Today I attended the CILIP Copyright Executive Briefing and it is difficult to believe a year has passed since last year’s copyright briefing. A lot has happened in the last year, it’s never a quiet year in terms of copyright as Dr Ros Lyn, the Director of Copyright Enforcement from the IPO told us.
The event was chaired by Naomi Korn who is Chair of LACA, and it was a great opportunity to launch LACA and CILIP’s London Manifesto. The first speaker was Ros Lynch, Director, Copyright Enforcement, at the IPO. She spoke about how Hargreaves had been an attempt to re-balance the copyright regime and how the new exceptions brought in last year were useful for libraries and archives, in areas such as preservation, in widening the research exception to cover all categories of works. The IPO have also implemented the EU orphan works directive and introduced the Orphan Works Licensing Scheme. She was disappointed it was not being used in the sector as widely as expected and wondered if there was a difficulty in understanding what due diligence means. Ros spoke about about areas where the IPO could not deliver change for example not being able to make the 2039 legislative change. Overall the message was to the sector to engage with the IPO. She welcomed the London Manifesto as a step in the right direction and the IPO want to support balance and cross border exchange in the copyright regime.
Charles Oppenheim was the next speaker who examined some of last year’s changes to the law and the impact of library and information professionals. Charles discussed 5 changes to the law in terms of library exceptions and what they mean in practice. These included:
- Making of copies available on dedicated terminals – should we be replicating one patron getting access to one item? Or can two people get access at the same time. We discussed if we could be more permissive and whether dedicated terminals have to be in the library (Charles thought not) but can it be two people on different terminals having access? Could it be an ipad?
- He looked at changes to supplying copies to another library
- Copying of items for preserving the collection
- Making of single copies by librarians – where you no longer need a signature and charges are not compulsory. How many libraries are making copies for their patrons still? In some sectors this does still occurs.
- Making a single copy of an unpublished work can be made for a library of archive user. Applies to all media types
Charles was clear that he was not giving legal advice but he urged librarians to take a risk managed approach to copyright.
The next speaker was Ruth MacMullen (and her hearing dog Chester) who’s talk was entitled: Beyond the lens to the new disability exceptions: additional needs in HE. Ruth also explored the recent copyright changes and their implications for disabled students. She also discussed how her university (York St John) is responding to changes in the Disabled Students Allowance. Prior to last year in the UK we had the Copyright (Visually impaired persons) Act from 2002. It only covered VIPs, not other disabled persons and was limited to specific types of works such as literary and artistic works. The new act covers all categories of works and all categories of disabilities.
Section 31A applies if a person’s disability prevents them from enjoying the work it allows educational establishments to make amendments to it – e.g. adding subtitles to a film. Meanwhile Section 31BA permits making a temporary copy necessary for making the accessible copy. Licensing schemes are still being used at YSJ as don’t have to report copies under the licence. Licences can over-ride the exceptions.
Ruth then discussed the changing HE context and changes to the Disabled Students Allowance which was reformed last year. The reforms were a response to more students in HE and more students claiming DSA. 50% of all disabled students claim this. The funding is now favouring technical assistance rather than physical helpers which are expensive. Ruth explained how at YSJ they have 13.3% of students who declare a disability and around 400 claim DSA. Ruth also discussed the Equality Act which requires institutions to make reasonable adjustments – to provide material in accessible format. It is also an anticipatory requirement, but anticipating needs is tricky as one size does not fit all. Finally she mentioned how in the US the National Association for the Deaf have filed suits against Harvard and MIT for discrimination against deaf people. She felt that in the UK we need to be talking about reasonable adjustments and the Library can play a key role here in supporting disabled students.
After a coffee break Naomi gave us an update on the Orphan Works dilemma.There are at least 50 million orphan works in the UK – but in fact there are likely to be more. Naomi reported on how institutions with a copyright officer more likely to take a risk managed approach. She also reported on orphan works at the Imperial War Museum which are mainly photos, however she used the example of the diary of Ethel Bilbrough from World War One which they wanted to publish but it had a lot of third party orphan works within in.
Naomi compared the Orphan works exception with the licensing scheme. The two dovetail together – where you can’t use the exception you can use the scheme. Both were launched in October 2014 and to rely on the exception and the scheme you need to carry out due diligence searches. There are media specific lists of places to go and check and guidance is available on the IPO website. If you wish to make a work available online for non-commercial purposes you can use the exception otherwise you shoul use the licensing scheme. The scheme is managed by the IPO and as part of the application you submit your due diligence search. Licenses run for 7 years or for a print run and they are valid in the UK. Charges for the licence for non commercial use are 10p per work, but an administration fee of £20 for one item, £24 for two, £26 for 3 etc. The costs for commercial use are higher and this covers for example to reproduce a work for a guidebook or charging for an exhibition. Naomi felt there was a clear need for a hybrid licence where the use is quasi-commercial.
Some may ask does the risk justify the costs of the scheme? In the case of some orphan works does the rightsholder actually exist at all? Are items part of our cultural heritage and not created for commercial gain. There is a register of licenses issued to date by the IPO and in some cases licences have been granted for a museum to digitize first world war photos. These items are likely to be out of copyright. In the case of photos of unknown authorship if created before 1 June 1957 – copyright expired 70 year after creation or 70 years after it was made available to the public.
Naomi’s advice was to weigh up the risks, and think about insurance schemes. She also urged institutions to have robust notice and take down policies. Staff training is important and the need to create systems to record the due diligence and to collect the information centrally. Finally there is a useful risk management calculator from Jisc.
