Friday, 22 August 2014

Copyseek Conference for HE Copyright Practitioners 21st August 2014, University of Leeds

You wouldn't have thought a gathering of copyright practitioners from education for a conference on copyright would be either very exciting or very energetic, but the 2014 Copyseek event was both! LIS-Copyseek is a JISCMail list for copyright practitioners (including librarians who have a responsibility for copyright) in the education sector, and is an extremely useful network for sharing best practice and asking those tricky questions that often come our way.

The event kicked off with an entertaining ice-breaker for all 60 or so delegates, getting everyone to say who they were, where they were from, what they did and what they wanted for Christmas. Answers ranged from better copyright exceptions and more time to circular saws and Benedict Cumberbatch! The first session, entitled 'How do you solve a problem like managing copyright compliance in HE?', was led by Monique Ritchie, Copyright Officer and Research Librarian at Brunel University. Monique outlined three problems: digitised course materials, data collection for and reporting to the Copyright Licensing Agency (CLA), and overseas students, explaining that it is hard to reach academics who often operate in silos and need flexibility because of increasingly demanding workloads and timetables. Brunel has adopted a university-wide reading list system, Talis Aspire, for which the library got top-level agreement from the University Senate, thus ensuring that all academics submit reading lists to Talis Aspire. This has taken a lot of work and effort by the library, which set up a user group of champions to agree wording for a policy to manage student expectations and resource reading lists. Liaison librarians attend board meetings and are fully embedded in departments, which means that Monique can easily cascade training and support materials to the academics. Providing scanned material for reading lists is managed by the centralised Digital Readings Service in the library; this works well with the reading list policy and the library's cut-off dates for receiving reading lists are June and November. Budgets are spent on a first come, first serve basis, and any 'stragglers' who miss the deadlines can be picked up by the team. Finally, as Brunel's library service has a university-wide presence, it can outreach more easily to areas which have international leanings and offer help and support. Some overseas institutions are better resourced than the UK ones, so it is often worth seeing if a reciprocal arrangement can be worked out with those overseas partners. The CLA are also piloting an add-on to the licence for students based at overseas campuses, which may be helpful to those institutions who are currently not sure about how to deal with this issue.    

Next up was Lisa Redlinski from the University of Brighton. Lisa's energy and enthusiasm never fails to amaze me, and her Prezi was as dynamic as she was! Her talk was on 'How to survive a CLA Audit', and she enthralled us with her superhero powers of combat as we watched, astonished, as she wriggled out of her sharp suit and into her combat trousers (or as she put it, her 'big girl pants') - as she's American, it means something different; the rest of us were wondering what on earth she was going to reveal!

Lisa encouraged us that, although it's a lot of time and effort, it's not as scary as we think it will be - she was able to negotiate on the dates for the audit because she needed more time to pull together all the people who needed to be involved. She suggested checking the Virtual Learning Environment (VLE) copyright statement, policies (including housekeeping and weeding) and procedures around copyright compliance so that they could be shown to the CLA, and that the CLA auditor would take a snippet of the data report and check the scans against what was reported. The day that the auditor arrives, ensure they are well fed and watered and work with them to navigate the VLE and answer any questions they may have. A follow up report with any suggested changes is written which is sent to the Library Director and the Vice-Chancellor, and a follow-up visit may be necessary. The University of Brighton benefited from the audit in that the copyright policy was amended to become a service statement, and it raised the profile of copyright within the university. Finally, it's important to have a good grasp of not only what the licence says but also what our statutory rights are under copyright law, as this will help in discussions.

Chris Morrison from the University of Kent, Canterbury gave a great talk on 'Five things that make copyright difficult to communicate' and gave us some principles for effective communication of the topic. His five reasons that copyright concepts are difficult to get across to staff were: 1. It is what it is (in other words, there's no escaping that it's law and that infringement does have consequences); 2. How much you know can often be a hindrance - you either send people to sleep by arguing finer points of law or you leave your audience bewildered; 3. Using the wrong tone or medium - written guidance for copyright, if too long and wordy, often doesn't get read by staff; shaking the stick too much also puts people off; 4. Which sources to trust - there's a lot of information out there on copyright but quite often you never know if the source is appropriate, e.g. it may relate to a different jurisdiction or be opinions or propaganda; and 5. The danger of undirected conversation - we need to explain why some things can't be done in certain ways.

