Finding the common ground between Wikimedia and the Cultural Sector

On Friday 26th November I set off for the British Museum to attend the first day of the GLAMWIKI conference, which saw cultural sector types mixing with Wikimedians in an effort to discuss issues common to both. A number of worthy speakers were on the agenda, including Jimmy Wales (founder of Wikipedia), Cory Doctorow and Joscelyn Upendran from Creative Commons UK.

Keynote
Cory Doctorow opened proceedings with a keynote speech on the importance of museums, libraries, galleries and archives, coupled with his vision for the cultural use of items housed within them. He claimed that copying is ingrained in our very identities as human beings, and that copying, remixing and sharing has contributed to the flow of expressions and ideas which have shaped our society and provided us with such a rich cultural heritage. Cultural institutions should be encouraged to open their collections so that the public can use these items in a cultural way (sadly he didn’t elaborate on this, as it would have been interesting to hear more). The institutions should not charge the public a fee, as rent-seeking is inconsistent with cultural use. However, cultural institutions are concerned about the ways in which their works are used, keen to protect their “brand” and to ensure they don’t suffer any reputational damage.

Funding and Commercial Interest
Apart from rights clearance issues, the current economic climate makes it almost impossible for institutions to find the money for digitisation projects. As a result, they almost always have to seek out private investment, which unfortunately can come with some commercial strings attached. Another danger is viewing digital cultural assets as money-making tools in themselves - the cultural sector can be in danger of over-estimating the potential commercial gain and under-estimating the public good that digitisation of artefacts would bring.

Creative Commons
Joscelyn’s presentation on the relevance of Creative Commons for the cultural sector provided a snapshot of pros and cons of the licences, leaving the decision to use CC licences firmly with the audience. A number of people were surprised that a CC licence is a legally recognised contract, which requires careful thought as to its application so as to suit the purposes of the institution. Advantages of CC licences are that they openly generate interest (new business models can be designed to plan for their application) and that cultural objects from institutions can be discovered in standard search engines. The biggest threat of CC licences was future-proofing; if an institution wants to commercialise its assets in the future, then having some already available for free under a CC licence could jeopardise that plan. This added to other threats such as misrepresentation of the institution and derogatory use.

The rest of the day encompassed a variety of talks (many from Wikimedians) on collaborative projects happening across Europe in the cultural sector. I found the most interesting of these to be Europeana, an EC funded portal through which digital cultural material can be accessed. The database operates similar to Google, with metadata and a preview – if you click on the item you are taken straight through to the institution which holds it.

Free-conomy and the Cultural Sector – 3 directions for transforming copyright
The highlight for me was the evening keynote by Dr Kenneth Crews and ensuing panel discussion. The panel was formed of individuals from Europeana, the British Film Institute (BFI), the BBC and the National Portrait Gallery (standing in for DACS who could not attend).

The gist of the keynote was contract versus copyright. Copyright law’s fragmentation into different sets of rights (moral rights, performers’ rights, and so on) means there is much confusion and ignorance about it. This has been countered by licences, drafted to try to simplify permissible uses of material. However, in the cultural sector, works which are out of copyright are being digitised and licensed to end users. The licences enforced are non-standard and vary widely depending on the institution deploying them, often containing clauses going into as much detail as the ways in which the item can be placed on a page. The prevailing question is: where does the cultural sector get the right to assert these terms? Surely, it can’t all stem from copyright law. The 1998 case of Bridgeman Art Library held that reproductions of public domain artworks are not copyrightable as they constitute an exact reproduction which doesn’t attract copyright. However, most cultural sector institutions assert rights when licensing the exact same things.

The problem with licences is that they form a contract which in effect overrules copyright law. This includes all of the fair dealing / fair use provisions. So what can be done? If copyright is perpetually overruled by contract, should there be a system of fair contract law in place? Is licensing simply a way to hammer home one party’s interests at the expense of not only copyright law but also the interests of the users?

Responses from the Panel
Responses were varied but sparked a lively and interesting debate. The representative from the BFI (whose funding is split 40/60 government/private) believed that publicly-funded material should be for the public, in essence viewing the public as investors. The public need to connect better with their cultural heritage, which means finding ways of making the collections accessible so that people are both aware of the collections and can appreciate them fully.

Following on from this, the representative from Europeana drew attention once more to the idea expressed in the Digital Economy Act of extended collective licensing (ECL). This is the statutory authority existing in some countries giving an organisation the legal authority to represent all rights holders and act on their behalf. ECL can only work when a strong and effective money flow system is in place, and it is doubtful that such a system could work across Europe.