The final speaker before lunch was Emily Stannard, Head Librarian at Bradfield College, who spoke about the new educational exceptions. She started by showing us the monkey selfie photo – does it qualify for copyright protection and does the photographer who owns the camera have any rights? The case has yet to be resolved in course but the consensus was that no copyright exists in the photo as it as taken by a monkey. Emily then talked about teachers often believe that anything can be copied for educational use and so there a misunderstanding about copyright in this sector.
Emily spoke about the concept of fair dealing which is more important in the new exceptions – so the use does not conflict with a normal exploitation of the work, and you should ask if you are undermining the exploitation of the work by the original rightsholder? She then took us through some of the new and amended exceptions including:
- s.29 Research and private study – which now applies to all types of works (including AV) so widening the amount of works that can be copied and it cannot be subject to contract override.
- S29A is the new Text and data mining exception – you must have lawful access to the work. Research libraries report that researchers are benefiting from being able to run computational analysis. Mass downloads cause concern from publishers so Emily suggested you may need to take a more proactive approach so researchers let the librarian know if they are carrying this out.
- S30 is Quotation (whether for criticism and review) – she gave us some examples of using quotations in universities – engraving quotes into the building and quotes in a newspaper
- S.32 Illustration for instruction – this exception still cover examinations and Emily was in meeting where this was discussed with rightsholder who had no quibble with this use. However, arguable now this cover the use of images in powerpoint – using figures and diagrams, limited extracts of works in powerpoints
- S.35 is the recording of broadcasts (by educational establishment) which now extends to putting these on the VLE but has resulted in a hike in the ERA Licence fee.
- S.36 copying and use of extracts of works – covers up to 5% of work per year. Excludes standalone artistic works but this exception covers material not covered by the CLA licence.
Emily questioned about what could be done on the VLE? She argued that images included in a PowerPoint could be covered by illustration for instruction and also if they are lecture captured. This was not quite the same interpretation that CLA had when UUK discussed it with them. She then cited a case at the Court of Justice of the European Union, of Technische Universität Darmstadt v Eugen Ulmer KG. You can read the report from the IPKat – the university had digitised an in copyright book without permission and made it available on a dedicated terminal for library users. The background was the publisher had offered a licence for ebooks to the university previously and they turned it down and digitized the work themselves. Although the book was on a dedicated terminal, users could print and download on a USB stick.
We ended up discussing what commercial use might be and why presenters might choose to use Creative Commons licensed images in their slides if the illustration for instruction exception could be used. Ultimately Emily concluded it has to be up to you and your appetite for risk – so perhaps I should quote illustration for instruction and show as many images as I want in my next talk?
My own talk came straight after lunch and I gave a brief update on the work of the Universities UK / Guild HE Copyright Working Group, and our recent negotiation with CLA and ERA. I explained how the group works and the main issues we advise on, including licence negotiations and also responding to consultations. I had several questions about the new services CLA have announced this week, such as the Second Extract Transactional Permissions Service and their proposed Digital Content Store. You can see my slides on the CILIP website. It was also mooted that UUK and LIS-copyseek would organise an event for the HE sector in the summer and there was considerable interest from the group in such an event.
Barbara Stratton who is Vice-Chair of LACA and our representative in Europe and internationally for example at WIPO spoke about international copyright issues. Her slides are available on the CILIP website but essentially there has been no consensus as trying to harmonize the exceptions for libraries and archives at WIPO. Support for reform for exceptions for libraries and archives essentially comes from Latin American and Caribbean countries, Africa and some Asian countries including India. Opposition comes from the developed world (Group B countries) and includes the EU. Barbara wrote about this in CILIP Update and in the magazine Intellectual Property last summer but there is a sense that the EU hates libraries. The General Assembly in September 2014 was described as the ‘worst ever’ and Group B countries withdrew their support for exceptions and limitations in favour of libraries.
Barbara also spoke about the WIPO study undertaken by Professor Kenneth Crews in December 2014 and how 33 countries don’t have exceptions or limitations for libraries and archives. He also suggested that WIPO should take the lead with cross border activities. Finally in the European Parliament the MEP Julia Reda was the rapporteur of the JURI Report on the InfoSoc Directive, which was welcomed by libraries and archives. It made recommendations for change and attacked rightsholders. Do read Barbara’s slides for more details on this however she concluded by saying that libraries and archives really need to be able to demonstrate value for money and the economic impact of IP laws.
The final speaker of the day was Fred Saunderson from the National Library of Scotland (NLS) who talked us through LACA campaign from last year to remove the ‘2039 rule’ which means that a considerable body of works in libraries, archives and museums that was unpublished in 1989 remains in copyright until 2039. LACA launched the Free our History campaign and it was kicked off by the NLS, Imperial War Museum and the University of Leeds. They tied the campaign to the centenary of the First World War. S.19 of the Copyright, Designs and Patents Act covers the performance of a work in public – any mode of visual presentation – so arguable it covers public exhibition of a work. In October 2014 blank letters appeared in display cases in the three institutions. In the NLS these were displayed in a very prominent position, and stated that letters from a first world war soldier could not be displayed due to a copyright issue.
The campaign used the #catch2039 and while there are no stats on the Twitter interest it was ‘significant’ and the feeling was the WW1 angle really helped. Interestingly in the last week or so guidance has now been issued by the IPO on how displaying a work is not a copyright infringement. In many ways this is a tribute to LACA’s successful campaign but the IPO did not amend the legislation and their guidance is simply that, not legal advice.
We finished the day with a panel discussion where all the speakers joined Naomi to answer questions from the floor. We concluded the day shortly before 5pm and I hope everyone enjoyed the day as much as I did. As ever there is so much to learn and discuss around copyright.