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!

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? ;-)

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.    

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.

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.

Government’s Response to Hargreaves Review of IP: a good start or more to be done?

Last week the Government released their formal response to the Hargreaves Review of Intellectual Property and Growth . The Response broadly accepts the recommendations made and outlines how the Government proposes to act on each recommendation. Having read the response and taken some time to digest its contents, my overall view is that this is a significant step towards a long overdue copyright reform. However, it is a very ambitious move by the Government, given the tight timescales which have been set to achieve the desired changes to the IP framework. The Government is committed to creating favourable conditions for the encouragement of innovation and growth, but are leaving many of the finer practical details to the wider UK public, most likely those with a vested interest such as consumers, creators and businesses.

So what does the Government actually propose to do? Here’s my brief critical take on what I think are the most ground-breaking of the Government’s plans for action in the areas of copyright:

1. Evidence surrounding the economic issues of IP will be fundamental in shaping policy. Fairness and social impact will also be considered. This is absolutely essential; evidence should drive policy and it is imperative that evidence is high quality and carries no bias. The recognition that fairness and social impact also have a part to play widens the conversation to include moral rights for creators and any potential impact on consumers. Historically, copyright policy has been swayed by opinion and effective lobbying, but the proposals for policy changes will now be looking for hard evidence adhering to Intellectual Property Office (IPO) guidance which will be published later this year.


2. The creation of a Digital Copyright Exchange or similar to enable rights clearance by facilitating copyright licensing. My speculation is that the Government envisages a type of portal incorporating databases of rights information which would allow an organisation or an individual to pick and choose the works they wanted to use and the way they wanted to use them. Similar to a Rights Direct model but on a much larger scale; perhaps a sort of shopping basket approach similar to that of Amazon when you buy multiple items from a range of different sellers. In theory, a great idea - a vast digital marketplace where licensing of works is quick and easy. However, it is not an ideal solution for those rights holders who don't store works in database form already, as uploading individual works into a suitable rights database with metadata and ownership records will take time, skill and effort. It will be interesting to see the development of this proposal. The requirements for the DCE are outlined as follows:
   
   a. It must be free to use
   b. It must attract a ‘critical mass’ of material that is available and readily licensable
   c. Prices to be set or negotiated with rights holders subject to controls on unfair competition
   d. Voluntary scheme, not compulsory
   e. Self-funding, running on licensing transactions


3. Proposals for an orphan works scheme which will allow for both commercial and cultural uses of orphan works. As this topic is prevalent in Europe at the moment, it was always likely that the Government were going to take an active role in tackling orphan works. This will be a hotly contested area, particularly with regards to commercial use of orphan works, but the mention of diligent searches and market rates for the use of orphan works is a good start. The unspoken question though is always going to be: where does the licence fee go? Into the DCE? Perhaps one to muse... The proposals for extended collective licensing are more vague, however, leaving a very unclear picture as to how that aspect will function.


4. Widen the exceptions to copyright within the existing EU framework, provided that harm to rights holders is minimal, EU law and international treaties are adhered to, and that restrictions removed by exceptions are not re-imposed by contract. The exceptions will allow for limited private copying, more materials available to copy under the proviso of non-commercial research, text and data mining, archiving and parody. This will be widely consulted on and the scope of the exceptions will be determined from sound evidence. The proposals to widen copyright exceptions to make use of all the exceptions listed in the EU Information Society Directive will immensely benefit education and research and it is very promising that they have been recognised in such a way.


5. Develop a three-pronged attack comprising enforcement of IP rights, education of users, and appropriation of business models. The Government has outlined in its IP Crime Strategy that it is committed to tackling ‘piracy’ (one hopes with the talk of prosecution under the Copyright, Designs and Patents Act that this report is not referring to file-sharing but rather the more criminal acts of copyright infringement such as mass sale of pirate copies for commercial gain). With civil infringements, rights holders will still have to deal with those themselves, but they (and especially smaller businesses) will be better supported with the introduction of a small claims track in the Patent County Court for claims under £5000 (assuming the cost of introducing one is not prohibitive).For me, the most encouraging aspect of this section is the recognition that business models need to change and adapt to the digital age. As such, the Government has pledged to work with industry to support efforts to develop new legitimate digital markets. File-sharing as an issue is unlikely to disappear, but the availability of high quality desirable digital content at affordable prices in an easy-to-access format should at least provide an incentive to entice people to acquire it via legitimate means.


