In some branches of Science replication studies are common practice. Recently I received a query about possible copyright implications. What happens in general is that the results of an experimental study are published and other researchers seek to test the validity of the results by replicating the study as closely as possible.   How about copyright issues?

There is no copyright in the underlying ideas or the methods used in a study although there is copyright in a paper expressing the ideas and describing the methods. There may be a fine line. The replication study may need to quote extensively from the previous paper, for example, raising copyright questions. 

There must be an expectation on the part of academic researchers that others will want to replicate their studies. If it is necessary to reproduce work which is protected, then this may be covered by the Quotation exception – one of the recently introduced “fair dealing” exceptions in UK copyright legislation .  In case of doubt it will probably be straight-forward to request permission.

There is no intrinsic copyright issue in “re-staging” the experiment, but what if the study itself involves the use of works protected by copyright ? Think of a psycholology study which measures the subjects emotional reactions to a series of videos.

What if the videos were originally “borrowed” from YouTube without any copyright checks? That may create a serious problem for researchers wishing to replicate the study as closely as possible. This is an actual example described in the Guardian which underlines the importance of an awareness of copyright issues in research.

This query received by the UCL Library involves several aspects of copyright. A researcher, Shilpa, who is planning to publish a book, has visited the Library to consult a PhD thesis. The author of the thesis (Hector) died a few years previously. Shilpa has asked about the copyright implications of reproducing some quotations from Hector’s PhD thesis in her book. A question springs to mind for those familiar with the recent changes to UK Copyright Law:

Could the use of material from the PhD thesis be covered by the new, broader Quotations exception (Section 32 of the Copyright, Designs and Patents Act 1988)? If the quotations are of modest length and meet the requirements of the Fair dealing test (which applies to Section 32 along with other copyright exceptions) then it may be that the researcher will feel confident in relying on the exception.

However, if there is any doubt about whether it is then, given especially that the book will be commercially published, Pam may decide to reduce her risk by seeking permission.

 But then whom should she approach for permission? Copyright would initially have belonged to the author. The thesis is unpublished so it is most likely that copyright remained with the author, now deceased. IP rights can be inherited like any item of property. Unless the author of the thesis made provision for the copyright in his works in a will it has probably been inherited by his family as part of his estate. The task facing Shilpa is therefore to trace Hector’s family in order to find the copyright owner and seek permission.

These exceptions were delayed for further scrutiny and hence did not come into force on 1^st June as planned. Both are quite significant for HE.  The quotation exception (Copyright, Designs and Patents Act Section 30) is contained in a draft Statutory Instrument  which has just been published and is due to come into force on 1st October 2014.

This is a “fair dealing” exception which permits extracts to be reproduced from any copyright work as long as this is fair dealing. That test needs to be considered carefully in each case. It is no longer restricted to “criticism and review” and now covers quotation for any purpose. The amount quoted should be no more that required for that purpose. Useful features of this exception are:

• It applies to quotations from all media, so that it could cover the use of an extract from a film, for example.
• Its use is not tied to a particular context: The quotation could appear in  a blog post, an academic presentation or a published book, as long as the use of the quotation can be justified in terms of fair dealing.

The Parody exception, in the form of new section 30A to the CDPA 1988, is entirely new to UK copyright law and is included in the same SI. It gives considerable leeway in terms of reproduction for purposes of caricature, parody and pastiche. This will be significant for creative work. Neither of these exceptions can be over-ridden by contract terms.

The proposed exception for quotation (New CDPA Section 30) will replace the existing “criticism and review” exception and is much broader. It covers quotation for any purpose, subject to the fair dealing test. The existing exception can only be relied upon when quoting for the purpose of criticism or review of either the work quoted or another work. The replacement is also broader in the sense that it covers unpublished works as long as they have been “made available to the public” (in an archive for example). This will be a positive change in area of historical research.

The exception covers all copyright works, including film and sound recordings, so it will widen the scope for including extracts from those media. It should be easier to include brief extracts in academic works, reducing the occasions where permission is required. Can one ever rely upon the exception to reproduce the whole of a work, for example a photograph, where merely reproducing a proportion makes little sense? This remains doubtful and would be a matter of applying the fair dealing test. Are we quoting more than is reasonable for our purpose? What is the potential for damaging the interests of the copyright owner?  Caution will still be required. As with some other proposed exceptions, this cannot be over-ridden by contract terms.

Did you know that 26^th April is World Intellectual Property Day ? To be honest neither did I but it is certainly worth celebrating!