately identify the copyright owner:
- For published works, contact the publisher in the first instance. Even if the publisher does not own the copyright, they can often tell you who you need to contact.
- Reach out to collective management organisations (such as CLNZ) and professional associations of creators as they’re a great source of information.
- Investigate copyright information on websites and other sources. Be aware that search engines do not own the images found when using them and the image may not have been made available online by the creator of the image. If you are seeking to publish an image you have found online, pay particular attention to correctly identifying the correct copyright owner.
- When looking to use an older works where the author is unknown, is it reasonable to assume copyright has expired or that the author died more than 50 years ago. (See Copyright Act 1994, section 67).
Sometimes when publishers and other copyright users are unable to contact a copyright owner, they make a commercial decision to go ahead and use the copyright material. They may determine that the benefits of using the work are greater than the risk of a copyright owner bringing legal action against them. Often they will include a “good faith” notice stating that they were unable to find the copyright owner but they are willing to pay the copyright owner a reasonable fee. Note, this does not give legal protection against infringement proceedings.