By Chris J Holland, on 16 October 2014
The new copyright exception for Caricature, parody and pastiche came into force on 1st October 2014. The core provision is:
“Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work”
This is drawn directly from Article 5 of the EU Copyright Directive and some member states have been benefitting from the parody exception for some time. The recent Deckmyn case , was a reference from a Belgian court to the Court of Justice of the European Union. The case arises from the use made by members of a Flemish nationalist political party of an adapted version of the cover of a well known comic book in order to make a political point about the Mayor of Ghent.
The adapted version was distributed in the form of a calendar. The heirs of the creator of the original “Suske en Wiske” comic books claimed infringement of their copyright. Those distributing the calendar with the “parody” version claimed that their use of the work was covered by the exception for caricature, parody and pastiche.
The Belgian court referred a number of questions about the meaning of “Parody” in the context of the EU Copyright Directive to the CJEU. In response the Court makes various points about parody, including: “…the essential characteristics of parody, are, first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery…”
One interesting aspect of Parody exception is the potential clash with the author’s moral right to be protected from derogatory treatment of their work, although the Court was not asked to address this question. One person’s parody could be another person’s derogatory treatment.
By Chris J Holland, on 19 September 2014
The Court of Justice of the European Union gave its judgment in the case of the Technical University of Darmstadt and Eugen Ulmer on 11th September 2014. The case concerns the exception in the EU Copyright Directive which allows copyright works to be made available on “dedicated terminals” by libraries. This is topical in the UK because the dedicated terminals exception (DTE) was introduced as Section 40B of the Copyright, Patents and Designs Act 1988 in June.
The publisher Eugen Ulmer KG is taking legal action against the University, which has chosen to make use of the DTE in order to digitise and make available a recent history textbook published by Ulmer. In various respects this is a test case. The Court has answered the questions raised by the German court in a way which is similar to the view of the Advocate General’s Opinion (Blog post 2nd September 2014):
- The fact that the publisher has offered a licence for the e-book version of the work does not mean that the University is subject to purchase or licensing terms, which would prevent it making the book available.
- Member states may allow libraries to digitise works in order to make them available via dedicated terminals.
- The DTE does not permit copying of the work by library users either in terms of printing or digital copies. It is simply an exception to the restriction on Communicating to the Public. However other exceptions may allow copying as long as the relevant conditions are met.
The case brings out interesting differences between UK and German copyright legislation, such as the condition under the German version of the DTE that the number of digital “copies” made available cannot exceed the number of paper copies purchased. There is also an emphasis of the concept of “adequate remuneration” for rights owners in the judgment – presumably provided via the German system of levies on copying equipment, which has no equivalent in the UK. At the moment we cannot be sure of the relevance the CJEU judgment has for UK libraries.
By Chris J Holland, on 19 September 2014
The Intellectual Property Office (IPO) has just published its Guidance and Checklists tackling the question, what does a diligent search look like? This is in preparation for new Regulations introducing an Orphan Works Licensing Scheme to be run by the IPO, due to be introduced on 29th October 2014.
The new scheme will enable people to apply for a licence to use an Orphan Work for a specific purpose, which may be commercial, such as an advertising campaign or completely non commercial. The IPO has previously undertaken to have variable pricing depending on the exact use being made of the work. This should make the scheme affordable for non commercial projects. In principle any type of copyright work in any medium could be included
On the face of it, the IPO takes any legal risk from newly emerging rights owners on its own shoulders when it issues a licence. Quite understandably the IPO want to be sure that efforts to locate copyright owners have been sufficiently exhaustive. Hence the new Guidelines set out in detail the kind of checks which would be appropriate for Films and Sound, Literary Works and Visual Art. The information in the new Guidance is very useful, but when it comes down to it, each Orphan Work which we might want to use will be slightly different, so it is difficult to generalise about requirements.
The IPO’s response to real life examples of requests for reuse will be the proof of the pudding and it will be interesting to see how much flexibility will be exercise with respect to what is already known about the work and the range of sources which it is reasonable to investigate. In any case the new scheme should be welcomed as a real step forward in addressing the problems posed by Orphan Works.
