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.
