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.

Conclusion

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 Copyrightconsultation@ipo.gov.uk.   

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.

Advice? 

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 journalism.co.uk).  

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:  http://www.slideshare.net/zaid/embracing-oer-moocs-to-transform-education

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): http://www.youtube.com/watch?v=7FvR4K3eddU

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! http://www.amazon.com/MOOC-YourSelf-Non-Profits-Communities-ebook/dp/B00CDVZ2AW/ref=la_B00CE8VHVC_1_1?ie=UTF8&qid=1366230473&sr=1-1


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.

Thursday, 6 December 2012

EU Directive on Public Sector Information: a Quick Look at the Proposed Amendments

It's been a shockingly long time since I posted anything on my blog - apologies for that. But things are picking up in the education and copyright world, so expect to hear a lot more in 2013! I thought I'd take the opportunity to have a quick look at the tabled amendments to the EU's Directive on Public Sector Information. This is going to plenary in the first half of 2013 and it looks like it will become fully fledged legislation shortly after.

The original PSI Directive (adopted by the UK in 2005) does not apply to documents held by educational and research establishments, such as schools and universities, and also does not apply to documents for which third parties hold intellectual property rights. The proposed amendments (inconveniently held in two separate documents, one short one which provides the context and the initial text of the Commission , and the 70 page list of amendments to that text) will however remove the exemption for public service broadcasters and their subsidiaries, and specifically mentions university libraries as separate from universities themselves (more on that later). A document is defined as any type of work, including software source code and broadcasts.

But it is the cultural heritage sector which is most concerned with the amendments being proposed. Libraries, archives, museums and public bodies managing archaeological and cultural sites will become subject to the Public Sector Information Regulations and therefore will be required to respond to requests for re-use of their documents and data. However, there are a number of criteria which, if the amendments are accepted, will apply to the cultural heritage sector (note that the PSI Directive ONLY applies to material for which the organisation holds the copyright - any documents for which the copyright is held by a third party are exempt):
  1. The cultural heritage sector should be allowed to charge more for the re-use of their documents than other public sector bodies.Charges should be set according to objective, transparent and verifiable criteria (the Directive doesn't elaborate on how this will be achieved);
  2. Conditions for re-use must be imposed on the user (at the very least, attribution of source). Re-use may be for either commercial or non-commercial purposes;
  3. Documents held which are of a particularly sensitive religious nature or that involve traditional knowledge (no definition of what traditional knowledge is) are exempt;
  4. Where there is third party copyright in a document, the library, archive or museum is not required to refer the requestor to the third party rightsholder (this feels a bit out of keeping with the public service ethic of helping people...);
  5. Complying with the request for re-use should not involve disproportionate effort - it feels as though the Directive is a little conflicted here, as in one part it mentions that documents should be made available via machine-readable formats in a way that ensures interoperability, yet later it suggests that there should be no obligation for a body to create, adapt or digitise documents to comply with a request. This will be solved at the plenary stage, I imagine, as these are suggestions by a number of individuals.
  6. Exclusive arrangements already in existence should be made transparent;
  7. Exclusive arrangements to digitise information and data of a cultural nature may be made but will be limited to a number of years, after which the digital copies may be re-used. The terms of the Directive will not be retrospective but will permit exclusive licences negotiated after the date from which the Directive comes into force to run for a number of years. The organisation with which the exclusive arrangement is made must provide digital copies of the material to the library or archive. Once the exclusive arrangement has terminated, there is nothing to stop the library or archive to make the material available on a subscription-only basis. Cultural institutions are still free to choose organisations for public-private partnerships.
At the moment there are lots of suggestions but it's unlikely that these will take long to pin down, so expect this (or a similar form of this) to become law in 2013. I mentioned the university libraries earlier as not being exempt from this Directive: there's a curious statement on page 25/70 of the proposed amendments which says:

This amendment is intended to clarify that the directive does not apply to documents held by a library which forms part of the university which holds the intellectual property right (IPR) in the document. A university and its libraries may constitute a single legal entity. Without amendment, the exclusion of documents subject to third-party IPR would not apply where a library holds the document but the IPR is held by the university because the university would not be a separate (i.e. third) party.

