By Chris J Holland, on 24 January 2020
The Minister responsible for intellectual Property, Chris Skidmore has stated very clearly that the UK Government has no intention of implementing the EU Copyright in the Digital Single Market Directive. The deadline for member states to transpose the Directive into their own laws is June 2021 by which time the UK will almost certainly have left the EU, so perhaps this should not come as a surprise, given that it may be politically difficult to be seen to be voluntarily implementing an EU measure in the circumstances.
Some of the new exceptions contained within the DSM Directive look very positive for the library and research communities, particularly the measures which provide a practical route for the digitisation and making available of “0ut-of-commerce works” on a large scale,while respecting the copyright in those works. So it is an interesting question whether the favourable measures from the Directive could also be implemented separately in the UK, outside of the framework of the EU Directive. Naturally even if that does prove possible, the UK will still lose out on the advantages which will spring from the fact that some of the exceptions work across borders between member states.
By Hazel M Ingrey, on 11 December 2019
The Copyright Licensing Agency (CLA) will be conducting a photocopying data collection exercise at UCL in January 2020 for six weeks.
UCL holds a CLA Higher Education licence and it is part of our licence agreement that they occasionally undertake this survey; the last was held at UCL in 2010. The purpose of the exercise is for the CLA to gather information to inform how they redistribute money to authors and publishers: it is also referred to as a ‘Royalties data’ exercise.
If you are a member of UCL staff who prepares teaching material for students, then this exercise is relevant to you!
The data collection involves a CLA field officer placing a large yellow box next to selected UCL MFDs (multi-functional devices), for teaching staff to drop in a copy of the item they are photocopying. Near the box will be a notice to explaining the process, plus some sticky data labels.
- If you are photocopying from a UCL MFD (not digitising);
- for teaching purposes (for example making multiple copies to hand to students in class);
- and from a published resource such as a book or journal, then:
Please take a photocopy of the identifying page of the text, e.g. the front page or the reverse side with copyright information on. The information needed is title, author, publisher details, ISSN, etc. Complete a data label, stick it to the identifying page you have just photocopied; post this into the yellow box. Only the identifying page is needed, not the whole extract you are copying.
The collection will take place from 13th January to the 21st February 2020: the yellow boxes will start to appear from 6th January and will be removed in the week of 24th February.
Why is this exercise necessary?
The CLA use this data to inform their secondary royalty payments to authors and publishers. They collect data from all institutions that hold a CLA licence and use this to pay rights holders.
I don’t see a yellow CLA box next to my copier.
As UCL is so large, with in excess of 800 MFDs, ISD has assisted the CLA in making a representative selection of around 170 copiers. If there is no CLA box you don’t need to participate in the data collection.
I don’t photocopy for my class, only use digital readings. Do I need to submit any extra data?
No. If you are linking to subscribed resources through your online reading list, you are not using any licence (indeed not even copying) and don’t need to report this.
If you are using the CLA licence by digitising through the TLS course readings service, then reporting requirements are already covered for you.
I am photocopying for my research, do I need to add a copy to the box?
No. The CLA licence only covers copying for teaching purposes. If you are copying for your own private study or research, and only making one copy for your use, then you don’t need to add anything to the box. Your copying will likely fall under a CDPA copyright exception (for example s.29) instead.
Can I photocopy anything?
Only published material is relevant for this exercise. In addition, you should always bear in mind what the CLA licence actually covers when copying readings for your class (in any format).
For reassurance you can use the TLS course readings service to double-check what is covered. More details are on the library CLA information page; you can use the CLA ‘check permissions’ search (make sure you opt for the HE licence); and the CLA User Guidelines.
Whilst this is not an audit, the CLA will be aware from the collection data if you are breaching their licence.
Does a studypack count?
If you are photocopying a few readings to make up a studypack, then yes! In fact you can right now submit any study packs online to the CLA Cloud.
Login Name: UCL Password: (Please email UCL Copyright for the password)
This will remain open until 21st February 2020.
Is there anything else we can do to prepare?
You could double-check that your local MFD has an up to date CLA notice poster near it, and that your colleagues are aware of the CLA licence.
I’m an author: how do I get paid secondary royalties from the CLA and other collecting societies?!
Salient question. If you are an author you can join the Authors’ Licensing and Collecting Society (ALCS). There is a sign-up fee (currently £36) and this fee is deducted from your first royalty cheque. ALCS also take commission.
How do I learn more about the CLA and other licences that UCL holds?
The library also manages the NLA and ERA licences. Do get in touch for more information on using these in your teaching.
For an overview to using copyright works in teaching or research, the UCL Copyright Support Officer Chris Holland is very happy to visit your department or student class to deliver a quick session or answer questions!
By Hazel M Ingrey, on 10 December 2019
The Copyright Licensing Agency (CLA) Higher Education licence enables staff at UCL to digitise or photocopy readings for teaching purposes.
