Little known Exception for Unpublished Works

By Chris J Holland, on 23 June 2017

I was reminded recently about an exception tucked away in the Copyright Act 1956 Section 7 which permits the making of a copy of an unpublished literary, dramatic or musical work “…with a view to publication”.You could be forgiven for supposing the 1956 Act entirely redundant but this particular measure is preserved by Schedule 1 paragraph 16 of the current Act (CDPA 1988).

The main conditions are that at the time at least 50 years have elapsed since the end of the year in which the author died and at least 100 years since the work was created.  Also the work must be kept in a “…library, museum or other institution where…it is open to public inspection.”

This could be a way around the 2039 rule, which gives extended copyright protection to unpublished works, by allowing publication in certain specific cases. Section 7(7) of the 1956 Act goes on to confirm that publication of the whole or part of the unpublished work in these circumstances is not infringing.

A significant condition is added at 7(7)b: “Immediately before the new work was published, the identity of the owner of the copyright in the old work was not known to the publisher of the new work…” So in a way the exception only applies to “orphan works” although there is no explict demand for a diligent search (or even a not so diligent search).

My enquiry related to the letters of an artist who died in 1932, satisfying the 50 years test. The letters however were from the 1920s, which is too recent. In order to fulfil the conditions of the exception the unpublished work would need to be created no later than the first half of 1917.

On the other hand there could be many older unpublished literary, dramatic and musical works held by libraries, museums etc. where publication would be covered by the exception.

 

 

TDM and copyright advocacy

By Chris J Holland, on 13 June 2017

The draft EU Directive on Copyright in the Digital Single Market is currently being scrutinised by a series of European Parliamentary committees and is open to proposed amendments which could either maximise the usefulness to the HE and research sector of the proposed copyright exceptions or alternatively render them quite unhelpful. This is the subject of a great deal of advocacy by groups supporting a more user-friendly copyright framework and those who are opposed to more generous exceptions.

In this context UCL Library Services has recently lent its support to the European Alliance for Research Excellence (EARE) which provides a platform for those advocating a more generous EU wide exception for Text and Data Mining (TDM).

The original wording of the draft Directive (Article 3) provided an exception only for the benefit of a narrowly defined class of “research organisations” run on a non-profit basis. That would create uncertainty about the position of collaborative projects of all kinds between universities and commercial organisations, including technology based start-ups.

The position of EARE is that since one has to have “legal access” to the information in order to carry out TDM under the exception then the exception should be available to anyone who has legal access not just a narrow class of research organisations.  This is an significant issue for the future of research in Europe given the importance of TDM in all areas of research.

Reading aloud

By Chris J Holland, on 9 May 2017

A recent enquiry concerned reading from various literary works at a University event. Do we need permission if the work is still in copyright? Actually there is an exception in the Copyright, Designs and Patents Act 1988 (CDPA) which is not often discussed. The exception in Section 59(1) permits the reading or recitation in public of a “reasonable extract” from a published literary and dramatic works. There are no restrictions about the context or the type of event, so it could be commercial. Similarly it is not subject to a “fair dealing” test (as are many of the more familiar exceptions in the CDPA), just the “reasonable extract” requirement:

59 Public reading or recitation

(1) The reading or recitation in public by one person of a reasonable extract from a published literary or dramatic work does not infringe any copyright in the work if it is accompanied by a sufficient acknowledgement.

(2) Copyright in a work is not infringed by the making of a sound recording, or the communication to the public, of a reading or recitation which by virtue of subsection (1) does not infringe copyright in the work, provided that the recording or communication to the public consists mainly of material in relation to which it is not necessary to rely on that subsection.”

Section 59(2) even permits the making of a sound recording and communication to the public as long as they do not consist mainly of material which depends on this exception. That is, there needs to be more substantial content to the recording or the communication  in addition to the “reasonable extracts” from protected works.

 

 

 

 

Online Copyright Act updated

By Chris J Holland, on 27 March 2017

The National Archives (TNA)  provide a user-friendly online database of  UK legislation but it sometimes takes a long time for it to be updated with changes. The good news, spotted by an eagle-eyed colleague at the University of Kent, is that the legislation.gov version of the Copyright, Designs and Patents Act 1988 has recently been updated with all the positve changes to copyright exceptions which were introduced in 2014. This is a link to the newly refreshed version of the Act. Better late than never…

Starting out: copyright training

By Hazel M Ingrey, on 14 February 2017

‘Education’ by NY

 

It can be intimidating looking into copyright for the first time and some students put it off until their thesis has already been written.  If you can face the subject head-on before you even start a project you will save time later! Here are a few courses and resources to get started with.

The British Library Business and IP Centre has some great sessions coming up in the next month: many are re-run so visit the British Library events pages to see future sessions.

A free webinar ‘Introduction to Copyright’ is a perfect easy-starter: it is just an hour and can be viewed from your home computer.

The Intellectual Property Office has designed some guidance for students and teachers, found on their IP in Education page.  The IP Tutor course is free and you can work through it in around 40 minutes.

We are sometimes asked about Patients and Trade Marks, which come under the umbrella of Intellectual Property Rights (IPR), along with copyright.  This might be a query from a student designing some software as part of their study, or from academics co-creating an app with a colleague or student.  The British Library’s ‘How can I protect a business idea’ is a free, half day workshop which outlines IPR and which rights may apply to your project or business.  This could be a good foundation for more in-depth sessions such as the Mini-Masterclass Copyright for business. I particularly like the look of this session as it covers copyright in everyday situations such as photographs, music, websites.

