Friday, 22 August 2014

Copyseek Conference for HE Copyright Practitioners 21st August 2014, University of Leeds

You wouldn't have thought a gathering of copyright practitioners from education for a conference on copyright would be either very exciting or very energetic, but the 2014 Copyseek event was both! LIS-Copyseek is a JISCMail list for copyright practitioners (including librarians who have a responsibility for copyright) in the education sector, and is an extremely useful network for sharing best practice and asking those tricky questions that often come our way.

The event kicked off with an entertaining ice-breaker for all 60 or so delegates, getting everyone to say who they were, where they were from, what they did and what they wanted for Christmas. Answers ranged from better copyright exceptions and more time to circular saws and Benedict Cumberbatch! The first session, entitled 'How do you solve a problem like managing copyright compliance in HE?', was led by Monique Ritchie, Copyright Officer and Research Librarian at Brunel University. Monique outlined three problems: digitised course materials, data collection for and reporting to the Copyright Licensing Agency (CLA), and overseas students, explaining that it is hard to reach academics who often operate in silos and need flexibility because of increasingly demanding workloads and timetables. Brunel has adopted a university-wide reading list system, Talis Aspire, for which the library got top-level agreement from the University Senate, thus ensuring that all academics submit reading lists to Talis Aspire. This has taken a lot of work and effort by the library, which set up a user group of champions to agree wording for a policy to manage student expectations and resource reading lists. Liaison librarians attend board meetings and are fully embedded in departments, which means that Monique can easily cascade training and support materials to the academics. Providing scanned material for reading lists is managed by the centralised Digital Readings Service in the library; this works well with the reading list policy and the library's cut-off dates for receiving reading lists are June and November. Budgets are spent on a first come, first serve basis, and any 'stragglers' who miss the deadlines can be picked up by the team. Finally, as Brunel's library service has a university-wide presence, it can outreach more easily to areas which have international leanings and offer help and support. Some overseas institutions are better resourced than the UK ones, so it is often worth seeing if a reciprocal arrangement can be worked out with those overseas partners. The CLA are also piloting an add-on to the licence for students based at overseas campuses, which may be helpful to those institutions who are currently not sure about how to deal with this issue.    

Next up was Lisa Redlinski from the University of Brighton. Lisa's energy and enthusiasm never fails to amaze me, and her Prezi was as dynamic as she was! Her talk was on 'How to survive a CLA Audit', and she enthralled us with her superhero powers of combat as we watched, astonished, as she wriggled out of her sharp suit and into her combat trousers (or as she put it, her 'big girl pants') - as she's American, it means something different; the rest of us were wondering what on earth she was going to reveal!

Lisa encouraged us that, although it's a lot of time and effort, it's not as scary as we think it will be - she was able to negotiate on the dates for the audit because she needed more time to pull together all the people who needed to be involved. She suggested checking the Virtual Learning Environment (VLE) copyright statement, policies (including housekeeping and weeding) and procedures around copyright compliance so that they could be shown to the CLA, and that the CLA auditor would take a snippet of the data report and check the scans against what was reported. The day that the auditor arrives, ensure they are well fed and watered and work with them to navigate the VLE and answer any questions they may have. A follow up report with any suggested changes is written which is sent to the Library Director and the Vice-Chancellor, and a follow-up visit may be necessary. The University of Brighton benefited from the audit in that the copyright policy was amended to become a service statement, and it raised the profile of copyright within the university. Finally, it's important to have a good grasp of not only what the licence says but also what our statutory rights are under copyright law, as this will help in discussions.

Chris Morrison from the University of Kent, Canterbury gave a great talk on 'Five things that make copyright difficult to communicate' and gave us some principles for effective communication of the topic. His five reasons that copyright concepts are difficult to get across to staff were: 1. It is what it is (in other words, there's no escaping that it's law and that infringement does have consequences); 2. How much you know can often be a hindrance - you either send people to sleep by arguing finer points of law or you leave your audience bewildered; 3. Using the wrong tone or medium - written guidance for copyright, if too long and wordy, often doesn't get read by staff; shaking the stick too much also puts people off; 4. Which sources to trust - there's a lot of information out there on copyright but quite often you never know if the source is appropriate, e.g. it may relate to a different jurisdiction or be opinions or propaganda; and 5. The danger of undirected conversation - we need to explain why some things can't be done in certain ways.