Every three years the licence is re-negotiated with the help of the UUK and Guild HE Copyright Negotiation and Advisory Committee (CNAC). The new licence period is 2019-22 and in this round there were no major changes. One new benefit has been that negotiations with RROs in Germany, Belgium and the Netherlands resulted in these country’s materials being brought into the scanning repertoire. Another new, useful feature is that CLA copies may be made for administrative purposes that are not readings on a named module, for example UCL staff training other UCL staff. These copies must still adhere to the usual limits but don’t need to be reported.
The licence also allows some photocopying of readings with similar limits to digitising. Photocopying data is not collected and reported; instead UCL is subject to occasional photocopying data collection surveys.
At UCL the administration of the CLA licence is handled by the library. The TLS team copyright checks readings to ensure they fall under the CLA licence terms, before processing PDFs or photocopies into a copyright compliant scan, which is recorded and reported to the CLA annually. To take advantage of this service please look at the Course Readings webpage. If readings aren’t recorded through the library they are not covered by the CLA licence.
In the year 2018-19 UCL reported in excess of 6,500 digitised readings, which were delivered to students through the relevant module’s online reading list.
There is already a great deal of high quality digitised material available, from e-books and e-journals to Open Access articles in UCL’s institutional respository and UCL Press, which mean that you can sidestep copying issues altogether. Linking to a resource in an online reading list using ReadingLists@UCL will give easy access for your students, whilst avoiding headaches about licensing for you. You don’t need a licence or permission to link to legitimate or subscribed resources.
For more information please don’t hesitate to get in touch with the TLS team!
By Chris J Holland, on 5 December 2019
SCONUL have published a new briefing paper on the library exceptions to copyright with a very clear explanation of the exceptions which permit libraries to supply copies upon request to members of the public and to other not-for-profit libraries (broadly Sections 41 to 43 of the Copyright, Designs and Patents Act 1988). The authors of the briefing are well known copyright experts, Jane Secker and Chris Morrison and the title is Copyright briefing paper on the Hargreaves exceptions
This serves as a useful reminder of the changes to the relevant exceptions which give more flexibility to library staff. Just to mention a few examples: we can now supply extracts from e-journals as well as print, while adhering to the terms of the exceptions, the article can also be delivered electronically (as Pdfs for example). Although declarations are still required when providing copies to individuals, they no longer need to be print nor do they need to be signed. The current legislation is also less prescriptive about the wording of the declaration (the briefing includes some useful sample wording for the latter).
The 3 concise case studies included in the briefing present useful examples of ways in which the new flexibility can be used by libraries to improve services to their academic communities. The SCONUL briefing gives us a clear explanation and a useful reminder about the updated library exceptions.
By Chris J Holland, on 25 October 2019
A recent case heard by the Court of Appeal, Kogan v. Martin sheds light on the test which the court needs to apply to decide whether someone is in fact a “joint author” of a work. Joint authors share ownership of the copyright in a work, so the decision whether someone’s contribution is sufficient to make them a joint author can have important consequences, especially if the work has a significant commercial value. Kogan v. Martin concerns the authorship of the film script for Florence Foster Jenkins a feature film released in 2016. The test for someone to qualify as a joint author is examined in great detail in the Court of Appeal judgment and summarised very well in a post about the case on the IPKat blog
Interesting points which one can take away from this case:
- It can be misleading to place too much importance on “who pushed the pen” when a collaborator contributing ideas for plot, scenes and characters to a dramatic or literary work can be equally entitled to be recognised as a joint author.
- The test for authorship, influenced by important case law from the Court of Justice of the European Union (CJEU) is whether the work is the expression of the person’s own intellectual creation.
- One can make a smaller contribution but still be a “joint author” if one satisfies the test.
This is interesting in the academic context, where research papers are often published under the names of multiple authors.
By Chris J Holland, on 9 October 2019
One of the issues faced regularly by archives which hold the correspondence of a prominent person is that the letters will have multiple copyright owners. Copyright in a letter belongs to the author and typically there will be many authors. This becomes an issue when you need permission to digitise or publish letters from the archive.
The ownership of copyright in letters has been thrown into the spotlight by the legal action brought by Her Royal Highness the Duchess of Sussex against Associated Newspapers with regard to the alleged publication of private correspondence in the Sunday Mail. Infringement of copyright is one of the claims, perhaps the main claim.
The underlying copyright issues are discussed in depth here on the IPKat blog including the difficulty the newspaper might have if they try to claim their use of the letters was covered by one of the exceptions to copyright contained within Section 30 of the Copyright, Designs and Patents Act 1988 (CDPA), which deals with “fair dealing” for the purpose of criticism, review and quotation more generally. The difficulty for the publisher is that the letters in question must have been previously “made available to the public” with permission of the copyright owner (the Duchess in this case), otherwise the exception does not apply (by virtue of CDPA Sub Section 30,1ZA,a). It seems unlikely they could claim that this condition has been fulfilled.
Although copyright is often in the headlines with respect to the music business it is less common to find copyright in unpublished literary works featuring so prominently.
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.
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.
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.
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.