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.
By Hazel M Ingrey, on 8 July 2014
Whilst Chris is unpacking the new amendments to the CDPA to explain how it will affect UCL teaching and learning, we have also been looking at the other side of the coin: resources which can be used in teaching. Below are two resources that can be linked to for educational purposes, without infringing copyright. Neither are copyright-free or in the public domain, however they allow specific usage that can be fantastically useful in teaching.
BoB National: Box of Broadcasts
Teaching staff were very enthusiastic about this during a successful trial, and UCL has now taken a subscription. BoB gives access to 60+ TV and radio channels. You can request programmes you have missed, ‘record’ upcoming programmes and create clips. These are saved to BoB indefinitely, for all BoB users to view.
To log in select ‘UCL’ from the institutions list, and use your usual UCL ID and password. There are video tutorials or you can just start browsing.
- You can: view, share, and create clips.
- You cannot: view from outside the UK. Download or store on your computer.
British Pathe Archive
This newly available resource is open access; that is, it is available online to view for free. British Pathe has had its entire collection digitised under a National Lottery grant and this is now available via their YouTube channel.
This archive makes available film clips from significant global historical events, including first and second World Wars, the Hiroshima bombing, Suffragette action and footage of the Titanic. There is footage of the first mobile phone (1922) and features on travel, fashion and celebrities.
- You can: view and share the film clips (e.g. using the Twitter / Facebook etc. ‘share’ buttons).
- You cannot: play in the classroom, or download and store. Pathe advertisements are included.
Open access resources are especially useful for teaching on open online courses (such as UCL eXtend, or CPD courses), where students are not registered at UCL and therefore unable to access UCL-subscribed resources. Do make sure the links are stable for your students, and perhaps consider using ReadingLists@UCL to keep links to your teaching resources in one place.
By Chris J Holland, on 7 July 2014
The Fair Dealing test has been mentioned before in this blog. The majority of the recently updated exceptions to copyright rely upon this test and so it is in the spot light, although it was already an established concept in UK Copyright law.
In contrast to the concept of “fair use” in US copyright law, which can be applied generally, “fair dealing” in UK copyright law is only relevant in the context of the statutory exceptions. It is a test of whether we are applying the exception correctly and therefore of whether we can rely upon it for protection.
The UK Intellectual Property Office say: “There is no statutory definition of fair dealing – it will always be a matter of fact, degree and impression in each case. The question to be asked is: how would a fair-minded and honest person have dealt with the work?”* Therefore it will always depend upon the context, but two key questions will generally apply:
- Could we be damaging the copyright owner’s interests by our use of their work? For example by producing something in direct competition?
- Are we using more of their work than is really necessary in the particular circumstances.
By way of example, copying an extract for the purposes of setting an examination may be fair dealing whereas reproducing the same material in a published work under the Quotation exception (which applies from 1st October)might not be fair dealing.
*IPO (2014),Exceptions to Copyright: Guidance for creators and copyright owners
By Chris J Holland, on 3 July 2014
The examination exception is part of the exception for purposes of “illustration for instruction” (CDPA 1988 Section 32). The new Section 32 is very good news but in relation to examinations it is more restrictive. The old exception permitting copying for setting or completing an examination was unrestricted. Now the fair dealing test applies to the whole section including copying for examinations. What does this mean? In the examination context it is unlikely that we would be damaging the economic interests of the rights owner. The main thing to bear in mind is that in setting examinations we should not include more of the work than is strictly necessary and it should be acknowledged where possible. A positive aspect is that the exception now covers all media, such as an extract of recorded music or of a film.
The examination exception covers 3rd party material included in a PhD thesis. The student should be aware that in including 3rd party material they need to apply the fair dealing test, key questions being:
- Am I using more of the work than is really necessary for the purpose?
- Could I be damaging the interests of the copyright owner by reproducing their work in this way?
Remember that the examination exception does not cover subsequent publication of your thesis in UCL Discovery or reusing the same content in a journal article. You will need to consider applying for permission or publishing a redacted version