There is a forthcoming event which should be of great interest to information professional with responsibility for copyright issues. CILIP, the Chartered Institute of Library and Information Professionals is running an Executive Briefing covering the “Latest developments in Copyright: Legislation and Licensing” on Wednesday 1st April. 

Last year’s event, which focussed especially on the new and updated exceptions to copyright was invaluable for those of us needing to understand the changes to the Copyright, Designs and Patents Act 1988.

This year the keynote speaker is Dr Ros Lynch, Director, Copyright Enforcement at the UK Intellectual Property Office. Will Dr Lynch talk about the Government’s strange decision not to implement the planned changes to the anachronistic 2039 copyright term which catches a vast number of older unpublished works (see previous blog posts)? We shall see!

The other speakers are all members of the Libraries and Archives Copyright Alliance (LACA), representing between them a wealth of knowledge and experience of copyright matters.

The UK Intellectual Property Office (IPO) has recently completed a consultation on a very specific aspect of Copyright Law. The plan is to repeal Section 52 of the Copyright, Designs and Patents Act 1988 (CDPA), which currently functions as an exception. The usual term of copyright for an artistic work is the creator’s lifetime plus 70 years, but by virtue of Section 52, where an artistic work is exploited as an industrial design, the duration of copyright in the original work is 25 years from the first marketing of the product. The product consisting of copies of the original artistic work produced by an industrial process. Under current legislation the artistic work which has functioned as an industrial design in this way can thus be freely copied by others when 25 years has elapsed.

The current exception applies to both 2 dimensional and 3 dimensional works. It could cover furniture, wallpaper, fabrics and jewellery for example, where the design comes from an original artistic work which has been copied.

With the removal of the Section 52 exception, the original artistic work will enjoy the much longer copyright term applicable to artistic works in general. The main motive for the change seems to be to bring the UK into line with EU copyright law, where there is no equivalent exception.

The IPO has just published its proposal for dealing with Transitional Arrangements . The repeal will take effect on 6^th April 2020, in order to give businesses relying upon the reproduction of original designs time to adjust. The overall effect is that many “works of artistic craftsmanship” which had already gone out of copyright will be protected once more, creating issues for among others, makers of reproduction furniture and publishers of books containing designs which will come back into copyright.

The IPO acknowledges that the most significant issue will be exactly which works qualify as “works of artistic craftsmanship” and therefore qualify for the full period of protection, something which is likely to be settled by the courts.

A new poster designed to inform library users about copyright has been published on the CILIP* website. The poster has been created by the Library and Archives Copyright Alliance (LACA). The aim is to provide updated guidance which takes account of the changes to the Copyright Exceptions which were implemented by the Government during 2014. The Copyright Exceptions have become much more favourable for library users, but the task of explaining the exceptions has also become more complicated. The new CILIP poster is to be welcomed because it does provide a clear, succinct explanation and I would encourage libraries to print it out and display it by their copying equipment. The poster’s CC-BY-SA licence permits you to do that!

Displaying the appropriate copyright guidance is important for libraries of all kinds. If like UCL you benefit from the Copyright Licensing Agency HE licence, then you are obliged to display the CLA poster near your photocopiers/ scanners. But the CLA does not license ad hoc copying by students (or other members of the public) – it is designed to licence copying and scanning of teaching materials for course packs. It follows that you should display some additional guidance near your copying machines – relevant to the main use made of those machines – and the CILIP poster does fill that gap.

It is important that we should draw the attention of our library users to copyright law and the available exceptions because they need to know but also because, as librarians, we need to demonstrate that we are encouraging responsible use of copyright materials.

*Chartered Institute of Library and Information Professionals

You may remember the libraries and archives campaign (supported by the UCL Library) to persuade the UK Government to reform the arcane rules which mean that a very large number of unpublished historical documents remain in copyright until 2039. The Government launched a consultation exercise on 31^st October last year to gather views on its proposal to change this aspect of copyright legislation. See previous blog posts on 21st August 2014 and 3rd November 2014. More information on the issues is available in a Briefing from the Libraries and Archives Copyright Alliance (LACA)

The 2039 rule causes many issues for cultural institutions wishing to improve access to historically interesting material. It also swells the ranks of Orphan Works (works in copyright whose rights owners cannot be identified or located) and also keeps  UK copyright law out of step with the rest of the EU.  The response from the cultural sector, including libraries and archives was very eloquent and persuasive in its arguments for the Government’s reform proposal.