My personal thoughts on this statement is that the last 'not' shouldn't be there, but I have emailed the PSI Directive people over at the EU and eagerly await their response... I'll keep you posted. In the meantime, if anyone could shed any light on this, that would be useful!




Tuesday, 17 January 2012

The Copyright Consultation and education exceptions: what is proposed and how you can get involved

The Government's recently released Consultation on Copyright, a 160 page document to consider proposals for changes in the UK copyright regime to encourage innovation and economic growth, has already come under fire from a number of sectors. And it didn't take long for the consultation's proposals for the education sector to spark concerns. Only yesterday, the Authors' Licensing and Collecting Society wrote that the changes proposed in the consultation to the education exceptions in the Copyright, Designs and Patents Act (CDPA) could effectively "eradicate the income that ALCS receives from educational sources" (quoted from the 1709 blog article by IpKat Jeremy Phillips). So what is it that has the collecting societies so concerned?

Updating and enabling provisions for teaching (use of materials)

Section 32 of the CDPA allows anyone (anywhere, not just in an educational establishment) to copy works for the purposes of giving instruction or examination. Great, you might think. Wrong. It specifically states that copying may not be done by means of a "reprographic process". So all photocopying, printing, copy-and-pasting etc is out. Now, without wanting to show my age too much, going back to when I was at (primary) school, this sort of copying was fine - the teacher had a blackboard and a piece of chalk, and would copy something out of a book on to the board. Flash forward to 2012, and teachers all have interactive whiteboards or Smartboards, and presentation software. The instruction part of this section has become redundant in an age where all we CAN do is copy by means of a reprographic process.


Having spoken to a lot of teachers and lecturers, they either need or are required to make their lessons engaging, interactive, and eye-catching; often the best way to do this is to include images related to the subject being taught. Teachers are often confounded when copyright officers or librarians tell them that (under copyright law) they can't just go to Google Images and get a picture to use as an illustration in their lesson, but instead have to try to justify its use under the defence of fair dealing for criticism and review. This is not always easy to do when, in your lesson, you want an image to illustrate your slide to emphasise a point and engage the students. The Government therefore proposes to expand this exception to enable the use of materials for teaching with digital technology, thereby removing the counterintuitive position on copyright that those of us trying to teach best practice daily face.

Widening provisions for copying course materials

Herein lies a more contentious part of the proposed changes to copyright exceptions for education. Section 36, the section which spawned the creation of collecting societies such as the Copyright Licensing Agency (CLA), has long been a redundant and overlooked section in the CDPA because of its curious provisions. It says that reprographic copies of passages from literary, dramatic or musical works may be made by an educational establishment BUT that no more than 1% of any work may be copied in any quarter of the calendar year. Sir Hugh Laddie, the late great copyright judge, bemoaning the fact that diagrams can't be copied under this provision, sums this up as "a serious, and somewhat unrealistic, limitation" (Laddie, Prescott & Vitoria, 2011, The Modern Law of Copyright and Designs -4th ed).

And it is! How do you quantify 1% of a work? Admittedly, the longer the work, the better your chances, but how about a headline which may be considered a literary work under copyright following the NLA v Meltwater case? 1% of ten words is.. one word. Useful. So this is why educational establishments pay annually for a licence to cover the photocopying and scanning of literary and dramatic works, and artistic works insomuch as they form part of the other works. The CLA licence, for example, allows an institution to copy up to 5% or one chapter of a book, one article from a journal, and one paper from a set of conference proceedings.