His principles for effective communication: use worked examples or narratives to explain your points rather than abstract examples; simplify and focus on the issue; use analogies; engage all the senses - get people to interact with copyright law; match the message and the medium to the audience, and strike the right tone; get your audience to take ownership rather than putting all the requirement to make a decision back on you; and engage with the community (at which LIS-Copyseek is very much the heart!).

Prior to lunch there was a panel discussion about how the HE sector can better represent itself when it comes to issues of copyright. JISC Legal noted that they cannot represent HE copyright officers but suggested that if we move away from the word 'compliance' towards the word 'quality', our organisations may take more notice. The Libraries and Archives Copyright Alliance (LACA) has been doing a lot of work to represent libraries, archives and the education sector when lobbying the government for changes to the law, and LIS-Copyseek is represented on LACA by me. However, there was a concern that there was no will amongst the major bodies representing education (such as Universities UK) to provide centralised negotiation on copyright licences.

After lunch Laurence Bebbington (University of Aberdeen) spoke about the tension between copyright law, open access, Research Council funder mandates and Creative Commons licences. He drilled down into issues of ownership of copyright, particularly in scholarly works written by academics. Under the Copyright, Designs and Patents Act 1988, works done in the course of employment belong to your employer. However, most universities choose to waive this for scholarly works, so that the copyright remains with the academic who is writing the article/monograph. Teaching materials, on the other hand, will be owned by the university, who will have a vested interest in them. Laurence was sceptical about open access, saying that it didn't sit well with copyright law as under copyright the author of a work gets to choose what they do with their work and should not be forced to do something with it by someone else. However, the next REF states that metadata of research outputs must be added to a repository within three months of acceptance for publication, and a number of full-text works will have to be made available too. This is not giving academic authors much freedom to decide what to do with their copyright works. Gold open access is also problematic; the requirement to add a CC-BY licence to a work means that there is a loss of control of rights by the author and leaves it open to exploitation by a commercial entity. He cited the case of 'Epigenetics, Environment and Genes', a CC-BY journal article that was made into a book by Apple Academic Press and now sells for over $100 without the knowledge of the author. He left us with the suggestion that there may be ethical issues with open access that perhaps we have overlooked.

Next up was Alan Rae, Copyright Adviser to Colleges Scotland, discussing the latest copyright exceptions. He summarised the education exceptions fairly neatly (I've done this in a previous post so won't repeat here!) and suggested that we as a copyright community build and share examples of how we interpret the exceptions in our own day to day work. He raised some interesting questions over data collection and the fact that collecting societies collect ever more data for unclear purposes. He mentioned that he sits on the group for the Copyright Hub and encouraged us to submit feedback on the Hub, along with suggestions for improvement, to him.

The final talk was given by Jason Miles-Campbell (JISC Legal) on 'Core Training for Copyright'. Jason suggested that more creative arts subjects should include a formal teaching aspect on copyright to raise awareness of it amongst young creators of IP, and that we should teach staff about copyright to get them to a level of basic awareness of it rather than overload them with too much legalese. He noted that HE (and education generally) is generally a compliant sector, keen to ensure quality resources and licence compliance. He suggested using the National Student Survey (NSS) results to put pressure on senior managers for improving the quality of learning resources for students, and that copyright officers should get a pay increase by a grade or two (never going to happen!).

By this point we were running a little late, but we had time for one more Panel Discussion which looked at different methods of digitised course provision. Monique Ritchie (Brunel University), Kate Vasili (Middlesex University), Paul Cave (University of Leeds) and Annette Moore (Sussex University) discussed the different ways that their universities supplied digital core readings, with the obvious point that everyone does this differently!

Finally, the day ended with a series of lightning talks from a number of people on a topic of their choice. These talks ranged from lessons learning from CLA audits, the perils of being a new copyright officer, an update on music licences, and a particularly fantastic presentation by Annette Moore from Sussex University on her game of copyright Snakes and Ladders, which she is hoping to licence under Creative Commons and make available on Jorum for the sector!

The whole day was absolutely fantastic and a great chance to network with other copyright professionals from the sector. It is well worth attending for any copyright officer or librarian from HE, FE and schools, as the energy, enthusiasm and opportunity for sharing information and practice is contagious! Many thanks to Lisa Redlinski, Monique Ritchie, Kate Vasili, Jane Secker and Paul Cave for organising this great event; hope there's another one soon!