Unfortunately, not persuasive enough for the Government, which has decided not to make the necessary changes at this time, see the Government Response to the Consultation. It was thought that the problems posed by removing the ownership of copyright from those who would otherwise continue to own rights in the material until 2039 were too great.

The Government was concerned that it would face challenges under Human Rights legislation for removing property from its owners. To be fair, they have not ruled out change in the future, it is rather the case that they cannot find an acceptable way of achieving the legislative changes at the moment.

Part of the problem is of course that for a large part of the “2039 material”, although it is in copyright, the ownership is far from clear, so the owners are unlikely to draw any benefit from their intellectual property and in that sense would not be losing out. However, some of those rights owners who are aware that they own “2039 material” argued strongly against the Government’s proposals.

Julia Reda, MEP for the German Piratenpartei, has just published the first draft of her report on copyright reform commissioned by the European Parliament. You can also read Ms Reda’s blog, here . The measures recommended in the report are very favourable to users of copyright material, including the reduction of the standard copyright term to the author’s lifetime plus 50 years (the minimum requirement of the Berne Convention). Among other measures the Report also recommends:

Extending the Text and Data Mining exception to cover TDM for any purpose (including commercial); Creating a new exception permitting libraries to lend e-books, “…irrespective of the place of access”

The report also favours a new piece of EU legislation replacing the Copyright Directive, which would apply immediately across the EU without requiring national implementation (it would need to be a “Regulation” as opposed to the current Copyright Directive).

It would follow that the various exceptions included in the new legislation would be mandatory in all member states. The current list of exceptions in Article 5 of the Directive resembles a smorgasbord where the member states can select the exceptions of their choice while leaving others on the table. The current situation creates complexity and uncertainty around cross border access to copyright material within the EU. It will be interesting to see how Julia Reda’s report is received by the European Parliament and other EU bodies.

What are the copyright implications of  hyperlinking to a piece of content (perhaps a film or a photograph) which is already freely available on the internet?

The Court of Justice of the European Union (CJEU) came up with an interesting decision last year in the case of Svensson v. Retriever Sverige AB , a reference from a Swedish court. A number of journalists objected to Retriever (a site which aggregates news stories) hyperlinking to their work published on accessible newspaper sites.

By hyperlinking is one communicating the original work to the public? “Communication to the public” is one of the acts restricted by copyright ( Article 3(1) of the EU Copyright Directive, 2001/29/EC).

The CJEU took the view that Retriever was not making the work available to a new public and so this did not constitute “communication to the public” and was therefore not infringing the authors’ copyright. People following the hyperlinks to read the articles could also have accessed them on the newspaper sites and were therefore not “a new public”.

A more recent decision from the CJEU from October 2014 (but not available in English yet), BestWater International GmbH v. Mebes and Potsch (C 348/13) reinforces the view taken by the CJEU in the Svensson case. This time the content was a promotional video originally uploaded on BestWater’s own site then (without their knowledge) on YouTube. The other parties then linked to the video on YouTube from their own sites. The CJEU once again used the “new public” reasoning to conclude that the linking did not constitute “communication to the public”.

The new judgment seems to reinforce the view that using hyperlinks to freely accessible content does not give rise to copyright issues. Protected content would of course be a different matter.

The EU initiative to review and update Copyright is still ongoing (although you could be forgiven for forgetting about it) and no doubt there will be proposals in 2015, following the previous consultation exercise. Apparently copyright features high up the agenda of Commissioner Oettinger . So there could be further changes to copyright legislation, following on the heels of the UK Government’s updating of the exceptions to copyright in 2014. The EU is committed to increased harmonisation of copyright in its member countries.

