Digitising videos and the “Preservation exception”

By Chris J Holland, on 3 September 2015

This is an enquiry from one of the UCL Libraries: Would the “Preservation exception” contained in Section 42 of the Copyright, Designs and Patents Act 1988 (CDPA) cover the digitising of their extensive collection of historical videos? The videos were originally published in various countries and are not made available for loan.

The answer is that this collection is a good example of material in a superseded format which could  be digitised under the terms of the Preservation exception. The main conditions from CDPA Section 42(2) are that the “work” must be:

“(a) included in the part of the collection kept wholly or mainly for the purposes of reference on the institution’s premises,

(b) included in a part of the collection not accessible to the public, or

c) available on loan only to other libraries, archives or museums”

Despite the ambiguities we can assume that it is enough for one of the conditions to be fulfilled and archival video collections will usually tick the box.

There is a further condition that the exception only applies when it is “not reasonably practicable” to fulfill the preservation need by purchasing a digital copy – CDPA Section 42(3).

What can be done subsequently with the digitised copies is also governed by copyright law. The “Dedicated terminals” exception (CDPA Section 42) would permit the digitised videos to be made available within the Library. Following CJEU case law  (Ulmer v. Technical University of Darmstadt ) the Dedicated terminals exception might also cover the digitisation itself.


The “Share alike” Creative Commons Licence

By Chris J Holland, on 27 August 2015

In an interesting case from the USA, a photographer, Art Dragulis launched an action for copyright infringement against the Kappa Map Group because he objected to the fact that they had reproduced his photograph of a rural scene on the cover of a commercial publication. Kappa had not requested his permission to do that and naturally one would usually require the permission of the copyright holder to re-use their work.

It transpired however that Mr Dragulis had posted the photograph on Flickr in 2008. In doing so he had chosen to make the photograph available under the Creative Commons “CC-BY-SA 2.00” licence. In contrast to some CC licences which include the “NC” stipulation, the CC-BY-SA licence does permit commercial re-use of the work (in this case, the photograph).

The court held that Kappa were justified in using the photograph for the cover of their published atlas, given that they had credited Mr Dragulis as the creator of the work and also included the correct licence information. In doing so they had fulfilled the CC licence requirements.

The court also discussed the “Share alike” requirement: Under the CC scheme only “derivative works” would need to be made available on the same terms (that is free of charge) under the “SA” licence. Kappa had presenting the photograph unmodified as part of a “collection” of copyright works. The only change they had made was some minimal cropping of the photograph which did not make it a derivative work. Therefore Kappa were entitled to reproduce the photograph and also charge for their atlas.

The case illustrates the importance of being careful in your choice of licence, since the photographer could have selected an “NC” licence. There are full reports by Techdirt and the 1709 Blog.



Churchill sculptor’s victory in court

By Chris J Holland, on 3 August 2015

A Copyright dispute has been the subject of court hearings in Paris, which sheds an interesting light on French copyright law. French sculptor, Jean Cardot was incensed when Nike (together with an events company) organised a publicity stunt which involved dressing Cardot’s statute of Churchill in an oversize basketball jersey to celebrate the success of the French national team in 2011. The statue is situated on Avenue Winston Churchill in Paris.

Nike used images of the statue thus attired in the no. 9 basketball jersey for publicity purposes. For a report with pictures see the Independent. The Tribunal de Grande Instance found that Nike had infringed Cardot’s copyright and also his moral rights as the “auteur” of the statue, since he was not acknowledged as its creator. Interestingly, moral rights are perpetual in French law whereas in the UK they have they same duration as copyright.

Not satisfied with this initial result, Jean Cardot launched an appeal claiming that the damages awarded against Nike should have been higher. He was again successful at the Paris Cour d’Appel and the award was duly increased. Nike and their events company were each ordered to pay Jean Cardot 60,000 Euros for copyright infringement and 7,500 Euros for infringement of moral rights. The court took into account the commercial use which Nike had made of the pictures of the stunt and the fact that the events company had received a substantial fee for their part in organising it.

