Upcoming Briefing on Copyright Developments

By Chris J Holland, on 2 March 2015

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There is a forthcoming event which should be of great interest to information professional with responsibility for copyright issues. CILIP, the Chartered Institute of Library and Information Professionals is running an Executive Briefing covering the “Latest developments in Copyright: Legislation and Licensing” on Wednesday 1st April. 

Last year’s event, which focussed especially on the new and updated exceptions to copyright was invaluable for those of us needing to understand the changes to the Copyright, Designs and Patents Act 1988.

This year the keynote speaker is Dr Ros Lynch, Director, Copyright Enforcement at the UK Intellectual Property Office. Will Dr Lynch talk about the Government’s strange decision not to implement the planned changes to the anachronistic 2039 copyright term which catches a vast number of older unpublished works (see previous blog posts)? We shall see!

The other speakers are all members of the Libraries and Archives Copyright Alliance (LACA), representing between them a wealth of knowledge and experience of copyright matters.

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Freedom of Information

By Chris J Holland, on 25 February 2015

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The Freedom of Information Act 2000 was passed with the intention of making public authorities in the UK more accountable and transparent. It creates a general right of access for individual citizens to information held by public bodies. This is the piece of legislation which Tony Blair famously regretted – according to his published memoirs. The duty to provide information is very wide ranging but does have a list of exemptions, especially in relation to personal information on living individuals. UCL comes within the scope of the Act, so we have a duty to answer FOI requests appropriately.

Just this week a copyright question came along which also includes aspects of FOI and that led me to discover the existence of UCL’s excellent FOI service and to contact Alex Daybank of Legal Services, who is responsible for addressing Data Protection and FOI questions.    If you are within UCL and you have any questions about FOI please feel free to contact Alex via the dedicated FOI email address: foirequests@ucl.a.c.uk

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Change in the Law on Artistic Works and Industrial Design

By Chris J Holland, on 23 February 2015

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The UK Intellectual Property Office (IPO) has recently completed a consultation on a very specific aspect of Copyright Law. The plan is to repeal Section 52 of the Copyright, Designs and Patents Act 1988 (CDPA), which currently functions as an exception. The usual term of copyright for an artistic work is the creator’s lifetime plus 70 years, but by virtue of Section 52, where an artistic work is exploited as an industrial design, the duration of copyright in the original work is 25 years from the first marketing of the product. The product consisting of copies of the original artistic work produced by an industrial process. Under current legislation the artistic work which has functioned as an industrial design in this way can thus be freely copied by others when 25 years has elapsed.

The current exception applies to both 2 dimensional and 3 dimensional works. It could cover furniture, wallpaper, fabrics and jewellery for example, where the design comes from an original artistic work which has been copied.

With the removal of the Section 52 exception, the original artistic work will enjoy the much longer copyright term applicable to artistic works in general. The main motive for the change seems to be to bring the UK into line with EU copyright law, where there is no equivalent exception.

The IPO has just published its proposal for dealing with Transitional Arrangements . The repeal will take effect on 6th April 2020, in order to give businesses relying upon the reproduction of original designs time to adjust. The overall effect is that many “works of artistic craftsmanship” which had already gone out of copyright will be protected once more, creating issues for among others, makers of reproduction furniture and publishers of books containing designs which will come back into copyright.

The IPO acknowledges that the most significant issue will be exactly which works qualify as “works of artistic craftsmanship” and therefore qualify for the full period of protection, something which is likely to be settled by the courts.

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British Library Broadcast News Service

By Chris J Holland, on 13 February 2015

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Guest blog post from:  Elizabeth Lawes, Subject Librarian: Fine Art, History of Art & Film Studies, UCL Library Services.

For Art and Film Studies students, newspapers are an excellent source of exhibition and film reviews, interviews, obituaries etc. Alongside this wealth of text based resources, I am often asked the best place to find recent multimedia material. On a fact finding mission to find out about News and multimedia resources at the BL, I attended a workshop on the Television and Broadcast News Service , now available in the recently established St Pancras Newsroom.

