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Extended Collective Licensing and Digitisation

Chris JHolland12 September 2014

Regulations permitting Extended Collective Licensing (ECL) are set to become law on 1st October. ECL is seen as a solution to the problem of gaining copyright permission for mass digitization projects, through which, for example, a library hopes to digitise a significant collection in order to make it more readily available via a web site. A proportion of the collection is known to be still in copyright and the process of item by item rights clearance can be prohibitively expensive and time consuming. Rights owners are sometimes unresponsive.

The ECL solution enables collecting societies (such as the Copyright Licensing Agency) to apply to the Government to run an ECL scheme which enables them to licence the use of works, the copyright in which belongs to non members of the collecting society. The collecting society must have a well established presence in licensing the relevant type of copyright material in order to qualify.

The scheme, if approved, will enable the library to pay a licence fee to cover its digitisation of a large number of works. The rights owners affected would be able to benefit from fees distributed by the collecting society (just as the members benefit currently). They would also be able to take their works out of the scheme if they objected.

The licences which can be applied for under scheme seem to be of limited duration, which is likely to be problematic for libraries investing in large scale digitisation. It remains to be seen, also, how promptly collecting societies will come forward to take advantage of the new arrangements.

Museums benefit from New Copyright Exceptions

Chris JHolland30 May 2014

It is interesting that some of the new copyright exceptions have been extended to benefit Museums specifically:

Preservation Copies
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.
Dedicated Terminals
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.

Digitisation and Extended Collective Licensing

Chris JHolland16 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.