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Spare Rib and the threatened EU Orphan works exception

By Chris J Holland, on 26 February 2019

Back in October we blogged about the threat posed to the the EU Orphan works exception by a no deal Brexit and the LACA campaign to highlight the issue.

A recent article in the Guardian highlights a concrete example of the effect of the removal of the exception, namely the case of the digital archive of content from Spare Rib, a ground-breaking feminist magazine. The Spare Rib archive has been made available online by the British Library (BL) using the Orphan works exception to good effect.

In the event of a “no deal Brexit” however the BL, in common with other cultural institutions, will no longer have the benefit of this exception simply because it can be enjoyed only by institutions in the EU (and the EEA) which, obviously, will no longer include the UK. Orphan works will no longer be covered by the exception and UK institutions such as the BL will be obliged to take down this very significant content to avoid the risk of copyright infringement.

The current process of vetting applications for orphan work status, moreover, is an EU process, run by EUIPO. The UK IPO could in principle establish a UK procedure to replace that run by EUIPO for the benefit of UK institutions, but seems to have no current intentions of doing so.  You can read what the IPO has to say about copyright and a no deal Brexit  here

Plagiarism and self-plagiarism

By Chris J Holland, on 29 January 2019

Copyright infringement arises from re-using someone’s work without the permission of the copyright owner (or the benefit of a licence or suitable copyright exception) and is a legal issue. On the other hand, plagiarism arises from re-using someone else’s work in a way which implies it is your own. It is essentially a matter of ethics and academic discipline rather than a legal issue, although the consequences can be very serious.

Naturally the two problems can often overlap (re-using work without a legal basis and without acknowledgement). The key to avoiding plagiarism is always to acknowledge other people’s work when you are quoting form it or when relying upon ideas developed by someone else. That way you can’t be suspected of passing it off as your own work.

The UCL Copyright team are often asked about the dangers of self-plagiarism:

“Will  I be in danger of self-plagiarism if I re-use material from my thesis in a published article?” or conversely perhaps: “Can I use material from my previously journal articles in my thesis?”

Self-plagiarism is a real issue, in the sense of recycling you previous work as though it were wholly original, in a context where a certain level of originality is essential. The key to avoiding this danger is very similar to avoiding any kind of plagiarism: You need to be scrupulous about citing your own previous work where you are quoting from it or relying upon it.

In the context of your  thesis there may be separate academic issues about relying too heavily on your previously published work even though you are crediting it scrupulously, so in those circumstances  it would be good to discuss that with your PhD supervisor at an early stage.

No copyright protection for the taste of cheese

By Chris J Holland, on 19 December 2018

The Court of Justice of the EU was recently asked to rule on whether the taste of a food could be a “work” in terms of the EU Directive on copyright in the information society (Directive 2001/29/EC). If a taste could be a work then it could in principle be protected by copyright. The context was a case  for infringement brought by Levola Hengelo BV, manufacturer of a cheese called Heksenkaas against a rival food company, Smilde Foods BV, manufacturers of Witte Wievenkaas (C310/17).

As reported by the Kluwer copyright blog,the court ruled that taste of a cheese could not be regarded as a “work” for copyright purposes because it was a requirement that the subject matter of a “work” must be represented in a manner that makes it identifiable with sufficient precision and objectivity and the taste of Heksenkaas did not meet those criteria. So is that a case of hard cheese for Heksenkaas?

Open Education and related IPR issues: Guest post from the UCL Open Education project

By Chris J Holland, on 14 December 2018

In August this year we introduced UCL’s Open Education (OE) initiative through the UCL Open Access blog (which you can read here) the article provides an overview of what Open Education is, including benefits, and information about what UCL is doing.

When publishing open educational resources it is essential to consider Intellectual Property issues, such as copyright, open licensing and third-party content.

Intellectual property (IP) and copyright

When an OER is created at UCL, whether by a staff member or student, it remains the property of that creator. This also means that creator owns the copyright in that work.

(Open) licences

A licence provides information to a user about how a resource can be used, and is usually prescribed by the copyright owner.

There are a variety of licences, and they express different types of use of a resource. For example, one licence may express that a resource can be reused as long as the creator/owner is credited for their work, another licence may express that a resource can be reused as long as it is not modified, and so on. There can be combinations of different uses.

To ensure that OER remain open and reusable, UCL encourages the use of open licences.

Creative Commons (CC) is an organisation which provides open licences which can be freely applied; this table provides an overview of the different licences CC provides, and what uses each prescribes.

 

Copied image “Creative Commons licences” by Foter, which is licensed under the CC BY-SA 4.0 licence.