The representative from the BBC commented that the increased potential for copyright infringement via advanced technologies combined with new ways of creating material poses a serious threat to business models and conflicts with a law which was never written for this sort of purpose. Nobody ever anticipated a world in which copyright was king. People who can afford expensive lawyers can lock up creative copyrighted material, and the introduction of licences for digital material controls use and continues the monopoly. Contract should not replace copyright; indeed, Creative Commons was a scheme introduced to highlight the problems with current copyright law, not solve them.

The National Portrait Gallery’s representative took a more pragmatic approach to the problem. The emphasis of cultural organisations has shifted from the collection of artefacts to the digitisation and use of the digitised objects, bringing the issue of copyright to the fore. They adopt a risk management approach to digitisation, accepting that the works are likely to be in copyright and pursuing a number of avenues in an attempt to discover the copyright owner. However, even with this detailed research, few copyright owners are ever found. The desire to serve the public by opening up collections can outweigh the risk of a copyright infringement claim, and sometimes the decision is taken to accept the risk. The idea of balance is no longer relevant; rather, the key is in making tough decisions to agree on what is right for wider society.

Question & Answer session
Following thoughts from the panel, the debate was open to the floor. Questions ranged from how to re-define the ‘public domain’ in a global society to systems of funding necessary to open collections up to the public. Some solutions given by the panel included sharing data and descriptions of the collections with the public – there is no copyright in metadata as it’s factual and can therefore be used to the cultural sector’s advantage. The public also has a right to know how their money is being used – cultural institutions should highlight the need to preserve their collections by engaging the public with their content.

Final Thoughts
Sadly, the issues with copyright law cannot be solved over the course of an evening’s panel debate. Still, I came away with lots to think about, especially as the coalition government has called for a review of Intellectual Property Law. For me, possibly one of the most frustrating elements of the Copyright Act is that it applies in exactly the same way to oil paintings hanging in a gallery as it does to photographs taken with a camera phone. My feeling would be that the law needs amending so as to clarify that some degree of skill and judgement is required to allow for an artistic work to attract copyright.

In the meantime, we need to be good stewards of copyright so that we start to think now about how we want our created works to be used in the future. As copyright lasts for 70 years after we’re dead and gone, this is indeed food for thought...

Public Intermediaries and the Digital Economy Act

Last night I attended an event at the British Library run by DEAPPG on the impact that the Digital Economy Act will have on Public Intermediaries. Speakers were Ben White (Copyright for Knowledge), Marshall Mateer (National Education Network), Mathew Dean (Association of Colleges) and Trefor Davies (TIMICO). Sadly no-one from OfCom could be present.

Costs to the Education Sector

Highlights of the evening for me were the figures in Ben's presentation: according to JANET, the network provider for the HE and FE sectors, the cost of implementing software to comply with the DE Act will cost the sector around £24 million every 3 years. Not only that; the appeals process could cost a university as much as £40,000 for a single appeal, equating to approximately £32 million across the sector per annum. In times like these, no university or college is going to have the funds to pump into dealing with copyright infringements as required by the Act. Moreover, the funding will mostly be public...what's more appropriate: tackling copyright infringements via the process set out in the Act and by OfCom's Initial Code of Obligations, or investing in learning equipment and resources for the students of the future?

Implications for Implementation

Educational establishments already have adequate procedures and policies in place for dealing with infringements. Compliance with the Act would involve cutting across current disciplinary procedures and increasing the level of user monitoring over the network. There are additional implications around the issue of data retention, privacy and freedom of expression. Interestingly, Marshall Mateer added that there is no evidence of mass downloading in schools.

So as public intermediaries, why do we need to stand against this?

Just a few of the reasons (highlighted last night) why the DE Act as it stands could have disastrous consequences on public intermediaries:

1. High impact on the public purse, because infringement cases will be left to the courts to decide. This costs public intermediaries money in terms of time and legal fees, and this process could repeat ad infinitum.

2. IT systems will become more locked down as opposed to more open, the opposite of what education and indeed the government is trying to achieve.

3. P2P networks are often used to transfer large amounts of research data and legitimate content. By blocking these, legitimate data sharing can't happen, thereby having a negative impact on research and the knowledge economy.

4. The real file-sharing activity will go underground with the use of tunnelling, which is impossible to block according to Trefor Davies.

5. Risk-averse institutions could withdraw internet access altogether for fear of non-compliance with the Act.

6. Where are the infringement letters going? For Local Authorities and universities and colleges, the administrative burden on discovering the infringement letters and then tracking the infringement itself is huge, and they could find themselves cut off from the internet before the relevant person has even seen the first letter.

Is it all doom and gloom or is there a solution?

A few possible solutions were proposed by the panel last night, and have been taken away for discussion in the House of Commons later in the month. These were:

1. Create exceptions within the DE Act for public intermediaries, similar to those exceptions in the Copyright, Designs and Patents Act.