His principles for effective communication: use worked examples or narratives to explain your points rather than abstract examples; simplify and focus on the issue; use analogies; engage all the senses - get people to interact with copyright law; match the message and the medium to the audience, and strike the right tone; get your audience to take ownership rather than putting all the requirement to make a decision back on you; and engage with the community (at which LIS-Copyseek is very much the heart!).

Prior to lunch there was a panel discussion about how the HE sector can better represent itself when it comes to issues of copyright. JISC Legal noted that they cannot represent HE copyright officers but suggested that if we move away from the word 'compliance' towards the word 'quality', our organisations may take more notice. The Libraries and Archives Copyright Alliance (LACA) has been doing a lot of work to represent libraries, archives and the education sector when lobbying the government for changes to the law, and LIS-Copyseek is represented on LACA by me. However, there was a concern that there was no will amongst the major bodies representing education (such as Universities UK) to provide centralised negotiation on copyright licences.

After lunch Laurence Bebbington (University of Aberdeen) spoke about the tension between copyright law, open access, Research Council funder mandates and Creative Commons licences. He drilled down into issues of ownership of copyright, particularly in scholarly works written by academics. Under the Copyright, Designs and Patents Act 1988, works done in the course of employment belong to your employer. However, most universities choose to waive this for scholarly works, so that the copyright remains with the academic who is writing the article/monograph. Teaching materials, on the other hand, will be owned by the university, who will have a vested interest in them. Laurence was sceptical about open access, saying that it didn't sit well with copyright law as under copyright the author of a work gets to choose what they do with their work and should not be forced to do something with it by someone else. However, the next REF states that metadata of research outputs must be added to a repository within three months of acceptance for publication, and a number of full-text works will have to be made available too. This is not giving academic authors much freedom to decide what to do with their copyright works. Gold open access is also problematic; the requirement to add a CC-BY licence to a work means that there is a loss of control of rights by the author and leaves it open to exploitation by a commercial entity. He cited the case of 'Epigenetics, Environment and Genes', a CC-BY journal article that was made into a book by Apple Academic Press and now sells for over $100 without the knowledge of the author. He left us with the suggestion that there may be ethical issues with open access that perhaps we have overlooked.

Next up was Alan Rae, Copyright Adviser to Colleges Scotland, discussing the latest copyright exceptions. He summarised the education exceptions fairly neatly (I've done this in a previous post so won't repeat here!) and suggested that we as a copyright community build and share examples of how we interpret the exceptions in our own day to day work. He raised some interesting questions over data collection and the fact that collecting societies collect ever more data for unclear purposes. He mentioned that he sits on the group for the Copyright Hub and encouraged us to submit feedback on the Hub, along with suggestions for improvement, to him.

The final talk was given by Jason Miles-Campbell (JISC Legal) on 'Core Training for Copyright'. Jason suggested that more creative arts subjects should include a formal teaching aspect on copyright to raise awareness of it amongst young creators of IP, and that we should teach staff about copyright to get them to a level of basic awareness of it rather than overload them with too much legalese. He noted that HE (and education generally) is generally a compliant sector, keen to ensure quality resources and licence compliance. He suggested using the National Student Survey (NSS) results to put pressure on senior managers for improving the quality of learning resources for students, and that copyright officers should get a pay increase by a grade or two (never going to happen!).

By this point we were running a little late, but we had time for one more Panel Discussion which looked at different methods of digitised course provision. Monique Ritchie (Brunel University), Kate Vasili (Middlesex University), Paul Cave (University of Leeds) and Annette Moore (Sussex University) discussed the different ways that their universities supplied digital core readings, with the obvious point that everyone does this differently!

Finally, the day ended with a series of lightning talks from a number of people on a topic of their choice. These talks ranged from lessons learning from CLA audits, the perils of being a new copyright officer, an update on music licences, and a particularly fantastic presentation by Annette Moore from Sussex University on her game of copyright Snakes and Ladders, which she is hoping to licence under Creative Commons and make available on Jorum for the sector!

The whole day was absolutely fantastic and a great chance to network with other copyright professionals from the sector. It is well worth attending for any copyright officer or librarian from HE, FE and schools, as the energy, enthusiasm and opportunity for sharing information and practice is contagious! Many thanks to Lisa Redlinski, Monique Ritchie, Kate Vasili, Jane Secker and Paul Cave for organising this great event; hope there's another one soon!

