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!

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.