2. Define universities, colleges, libraries, museums and public WiFi providers as 'Communications Providers' (this would render them exempt under the current provisions).

3. Adopt a positive creative as well as consumer approach. Pupils and students are creatives now too, and should be better informed of the laws of copyright as it pertains to their own work as well as the work of others.

4. The library and education sectors (amongst others) should be engaged by the government and its relevant bodies on how to progress with IP and copyright law.

Final Thoughts

By the end of the evening there had been an admirable attempt to highlight the issues faced by public intermediaries in light of the DE Act and its overbearing principles. The general feeling was that there was a lot wrong with copyright law as it stands, but there was some optimism that Cameron's review might change the law for better. In the meantime, we wait with bated breath for OfCom to release its Code in the hope that they get the message.

NB: Copyright4Knowledge have been told that universities are not considered ISPs.

Fair Use v Fair Dealing

There’s been a lot of speculation following Cameron’s announcement of a review of IP Law about the implications of moving towards a ‘fair use’ provision in copyright law. Rights holders are against it, educational institutions should be for it, but what does it really mean?

Spot the Difference

Although it’s not easy to do, let’s compare and contrast US Copyright Law with UK Copyright Law:

Both are subject to the Berne Convention

Copyright duration is 70 years from the death of the author/creator in both laws

Copyright is an automatic right in both laws

Both recognise moral rights (to an extent)

Both have exceptions and/or defences to copyright infringement

The US has a system of copyright registration, the UK used to but it was abolished a long time ago

The major difference which Cameron arguably hasn’t taken into account is that the US has a system of Copyright Registration, whereas the UK does not. This system strengthens the hand of the rightsholder and allows them greater protection for their work, enabling them to claim significantly higher damages when infringement occurs. This, in my opinion, could be where an attempt to move towards US law may fail – rightsholders will simply see a move to expand fair dealing exceptions as an excuse for commercial entities to use their works for free.

Fair’s Fair...

So, the burning question.. what’s the difference between fair use and fair dealing?

One major difference is that the US Law lists the factors to be taken into consideration when determining whether the use made of a work is fair. These factors are as follows:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

These factors relate to a wide range of purposes for which use of copyright work is not considered an infringement. These purposes include criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.

In the UK, there is no such definition of ‘fair’ in the Copyright Act. Rather, it is subject to the whims of case law, and since the eleven word infringement case in Denmark, societies and publishers are afraid to define the scope of what is considered ‘fair dealing’. Instead, UK fair dealing sets out provisions for each particular purpose rather than grouping them all together. Thus, criticism and review becomes one, non-commercial research another, and so on. Some fair dealing provisions do not extend to unpublished works (criticism and review, for example), whereas in the US “the fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." (US Copyright Act)

My thoughts...

This may be an ideal opportunity for educational institutions to provide a wish list of extensions to the fair dealing provisions set out in the Copyright Act to the government's review. As such, it should be seized by those working in education. Ideally, we would like to see 'fair' defined in UK law as it is in US law, and an expansion of the educational exceptions so that they are less technology-specific and allow for the use of material for the purposes of teaching/delivery of courses within educational institutions.

However, my cynical side is inclined to think that 6 months is not long enough to undertake a review of IP Law, when the Gowers Review took at least 4 years. And the provisions made there haven't even been implemented yet. My personal feeling is that if Cameron wants to go down the fair use path and widen the exceptions, chances are that he may have to make the process of dealing with copyright infringement easier for rightsholders. Without a system of copyright registration or even a central Copyright Office, the ideals of the fair use provisions may just be a slice of Google pie in the sky...

Dealing with the Digital Economy Act: some practical steps for the HE sector

As the consultation period for Ofcom’s Code of Practice for implementing the Digital Economy Act draws to a close, the HE sector must be reminded of their duty to respond in light of the impact this Code may have on academic establishments. Unlike France’s Hadopi law, which deliberately excludes universities, the Digital Economy Act (controversially) applies to all sectors, and it would be remiss of the HE sector not to consider the proposals set out in Ofcom’s Code very seriously.

Looking at some of the key aspects of the Code, it is the commercial ISPs with the largest share of the market who are the primary target. However, should Ofcom perceive consumer migration away from these ISPs as a result of prescribed measures taken to reduce copyright infringement, it intends to reduce the threshold, thereby making the Code applicable to ISPs with a small to medium number of subscribers. Should this happen, there is currently no attempt made in the Code to reflect the issues which public sector entities such as universities would encounter if they were forced to conform to the Code. As such it is best to take a ‘worst-case scenario’ approach to the Code and look at the greatest impact it may have on HE institutions (HEIs), taking into account the complexities of the HE sector.