For more tailored training, our Copyright Support Officer often visits groups of postgraduate students to give an overview of copyright, or talk about copyright in your thesis.  Do get in touch if you would like to arrange a session for your students.

Using YouTube videos for teaching

By Chris J Holland, on 2 February 2017

I was recently asked to clarify the copyright considerations when reusing videos from YouTube for teaching. There are a number of issues to examine:

  • Anyone can upload a YouTube video, but does that person own the copyright? We can’t assume they do and we should consider this.
  • Maybe the person who posted the video does own the copyright, but have they included any other copyright protected works (music, recent artworks etc.). Does it look as though it is infringing?
  • Many YouTube videos have a Creative Commons licence attached which allows reuse in many contexts. So once we have clambered over the initial hurdle of copyright ownership, any videos with a CC licence are potentially reusable for teaching purposes as long as we adhere to the licence terms.
  • YouTube has its  own detailed terms of service which appear to restrict the user to “personal, non-commercial” use. On the face of it this clashes with the rights granted by CC licences.
  • On the other hand YouTube clearly recognises that copyright is owned by the author of the video, so perhaps we can assume that the CC licence chosen by the author  overrides the general YouTube terms of service?

What a performance!

By Chris J Holland, on 5 January 2017

Public performances of other people’s music must be licensed in order to avoid copyright infringement and also infringement of performance rights (when playing recorded music). Currently there are two separate licensing bodies in the UK who are able to assist:  PRS for Music represents the interests of composers, song writers music publishers, whereas PPL deals specifically with recorded music and represents the interests of producers and performers.

It follows that if you are organising a public performance of musical works then you are likely to require both a PRS and a PPL licence (particularly if recorded music is involved).  The good news is that it should become simpler to obtain licences for public performance of music. PRS and PPL are working together on a joint venture the aim of which is to offer a single licence. Apparently this is will be ready at some point during 2017.

 

 

Star Trek but not as we know it

By Chris J Holland, on 16 December 2016

Fans of the well known TV series may be interested to read up on a current copyright case before the Central District of California Court. Follow the link to the 1709 Blog for a full account of the case:  Paramount v. Axanar The Ars Technica Blog also covers the case here. The defendents are producing a short film which is a prequel to the Star Trek series. The work in question is intended as a mockumentary by the producers who are firm Star Trek fans. It is not they say designed to compete with anything produced by the rights owners of the original series. Axanor are also working on a longer film in a similar vein.

The plaintiffs on the other hand claim that the mockumentary infringes their copyright as an unauthorised derivative work and cannot be regarded as sufficiently “transformative” to be covered by the US doctrine of “fair use” (although the latter is much wider in scope than the more familar UK concept of “fair dealing”).  Neither can it be justified as a parody in their view.

Possible topics to be discussed include: What constitutes fan art,  how far fictional characters are protected by copyright and whether having “pointy ears” might be a protected characteristic.

EU Copyright Directive published today

By Chris J Holland, on 14 September 2016

The long awaited EU Directive on Copyright in the Digital Single Market (COM(2016) 593 final) has just been published. At this point it is just a “proposal” and will need to complete the EU legislative process. In addition, as a “Directive” it will not have immediate effect in the member states when it has become law. It needs to be implemented in each EU member state and there may be variations in the way it is eventually implemented, although the provisions are mandatory, not optional like most of the current EU copyright exceptions.  It includes some positive features offering modest improvements. The negatives will be covered in a follow-up post:

  • Text and Data Mining exception (Art.3). Currently the UK is the only EU members which has a TDM exception.
  • Education exception (Art.4) covering the use of digital material for teaching. This complements the existing exception and covers providing digital material in a secure environment such as a VLE. It covers distance learning and cross border delivery within the EU.
  • A broader Preservation exception than we currently enjoy in the UK (Art. 5) for cultural heritage organisations which looks as though it might cover collaborative and cross border preservation schemes.
  • Framework for applying Extended Collective Licensing (Art. 7) to out-of-commerce works (the UK already has this – it is a weaker solution than providing a new exception, depending as it does on the willingness of rightsholders and collective management organisations).

Perhaps the most positive aspect is that these new exceptions (being mandatory) will apply to all EU member states and will apply to cross-border activities within the EU. [Part 2 on the less positive aspects of the Directive to follow]

90 year old claims copyright in “vandalised” artwork

By Chris J Holland, on 22 August 2016

A 90 year old German woman on an organised visit for senior citizens to the Neues Museum in Nuremberg was misled by the instructions on a work of art in the form of a crossword puzzle. She followed the instructions to “insert words” using her biro. Unfortunately the Museum regarded this as vandalism and felt obliged to pursue criminal charges (for insurance related reasons). The artwork by Arthur Kopcke from the 1970s has been valued at around £68,000.

Hannelore K’s lawyer has rebutted the claims of the museum and has gone so far as to claim that by filling in the crossword Hannelore has created a separate work of art in which she can legitimately claim copyright. On that basis they are taking issue with the Museum for having Hannelore’s contribution to the work (the writing in biro)  removed and thereby destroying her own copyright-protected work.

The lawyer also claims that Hannelore K’s contribution has had the affect of increasing the value of the artwork by attracting media attention to an artist who is not very well known.

The story is reported fully in the Arstechnica Blog.