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EU Directive: Copyright in the Digital Single Market

Chris JHolland4 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.

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

Chris JHolland16 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

Chris JHolland29 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.

New CILIP Copyright Poster for Libraries

Chris JHolland9 February 2015

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

Orphan Works and Alicante – Spot the Connection

Chris JHolland16 December 2014

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.

E-journals and requests from another Library

Chris JHolland17 November 2014

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.

The meaning of Parody: Are you having a laugh?

Chris JHolland16 October 2014

The new copyright exception for Caricature, parody and pastiche came into force on 1st October 2014. The core provision is:

“Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work”

This is drawn directly from Article 5 of the EU Copyright Directive and some member states have been benefitting from the parody exception for some time. The recent Deckmyn case , was a reference from a Belgian court to the Court of Justice of the European Union. The case arises from the use made by members of a Flemish nationalist political party of an adapted version of the cover of a well known comic book in order to make a political point about the Mayor of Ghent.

The adapted version was distributed in the form of a calendar. The heirs of the creator of the original “Suske en Wiske” comic books claimed infringement of their copyright. Those distributing the calendar with the “parody” version claimed that their use of the work was covered by the exception for caricature, parody and pastiche.

The Belgian court referred a number of questions about the meaning of “Parody” in the context of the EU Copyright Directive to the CJEU. In response the Court makes various points about parody, including: “…the essential characteristics of parody, are, first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery…”

One interesting aspect of Parody exception is the potential clash with the author’s moral right to be protected from derogatory treatment of their work, although the Court was not asked to address this question. One person’s parody could be another person’s derogatory treatment.

Dedicated Terminals – An Interesting Case

Chris JHolland2 September 2014

Among the changes introduced on 1st June 2014 was the Exception permitting libraries and archives to make digitised versions of published works available to the public via dedicated terminals. This has been viewed by the Intellectual Property Office as a practical means of making older, fragile material available.

In  German higher education the equivalent exception seems to be given a much wider interpretation and this is being tested by a case before the Court of Justice of the European Union (C117/13).

The Technical University of Darmstadt has chosen to use the exception, which has been available in German law for some time, to justify digitising the full text of recently published text books in order to make them available on dedicated terminals.

This has been challenged by a publisher, Eugen Ulmer, using a specific work as a test case. The German Federal Court has referred a number of questions to the Court of Justice of the European Union (CJEU).

The Advocate General in his Opinion (which is preliminary and not always followed by the Court) has stated:

  • The University may digitise the work in order to make it available.
  • The publisher’s offer of a licence to use an e-book version makes no difference.
  • The exception does not include permission for users to copy the work, although that may follow from other exceptions – probably not stretching to digital copies.

The Court’s judgment is due on 11th September and should prove very interesting as the interpretation of this exception seems so different to that assumed in the UK.

Inter Library Loans and articles from e-journals

Chris JHolland12 August 2014

One of the less obvious changes in the copyright exceptions introduced in June is the exception in Section 41 of the CDPA 1988 which enables us to supply another library (any library which is not conducted for profit) upon request with part or the whole of a published work, without infringing copyright.  

The main condition is that the librarian does not know and could not reasonably find out the name and address of the person able to give copyright permission.

Of course this condition would rule out supplying a copy of most recently published works under this exception, as there would be little difficulty in finding out whom to contact for permission.

However journal articles are treated as a special case by Section 41 and are not subject to that condition. If we receive a request from another library for a copy of one article from a journal then we are able to supply that copy without applying that test or requesting permission from the publisher. We may choose to charge for this service or not, but if we do the amount must be calculated by reference to the costs incurred in making the copy.

When you add to this the fact that Section 41 covers copyright works in any format then it follows that we could supply a single article from an e-journal which we subscribe to. As with many of the new exceptions, this cannot be over-ridden by the terms of our licence with the supplier so we would not need to refer to the licence before providing a copy.

Focus on Fair Dealing

Chris JHolland7 July 2014

The Fair Dealing test has been mentioned before in this blog. The majority of the recently updated exceptions to copyright rely upon this test and so it is in the spot light, although it was already an established concept in UK Copyright law.

In contrast to the concept of “fair use” in US copyright law, which can be applied generally, “fair dealing” in UK copyright law is only relevant in the context of the statutory exceptions. It is a test of whether we are applying the exception correctly and therefore of whether we can rely upon it for protection.

The UK Intellectual Property Office say: “There is no statutory definition of fair dealing – it will always be a matter of fact, degree and impression in each case. The question to be asked is: how would a fair-minded and honest person have dealt with the work?”* Therefore it will always depend upon the context, but two key questions will generally apply:

  • Could we be damaging the copyright owner’s interests by our use of their work? For example by producing something in direct competition?
  • Are we using more of their work than is really necessary in the particular circumstances.

By way of example, copying an extract for the purposes of setting an examination may be fair dealing whereas reproducing the same material in a published work under the Quotation exception (which applies from 1st October)might not be fair dealing.

*IPO (2014),Exceptions to Copyright: Guidance for creators and copyright owners