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 Moodle via a UCL Reading List
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
By Chris J Holland, on 23 June 2014
Among the updated exceptions to copyright introduced this month there are two which are specific to education and which I will cover in separate blog posts. Firstly there is the exception “…for the sole purpose of illustration for instruction”. This is in the amended Section 32 of the Copyright, Designs and Patents Act 1988. It is a “fair dealing” exception and is available to those receiving and giving instruction.
Now expanded to cover any method of copying and copyright works in any medium, this exception has been transformed into something useful, but care is required about what is and is not covered. Examples that would be covered:
- A modest extract from a film in a presentation to students, as long as the extract is copied from a legal source and the other criteria are fulfilled.
- Distributing copies of an extract from a book to students for use in a seminar.
What would not be covered:
- Anything which is not “fair dealing” such as an unreasonably long extract or a replacement for purchasing copies of a text book.
- Anything done for a commercial purpose, such as a charged CPD course.
- Long-term storage of the extracts, beyond the immediate teaching context.
The exception will permit usage of material not already covered by a licence. In some cases there may be a choice between the exception and copying under a licence. There is a good case for preferring the licensed route to minimise risk.
A post on copying for examinations will follow.
By Chris J Holland, on 9 June 2014
These exceptions were delayed for further scrutiny and hence did not come into force on 1st June as planned. Both are quite significant for HE. The quotation exception (Copyright, Designs and Patents Act Section 30) is contained in a draft Statutory Instrument which has just been published and is due to come into force on 1st October 2014.
This is a “fair dealing” exception which permits extracts to be reproduced from any copyright work as long as this is fair dealing. That test needs to be considered carefully in each case. It is no longer restricted to “criticism and review” and now covers quotation for any purpose. The amount quoted should be no more that required for that purpose. Useful features of this exception are:
- It applies to quotations from all media, so that it could cover the use of an extract from a film, for example.
- Its use is not tied to a particular context: The quotation could appear in a blog post, an academic presentation or a published book, as long as the use of the quotation can be justified in terms of fair dealing.
The Parody exception, in the form of new section 30A to the CDPA 1988, is entirely new to UK copyright law and is included in the same SI. It gives considerable leeway in terms of reproduction for purposes of caricature, parody and pastiche. This will be significant for creative work. Neither of these exceptions can be over-ridden by contract terms.
By Chris J Holland, on 3 June 2014
The updated Disabilities Exception to copyright (first mentioned here on 10th April) came into force on 1st June, which is great news. It represents a significant expansion of the permission given to “authorised bodies” to improve the accessibility of copyright works for persons with disabilities. It enables any educational or not for profit organisation to:
- Produce an accessible copy for a person with any type of disability which causes difficulty in accessing a copyright work.
- Copy any type of copyright work into an accessible format.
Previously the exception was limited to people with visual impairments and to text based copyright works. By way of example, the updated version enables an educational body to produce a subtitled version of a film or TV broadcast for students with hearing issues, to produce an alternative print format to assist a student with dyslexia or to provide a copy which would be more accessible to a person with mobility issues.
The requirement to check whether there is a licence which would permit the making of the relevant copy has been removed, but the exception only applies to the extent that there is not a copy in the required format available commercially on reasonable terms. There are reporting and record keeping requirements which need to be observed.
Copyright, Designs and Patents Act 1988, New Sections 31A to 31F
Link to JISC piece on the New Exception
By Chris J Holland, on 30 May 2014
It is interesting that some of the new copyright exceptions have been extended to benefit Museums specifically:
A good example is the updated Section 42 of the Copyright Designs and Patents Act 1988 (CDPA) which permits libraries, archives and museums to reproduce copyright works for purposes of replacement and preservation. Not only does this exception now cover museums, it has also has also been widened to encompass copying of works in any format. This means for example that deteriorating film stock and fading photographs can now be reproduced (digitised) for preservation.
The other prominent example of the inclusion of museums is an entirely new exception in Section 40B of CDPA (new to UK legislation that is – it is drawn from the EU Copyright Directive 2001/29/EC). This permits libraries, archives, museums and educational establishments to make a copyright work available on a dedicated terminal to members of the public for purposes of research and private study. Interesting that this is not limited to “non commercial” research, but then it does not permit copying.
Although not explicit in the wording of the new exception, the IP Minister, Lord Younger has made it clear that the primary purpose is to improve the availability of digitised copies of older copyright material which may be fragile and otherwise inaccessible to the public.
There is ongoing litigation in Germany involving a University which sought to rely on the underlying exception in EU legislation to justify making a recently published book available via “dedicated terminals” (Schulze v. Darmstadt). Various issues have been referred to the European Court of Justice (reference C-117/13). The outcome will be interesting.
By Chris J Holland, on 16 May 2014
The Government has published its response to the consultation exercise on Extended Collective Licensing. ECL is the solution offered by the Intellectual Property Office to the copyright issues which prevent large scale digitisation projects in libraries, archives and museums. These are projects involving so many works that it would be impractical to carry out a “diligent search” in an attempt to identify the rights holder of each item. The solution would enable collective rights organisations such as the Copyright Licensing Agency to sell licences for large scale digitisation of works which fall within their area. This is achieved by allowing those organisations to licence the works of rights owners who are not actually their members.
There is of potential interest to any library contemplating a large scale digitisation project to make its collection more accessible, particularly if that collection includes a large number of orphan works. The Government aims to have the new regulations in force by 1st October 2014. The proposed 5 year initial limit on licences is likely to be a big issue.
By Chris J Holland, on 16 May 2014
The latest on the copyright exceptions is that the updated exceptions for Disability; Research, Education, Libraries & Archives; and Public Administration have all completed the Parliamentary process this week and will become law on 1st June. This is thanks in part to energetic lobbying by the library and archives community. The commitment of the IP Minister (Lord Younger) to updating the legislation and the hard work of the IPO should also be acknowledged. A few other changes (contained in 2 statutory instruments) have been held back for closer scrutiny, but there is still hope that this is just a temporary delay. The exceptions which have been delayed are the Private copying exception, covering format changing by private individuals and the new Quotation and Parody exceptions. The Quotation and Parody exceptions are very significant for us and we must hope that it is just a matter of time, but most of the changes of obvious relevance to UCL have passed.
Follow this link to see Lord Younger’s latest statement.