Step Two: know the product and its contents
The clearance specification tells you what rights you need to clear. Knowing the product and its contents tells you what content you need to clear. Combine the standard rights with the contents and you know what you have to clear and to what level.
Here’s a useful checklist to help you capture all the information you need when talking to authors and production staff: Rights Check List
Using the rights checklist along with the text below will provide the information you need in order to understand the nature of the project, identify contents that may have copyright or rights implications, and arrive at an action plan.
1. What are the contents of the project?
Break these down into categories such as text, still images, moving images, music, performances.
Analyse each item identified in this way.
In order to do this you will need full details of the work, as follows:
| Published work | Identify the title of the work and edition, and author and publisher and date of publication. This information is easily obtained from the title verso page of the publication.Alternatively, if the publication is from an online source, identify the URLs (web addresses) of both the home page and the page containing the content. The home page will usually give copyright notices. |
| Recorded music | Identify the title of the album and track, date of recording, the performer(s) and the recording company as well as the authors of the lyrics and music. These are usually obtained from the inlay card or record label. |
| Film (including television programmes) | Identify the date of broadcast, the date of recording, the title of the programme, the production company, and the broadcaster. |
| Still images: | Identify the title of the image, the photographer, and any agency credited in the caption or on the print. |
Use this information to identify the most likely copyright owner and licenser of rights. Rights are often licensed by publishers and agencies rather than by the author and copyright holder directly.
The information you have identified will be essential in completing any necessary rights clearance. But before you engage in clearing rights, answer questions 2, 3 and 4.
2. Are the works in copyright?
Use information about the date of recording, date of performance and death of the author to identify out-of-copyright works. These may be used freely unless you are accessing them under licence from an agency, in which case the terms of the licence will apply.
3. How are the works being used?
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Identify whether your use includes any of the restricted acts. In order to do this, identify the short and medium time uses for which the production is being made.
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Is the production for educational use only, or will it be exploited commercially as well?
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What is the audience? Is it restricted to students of your institution or made available more widely?
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In which medium or media will the production be distributed? For example, in printed hard copy, on DVD, on a restricted website, on an open website?
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How many copies will be made?
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How many users?
This information will form the basis of the licence you agree with rights holders.
4. Does use fall under any of the permitted acts?
The permitted acts are all about context, so it’s important to know about and fully understand the context in which the work will be used. For example, is a film extract to be used within a context of critical analysis? If so, it may be usable under the concept of ‘criticism or review’ – see Permitted Acts.
Even if the context does not amount to a permitted act, many rights holders will ask to know about the context in which you are making use of their work before agreeing to a licence.
Ask about the context and, if it seems possible for it to constitute ‘fair dealing’, ask to see the script.
5. Clearance and costing advice.
The information gained in points 1–3 will allow you to offer advice on the availability of content, the possible cost of clearance and on exceptions such as criticism or review. It will also identify those items that require clearance and those you may use without clearance. Finally, it will form the basis of your negotiation with rights holders and the licences you agree with them.