The British Library has been collecting printed news since 1869 but, with many publications developing significant online content, has branched out into archiving .uk websites as part of the Legal Deposit UK Web Archive. This archive includes many news based sites and can be accessed on computers in the BL Reading Room (the smaller Open UK Web Archive is a collection of selected websites archived since 2003 with permissions to make freely available online). In addition to the web archives, in 2010 the BL started recording television and radio news broadcasts from channels free to air in the UK; to date, approximately 50,000 news programmes have been recorded from 22 channels and, currently, 60 hours of television and 22 hours of radio are being recorded every day. Channels include BBC, ITV, Channel 4, Al-Jazeera English, France 24, CNN, and Sky News. Often, programmes are available within hours, or even minutes, of broadcast. At least two channels are recorded 24/7, allowing the tracking of breaking news. During significant news events (e.g. the death of Osama Bin Laden), every channel is blanket recorded on a 24 hour basis.

Copyright restrictions mean that the searchable archive can only be accessed onsite at the British Library via the Broadcast News Service, but details of the content can be accessed via the BL’s main catalogue. Following recent updates to the CLA licence, multimedia materials are subject to the same controls as printed materials; it is entirely feasible that the BL will soon be dealing with requests from researchers for extracts of up to 5% of a news broadcast for use in their research. They have yet to devise a practical way to comply.

 

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New CILIP Copyright Poster for Libraries

By Chris J Holland, on 9 February 2015

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A new poster designed to inform library users about copyright has been published on the CILIP* website. The poster has been created by the Library and Archives Copyright Alliance (LACA). The aim is to provide updated guidance which takes account of the changes to the Copyright Exceptions which were implemented by the Government during 2014. The Copyright Exceptions have become much more favourable for library users, but the task of explaining the exceptions has also become more complicated. The new CILIP poster is to be welcomed because it does provide a clear, succinct explanation and I would encourage libraries to print it out and display it by their copying equipment. The poster’s CC-BY-SA licence permits you to do that!

Displaying the appropriate copyright guidance is important for libraries of all kinds. If like UCL you benefit from the Copyright Licensing Agency HE licence, then you are obliged to display the CLA poster near your photocopiers/ scanners. But the CLA does not license ad hoc copying by students (or other members of the public) – it is designed to licence copying and scanning of teaching materials for course packs. It follows that you should display some additional guidance near your copying machines – relevant to the main use made of those machines – and the CILIP poster does fill that gap.

It is important that we should draw the attention of our library users to copyright law and the available exceptions because they need to know but also because, as librarians, we need to demonstrate that we are encouraging responsible use of copyright materials.

*Chartered Institute of Library and Information Professionals

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“Free our History” Campaign: Sad News

By Chris J Holland, on 30 January 2015

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You may remember the libraries and archives campaign (supported by the UCL Library) to persuade the UK Government to reform the arcane rules which mean that a very large number of unpublished historical documents remain in copyright until 2039. The Government launched a consultation exercise on 31st October last year to gather views on its proposal to change this aspect of copyright legislation. See previous blog posts on 21st August 2014 and 3rd November 2014. More information on the issues is available in a Briefing from the Libraries and Archives Copyright Alliance (LACA)

The 2039 rule causes many issues for cultural institutions wishing to improve access to historically interesting material. It also swells the ranks of Orphan Works (works in copyright whose rights owners cannot be identified or located) and also keeps  UK copyright law out of step with the rest of the EU.  The response from the cultural sector, including libraries and archives was very eloquent and persuasive in its arguments for the Government’s reform proposal.

Unfortunately, not persuasive enough for the Government, which has decided not to make the necessary changes at this time, see the Government Response to the Consultation. It was thought that the problems posed by removing the ownership of copyright from those who would otherwise continue to own rights in the material until 2039 were too great.

The Government was concerned that it would face challenges under Human Rights legislation for removing property from its owners. To be fair, they have not ruled out change in the future, it is rather the case that they cannot find an acceptable way of achieving the legislative changes at the moment.

