The long awaited EU Directive on Copyright in the Digital Single Market (COM(2016) 593 final) has just been published. At this point it is just a “proposal” and will need to complete the EU legislative process. In addition, as a “Directive” it will not have immediate effect in the member states when it has become law. It needs to be implemented in each EU member state and there may be variations in the way it is eventually implemented, although the provisions are mandatory, not optional like most of the current EU copyright exceptions.  It includes some positive features offering modest improvements. The negatives will be covered in a follow-up post:

• Text and Data Mining exception (Art.3). Currently the UK is the only EU members which has a TDM exception.
• Education exception (Art.4) covering the use of digital material for teaching. This complements the existing exception and covers providing digital material in a secure environment such as a VLE. It covers distance learning and cross border delivery within the EU.
• A broader Preservation exception than we currently enjoy in the UK (Art. 5) for cultural heritage organisations which looks as though it might cover collaborative and cross border preservation schemes.
• Framework for applying Extended Collective Licensing (Art. 7) to out-of-commerce works (the UK already has this – it is a weaker solution than providing a new exception, depending as it does on the willingness of rightsholders and collective management organisations).

Perhaps the most positive aspect is that these new exceptions (being mandatory) will apply to all EU member states and will apply to cross-border activities within the EU. [Part 2 on the less positive aspects of the Directive to follow]

This is an enquiry from one of the UCL Libraries: Would the “Preservation exception” contained in Section 42 of the Copyright, Designs and Patents Act 1988 (CDPA) cover the digitising of their extensive collection of historical videos? The videos were originally published in various countries and are not made available for loan.

The answer is that this collection is a good example of material in a superseded format which could  be digitised under the terms of the Preservation exception. The main conditions from CDPA Section 42(2) are that the “work” must be:

“(a) included in the part of the collection kept wholly or mainly for the purposes of reference on the institution’s premises,

(b) included in a part of the collection not accessible to the public, or

c) available on loan only to other libraries, archives or museums”

Despite the ambiguities we can assume that it is enough for one of the conditions to be fulfilled and archival video collections will usually tick the box.

There is a further condition that the exception only applies when it is “not reasonably practicable” to fulfill the preservation need by purchasing a digital copy – CDPA Section 42(3).

What can be done subsequently with the digitised copies is also governed by copyright law. The “Dedicated terminals” exception (CDPA Section 42) would permit the digitised videos to be made available within the Library. Following CJEU case law  (Ulmer v. Technical University of Darmstadt ) the Dedicated terminals exception might also cover the digitisation itself.