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Kraftwerk sampling in the Court of Justice of the European Union

By Chris J Holland, on 30 July 2019

Members of the veteran electronic music group, Kraftwerk (Ralf Hütter and Florian Schneider-Esleben) have an answer from the CJEU to their claim that copying extracts from their recordings to be used in other musical recordings in the form of “sampling” should only be carried out with their permission. The case which concerns the sampling of a brief extract from their song “Metall auf Metall” which was then played as a continuous loop in a 1999 song produced by Moses Pelham and Martin Haas and performed by Sabrina Setlur called “Nur mir”. The CJEU case number is C-476/17.

The court ruled  that in terms of EU copyright law, particularly the Information Society Directive, sampling from someone else’s recording generally requires permission, because it is a reproduction “in whole or in part” of the original work.

On the other hand, if the extract sampled has been modified to the extent that it is not recognisable as the original work (“unrecognisable to the ear”), then that would be justifiable in terms of  Article 13 of the Charter of Fundamental Rights of the European Union, which deals with freedom of artistic expression. Can we conclude that the sampling of Metall auf Metall in the production of Nur Mir would be covered by the latter proviso? After all, the sample consists of a 2 second rhythm sequence, which is arguably not recognisable as the original work (even though it might sound strangely familiar to a really dedicated admirer of Kraftwerk’s music).

This decision could have far reaching implications for the music industry, given that sampling is a widely used technique, particularly in Hip-Hop recordings and that producers are not always in the habit of assiduously seeking permission from the copyright owners of the original recording. The judgment of the CJEU can be found here.   The case itself is also something of a “veteran” as Kraftwerk have been pursuing it for some 20 years.

 

Author power

By Chris J Holland, on 21 June 2019

An interesting  blog post by Shaun Khoo on the Scholarly Kitchen website takes a sceptical look at whether academic authors are likely to gain more leverage in an open access publishing environment.  With current publishing models, the publisher is generally in a more powerful position and the author at a disadvantage in any negotiation. Is that likely to change?

Shaun Khoo quotes some research carried out in the USA by Charbonneau and McGlone the results of which show that 97.8% of the relevant faculty members simply signed the agreement “as is”.

When delivering copyright training to groups of post-graduates I usually stress the importance of reading the terms and conditions of publishing agreements very carefully before signing on the dotted line.

The issue is that the pressure to get their work published in the “high impact” journals in their field leads authors to disregard questions of whether they are assigning copyright to the publisher and, if so, whether the agreement grants them any specific concessions to reuse their own work in ways that they might wish to in the future.

One should underline the importance of being prepared to the negotiate the details with the publisher if there are terms they object to or don’t fully understand. A student recently pointed out  (wisely I think) that, if an author is intending to negotiate, they had better start at as early a stage as possible, before time pressures take over.

On the other hand open access publishing models which apply Creative Commons licences do certainly allow academic authors to retain ownership of the copyright in their papers and with it the freedom to reuse their own work as they wish.

 

Translations and copyright

By Chris J Holland, on 5 June 2019

A recent enquirer asked about producing a digital version of a book which included two contributions in English by well know Czech political figures. Both the authors had died before 1949. Given that the usual copyright term of the author’s lifetime plus 70 years would apply, it follows that the published works of both authors  are out of copyright in the UK (and the EU generally), so both contributions may be digitised and made available without permission.

However, one needs to bear in mind that translations are also protected by copyright and for the same term. So that if the works had been translated into English by someone other than the author in each case, one would also need to investigate the identity and dates of the translator, in order to be certain that no additional permissions were required.

 

 

The Education exception and past PhD theses

By Chris J Holland, on 23 April 2019

A recent enquiry concerned the use of a past thesis in a writing workshop where students of a specific course would have the opportunity to examine and also to critique the writing style of that thesis, which would be studied as a relevant example. The question was whether it would be acceptable to copy the thesis in its entirety for the purpose of the workshop.

It seems very likely that this re-use of a thesis would be “fair dealing” in terms of the education (or “illustration for instruction”) exception which can be found in Section 32 of the Copyright, Designs and Patents Act 1988 (CDPA). Naturally this would only be “fair dealing” to the extent that the copies were used strictly for the task in hand and not for any additional purpose beyond the scope of Section 32. The context also needs to be “non-commercial” so something like  a fee-charging CPD course would probably not be covered.

In addition Section 32 does not specify that the work must have been  “…made available to the public” as does the exception for criticism, review, quotation and news reporting (Section 30, CDPA) for example. So that question does not arise in relation to the thesis.

EU Directive: Copyright in the Digital Single Market

By Chris J Holland, on 4 April 2019

The new copyright directive, the DSM Directive is nearing the completion of its long journey through the EU legislative  procedure. The latest version, has been approved by the European Parliament and now goes back to the Council. Previously there were very few mandatory exceptions to copyright in EU legislation. One of the important aspects of the DSM Directive is that it introduces a number of exceptions which are indeed mandatory for all member states, departing from the smorgasbord approach of the previous Infosoc Directive which presented a number of exceptions from which member states could pick and choose.

The new exceptions, such as Text and Data Mining exception and Preservation exception are generally favourable to libraries and research. The UK is already ahead of the game to some extent, for example in having a TDM exception, but in some cases the DSM exceptions would enhance and go further than what we have already and also have the advantage of operating across borders within the EU.

It is a moot point whether the DSM Directive will ever be implemented in the UK  or whether the timing of Brexit will prevent that happening.

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.