Part of the problem is of course that for a large part of the “2039 material”, although it is in copyright, the ownership is far from clear, so the owners are unlikely to draw any benefit from their intellectual property and in that sense would not be losing out. However, some of those rights owners who are aware that they own “2039 material” argued strongly against the Government’s proposals.

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Pirate Party MEP nails her colours to the mast

By Chris J Holland, on 30 January 2015

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Julia Reda, MEP for the German Piratenpartei, has just published the first draft of her report on copyright reform commissioned by the European Parliament. You can also read Ms Reda’s blog, here . The measures recommended in the report are very favourable to users of copyright material, including the reduction of the standard copyright term to the author’s lifetime plus 50 years (the minimum requirement of the Berne Convention). Among other measures the Report also recommends:

Extending the Text and Data Mining exception to cover TDM for any purpose (including commercial); Creating a new exception permitting libraries to lend e-books, “…irrespective of the place of access”

The report also favours a new piece of EU legislation replacing the Copyright Directive, which would apply immediately across the EU without requiring national implementation (it would need to be a “Regulation” as opposed to the current Copyright Directive).

It would follow that the various exceptions included in the new legislation would be mandatory in all member states. The current list of exceptions in Article 5 of the Directive resembles a smorgasbord where the member states can select the exceptions of their choice while leaving others on the table. The current situation creates complexity and uncertainty around cross border access to copyright material within the EU. It will be interesting to see how Julia Reda’s report is received by the European Parliament and other EU bodies.

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Hyperlinks and “a new public”

By Chris J Holland, on 23 January 2015

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What are the copyright implications of  hyperlinking to a piece of content (perhaps a film or a photograph) which is already freely available on the internet?

The Court of Justice of the European Union (CJEU) came up with an interesting decision last year in the case of Svensson v. Retriever Sverige AB , a reference from a Swedish court. A number of journalists objected to Retriever (a site which aggregates news stories) hyperlinking to their work published on accessible newspaper sites.

By hyperlinking is one communicating the original work to the public? “Communication to the public” is one of the acts restricted by copyright ( Article 3(1) of the EU Copyright Directive, 2001/29/EC).

The CJEU took the view that Retriever was not making the work available to a new public and so this did not constitute “communication to the public” and was therefore not infringing the authors’ copyright. People following the hyperlinks to read the articles could also have accessed them on the newspaper sites and were therefore not “a new public”.

A more recent decision from the CJEU from October 2014 (but not available in English yet), BestWater International GmbH v. Mebes and Potsch (C 348/13) reinforces the view taken by the CJEU in the Svensson case. This time the content was a promotional video originally uploaded on BestWater’s own site then (without their knowledge) on YouTube. The other parties then linked to the video on YouTube from their own sites. The CJEU once again used the “new public” reasoning to conclude that the linking did not constitute “communication to the public”.

The new judgment seems to reinforce the view that using hyperlinks to freely accessible content does not give rise to copyright issues. Protected content would of course be a different matter.

 

 

 

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A Couple of things to watch out for in 2015

By Chris J Holland, on 9 January 2015

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The EU initiative to review and update Copyright is still ongoing (although you could be forgiven for forgetting about it) and no doubt there will be proposals in 2015, following the previous consultation exercise. Apparently copyright features high up the agenda of Commissioner Oettinger . So there could be further changes to copyright legislation, following on the heels of the UK Government’s updating of the exceptions to copyright in 2014. The EU is committed to increased harmonisation of copyright in its member countries.

UK Music and various other bodies representing the music industry have launched a legal challenge to the Government’s implementation of an exception for Private Copying. The new exception permits you to format shift, for example by copying a music CD you have bought to use on your mobile device (essentially legalising what people were doing anyway). This is the new Section 28B of the Copyright, Designs and Patents Act 1988 (CDPA), “Personal copies for private use”.

The basis for the challenge is that although the EU Copyright Directive allows  member states to implement just such an exception, it also includes a requirement for “fair compensation” for the relevant copyright owners and in the UK there is no mechanism to deliver that. Watch this space!

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Orphan Works and Alicante – Spot the Connection

By Chris J Holland, on 16 December 2014

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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.

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