Thursday, 7 August 2014

Quit Playing Around: Monkey Stirs Up Copyright Controversy with Selfie

A brief departure from copyright in the education sector and more a post on copyright education. As you know, I am a big fan of bizarre and random stories, and yesterday saw the return of the 'monkey selfie' story as reported in the Telegraph. Briefly, a British wildlife photographer was photographing crested black macaque monkeys in Indonesia when the monkeys began to show an interest in his equipment and started taking pictures of themselves. One of the photos has found its way on to Wikimedia and now the photographer is threatening to sue for copyright infringement and damages. But if the monkey took the photograph, who really does own the copyright?

First off, let's do some copyright 101: for an artistic work to benefit from copyright, it must be original and a product of intellectual creation, skill and judgement by its author. We will return to questions of ownership shortly, but first let's examine whether this photograph would qualify as an artistic work to benefit from copyright.The Copyright, Designs and Patents Act 1988 (CDPA) states in s.4(1) that an artistic work means, among other types of work, "a photograph,...irrespective of artistic quality". Photographs which are 'selfies' are not new; rather they have become more popular with the widespread use of smartphones. The Oscar selfie earlier this year is a classic example; this was a product of Ellen DeGeneres' creation, bringing together top celebrities into one frame of a photograph, thereby making an original work (it is highly unlikely that photos including all of these celebrities exist). You could argue that the level of skill and intellectual creation is fairly limited, but it is an original work nonetheless and qualifies for copyright. Does the monkey's selfie differ, then, from the Oscar selfie? Particularly as the photograph was not actually taken by Ellen DeGeneres? The problem with the monkey selfie is that, although it is original in the starkest sense of the word, there appears to be little intellectual creation, skill and judgement (although how can we criticise the monkey, given that it can't tell us..?!), unless the shot was set up by the photographer in some way, adjusting settings, focus, filters and so on to capture 'true' likenesses. Additionally, if the photographer has adjusted the image using Photoshop (see the Red Bus case which continues to perplex lawyers), an element of intellectual creation, skill and judgement could be argued.

But what about the question of authorship? The author, as defined by s.9(1) of the CDPA, means "the person who creates [a work]". On first glance this would appear to be the monkey, who quite literally 'created' the work when it touched the trigger and set off the camera. However, animals cannot be authors according to the CDPA, and therefore their works are not subject to copyright. So is there actually a copyright owner in the work, or is the photograph not subject to copyright at all and therefore public domain?

Could it be argued that the photographer did not actually create the work because he did not take the photo? It's not quite as simple as that. Although the CDPA does not go into further detail about the author of an artistic work, leading legal experts have submitted that the author "is the person who made the original contribution and...need not be he who pressed the trigger" (Laddie, Prescott & Vitoria, The Modern Law of Copyright and Designs, 4th ed, 4.61 p.254). 'Original contribution' in this sense can take several forms: there may be originality, for instance, in the use of angle, filters, light, exposure, and so forth which create a photograph. There may be originality in terms of the creation of a scene or subject to be photographed; this certainly is the case in the Oscar selfie, but may also include the set up and control of the illumination of the subject. Finally, it may just be a 'right place right time' type of originality, the photographer capturing a scene because he made a special effort to go and find it. In this respect, the wildlife photographer would appear to qualify as at least a contributor to the photograph. There is an added complication that allegedly the monkeys found the camera by accident and that the photographer did not set up the shots, but even so the serendipity aspect of originality cannot be completely ignored. 

Finally, could this be considered as a computer-generated work? Again, the CDPA in s.9(3) states that the author of a computer-generated work "shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken". It is less likely that this work could be construed as a computer-generated work, but it would appear that the same principles of authorship could apply, in that the photographer would be the author of the work.

It's a fascinating debate and I would definitely want to be in court watching this particular case. It is difficult to say whether the arguments would go in favour of the photographer being the author; this is certainly the verdict in a blog post by our US friends across the pond, who argue that as there was no official creator of the photograph other than the monkey, and the monkey does not qualify as an author, there is therefore no copyright in the photograph. It does however seem a bit unfair to the photographer, who should probably be recognised as a contributor at the very least. Perhaps we should ask the monkey? ;-)

Monday, 2 June 2014

Changes to UK Copyright: Education Exceptions

June 1st 2014 marks a very big day for UK copyright law. After some ten or more years of consultations and lobbying, the Permitted Acts within the UK's Copyright, Designs and Patents Act 1988 have finally had a makeover. Three years from the influential Hargreaves Review of Intellectual Property, which found that copyright law was not fit for the digital age, three new Statutory Instruments have come into force which amend sections on libraries and archives, education, non-commercial research, public administration and copying for people with disabilities. So what do these amendments really mean for those in education and teaching?