Would a similar action have succeeded in the UK? It seems unlikely. UK copyright law includes a specific exception for representations of works of art which are on permanent display in public places (Copyright, Designs and Patents Act section 62).

Going Dutch? Netherlands law on Green Open Access

By Chris J Holland, on 2 July 2015

It is interesting to read that the Netherlands Government has passed a law which obliges publishers to have a Green Open Access route available to authors of “short works of science” whose research has been even partly funded by public money. Authors now have the right to publish in an open access repository “after a reasonable time”. Presumably “short works of science” will cover articles in scholarly journal across all disciplines (“Science” in the broader European sense rather than the narrower English meaning). See for example: Kluwer Copyright Blog

The new Dutch measure is very similar to Article 38(4) of the German Copyright Act which specifies a period of 12 months before publishers are required to allow re-publication in an OA repository. Would a UK equivalent assist the Open Access publishing movement in this country or do the relevant publishers generally provide an Green OA route?

New “Format Shifting” Exception under attack

By Chris J Holland, on 23 June 2015

Music industry bodies have challenged the legality of the new Private Copying Exception (CDPA, 28B). The British Academy of Songwriters, Composers and Authors (BASCA) along with the Musicians’ Union and UK Music have been seeking judicial review of the Government’s implementation of the exception in 2014. There is no direct relevance to Libraries or HE, but it may be of interest.

The basis of the challenge is that the Government failed to introduce a compensation scheme to make good any loss to the copyright owners following from the new exception, which enables consumers to copy for their own use any recorded music or other content which they have purchased, such as ripping a CD for your smart phone. Yes, of course you were doing that anyway – The new exception legitimises common practice!

In most EU countries there are levies on recording equipment – they work like a sales tax designed to compensate copyright owners for losses resulting from private copying. Levies are found to be unwieldy and bureaucratic in those countries, but they do provide substantial revenue for copyright owners via collecting societies.

There is an argument that the EU Copyright Directive requires compensation and the levies tick that box. 

The Government’s stance is that they have kept the new exception narrow so that harm to copyright owners will be non-existent or minimal – hence no compensation required.

The judgment in the High Court by Mr Justice Green has recently been issued and is available online here . This is a partial victory for the music industry bodies. The court agreed with the claimants on one significant point: The evidence examined by the Government to decide that damage to Copyright owners would be minimal was in fact inadequate. This is enough to make the Government’s action unlawful, but leaves it various options, such as:

  • Gather more persuasive evidence
  • Introduce levies
  • Refer questions to the CJEU
  • Repeal the exception (CDPA Section 28B)
  • Appeal to a higher court

Watch this space!

Re-usable images and Europeana

By Chris J Holland, on 19 June 2015

A recent enquiry about sources for historical photographs of London which could legitimatelybe re-used for a  non-commercial project led me to look at the Europeana website. For anyone not familiar with Europeana already, this is an ambitious EU project to digitise European culture and make it available. The searchable database now contains many re-usable images, often covered by a Creative Commons Licence. 

UCL has also contributed material, notably through the Europeana Travel Project, in the form of historical images from the Library of the UCL School of Slavonic and East European Studies (SSEES).  

Another excellent website when searching for re-usable images is the University of Nottingham Xpert database.

Just sign on the dotted line…

By Chris J Holland, on 30 April 2015

Publisher contracts can vary quite a lot, but in the case of traditional book publishing it is common for the publishers to expect the copyright in the work to be assigned to them. Before you accept the agreement it is worth taking a critical look at the details. While the publisher is usually in a more powerful position, you could still try to negotiate if there are aspects which you don’t like.

An alternative would be for you to retain the copyright and grant the other publisher a licence to publish for example, which means that you have not entirely surrendered the Intellectual Property rights in the book. Even if the publisher is amenable to this suggestion, they may still insist upon an all encompassing exclusive licence and a cynic might say there is no practical difference to assigning the copyright.