The Government proposes to amend this exception so that it allows fair dealing with a work. Bear in mind that a lot of student copying occurs under fair dealing for non-commercial research, which doesn't have to be licensed. What the proposal is NOT saying is that licensing schemes should be scrapped altogether, something you could be forgiven for thinking if you only read what ALCS say. Any use where the copying is extensive and could effectively substitute for the purchase of a copyright work would have to be licensed. Through this consultation the Government wants to collect data on the impact of educational licensing schemes and in particular the impact on incentives to creators who create works specifically for use in education. Some authors who write for the education sector, however, have indicated that they are already paid by the public sector as part of their contractual role, and that the income they receive from these schemes is marginal. They would be happier for educational establishments to keep the money and plough it back into the library for the purchase of new books, journals and electronic resources, so publishers and authors ultimately wouldn't lose out.

Getting involved

Personally, I'm all in favour of bringing copyright exceptions for education up to date. Gowers, in his 2006 Review, highlighted the flaws but nothing was done to take forward his proposed changes. Delivery of education has changed beyond all recognition over the past 20 years or so, but sadly the copyright areas relating to it have not. That said, I am a firm believer in just reward for creative efforts, and am the last person who would advocate the withdrawal of revenues from creators. I doubt I am alone in saying that educational establishments are happy to pay for a licence if they understand the fee structure, know exactly what they are buying into and are happy that the money they spend is being channelled directly to those who have created or contributed to the material being used. I would urge any and all of the education sector to respond to the consultation because it is important that the views and struggles of the sector are heard in order to form a balanced opinion. The consultation is open until the 21st March and the proposed changes for education can be found on pp 89-95.

Tuesday, 9 August 2011

Government’s Response to Hargreaves Review of IP: a good start or more to be done?

Last week the Government released their formal response to the Hargreaves Review of Intellectual Property and Growth . The Response broadly accepts the recommendations made and outlines how the Government proposes to act on each recommendation. Having read the response and taken some time to digest its contents, my overall view is that this is a significant step towards a long overdue copyright reform. However, it is a very ambitious move by the Government, given the tight timescales which have been set to achieve the desired changes to the IP framework. The Government is committed to creating favourable conditions for the encouragement of innovation and growth, but are leaving many of the finer practical details to the wider UK public, most likely those with a vested interest such as consumers, creators and businesses.

So what does the Government actually propose to do? Here’s my brief critical take on what I think are the most ground-breaking of the Government’s plans for action in the areas of copyright:




  1. Evidence surrounding the economic issues of IP will be fundamental in shaping policy. Fairness and social impact will also be considered. This is absolutely essential; evidence should drive policy and it is imperative that evidence is high quality and carries no bias. The recognition that fairness and social impact also have a part to play widens the conversation to include moral rights for creators and any potential impact on consumers. Historically, copyright policy has been swayed by opinion and effective lobbying, but the proposals for policy changes will now be looking for hard evidence adhering to Intellectual Property Office (IPO) guidance which will be published later this year.

  2. The creation of a Digital Copyright Exchange or similar to enable rights clearance by facilitating copyright licensing. My speculation is that the Government envisages a type of portal incorporating databases of rights information which would allow an organisation or an individual to pick and choose the works they wanted to use and the way they wanted to use them. Similar to a Rights Direct model but on a much larger scale; perhaps a sort of shopping basket approach similar to that of Amazon when you buy multiple items from a range of different sellers. In theory, a great idea - a vast digital marketplace where licensing of works is quick and easy. However, it is not an ideal solution for those rights holders who don't store works in database form already, as uploading individual works into a suitable rights database with metadata and ownership records will take time, skill and effort. It will be interesting to see the development of this proposal. The requirements for the DCE are outlined as follows:

    a. It must be free to use
    b. It must attract a ‘critical mass’ of material that is available and readily licensable
    c. Prices to be set or negotiated with rights holders subject to controls on unfair competition
    d. Voluntary scheme, not compulsory
    e. Self-funding, running on licensing transactions

  3. Proposals for an orphan works scheme which will allow for both commercial and cultural uses of orphan works. As this topic is prevalent in Europe at the moment, it was always likely that the Government were going to take an active role in tackling orphan works. This will be a hotly contested area, particularly with regards to commercial use of orphan works, but the mention of diligent searches and market rates for the use of orphan works is a good start. The unspoken question though is always going to be: where does the licence fee go? Into the DCE? Perhaps one to muse... The proposals for extended collective licensing are more vague, however, leaving a very unclear picture as to how that aspect will function.