Use for Illustration in Instruction

Remember that part of the CDPA that said you could copy works to use in teaching but only by means of a non-reprographic process? It was completely useless for those using presentation software in teaching. Fortunately, that's fallen by the wayside in these new exceptions and has been replaced by use of copyright works for the purposes of illustration in instruction, provided that the dealing is fair and for non-commercial purposes. This is excellent news for teachers, for the following reasons:

a) it is not limited to types of copyright works (so you can copy any type of work)
b) it is not limited to teaching within educational establishments (so you could benefit from this exception if you are providing training to your staff, for example, or to school pupils in a museum)
c) no licence or contract can prevent you from using this exception (and therefore no more licence reporting for works used in face to face presentations)

However, the introduction of the fair dealing requirement to this exception means that teachers must use common sense when applying the exception. Obviously, use of a whole film (outside of an educational establishment as they have a separate provision for the showing of films for instruction) would not be seen as fair. The CDPA does not define 'fair' but case law shows that factors such as whether the use of the work competes with the exploitation of it by the copyright owner and the motive of the person using the work are taken into consideration by the court. Quantity used is also a factor, so it is important not to use more than you need to make the point. Sufficient acknowledgement of the work (i.e. credit to the author) should be made wherever reasonably practicable.

In essence, this exception just legalises the activities that teachers already do in terms of preparing their lessons / training sessions, and most standard practice is unlikely to change. It is important however to ensure that this exception is not used when teaching for commercial purposes, so continue to purchase licences or use CC-BY materials for these.

Use by Educational Establishments  

Virtual Learning Environments (VLEs) are now used by pretty much every Further and Higher Education institution in the UK to supplement lectures, seminars and classes. The VLE allows tutors to provide students on their courses with resources, lecture notes, discussion forums, reading lists and tests/coursework. It is particularly useful for part-time and distance learners, although most full-time students will access it for course materials, lecture notes and coursework assignments. The CDPA contained almost no provision for use of works in VLEs, but the changes from 1 June have amended that to permit:

Recording of broadcasts (and subsequent use via a secure electronic network)

Educational establishments have always been allowed to record broadcasts under section 35 provided that an authorised licensing scheme did not exist. If it did, they would be obliged to take a licence. These have historically been provided by the Educational Recording Agency (ERA) and the Open University. Following some changes, the ERA has taken on the Open University broadcasts as well, and for some time has been operating an ERA+ licence to allow institutions to make recorded broadcasts available on the VLE. The drawback is that any student outside of the UK cannot view them because of territorial broadcast rights (similar to BBC iPlayer). Section 35 has been amended to include the provision of making broadcasts available via the VLE provided a licensing scheme does not exist. The ERA are, from 1 August, only offering the ERA+ licences to educational establishments, and cover the widest range of broadcasts. However, there may still be some broadcasts which are not covered by the ERA licence and which may now be able to be included within the VLE. 

Copying of extracts of copyright works (and subsequent use of these extracts via a secure electronic network)

The section 36 provision in the CDPA has been next to useless, only permitting 1% of copying of only literary, dramatic and musical works per quarter provided a licensing scheme did not apply. This section has been amended to increase the amount that can be copied to 5% per year and to extend the provision to all types of copyright works with the exception of broadcasts and standalone artistic works. Again, if a licensing scheme applies and you know or ought to have known about it, you are obliged to use it (and therefore the exception does not apply). Educational establishments with a CLA licence will therefore continue to follow the provisions of the licence when placing course materials such as journal articles and chapters of books in the VLE. At present, it seems that some categories of works may not be covered by licensing schemes (this is where the Copyright Hub may come in handy as a way to check), but it is important not to break technological protection measures (TPMs) when copying as this is an offence under copyright law. Exempting standalone artistic works is a peculiarity of this exception but given that the copying allowance is 5% of a work it is likely that this exception would have been little use to those wanting to use images anyway, not to mention potential moral rights issues of using only parts of artistic works. 