Thursday, 7 August 2014

Quit Playing Around: Monkey Stirs Up Copyright Controversy with Selfie

A brief departure from copyright in the education sector and more a post on copyright education. As you know, I am a big fan of bizarre and random stories, and yesterday saw the return of the 'monkey selfie' story as reported in the Telegraph. Briefly, a British wildlife photographer was photographing crested black macaque monkeys in Indonesia when the monkeys began to show an interest in his equipment and started taking pictures of themselves. One of the photos has found its way on to Wikimedia and now the photographer is threatening to sue for copyright infringement and damages. But if the monkey took the photograph, who really does own the copyright?

First off, let's do some copyright 101: for an artistic work to benefit from copyright, it must be original and a product of intellectual creation, skill and judgement by its author. We will return to questions of ownership shortly, but first let's examine whether this photograph would qualify as an artistic work to benefit from copyright.The Copyright, Designs and Patents Act 1988 (CDPA) states in s.4(1) that an artistic work means, among other types of work, "a photograph,...irrespective of artistic quality". Photographs which are 'selfies' are not new; rather they have become more popular with the widespread use of smartphones. The Oscar selfie earlier this year is a classic example; this was a product of Ellen DeGeneres' creation, bringing together top celebrities into one frame of a photograph, thereby making an original work (it is highly unlikely that photos including all of these celebrities exist). You could argue that the level of skill and intellectual creation is fairly limited, but it is an original work nonetheless and qualifies for copyright. Does the monkey's selfie differ, then, from the Oscar selfie? Particularly as the photograph was not actually taken by Ellen DeGeneres? The problem with the monkey selfie is that, although it is original in the starkest sense of the word, there appears to be little intellectual creation, skill and judgement (although how can we criticise the monkey, given that it can't tell us..?!), unless the shot was set up by the photographer in some way, adjusting settings, focus, filters and so on to capture 'true' likenesses. Additionally, if the photographer has adjusted the image using Photoshop (see the Red Bus case which continues to perplex lawyers), an element of intellectual creation, skill and judgement could be argued.

But what about the question of authorship? The author, as defined by s.9(1) of the CDPA, means "the person who creates [a work]". On first glance this would appear to be the monkey, who quite literally 'created' the work when it touched the trigger and set off the camera. However, animals cannot be authors according to the CDPA, and therefore their works are not subject to copyright. So is there actually a copyright owner in the work, or is the photograph not subject to copyright at all and therefore public domain?

Could it be argued that the photographer did not actually create the work because he did not take the photo? It's not quite as simple as that. Although the CDPA does not go into further detail about the author of an artistic work, leading legal experts have submitted that the author "is the person who made the original contribution and...need not be he who pressed the trigger" (Laddie, Prescott & Vitoria, The Modern Law of Copyright and Designs, 4th ed, 4.61 p.254). 'Original contribution' in this sense can take several forms: there may be originality, for instance, in the use of angle, filters, light, exposure, and so forth which create a photograph. There may be originality in terms of the creation of a scene or subject to be photographed; this certainly is the case in the Oscar selfie, but may also include the set up and control of the illumination of the subject. Finally, it may just be a 'right place right time' type of originality, the photographer capturing a scene because he made a special effort to go and find it. In this respect, the wildlife photographer would appear to qualify as at least a contributor to the photograph. There is an added complication that allegedly the monkeys found the camera by accident and that the photographer did not set up the shots, but even so the serendipity aspect of originality cannot be completely ignored. 

Finally, could this be considered as a computer-generated work? Again, the CDPA in s.9(3) states that the author of a computer-generated work "shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken". It is less likely that this work could be construed as a computer-generated work, but it would appear that the same principles of authorship could apply, in that the photographer would be the author of the work.

It's a fascinating debate and I would definitely want to be in court watching this particular case. It is difficult to say whether the arguments would go in favour of the photographer being the author; this is certainly the verdict in a blog post by our US friends across the pond, who argue that as there was no official creator of the photograph other than the monkey, and the monkey does not qualify as an author, there is therefore no copyright in the photograph. It does however seem a bit unfair to the photographer, who should probably be recognised as a contributor at the very least. Perhaps we should ask the monkey? ;-)