6. IPO to deliver copyright opinions service to clarify the applicability of copyright law. This may not look like a significant point but it really is. This will give the IPO a role not dissimilar to the Information Commissioner's Office (ICO) in terms of delivering opinions on complex copyright interpretations, and the IPO will become more of a ‘go-to’ service for educators struggling to make judgment calls, particularly in relation to new technology. But more than this: the Government hints that a copyright opinions service may shape the future of copyright legislation, identifying areas of uncertainty and supplementing the judgements of the legal profession and academic community. On the one hand, I see a copyright opinions service being quite fruitful – it’s often useful to be able to go to a public sector body and ask for a definite opinion on a matter. But on the other hand, could this be seen as the more easy way: rather than calling for a large scale review of the Copyright Act, this approach is quite piecemeal, which historically has not benefited copyright law. And how will the IPO interpret the law? Narrowly, as by the precedents set in the ECJ and other significant courts? Or more liberally, applying UK case law and interpretations? One major difference between the ICO and this newly appointed function of the IPO is that Freedom of Information legislation is home-grown and largely unaffected by EU case law, whereas copyright law is hugely influenced by the EU. It remains to be seen whether this will be a viable service or not, particularly where it relates to commercial enterprise.

A longer post than I anticipated, and much more that could be said, but overall it is a good start. Those more cynical than I question whether this will go the same way as the Gowers Review and come to nothing despite the Government’s best intentions. But I remain positive; I think for once a lot of sensible truths based on evidence have been declared and at this difficult point in the economy businesses and the creative industries should be working hard to implement innovative schemes to enable their business to flourish in the digital age. Organised criminal piracy should be countered and prevented, and the Government should take a serious look at the support it needs to offer to creative industries in the form of tax breaks and advice. Education in particular should be able to thrive without fear of infringement of copyright, and the law needs to be brought up to date with digital technology and legitimise activities (i.e. copying a CD to a cassette tape) that have been innocently happening for decades.

File-sharing: a research opportunity for Higher Education?

A question asked by @Ottua at the 1709 Big Copyright Debate organised by @Ipkat earlier this week got me thinking: how can we know for sure how much damage really IS being done to the creative industries by file-sharing?

This question comes up time and again. Surveys churn out various statistics, which show that file-sharing is extremely damaging to the industry which is suffering hugely as a result. Yet often these surveys are found to be commissioned by the industries themselves, which leaves the more sceptical among us wondering if this is really the true picture. Of course, it doesn’t help when we notice some obvious anomales, such as when Avatar managed to be both number one at the box office AND the number one most downloaded film, or the figures which show that alleged pirates are also the largest purchasers of legitimate content.

Let it be clear: I am not advocating piracy or wilful infringement. I am a firm believer that piracy (definition: making a large-scale profit from copies of the original with no remuneration to the rights holder) is a crime, akin to counterfeiting, which is purely for an individual’s or company’s financial gain and motivated by making money at someone else’s expense. However, file-sharing (definition: the upload and download of creative content to freely share for no commercial gain) is a civil infringement, because you are breaching the communication to the public right under copyright. This says (effectively) that when you upload a work which is not your own and without permission from the rights owner, you are infringing copyright. Yet it still happens. Why?

I think that from an early age we learn to share (some also argue that we learn to copy, but I see this as more by way of mimicking rather than copying work per se). Everyone has differing tastes and interests, making each of us a unique individual. And when we encounter others who have similar tastes and interests, our natural enthusiasm for those interests leads us to talking about them and sharing information. And when our interests tend to be, say, a mutual enjoyment of 80s rock music (yes really), we are likely to ask ‘have you heard of Band XYZ?’ They say no, and our immediate response is ‘oh you must! I’ll lend you the CD’. How many of us have lost many of our most treasured possessions this way? (My dad @davecg69 foolishly lent his Beatles 'Let it Be' vinyl with the booklet to a friend and never got it back, regretting it ever since!). So when the technology becomes available in the form of recording to cassette / CD, instead of saying ‘I’ll lend you the CD’, we say ‘I’ll make you a copy’. And the thought of copyright infringement does not even cross our minds.

This has given me food for thought: if file-sharing is damaging, what about all the other ways in which we share content where the rights owner receives little or, more often, no recompense? And for which there is no defence in UK copyright law? What about when one person buys a DVD and a group of flatmates all sit down after a meal one night to watch it? What about when a parent puts on a Disney films for 20 kids at a sleepover or party (usually so they can have an hour’s rest!)? And how many of us read, watch, or listen to something, and when finished with it list it on eBay to sell to someone else? Or give it to a charity shop?

How many of these constitute ‘lost sales’? When you consider the UK alone, almost 62 million people, have been doing these sorts of activities for years, without a private use exception in copyright, how damaging has that been? Yes it is true that you can reach the world through the medium of the Internet, and so instead of just a few people to share with, you can now share with thousands, if not millions. But that is not to say that everyone on the Internet is file-sharing copyright content. And on the flip side: how many people are using other sites where content can be legitimately acquired and paid for? Such as iTunes, or LoveFilm? Perhaps rather than focusing on the damage that file-sharing is having on the creative economy, industries should be comparing those statistics with the growth and use of legitimate downloads. I have little doubt that these sites have steadily increased in use over the past few years as more and more desirable content has become available to purchase.