Copying for Non-Commercial Research & Private Study

Researchers as well as librarians benefit from changes to the provisions for non-commercial research and private study, which now extend the exception to allow for copying from all types of works. This exception remains a fair dealing exception. A new exception for text and data mining has been added, which allows for individual researchers to make copies of works that they have lawful access to (such as subscription resources) for the purposes of computational analysis. This is on the proviso that the research is non-commercial. Contract terms which prevent this type of use are not enforceable.

On the whole, the amendments to the CDPA for education are positive, and it's fantastic to see the law changing to allow for digital uses by teachers, educators and librarians. The only spot on the horizon is the introduction of fair dealing to section 32 (illustration for instruction). Part of this section also applies to examinations, which prior to the changes was worded: 'anything done for the purposes of examination does not infringe copyright'. Whether or not this will have any real impact remains to be seen, but it would be wise to take a risk-based approach to this type of use. Nevertheless, this is a big step in the right direction towards a more balanced copyright law which is long overdue.    

Friday, 21 June 2013

Just released - UK Statutory Exceptions for Education, Libraries & Research

The day has finally come - the Intellectual Property Office (IPO) has today released its draft Statutory Instruments on Education, Research, Libraries and Archives. So what do they have in store for those of us working in the education and library sectors? I'll summarise the changes below in sections:

1. Education: ss 32, 35 and 36 of the CDPA

Fair dealing for the purpose of instruction:

  • Teachers can make reasonable use of copyright materials of all types of copyright work as long as the use is minimal, fair and non-commercial
  • Examination exception continues to be included and appears to include reprographic copying musical works, although it's unlikely that copying a whole musical work for the purposes of performance in an examination would fall within this exception as it wouldn't be fair
  • Exception cannot be overridden by contract terms if the contract restricts these acts
  • Means copying material to use for teaching in class with presentation software is permitted
  • Not restricted to educational establishments - includes any teaching / provision of instruction 
Recording by educational establishments of broadcasts:
  • Expanded to include the provision of recorded broadcasts to students off-campus by means of a secure electronic network (for example, a Virtual Learning Environment)
  • This act is not authorised if there is a licence available authorising this activity
  • This exception may be limited by a licensing scheme such as ERA+ - check your licence
Copying and use of extracts of works by educational establishments:
  • Copying of extracts of a "relevant work" for the purposes of instruction and supplying to member of staff or a student is permitted, both physically and via electronic means (i.e. Virtual Learning Environment)
  • "Relevant work" means a work OTHER THAN a broadcast or a stand-alone artistic work (e.g. a photograph)
  • Must be for non-commercial purposes
  • 1% per quarter provision has been expanded to 5% of a work in the course of a year
  • The activities in this section are not authorised if a licence is available (e.g. for text and embedded images, a CLA licence is available)
All performance rights are also covered by these exceptions in sound recordings, broadcasts and films.

2. Fair dealing for non-commercial research (s.29)

  • Now covers all copyright works and can't be restricted by contract, but fair dealing still applies.

3. Libraries and Archives (ss. 37-40)

  • Prescribed libraries and non-prescribed libraries seems to have vanished - replaced with libraries that are not conducted for profit
  • Expanded to cover all types of copyright work: copying "parts of published works" has been replaced with "a reasonable proportion of any other published copyright work"
  • Copy must be supplied for a non-commercial purpose, only a single copy of an article in a periodical may be supplied (this bit has remained unchanged), not more than one copy is supplied per person
  • A written declaration must be supplied but it no longer has to conform to the standard declaration form and no longer requires a signature
  • Preservation copying of items in the permanent collection may be done by librarians, archivists and curators (as well as people acting on their behalf)
  • Replacement copies can be made for other non-profit libraries, archives, museums or galleries provided that it is not reasonably practicable to buy a replacement copy
  • Contract terms which restrict these activities are unenforceable
  • Copying of unpublished works is expanded to all types of copyright work provided the copying is done for non-commercial research, a written declaration is given by the person receiving the copy and the copyright owner has not prohibited copying
  • A publicly accessible library, an educational establishment, a museum or an archive may make copyright works available through dedicated terminals on the institution's premises for non-commercial research / private study to individual members of the public provided the works have been lawfully acquired by the institution 
  • Making works available via dedicated terminals must be in keeping with licence terms on which the work was purchased (i.e. if the licence says you can't do this, you won't be able to do it
Performers' rights are also covered by these exceptions. There are also amendments to s.61 (Recording of folk songs) and s.75 (Recording of broadcasts for archival purposes) where a recording of a broadcast or copy of such recording may be made to be placed in an archive maintained by a body which is not established or conducted for profit.