Key issues that HEIs face at this stage:

• No definition of what an HEI is in relation to the Code
• Difficult to identify and track infringers
• External companies based on university campus – classed as subscribers or ISPs?
• Potentially heavy costs involved in tackling infringement, discovery and appeals
• HEIs assume quasi-judicial role
• HEIs more likely to be prosecuted than individuals
• Data held on infringers must be compliant with the Data Protection Act
• Defences for appeal are limited -“reasonable steps” are undefined
  

Practical Measures to take:

• Lobby Ofcom for clarification of definitions (ISP / Subscriber / Comms Provider)
• Keep abreast of legislative changes and new drafts
• Watch for developments in JANET’s Acceptable Use Policy
• Promote legitimate download and streaming services as alternative to file-sharing
• Review current network infrastructure and policies
• Implement robust notice and takedown procedures
• Set up a clear route for contacting the HEI about copyright infringement
• Review data logs in light of possible Subject Access Requests
• Review current monitoring and discovery practices
• Implement robust regulations for the use of IT systems
• Embed a culture of corporate compliance for all users

Guidance and Implementation

One of the biggest issues is defining a university in light of the Digital Economy Act and subsequently the Ofcom Code. Most universities offer connections to JANET for their staff and students and therefore consider themselves ‘communications providers ‘. Effective policies and procedures are already in place around this model and are enforced as part of student regulations and staff contracts. Any interference with the current system at this stage by a government body such as Ofcom would disrupt network operation and have severe consequences for administration and research progress, as well as increasing cost and impacting staff time.

That said, it would be unwise to sit back and do nothing. HEIs should at the very least review their current policies and procedures, tallying up the number of copyright infringement notices that they have received over the course of each academic year and measuring how effectively these have been dealt with. Annual trends of copyright infringement notifications and subsequent action taken to remedy them should be analysed and key areas identified for improvement if needs be. Data Protection Officers should be consulted about the potential compliance issues of data logs and a contingency plan drawn up to ensure accuracy of reporting. In addition, JISC have developed a series of further practical suggestions to ensure compliance with the Digital Economy Act.

Conclusion

So what else can HEIs do? As many HEIs as possible should respond to Ofcom’s consultation (closing 30th July), drawing attention to the issues outlined above. The HE sector must not assume that just because all the big players are involved (JISC, Consumer Focus, JANET) it should sit back and let them solely bear the burden of response. HEIs are in the business of education, so they more than anyone are best placed to impute good practice in terms of copyright compliance to their network users. Respond now and defend your position.

Fair Dealing in relation to Collected Works

What do you do if you’re an editor of a collected work such as individual essays and you find that your contributors have all cited passages from the same book? Can you get away with fair dealing or should you seek permission from the publisher?

First things first: fair dealing in situations like this one applies to the work as a whole, NOT to each individual essay. So editors, be wary – if each essay contains a 300 word citation from the same work, the whole collection of say ten essays will have reproduced 3000 words (or thereabouts taking any duplication into account) from the original work and therefore is unlikely to be considered fair.

For a work which is being published, whether by an academic publisher or not, the only defence that can really apply here is fair dealing for criticism and review. This defence only applies to material which is cited from a published work.

But what is ‘fair’? Copyright law doesn’t define it, and the publishing world have tried to define it but since retracted trying to quantify it after the 11 words Danish newspaper court case. Courts take into account the amount taken (both quantity and quality) and the potential impact on the market for the original work (will your work compete with the original?). As a result, ‘fair’ has come to mean ‘only as much as you need to make your point’.

And what’s the aim of the collection? If it is engaging in evaluation and critique of literary work, your defence for criticism and review will be stronger than if it is used extraneously or purely for illustration.

Authors v Publishers

So what’s the consensus amongst the two camps who are often on opposite ends of the spectrum? The Society of Authors advises authors on the use of citations of no more than a total of 800 words in short passages from a book in any one publication. Citing from a work stimulates the market, and rather than your work being a substitute, it becomes an enticement for readers to investigate the original work.

Publishers’ advice can vary, so it is always advisable to check their author agreements and copyright/permissions policies beforehand, but on the whole academic publishers tend to agree with the limits stated by the Society of Authors, even though they now refrain from setting official limits.

Practical Advice

If you do end up in this situation, my advice to editors would be this: arduous as it is, take a word count of the cited passages from that particular book across your collected volume of essays. If your word count comes to 400 or less, I’d say you would be within the limits of fair dealing. If your word count is between 400 and 800 words, then as long as they are all in short passages and not reproductions of 400 words at a time, then the risk is still quite low. If your word count is between 800 and 1000, you would have to make a decision on whether to take the risk and try to get away with this as fair dealing for criticism and review (provided it is for that purpose). Any more than 1000 words in total I would suggest you either cut the number of citations down or contact the publisher for permission, which will come at a fee.

*note: this is not legal advice, but opinion based on research*