By Chris J Holland, on 16 December 2014
The EU Orphan Works Directive (2012/28/EU) which has recently been implemented in the UK, establishes a new exception to copyright . It permits cultural bodies such as publicly accessible libraries, educational establishments, museums and archives to digitise orphan works and make them available on their websites.
There is an application process to be used when making use of this exception. In the case of the UK, applications are made to the Intellectual Property Office (IPO). The relevant webpage appears to be still in a beta phase. Applicants must demonstrate that they have carried out a “diligent search” in their attempt to track down the copyright owner.
A database of works accepted as orphans across the EU has been set up by the Office for Harmonisation in the Internal Market (OHIM) – based in sunny Alicante. National authorities – such as the IPO – are responsible for vetting applications and supplying the information to OHIM to be added to the database. Libraries who want to clear an orphan work should first check the database.
This covers most types of work but excludes stand-alone artistic works, such as paintings and photographs. A copyright owner who comes to light subsequently may claim “fair compensation” to be agreed with the body using their work. If they are unable to agree, either party may apply to the Copyright Tribunal to decide upon the amount.
Interestingly, we may generate revenue from the digitisation of orphan works, under the Directive, as long as the money is used solely for the purpose of digitising and making available orphan works.
By Chris J Holland, on 28 November 2014
One of the significant new exceptions introduced this year enables Text and Data Mining (TDM) to be carried out on bodies of copyright material as long as it is for a “non commercial purpose” (and the sources should be acknowledged where possible.)
TDM includes a range of advanced techniques for analysing vast quantities of data in order to draw out new facts or statistical trends, or gather evidence of previously unexplored relationships (for example between chemical substances and medical conditions). The potential uses of TDM are very wide ranging and may occur in all disciplines.
The new exception makes the application of TDM to copyright works possible by removing the copying of material (which is an essential part of the TDM process) from the realms of infringing activity.
A Jisc report on the value and benefits of text mining from 2012 mentions that at that time TDM activities in higher education were mainly focussed on Open Access materials because the latter were more readily available. Since the new TDM exception was introduced in June 2014, the content of a vast number of e-journals to which universities such as UCL subscribe should also be available for TDM. This results from the fact that under the legislation, the terms of our contracts with the publishers of those journals cannot over-ride the TDM Exception:
“To the extent that a term of a contract purports to prevent or restrict the making of a copy which, by virtue of this section, would not infringe copyright, that term is unenforceable”, Copyright, Designs and Patents Act 1988, Section 29A(5).
This means that any terms in suppliers’ contracts which sought to restrict advanced computer analysis of their repertoire will no longer have any weight, at least where non commercial research is concerned.
By Chris J Holland, on 17 November 2014
Libraries are given greater flexibility by one of the less obvious changes made to the Copyright legislation earlier this year. This concerns requests for a copy of a periodical article from one library to another and is governed by Section 41 of the Act. Many of the updated exceptions include a clause stating that they cannot be over-ruled by the terms of a contract, which tends to reverse the situation prior to the 2014 changes. Section 41 of the Act includes such a clause:
“41(5) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.”
It follows from this that a library may now supply a single copy of a periodical article from a given issue of an “e-periodical”, just as they may supply a copy from the print publication. The terms of the contract under which the e-periodical is supplied may formerly have prevented this, but it seems they can no longer prevail over the exception.
Naturally the libraries concerned need to be sure that they are complying with the legislation, for example the library fulfilling the request must have legitimate access to the e-periodical and must not supply more than one article from a single issue. It is important to note that this “library to library” exception does not permit the supply of copies from books unless it is practically impossible to contact the copyright owner in order to seek permission.
By Chris J Holland, on 7 November 2014
Now that both the IPO’s licensing scheme and the EU Orphan Works Directive are available, it will be interesting to see how user-friendly they really are. If you have any UCL projects in mind where we could test the licensing procedure with a limited number of orphan works, please do let me know.
We will be eager to see examples of successful use of the new licences but currently there are no applications to view on the IPO Register of Orphan Works. There is a lot of background information on the IPO website. The Orphan Works Licensing Scheme Overview for Applicants includes details of charges and full Terms and Conditions of the Licence. A big unknown is what the IPO will accept as a “diligent search” for the copyright owner in specific cases, although there is plenty of information on sources for a diligent search on the IPO website.
The admin charges start at £20 for one item but rises only to £80 for 30 items, that being the maximum which can be included in a single application. For non-commercial uses the licence fee itself is 10p per item. For this purpose the IPO uses a definition of non commercial which excludes charging to recover costs (see paragraphs 35 to 37 of the “Overview” linked above).
Licences last for seven years with the potential for renewal. Licences cannot be longer term because of the possibility of a copyright owner emerging after the grant of licence. In that eventuality the licence would run its term but would not be renewable. The IPO is in effect indemnifying us, the licensee, against action by the copyright owner, as long as we have given them accurate information.
By Chris J Holland, on 3 November 2014
Did you know that a broad swathe of historically important unpublished works is in copyright until 2039? A campaign has been launched by CILIP, the Libraries and Archives Copyright Alliance (LACA) and others to persuade the UK Government to press ahead with a small but significant change to the copyright term for unpublished works.
Once the copyright term for these work is reduced to the standard (and more reasonable) author’s lifetime plus 70 years, then museums, libraries and archives will have greater freedom to display and reproduce the unpublished works they hold. The more historical items will come out of copyright immediately. (See the previous blog post of 21 August 2014 for more background).
UCL Library supports the Free our History Campaign and would encourage colleagues in the cultural and educational sector to add their voices. There is a petition to sign on the CILIP web pages Libraries and museums can also participate by displaying a “blank page” in place of a significant unpublished work they would like to exhibit but are prevented from doing so by the current copyright term for these works.
By Chris J Holland, on 31 October 2014
Yesterday the Intellectual Property Office launched two initiatives to assist with Orphan Works. “Orphans Works” are copyright works, often held in collections of libraries, archives and museums, where the owners of the copyright either cannot be identified or if identified cannot be located. This makes reuse of those works very problematic, since requesting permission is impossible.
The IPO Licensing Scheme enables anyone to apply for a licence to use works commercially and non-commercially. We must confirm that we have carried out a “diligent search” in relation to each work we want to use. The licence fee per item for non-commercial uses is set at 10p per item. There is also an admin fee to cover the IPO’s costs, which is a minimum of £20 for one item, rising to £80 for a maximum of 30 items. The guidance from the IPO is helpful and there is further information on Diligent Search. Licences last for seven years and are renewable, but the limited timescale may create practical difficulties.
There is also the EU Orphan Works Directive, administered by the EU’s Office for Harmonization in the Internal Market which comes into force at the same time. This is more limited in scope, permitting “relevant bodies” such as publicly accessible libraries, educational establishments, museums and archives to digitise orphan works and make them available on their web sites. The scheme covers most types of work but excludes stand-alone artistic works, such as paintings and photographs. The IPO is offering a (beta stage) eligibility check.
These initiatives are potentially very relevant for UCL but we need to look closely at the details to determine how useful they will be.
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.