My thoughts, on the whole, is that this is a major step forward for education and cultural heritage. The draft Statutory Instruments take into account the changes in technology for delivery of copyright works in teaching and learning, and facilitate preservation copying in libraries and archives. Librarians and others making copies for researchers has been simplified and without the need for a standard declaration form with a signature, libraries will be able to deliver items to researchers more quickly and easily, as a written declaration could easily be sent via email or collected via an online form. There is still a question over electronic document supply and whether this SI would cover that (potentially it does), although libraries and other institutions would still need to comply with the terms of the E-Commerce Directive as they would still be categorised as an information society service. For me, it is interesting to note the similarities and differences between s.32 and s.36; 32 is now wider in scope although restricted to fair dealing, whilst s.36 specifically exempts artistic works. One could argue that an artistic work may be used under s.32 instead of s.36, and in theory it could be fairly used if the course which is being taught relates to Art, or indeed Photography. I find the new 32(4)(c) the most difficult to interpret though, as the section does not specifically mention what communication to the public is actually permitted - for example, does it cover Virtual Learning Environments / secure networks? Online or on-demand delivery? How useful would this exception be, say, for a MOOC? Much remains to be seen, but you have the opportunity until the 2nd August to reply to the technical consultation - send your thoughts to   

Friday, 3 May 2013

The Enterprise and Regulatory Reform Act: what does it mean?

Last night the text of the new Enterprise and Regulatory Reform Act was finally published. The copyright provisions in this Act have been hotly disputed on all sides, but most emphatically by the artistic community who claim that legislation on orphan works and extended collective licensing will threaten their livelihoods (see BBC article 'Photographers' anger at law change over orphan works'). This week has seen a lot of hysteria around the provisions of the Act, and a petition has even been set up to get these provisions repealed, but I wanted to wait until the full text was out before posting my thoughts. So what do the copyright provisions in the Act mean?

Orphan Works

Discussions on orphan works have been happening for a while. Last year, the EU brought out a Directive on Orphan Works which went into some detail about diligent searches to discover authors/creators, appropriate record-keeping and (where possible) rights registries, and is particularly keen for searches to be able to be conducted across borders. However, the Directive neatly dodges the issue of artistic works as it does not include them in its scope. The Directive must be implemented into UK law within 2 years, but is without prejudice to any national laws drafted in the meantime in relation to orphan works (so it wouldn't restrict the provisions of the ERR Act).

So what does the ERR Act do? Well, it extends section 116 of the CDPA (which is to do with licensing schemes and licensing bodies) and allows for the Secretary of State (by way of regulations) to permit a person or persons to authorise the grant of licences for the use of orphan works. I have to say, I find it curious that the text of this new section (116A) deviates quite significantly from the text of section 116, and appears quite confusing - why not continue with 'licensing body' rather than 'person', for example? The definitions are already there, but not so for the new section, so I wonder who will have responsibility in authorising these licences. These regulations will set out the scope of the diligent search that must be undertaken before a work can be declared orphan, and a licence subsequently granted will not be an exclusive licence. The regulations may also specify 'other matters to take into account' (one would assume that the potential for the orphan work to have been stripped of its metadata would be part of this), provide for royalties to be paid should the author/creator come forward, and provide for circumstances where a licence should be withdrawn.

Extended Collective Licensing

The ERR Act adds another new section to the CDPA in the form of 116B which will in similar fashion to 116A allow collecting rights societies such as the Copyright Licensing Agency to apply to the Secretary of State to be able grant licences to organisations to use works where the copyright is not owned by the collecting rights society or its authors/publishers. Quite how this works in practice is unclear; does it apply to works of foreign origin, for example? If it does there could potentially be jurisdictional issues. The licence granted could cover any or all of the rights in copyright and could actually in practice be very difficult to administer, given that rightsholders can specifically request not to be included in any grant of extended licence (and one assumes there would be many opting out of this particular one). It is also not clear how this section works with orphan works; could they fall under an extended collective licence, for example? Perhaps the regulations will make that more clear.

How do these regulations come about?

The ERR Act states that regulations will come about via statutory instrument that must be laid before and approved by a resolution of each House of Parliament. So there will be more parliamentary fun to be had over the next 12 months or so when it is assumed these regulations will be drafted.