If copyright is assigned, the publisher may also grant you a licence to make use of your own work in certain ways, such as reproducing extracts on your personal or institutional website. It is always worth pressing the publisher about any specific use of the work you would wish to make. Recently a UCL academic author was concerned that assigning the copyright in his work (as requested) would prevent him from translating and publishing the work in his native language (Portuguese) at a future date. The author was right to be concerned, since copyright includes the right to produce an adapted version, such as a translation. The answer: negotiate on that point with the publisher to see whether they will licence that particular right back to you.

Performing Poetry at a Public Event

By Chris J Holland, on 24 April 2015

A UCL department was planning a poetry performance to mark the WW1 centenary. The readings would be mainly of complete poems by authors of various nationalities. Where the original works were in a language other than English a translation would also be read either from a published source or translated into English by one of the team organising the event. What are the copyright issues and how should they be addressed?

Performance of copyright works is one of the activities restricted by the Copyright, Designs and Patents Act 1988 (CDPA). Faced by this question, it is important to know whether the performances are internal to UCL and will be attended solely by our students and staff. If it were purely internal then the event would be covered by a copyright exception in Section 34 of the CDPA for performances within educational establishments. Had that been the case then there would have been no need to request permission to perform the works.

As it was, members of the public would be invited to attend the event and there would be a small entry charge to cover expenses, so Section 34 did not help us. The answer then was that, in so far as the works were still in copyright, it was necessary to seek permission from each copyright owner. Translating a work into another language is also a restricted act (a form of “adaptation”). It follows that where UCL people were producing an English translation for the occasion, they would really need the copyright owner’s permission to do so. If they were reading a published translation then that performance would also require permission, since the translation would also be protected by copyright (separate from the copyright in the original)

Copyright in Goebbels’s Diaries

By Chris J Holland, on 24 April 2015

A biography of Joseph Goebbels by Peter Longerich, a prominent historian at Royal Holloway College specialising in modern German history, has stirred up a dispute about the copyright in Goebbels’s diaries, which has been widely reported on internet news sites. The original, German version of the biography was published in 2010 and the English language edition is due next month. As you might expect in a biography, Longerich quotes extensively from the diaries kept by Goebbels.

The basic copyright term in Germany is the author’s lifetime plus 70 years (as in the UK), so Goebbels’s works are in copyright until 2016. Nevertheless the publishers were surprised to be pursed for infringement of copyright in the diaries by lawyers on behalf of Goebbels’s estate. It is common knowledge that Goebbels’s immediate family died in Hitler’s bunker, so presumably the estate has been inherited by more distant relatives.

This raises an obvious moral question about family members making money from the diaries of this particular individual but it also illustrates the lengthy duration of copyright under EU legislation. In terms of UK copyright law, the diaries may be caught by the 2039 rule (which is nearly as difficult to understand as the offside rule!). If the diaries are truly an “unpublished work” then it looks as though they would indeed be in copyright for an additional 23 years in the UK.

Quoting from an unpublished PhD Thesis

By Chris J Holland, on 17 April 2015

This query received by the UCL Library involves several aspects of copyright. A researcher, Shilpa, who is planning to publish a book, has visited the Library to consult a PhD thesis. The author of the thesis (Hector) died a few years previously. Shilpa has asked about the copyright implications of reproducing some quotations from Hector’s PhD thesis in her book. A question springs to mind for those familiar with the recent changes to UK Copyright Law:

Could the use of material from the PhD thesis be covered by the new, broader Quotations exception (Section 32 of the Copyright, Designs and Patents Act 1988)? If the quotations are of modest length and meet the requirements of the Fair dealing test (which applies to Section 32 along with other copyright exceptions) then it may be that the researcher will feel confident in relying on the exception.

However, if there is any doubt about whether it is then, given especially that the book will be commercially published, Pam may decide to reduce her risk by seeking permission.

 But then whom should she approach for permission? Copyright would initially have belonged to the author. The thesis is unpublished so it is most likely that copyright remained with the author, now deceased. IP rights can be inherited like any item of property. Unless the author of the thesis made provision for the copyright in his works in a will it has probably been inherited by his family as part of his estate. The task facing Shilpa is therefore to trace Hector’s family in order to find the copyright owner and seek permission.