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.   

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. 

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

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.