  4. Widen the exceptions to copyright within the existing EU framework, provided that harm to rights holders is minimal, EU law and international treaties are adhered to, and that restrictions removed by exceptions are not re-imposed by contract. The exceptions will allow for limited private copying, more materials available to copy under the proviso of non-commercial research, text and data mining, archiving and parody. This will be widely consulted on and the scope of the exceptions will be determined from sound evidence. The proposals to widen copyright exceptions to make use of all the exceptions listed in the EU Information Society Directive will immensely benefit education and research and it is very promising that they have been recognised in such a way.

  5. Develop a three-pronged attack comprising enforcement of IP rights, education of users, and appropriation of business models. The Government has outlined in its IP Crime Strategy that it is committed to tackling ‘piracy’ (one hopes with the talk of prosecution under the Copyright, Designs and Patents Act that this report is not referring to file-sharing but rather the more criminal acts of copyright infringement such as mass sale of pirate copies for commercial gain). With civil infringements, rights holders will still have to deal with those themselves, but they (and especially smaller businesses) will be better supported with the introduction of a small claims track in the Patent County Court for claims under £5000 (assuming the cost of introducing one is not prohibitive).For me, the most encouraging aspect of this section is the recognition that business models need to change and adapt to the digital age. As such, the Government has pledged to work with industry to support efforts to develop new legitimate digital markets. File-sharing as an issue is unlikely to disappear, but the availability of high quality desirable digital content at affordable prices in an easy-to-access format should at least provide an incentive to entice people to acquire it via legitimate means.

  6. IPO to deliver copyright opinions service to clarify the applicability of copyright law. This may not look like a significant point but it really is. This will give the IPO a role not dissimilar to the Information Commissioner's Office (ICO) in terms of delivering opinions on complex copyright interpretations, and the IPO will become more of a ‘go-to’ service for educators struggling to make judgment calls, particularly in relation to new technology. But more than this: the Government hints that a copyright opinions service may shape the future of copyright legislation, identifying areas of uncertainty and supplementing the judgements of the legal profession and academic community. On the one hand, I see a copyright opinions service being quite fruitful – it’s often useful to be able to go to a public sector body and ask for a definite opinion on a matter. But on the other hand, could this be seen as the more easy way: rather than calling for a large scale review of the Copyright Act, this approach is quite piecemeal, which historically has not benefited copyright law. And how will the IPO interpret the law? Narrowly, as by the precedents set in the ECJ and other significant courts? Or more liberally, applying UK case law and interpretations? One major difference between the ICO and this newly appointed function of the IPO is that Freedom of Information legislation is home-grown and largely unaffected by EU case law, whereas copyright law is hugely influenced by the EU. It remains to be seen whether this will be a viable service or not, particularly where it relates to commercial enterprise.



    A longer post than I anticipated, and much more that could be said, but overall it is a good start. Those more cynical than I question whether this will go the same way as the Gowers Review and come to nothing despite the Government’s best intentions. But I remain positive; I think for once a lot of sensible truths based on evidence have been declared and at this difficult point in the economy businesses and the creative industries should be working hard to implement innovative schemes to enable their business to flourish in the digital age. Organised criminal piracy should be countered and prevented, and the Government should take a serious look at the support it needs to offer to creative industries in the form of tax breaks and advice. Education in particular should be able to thrive without fear of infringement of copyright, and the law needs to be brought up to date with digital technology and legitimise activities (i.e. copying a CD to a cassette tape) that have been innocently happening for decades.