Some thoughts... 

The orphan works issue has come about because of the large quantities of works with no defined author held by archives, museums and galleries. In the digital age, with the seamless technology available, these heritage institutions want to be able to make these works available to the public in ways which would ensure their preservation but also put them on display for the world to see. The cost of trying to trace the rightsholders for these works is disproportionate and most smaller archives and museums are forced to abandon projects because the risk of infringement is too great. Ideally, there should be a solution which enables heritage material to be put into the public space because the public funds its preservation. However, the ERR Act will require museums and archives to pay a licensing fee up front to put orphan works from their collections online, and given that there may be a lot of orphan works which will probably remain unclaimed, there is a question about where the money goes, who holds it and who profits from it. At present, it doesn't look like the people directly involved (i.e. the creators who create the work or the institutions who hold and preserve it) will receive much if anything at all.

There should also be a mechanism in the regulations to prevent large corporate organisations evading the cost of photographs from stock image galleries by applying for an orphan works licence. This would have serious consequences for the photographic community and is not (in my opinion) what the purpose of orphan works legislation was supposed to be about.

There's actually a very good balanced article over at the Economist's blog which takes into account the photographers' views and lawyers' views and echoes some of my thoughts on the issues.


My suggestions to authors and creators are: 

1. Be vigilant. The ERR Act doesn't abolish copyright, nor does the UK Government want all your works for free, but you need to be aware of these new licensing schemes to ensure that you get what you want. At the end of the day, your work is yours, and unless you assign copyright, you have the right to exploit it in any way you desire. 

2. Protect your work. Do everything you can to ensure that you are known as the author or creator of the work (I appreciate this is more difficult for visual artists, but there is some excellent advice from photographers in this article on  

3. Watch for the creation of the regulations. This will scope out the definition of diligent search, and you will still have a chance to have your say as they must pass through Parliament.

4. Follow the money. The whole of the UK is watching to see exactly where the funds from the use of orphan works will be going, and if you are an author or creator you may be able to find ways of tapping into those funds. It may not be easy, but there are enough author and creator organisations to carry some weight in this area. 

Finally, there is already an up-and-coming excellent schemes which is looking at the issue of licensing of copyright works as a whole. The UK Government has given £150,000 to the Copyright Hub (a creation which has arisen following Richard Hooper's investigative work into copyright licensing) which aims to be a portal to manage rights and find rightsholders. I believe that this will feature in the regulations for a diligent search. 

Friday, 19 April 2013

Feeling MOOC-y? Think about your content

Plenty has been written about MOOCs already, but most of what I've read has related to the wider debate about them (are they a good thing or a bad thing? etc). I wanted to write a quick post thinking about the copyright and licensing issues around the creation of MOOCs with particular focus on the UK.

The key word in the acronym 'MOOC' is 'open'. Open in theory means that the course is freely available to all worldwide via the Internet. This already means that universities need to think beyond what is done in the lecture theatre / seminar room space, and not just from a technological point of view. Within the UK, UK copyright laws take effect, but what if a student is doing the MOOC from their home in India? When developing content for a MOOC, educators must ensure that the resources they create are their own and that any third party content (such as images retrieved from the Internet, video clips, journal articles, and so on) is appropriately licensed for such a wide use online.

However - it's not always easy or possible to get copyright permission to use third party material for a public online course. This is where the difference between face-to-face teaching and delivery of teaching online really shows itself in copyright law. Not only is the whole approach to teaching different, but the approach to using resources must be different too. What may be permissible in a classroom environment (such as showing clips from a film for instructional purposes) is not permissible in the online environment. Educators must therefore think hard about what they want to use, whether they really need to use it and whether they could seek alternatives should they not be allowed to use it.

Educators should treat their course materials for MOOCs in the same way as they would treat the writing of a journal article; permissions to use third party content must be acquired before the publisher will publish the work. Universities and other institutions embarking on the MOOCs route must ensure that their compliance / legal departments are involved in the process so as not to run the risk of having an entire course taken offline because of copyright infringement in one small element of it.