By Chris J Holland, on 12 September 2014
Regulations permitting Extended Collective Licensing (ECL) are set to become law on 1st October. ECL is seen as a solution to the problem of gaining copyright permission for mass digitization projects, through which, for example, a library hopes to digitise a significant collection in order to make it more readily available via a web site. A proportion of the collection is known to be still in copyright and the process of item by item rights clearance can be prohibitively expensive and time consuming. Rights owners are sometimes unresponsive.
The ECL solution enables collecting societies (such as the Copyright Licensing Agency) to apply to the Government to run an ECL scheme which enables them to licence the use of works, the copyright in which belongs to non members of the collecting society. The collecting society must have a well established presence in licensing the relevant type of copyright material in order to qualify.
The scheme, if approved, will enable the library to pay a licence fee to cover its digitisation of a large number of works. The rights owners affected would be able to benefit from fees distributed by the collecting society (just as the members benefit currently). They would also be able to take their works out of the scheme if they objected.
The licences which can be applied for under scheme seem to be of limited duration, which is likely to be problematic for libraries investing in large scale digitisation. It remains to be seen, also, how promptly collecting societies will come forward to take advantage of the new arrangements.
By Chris J Holland, on 2 September 2014
Among the changes introduced on 1st June 2014 was the Exception permitting libraries and archives to make digitised versions of published works available to the public via dedicated terminals. This has been viewed by the Intellectual Property Office as a practical means of making older, fragile material available.
In German higher education the equivalent exception seems to be given a much wider interpretation and this is being tested by a case before the Court of Justice of the European Union (C117/13).
The Technical University of Darmstadt has chosen to use the exception, which has been available in German law for some time, to justify digitising the full text of recently published text books in order to make them available on dedicated terminals.
This has been challenged by a publisher, Eugen Ulmer, using a specific work as a test case. The German Federal Court has referred a number of questions to the Court of Justice of the European Union (CJEU).
The Advocate General in his Opinion (which is preliminary and not always followed by the Court) has stated:
- The University may digitise the work in order to make it available.
- The publisher’s offer of a licence to use an e-book version makes no difference.
- The exception does not include permission for users to copy the work, although that may follow from other exceptions – probably not stretching to digital copies.
The Court’s judgment is due on 11th September and should prove very interesting as the interpretation of this exception seems so different to that assumed in the UK.
By Chris J Holland, on 21 August 2014
Unpublished works pose particular problems, especially for archives. A quirk of copyright law means that many of these works, including some very old documents are in copyright until 2039.
Before the Copyright, Designs and Patents Act 1988 came into force on 1st August 1989 the situation was even more restrictive. Some unpublished works enjoyed perpetual copyright. The CDPA redefined the duration of copyright for those works to 50 years after the new Act came into force, in other words the end of 2039.
Among the works affected are previously unpublished works of known authorship created before 1st August 1989, (except pre June 1957 photographs), in all cases where the author died before 1969. The letters of a prominent scientist, written prior to 1989 and never published would be in copyright until 2039.
It follows that if we wish to reproduce any of those letters, we need permission from the copyright holder, who could for example be a descendant of the author. This situation affects the use of extensive material held by the National Archives and similarly restrictive rules apply to some unpublished material which is Crown Copyright.
Could there be change on the horizon? The Government has given itself powers via the Enterprise and Regulatory Reform Act 2013 to amend this particular quirk of copyright duration. The result will be that some unpublished copyright works will move into the public domain while others will have a shorter term. We await the Statutory Instruments needed to implement the changes.
By Chris J Holland, on 12 August 2014
One of the less obvious changes in the copyright exceptions introduced in June is the exception in Section 41 of the CDPA 1988 which enables us to supply another library (any library which is not conducted for profit) upon request with part or the whole of a published work, without infringing copyright.
The main condition is that the librarian does not know and could not reasonably find out the name and address of the person able to give copyright permission.