 

The Creative Commons website also offers a tool to make the selection of an open licence easier.

Once the desired licence has been selected, e.g. CC BY-NC, this information needs to be noted somewhere on the resource (ideally on the front page) to indicate to the user how they are allowed to reuse that OER. A hyperlink to the licence information can be useful.

A good example would be: “This work by [author’s name] is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.”

UCL’s licence to use educational materials created by UCL staff

Although UCL waives its right to ownership of copyright in research outputs and teaching materials created by UCL staff, it does claim a wide-ranging licence to re-use those materials, including re-use for OER purposes. The details are in the UCL IPR Policy and a link to the updated UCL IPR policy will be added when it is available on the website.

Educational materials created by UCL students

Students generally own the copyright in their own material and UCL requires permission or a licence from the individual student in order to re-use their work.

Third-party content

Third-party content is content that is licensed or owned by another person or organisation other than yourself. The most common type of third-party content related to OER are images and quotations.

You can re/use third-party content in your OER as long as:

  • you have obtained permission to do so,
  • it is covered by a statutory exception and passes the Fair Dealing test, or
  • there is a licence which allows for the reuse of that work.

Where the licence and re/use information for an OER is not explicitly stated, you must obtain clarification and permission from the creator/owner of the teaching content before you use it. It is your responsibility to retain permission information; the Open Education team and UCL Copyright Support Officer can provide support information.

Attribution and citation

If you are reusing third-party content, you are required to attribute it or provide a citation.

An example of an attribution may be: “Copied image “Creative Commons licences” by Foter, is licensed under the CC BY-SA 4.0 licence.

We encourage the citation of OER and you can find information about correct citations here:

 

Support

If you require support or advice about anything related to OER and IPR, please contact the Open Education team or UCL Copyright Support Officer; we are here to help!

 

 

 

Help save the Orphan works exception: Support the LACA campaign.

By Chris J Holland, on 16 October 2018

The UK IPO has made it clear that in the event of a no-deal Brexit it intends to amend the Orphan works exception out of UK copyright legislation. Yet this is a very useful exception which permits a range of cultural institutions including libraries, archives, film heritage bodies and universities  to make orphan works from their collections available online. The distinctive feature of orphan works is that the owners of copyright in the work cannot be identified (or if they can be identified cannot be located) so that there is no possibility of seeking permission.

The exception (introduced by the EU in its Orphan works directive and then implemented in the UK in 2014) is easily justified and very useful to cultural institutions planning to make significant collections available online. The details can be found in Schedule ZA1 of the Copyright, Designs and Patents Act 1988. Anyone using the exception must first carry out a “diligent search” for rights-holder information to ensure that the work in question is really an orphan work  and then register it with EUIPO (the EU Intellectual Property Office). So far UK institutions have been big users (“beneficiaries” in EUIPO terminology) of the exception. According to the database the BFI and the BL have registered the largest number of works.

The exception could easily be retained in the UK legislation in the event of a no-deal Brexit. The “diligent search” guidelines which also apply to the IPO’s separate licensing scheme will need to be retained in any case.  A UK registration procedure would need to replace the function of the EUIPO database, but the data recorded for each item is quite succinct and the task is not particularly complex. If your institution is already using the exception or just thinking of using it then LACA (the Library and Archives Copyright Alliance) would really like to know. This is a link to the LACA campaign flyer. You may also wish to let the UK IPO know about your concerns or pose any questions you may have about their plans for the Orphan works exception.

 

IFLA Statement on Copyright Literacy

By Chris J Holland, on 29 August 2018

Promoting copyright literacy is a significant task for library and information professionals, wherever they happen to work. IFLA  (the International Federation of Library Associations and Institutions) has just published an important statement on Copyright Literacy The statement is measured and comprehensive, stressing the importance of the role of libraries in maximising access to copyright-protected materials for their patrons within the legal framework of copyright. Copyright literacy is about understanding what you can do, legitimately, with copyright-protected material as much as understanding what copyright prevents you from doing. In the words of the IFLA Statement:

“…alongside the responsibility to recognise intellectual property rights, there is a parallel duty not to impose unnecessary restrictions on users’ right to access information. In short, libraries should use all possibilities provided by the law to give access and enable learning.” The statement also emphasises, quite rightly, the important role of Librarians in advocating for reform of copyright legislation and in particular advocating for robust limitations and exceptions to copyright. All those who have been involved in promoting the Copyright Literacy agenda within IFLA and in creating the Statement should be congratulated.

