After days of speculation, rumours and leaks, the results are finally in... but what impact, if any, will they have on the education and cultural sectors?
1. Format-shifting
Under current copyright law there is no provision to format shift for private use, meaning that when you purchase a CD, it is technically an infringement to copy it to your computer and then add the tracks to your iPod. For libraries and archives, however, there is a narrow provision in the Copyright, Designs and Patents Act which permits the making of a replacement copy of a literary, dramatic or musical work in order to preserve it. The scope is narrow because it doesn’t extend to artistic works such as photographs, or to sound recordings or films, many of which are stored in archives unable to be used because the technology has moved on and the hardware on which to run them is obsolete. This recommendation will bring copyright law in line with the practices across the UK in terms of format-shifting between devices and give the Copyright Act more credibility in the eyes of consumers. More importantly though, it will allow cultural heritage institutions to convert their collections from an obsolete format to one which will run in the digital age. These will be of great benefit to researchers, particularly those involved in the Arts subjects.
2. Text and data mining
Text and data mining are processes which researchers can use to analyse information. Algorithms are programmed to look for relationships between certain facts across a wide range of data and information, which enables rapid delivery of research data and results. However, numerous contracts do not permit text and data mining, and there is also a question over whether the process infringes copyright and database rights, as it has to copy the information in order to analyse it. The Hargreaves Review is keen to promote the concept of text and data mining at EU level and is keen that copyright law should not hinder scientific research by blocking these processes, as they will be key to the development and growth of scientific research.
3. Legislation to prevent exceptions in copyright law being superseded by contract
Following on from the second point, this recommendation is extremely important to allow researchers as well as the education and cultural sectors to benefit from the exceptions which have been outlined in both the CDPA and the EU’s Information Society Directive. The Review proposes an adoption of all Article 5 exceptions, including parody. The education sector in particular has a lot of problems with contracts containing extremely narrow permissions to use licensed works in certain ways, and libraries have struggled for years with contracts which specifically restrict actions which are permitted under copyright law. This provision would allow these sectors to breathe easily once more, and not continue to live in fear of breaching a contract at the expense of doing a permitted act.
4. Orphan works
An incendiary subject for those with a vested interest, but with the likelihood of a Directive from the EU on orphan works, the Hargreaves Review had little choice but to recommend legislation. However, they have proposed an interesting solution: the creation of a cross-sector and cross-border Digital Copyright Exchange, involving rights holders and creators, to be the framework for cross-border copyright licensing and governed by IPO-approved codes of practice. Within this framework, orphan works must be tried and tested to see whether they are truly ‘orphans’. Legislation will also enable extended collective licensing similar to the Nordic model to support mass digitisation in specific areas, a proposal which will be welcomed by the cultural heritage sector. Institutions however must continue to carry out diligent searches to try to discover the rights owner. Should a rights owner come forward to claim an orphan, there will be no liability for past use of that orphan but future use would be subject to negotiation with the owner. Additionally, any materials which had never been created or intended for commercial purposes would be subject to a nominal licence fee for use.
Final thoughts...
Sadly, the recommendations do not solve the issue over the use of images for teaching purposes, but it’s not a bad start – the recommendation to implement all the provisions in Article 5 of the Information Society Directive which would allow for parody (about time) and format shifting for preservation purposes will be welcomed, particularly by archives and libraries. There is also a desire to make copyright law adaptable to new technologies, a very wise move in an age where digital technology is so rapidly changing. The recommendations are based on the evidence provided, but whether the Government chooses to implement them, and furthermore how they are implemented remains to be seen.