So where can educators go for help? Well, there are loads of resources out there which can be freely used without the need to seek permission. Much of the content in Wikimedia is in the public domain, which means that copyright has expired and it can be freely used (always check to see as it will be explicitly stated). Or find content which has been licensed with Creative Commons licences; the widest licence is CC-BY, and most CC licensed works can be used in open content. Linking to content held elsewhere is the next best thing, although you need to make sure that you are not linking to items held behind a paywall or behind one of your own institutional subscriptions. Open access works and Open Educational Resources can be found across the Internet and may be incorporated into a MOOC. And finally librarians are a valuable source of information, particularly those who deal with subscription-based resources as they usually have good negotiation skills.

Technology is a wonderful thing, and education is becoming more and more innovative. But when it's public-facing and accessible to the world, the institution must appreciate that there are risks involved with using content that is not its own and therefore must take appropriate steps to ensure that content is truly 'open'.

Some excellent further resources:

Embracing OER and MOOCs to transform education
It's 166 slides long but it's well worth flicking through as there are some great resources highlighted as places to find open content:

MOOCs and Libraries: Copyright, Licensing, Open Access
It's 59:39 minutes long so watch it over your lunch break or in stages! But a fantastic panel discussion about how some of the US universities have approached MOOCs, how they have persuaded faculty to get on board with the concept and helpful tips and tricks that they've implemented. Some excellent questions asked at the end too, particularly about contractual limitations (e.g. when you have an image from a museum that you are not permitted to make available online):

MOOC Yourself: set up your own MOOC
Sadly this is restricted to Kindle only (something I don't have) but it looks like a great resource and is an interesting way of monetising a CC-licensed product. It's very cheap as well so might be a worthwhile investement!

Thursday, 17 January 2013

Social Media: Whose Photo Is It Anyway?

Slightly off topic for this blog but 'educational' nonetheless; there has recently been a flurry of legal interest in photographs posted by individuals to social media sites and what the sites then permit others to do with them. A pet project of mine was to produce a reasonable summary of the terms of a number of the most popular ones last year for work, as so many people were asking me what could happen to their content on the sites by virtue of posting it. Sites such as Facebook (and more recently, Instagram) have discovered to their detriment that they cannot change their terms on a whim to force users to assign copyright of content which they have created themselves; this type of 'rights-grab' is unacceptable in the digital world, mostly because no-one wants to see a photograph that they have taken being used as an advert for telecommunications or similar without their knowledge.

But what happens when a newspaper wants to use a photograph posted to a social media site to report on a breaking story? We live in the age of the visual, which means that images are highly sought after to depict events as they unfold. In a US judgment just announced this week, we have the culmination of a case which has taken 2 years to process. Daniel Morel, a photographer, was in Haiti at the time of the earthquake and took some iconic photographs of the devastation. He then posted them to his TwitPic account. Another individual, Lisandro Suero, copied the images and posted them to his TwitPic account. Both Morel and Suero were contacted by several press agencies, but it was Agence France Presse (AFP) who used the images (crediting Suero as the photographer) and transmitted them to Getty Images for further licensing to CNN and CBS. Morel sued for copyright infringement and the terms of TwitPic and Twitter were examined in court. The judge found that AFP could not claim to be a partner or affiliate of either social network, nor was it a sub-licensee, and had therefore infringed Morel's copyright. The ruling this week has limited the damages payable to Morel but is seen as a victory for photographers who post their work to social media sites.

In a similar fashion, the terms for social media have been upheld in the UK, with an interim judgment (paras 42-44) stating that Facebook's terms and conditions do not automatically give a newspaper the right to publish photographs posted to Facebook by a user. In RocknRoll v News Group Newspapers Ltd, a heady mix of privacy and copyright do battle against freedom of expression, with the judge stating that if this case was purely a commercial one (i.e. with no privacy implications) then damages would be an appropriate remedy for the individual who would lose out as a result of the infringement. But because the individual (Mr RocknRoll) is depicted in photos (for which he has subsequently had copyright assigned to him) which he would rather not have published for fear of damage to his reputation / relationship, the judge has placed an injunction on the press from publishing those photos for the time being. Case law has shown that in exceptional circumstances where the public interest is high (e.g. where there is evidence of criminal activity), newspapers can publish photographs without permission and not suffer the consequences of copyright infringement.  

Rather encouragingly, this article in The Guardian today suggests that media outlets recognise users' rights in the content they post and that most newspapers seek permission to publish before doing so. This offers users who happen to be 'in the right place at the right time' an opportunity to commercialise their photos, although I have a lot of respect for the Twitter user mentioned in the article who refused to make money from his photographs of yesterday's tragic helicopter crash in London.