Dispute about photograph in school project referred to CJEU: Land Nordrhein-Westfalen v. Renckhoff

By Chris J Holland, on 14 August 2018

The Renckhoff case, C-161/17 is fascinating for a number of reasons: Firstly there is the bizarre fact that the reuse of a photograph of an historic bridge in Cordoba, copied from an online travel magazine and used in the Spanish language project of a school pupil, posted on the school’s website, should require a decision from the Court of Justice of the European Union. The words “sledgehammer” and “nut” spring to mind.

Secondly the conclusion of the Court is diametrically opposed to the lengthy preliminary opinion of its own Advocate General (in this case AG Campos Sanchez-Bordona). The Court does not always follow the opinion of the AG but in this case the contrast is quite striking and the Court does not address the reasons for this divergence of views.

Thirdly both the AG’s opinion and the judgment of the Court discuss the boundaries of the important concept of “communication to the public”. The latter is one of the restricted acts which are the preserve of the author (copyright owner). The question to be addressed by the CJEU was whether the re-posting on one website of a photograph previously posted without any (stated) restrictions and with the consent of the copyright holder on another website constitutes “communication to the public.” Both sites were freely available to users of the internet. If the answer is “yes” the re-use of the photograph is potentially  infringing, if “no” then it is not infringing.

The Court came to the conclusion that re-posting the photograph in these circumstances does count as “communication to the public” and is therefore infringing (unless in the given circumstances the re-use is covered by one of the exceptions to copyright ). There is interesting discussion of the concept of a “new public” which has become significant in copyright decisions by the CJEU and this discussion tends to reveal the limited usefulness of the “new public” concept in drawing a line between infringing and non-infringing reuse of copyright protected material. See also the coverage of this case on the IPKAT blog.

 

Can the taste of a cheese be protected by copyright?

By Chris J Holland, on 6 August 2018

The World awaits the outcome of the deliberations of the Court of Justice of the European Union (CJEU) on this very question. Can the taste of Heks’nkaas be protected by copyright? Advocate General Wathelet’s opinion in the Levola Hengelo (C310/17) case was recently reported here on the IPKAT blog. The text of his opinion is not yet available but the AG’s answer is clearly “no.”
You might think that the answer is obvious, but to get to his conclusion the AG examines some of the fundamentals of EU copyright law, such as:
What are the limits of what qualifies as a “work” in the Infosoc Directive (2001/29)?
Is there a “fixation” requirement to qualify for copyright protection in EU law (as there is in UK law)?
The Court of Justice will eventually make a ruling which may or may not concur with the AG’s opinion. Will the Court confirm AG Wathelet’s standing as the “big cheese” of copyright law? We will have to wait and see!

Open Science event for UCL staff and students

By Chris J Holland, on 6 June 2018

UCL is running a free, one day event to examine many aspects of open science. It is open only to UCL staff and students, so apologies to any non-UCL readers of this blog. The event is happening on Monday 25th June 2018 from 09:30 to 16:00 at the Senate House, Malet Street WC1E. It promises to be a fascinating event for anyone involved in research or simply interested in open science. “How to make your data open”, “open peer review” and “citizen science” will be among the topics discussed by high profile speakers from UCL and other organisations.

UCL staff and students can find out more and book a place here.

What is the connection with copyright? Considerations of the copyright status of research outputs and data sets are essential ingredients of the open science mix. Decisions on how to licence the reuse of copyright protected material in an open access environment are also an important aspect of implementing an open science strategy.

Quotations in a PhD thesis

By Chris J Holland, on 18 May 2018

Recently we were asked about quotations in a PhD thesis which was about to be submitted for posting in Discovery, UCL’s open access repository. The student had included a small number of images from published papers by other authors (third party material).

Very sensibly the student had made an initial attempt to seek permission by contacting the publisher in each case but had received no response and was concerned about what to do next. Was permission essential to include these particular images? Again, a sensible question.

Further investigation showed that one of the source articles had in fact been published under a Creative Commons licence (as it happened, the most generous “CC BY” licence). In that particular case it would be fine to reproduce the image without seeking permission but only if one fulfilled the terms of the CC licence in some reasonable manner.

In our example the student had not realised the significance of the licence so had not initially taken steps to fulfill all its terms, such as identifying the licence and linking back to the Creative Commons website. So, ironically, even though the student was licensed to reuse the image, if they had proceeded without fulfilling the terms, there was the potential for copyright infringement.

Post graduate students will typically have an impressive grasp of detail in their chosen field but not necessarily when it comes to copyright and licensing issues. This example illustrates the importance of having at least a broad awareness of copyright when you are making your work available online and including quotations from third party material. Fortunately in this case the student was wise enough to seek advice on the potential issues.