Monday 2 June 2014

Changes to UK Copyright: Education Exceptions

June 1st 2014 marks a very big day for UK copyright law. After some ten or more years of consultations and lobbying, the Permitted Acts within the UK's Copyright, Designs and Patents Act 1988 have finally had a makeover. Three years from the influential Hargreaves Review of Intellectual Property, which found that copyright law was not fit for the digital age, three new Statutory Instruments have come into force which amend sections on libraries and archives, education, non-commercial research, public administration and copying for people with disabilities. So what do these amendments really mean for those in education and teaching?

Use for Illustration in Instruction

Remember that part of the CDPA that said you could copy works to use in teaching but only by means of a non-reprographic process? It was completely useless for those using presentation software in teaching. Fortunately, that's fallen by the wayside in these new exceptions and has been replaced by use of copyright works for the purposes of illustration in instruction, provided that the dealing is fair and for non-commercial purposes. This is excellent news for teachers, for the following reasons:

a) it is not limited to types of copyright works (so you can copy any type of work)
b) it is not limited to teaching within educational establishments (so you could benefit from this exception if you are providing training to your staff, for example, or to school pupils in a museum)
c) no licence or contract can prevent you from using this exception (and therefore no more licence reporting for works used in face to face presentations)

However, the introduction of the fair dealing requirement to this exception means that teachers must use common sense when applying the exception. Obviously, use of a whole film (outside of an educational establishment as they have a separate provision for the showing of films for instruction) would not be seen as fair. The CDPA does not define 'fair' but case law shows that factors such as whether the use of the work competes with the exploitation of it by the copyright owner and the motive of the person using the work are taken into consideration by the court. Quantity used is also a factor, so it is important not to use more than you need to make the point. Sufficient acknowledgement of the work (i.e. credit to the author) should be made wherever reasonably practicable.

In essence, this exception just legalises the activities that teachers already do in terms of preparing their lessons / training sessions, and most standard practice is unlikely to change. It is important however to ensure that this exception is not used when teaching for commercial purposes, so continue to purchase licences or use CC-BY materials for these.

Use by Educational Establishments  

Virtual Learning Environments (VLEs) are now used by pretty much every Further and Higher Education institution in the UK to supplement lectures, seminars and classes. The VLE allows tutors to provide students on their courses with resources, lecture notes, discussion forums, reading lists and tests/coursework. It is particularly useful for part-time and distance learners, although most full-time students will access it for course materials, lecture notes and coursework assignments. The CDPA contained almost no provision for use of works in VLEs, but the changes from 1 June have amended that to permit:

Recording of broadcasts (and subsequent use via a secure electronic network)

Educational establishments have always been allowed to record broadcasts under section 35 provided that an authorised licensing scheme did not exist. If it did, they would be obliged to take a licence. These have historically been provided by the Educational Recording Agency (ERA) and the Open University. Following some changes, the ERA has taken on the Open University broadcasts as well, and for some time has been operating an ERA+ licence to allow institutions to make recorded broadcasts available on the VLE. The drawback is that any student outside of the UK cannot view them because of territorial broadcast rights (similar to BBC iPlayer). Section 35 has been amended to include the provision of making broadcasts available via the VLE provided a licensing scheme does not exist. The ERA are, from 1 August, only offering the ERA+ licences to educational establishments, and cover the widest range of broadcasts. However, there may still be some broadcasts which are not covered by the ERA licence and which may now be able to be included within the VLE. 

Copying of extracts of copyright works (and subsequent use of these extracts via a secure electronic network)

The section 36 provision in the CDPA has been next to useless, only permitting 1% of copying of only literary, dramatic and musical works per quarter provided a licensing scheme did not apply. This section has been amended to increase the amount that can be copied to 5% per year and to extend the provision to all types of copyright works with the exception of broadcasts and standalone artistic works. Again, if a licensing scheme applies and you know or ought to have known about it, you are obliged to use it (and therefore the exception does not apply). Educational establishments with a CLA licence will therefore continue to follow the provisions of the licence when placing course materials such as journal articles and chapters of books in the VLE. At present, it seems that some categories of works may not be covered by licensing schemes (this is where the Copyright Hub may come in handy as a way to check), but it is important not to break technological protection measures (TPMs) when copying as this is an offence under copyright law. Exempting standalone artistic works is a peculiarity of this exception but given that the copying allowance is 5% of a work it is likely that this exception would have been little use to those wanting to use images anyway, not to mention potential moral rights issues of using only parts of artistic works. 

Copying for Non-Commercial Research & Private Study

Researchers as well as librarians benefit from changes to the provisions for non-commercial research and private study, which now extend the exception to allow for copying from all types of works. This exception remains a fair dealing exception. A new exception for text and data mining has been added, which allows for individual researchers to make copies of works that they have lawful access to (such as subscription resources) for the purposes of computational analysis. This is on the proviso that the research is non-commercial. Contract terms which prevent this type of use are not enforceable.

On the whole, the amendments to the CDPA for education are positive, and it's fantastic to see the law changing to allow for digital uses by teachers, educators and librarians. The only spot on the horizon is the introduction of fair dealing to section 32 (illustration for instruction). Part of this section also applies to examinations, which prior to the changes was worded: 'anything done for the purposes of examination does not infringe copyright'. Whether or not this will have any real impact remains to be seen, but it would be wise to take a risk-based approach to this type of use. Nevertheless, this is a big step in the right direction towards a more balanced copyright law which is long overdue.    

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