Of course this condition would rule out supplying a copy of most recently published works under this exception, as there would be little difficulty in finding out whom to contact for permission.
However journal articles are treated as a special case by Section 41 and are not subject to that condition. If we receive a request from another library for a copy of one article from a journal then we are able to supply that copy without applying that test or requesting permission from the publisher. We may choose to charge for this service or not, but if we do the amount must be calculated by reference to the costs incurred in making the copy.
When you add to this the fact that Section 41 covers copyright works in any format then it follows that we could supply a single article from an e-journal which we subscribe to. As with many of the new exceptions, this cannot be over-ridden by the terms of our licence with the supplier so we would not need to refer to the licence before providing a copy.
By Chris J Holland, on 7 August 2014
The story of the copyright disagreement between the wildlife photographer and Wikipedia about the famous “monkey selfie”( See here for the BBC’s coverage ) sheds an interesting light on the minimum requirements for copyright to subsist in a photograph under EU law.
This was discussed in the recent case before the European Court of Justice of Painer v. Standard Verlags GmbH (C-145/10). The photograph must be “…an intellectual creation of the author reflecting his/her personality and expressing his/her free and creative choices in the production of that photograph”.
Perhaps one could argue that leaving the camera where the macaque could get its hands on it demonstrates a “free and creative choice”, but on the face of it the photographer’s case that he can claim copyright does not seem that strong.
There is another way of looking at it: if the photographer had taken the photographs himself, then he could certainly claim copyright and would not suffer any loss of income from the reuse of the photographs. On the other hand, the value of the increased publicity for his work which has come about because of the role played by the macaque could be priceless.
By Chris J Holland, on 1 August 2014
Once in a while a group of UCL students and/ or staff suggests starting a film club. Films could be shown on the premises, free of charge to people who choose to join the club, perhaps films with a departmental interest or popular feature films.
Great idea, but first there are the copyright and licensing hurdles. Among the acts restricted by copyright is the performance of works, including film, without permission of the copyright owners.
There is an exception for showing film for “the purposes of instruction” in Section 34 of the Copyright, Designs and Patents Act 1988. This would not cover showing a film for entertainment or any other purpose outside the teaching context. It is clear that a film club would not be covered.
There is a licensing solution, the Public Video Screening Licence (PVSL) from Filmbank . As cost is based on numbers of people “with access to the licensed premises”, it would not be practical to obtain a UCL wide licence, but individual departments could and sometimes do apply. Filmbank can also licence one-off showings. You may also need a licence from PRS to cover playing the musical soundtracks.
The repertoire licensed by Filmbank covers a range of major film studios, listed on their web site. Many well known feature films would be covered. If your interests are more specialised Filmbank may not be very relevant. If the films are outside the repertoire you will be infringing copyright even armed with your Filmbank licence. It may come down to seeking permission for each film.
By Chris J Holland, on 16 July 2014
Having blogged about the fair dealing exception for copying for the purposes of instruction (updated Section 32 of the Copyright, Designs and Patents Act 1988), it may seem confusing to introduce yet another exception for “Copying of extracts by educational establishments”, but there it is, the revised CDPA, Section 36. The distinctive features are:
- No fair dealing test, defined limits instead, namely a maximum of 5% of a given work in any 12 months period for each institution.
- Must be for instruction “for a non-commercial purpose”
- Can only be used when there is no licence available to cover our use of the work in question.
- We are explicitly permitted to upload the extracts onto a VLE (such as Moodle) by this exception, including remote access for UCL students not on the premises.
- Covers any copyright work apart from broadcasts and stand-alone artistic works (such as photographs and paintings)
- Offers an opening to use a work which is not covered by a licence. Examples would be a book which is excluded from the CLA licence by the publisher or an extract from any film, since there is currently no blanket licence available which would cover that usage.
This is an exception to be used with caution. In particular there may be difficulties in monitoring the limitation of 5% of a work in any 12 month period. In specific circumstances however it could prove very useful. Extracts would be best added to an online reading list, using the Library’s Course readings service.