UK Music and various other bodies representing the music industry have launched a legal challenge to the Government’s implementation of an exception for Private Copying. The new exception permits you to format shift, for example by copying a music CD you have bought to use on your mobile device (essentially legalising what people were doing anyway). This is the new Section 28B of the Copyright, Designs and Patents Act 1988 (CDPA), “Personal copies for private use”.

The basis for the challenge is that although the EU Copyright Directive allows  member states to implement just such an exception, it also includes a requirement for “fair compensation” for the relevant copyright owners and in the UK there is no mechanism to deliver that. Watch this space!

The EU Orphan Works Directive (2012/28/EU) which has recently been implemented in the UK, establishes a new exception to copyright . It permits cultural bodies such as publicly accessible libraries, educational establishments, museums and archives to digitise orphan works and make them available on their websites.

There is an application process to be used when making use of this exception. In the case of the UK, applications are made to the Intellectual Property Office (IPO). The relevant webpage appears to be still in a beta phase. Applicants must demonstrate that they have carried out a “diligent search” in their attempt to track down the copyright owner.

A database of works accepted as orphans across the EU has been set up by the Office for Harmonisation in the Internal Market (OHIM) – based in sunny Alicante. National authorities – such as the IPO – are responsible for vetting applications and supplying the information to OHIM to be added to the database. Libraries who want to clear an orphan work should first check the database.

This covers most types of work but excludes stand-alone artistic works, such as paintings and photographs. A copyright owner who comes to light subsequently may claim “fair compensation” to be agreed with the body using their work. If they are unable to agree, either party may apply to the Copyright Tribunal to decide upon the amount.

Interestingly, we may generate revenue from the digitisation of orphan works, under the Directive, as long as the money is used solely for the purpose of digitising and making available orphan works.

One of the significant new exceptions introduced this year enables Text and Data Mining (TDM) to be carried out on bodies of copyright material as long as it is for a “non commercial purpose” (and the sources should be acknowledged where possible.)

TDM includes a range of advanced techniques for analysing vast quantities of data in order to draw out new facts or statistical trends, or gather evidence of previously unexplored relationships (for example between chemical substances and medical conditions). The potential uses of TDM are very wide ranging and may occur in all disciplines.

The new exception makes the application of TDM to copyright works possible by removing the copying of material (which is an essential part of the TDM process) from the realms of infringing activity.

A Jisc report on the value and benefits of text mining from 2012 mentions that at that time TDM activities in higher education were mainly focussed on Open Access materials because the latter were more readily available. Since the new TDM exception was introduced in June 2014, the content of a vast number of e-journals to which universities such as UCL subscribe should also be available for TDM. This results from the fact that under the legislation, the terms of our contracts with the publishers of those journals cannot over-ride the TDM Exception:

“To the extent that a term of a contract purports to prevent or restrict the making of a copy which, by virtue of this section, would not infringe copyright, that term is unenforceable”, Copyright, Designs and Patents Act 1988, Section 29A(5).

This means that any terms in suppliers’ contracts which sought to restrict advanced computer analysis of their repertoire will no longer have any weight, at least where non commercial research is concerned.

Libraries are given greater flexibility by one of the less obvious changes made to the Copyright legislation earlier this year. This concerns requests for a copy of a periodical article from one library to another and is governed by Section 41 of the Act. Many of the updated exceptions include a clause stating that they cannot be over-ruled by the terms of a contract, which tends to reverse the situation prior to the 2014 changes. Section 41 of the Act  includes such a clause:

“41(5) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.”

It follows from this that a library may now supply a single copy of a periodical article from a given issue of an “e-periodical”, just as they may supply a copy from the print publication. The terms of the contract under which the e-periodical is supplied may formerly have prevented this, but it seems they can no longer prevail over the exception.

Naturally the libraries concerned need to be sure that they are complying with the legislation, for example the library fulfilling the request must have legitimate access to the e-periodical and must not supply more than one article from a single issue. It is important to note that this “library to library” exception does not permit the supply of copies from books unless it is practically impossible to contact the copyright owner in order to seek permission.