As I said at the debate, more research needs to be done into this area, and not just industry-led research either, but strong verified independent research. And who better to lead on this than universities? Only the other week I was delighted to read about the Arts & Humanities Research Council’s funding opportunity for a Centre for Copyright and New Business Models in the Creative Economy. This is a first-class opportunity for universities to do some highly valuable research which will benefit the creative economy, looking at (I hope) all the issues I’ve outlined above and more. Research could measure the impact of the recession (people refraining from spend on items for pleasure or luxury, such as film/cinema and books) on the creative economy, contextualising it within the economic climate, as that undoubtedly has had an effect. But universities could also collaborate with businesses and the technology industry to experiment with new and innovative business models, measuring their impact and effectiveness and assessing long-term benefits.

I would urge Higher Education institutions to communicate and collaborate with one another on this project, which has the potential to revolutionise the way that research is being done in this area. A £5 million funding grant is not a figure you should ignore. Don't let this opportunity pass you by - get involved!

Images & Copyright Part 1: Photographs

A little while ago I crowd-sourced Twitter for copyright questions about images. These questions helped inform a talk that I gave to the Art Libraries Society (ARLIS) on images and copyright, looking at the issues are faced by information professionals dealing with visual resources in the digital age.

What I found most interesting about the questions I received was that most of them concerned photographs. Fascinating, but not surprising, as photographs are a very unique type of artistic work and as with audiovisual works can include other types of copyright work. Fortunately, I’m very interested in photographers’ rights and deliver talks regularly to photography societies. Questions about photographs usually fall into two distinct categories: the actual taking of a photograph, and the subsequent use of a photograph. I will address both.

Photographing people (individuals and groups)

@chr1staylor questioned whether consent is required from people when taking photographs. But in order to answer this question, it must be placed in context; you have to look at the circumstances surrounding the taking of the photo. There is no law which prevents the actual taking of a photo, with the exception of s.41 of the Criminal Justice Act which prohibits the taking of photos in and around court. However, you must respect people’s privacy: Article 8 of the Human Rights Act says that everyone has the right to respect for his private and family life, his home and his correspondence. Using a telephoto lens to snap someone through their bedroom window, for example, would violate their privacy right. It is not illegal or unlawful to take pictures of people in public, but crucially it is what you do with the photograph which is the real issue.

Publicity or image rights are not codified in UK law but are bound up in intellectual property and media law. Jane Coyle’s article in lawdit offers a concise exploration of the subject. When it comes to use in advertising, the Advertising Standards Authority states that:

Advertisers should seek written permission from those whose image will be used in any promotional campaign especially in respect of commercial activity and endorsement.

You must get consent from any individual whose photograph you want to use commercially (and this includes websites which are seen as advertising and marketing tools). Celebrities often have a strong sense of the rights to their own image (some even take it to the extreme). Using a photograph of a celebrity that you snapped at a red carpet event to endorse your latest brand will most likely land you a lawsuit (unless they had agreed to promote your brand). Photographers taking pictures of models will need signed written consent in order to licence the photos to stock image galleries.

The following situations do not require consent: taking photographs of people or individuals at public events for non-commercial purposes (including uploading the photos to social networks) or for the purposes of news reporting. A question from @grantreilly asked whether consent would be required when taking photographs of people playing sport on university fields and then uploading those photos to Facebook; the short answer is no.

Photographing things

In the UK, some photography could get you into trouble with the relevant applicable law. These are predominantly photographing sensitive locations (e.g. military bases), protected species of wildlife at their nesting places, bank notes, logos and trademarks, and artwork which is still in copyright and isn’t permanently situated in a public place.

In other circumstances, it is usually the purpose for which the photo is intended to be used which is the crucial element. If a copyright work is the main focus of the photo, you will need permission from the copyright holder to use the image commercially. Bear in mind that some iconic buildings may be brands in their own right and contain intellectual property rights (for example, the Sears Tower). @glynmoody pointed me towards a blog containing questions on photography; I’ll include a couple of them here:

* Can I take a picture of a model in a designer dress and sell or give away copies of the picture with only the model’s permission? – yes; there is some discrepancy over whether clothing attracts sufficient protection under copyright as a work of artistic craftsmanship. It would be wise not to use this photograph for any type of advertising purpose.

* Can I take a picture of a room papered with designer wallpaper and sell or give away copies of the picture? – as long as the wallpaper is not the focus of the photograph (i.e. a close up shot of the wallpaper), then yes this would be ok.

You don’t have to obtain specific permission to take photographs of copyright works and use them to accompany news reports, reviews and critiques, or to advertise their sale. Nor do you have to obtain permission where the protected item is not the focus of the picture or where the photograph is for your own private use. Logos are always tricky because they can often be covered by other intellectual property rights such as trade marks or design rights. @richardberryuk queried whether a logo appearing in an image should be blurred out; if the logo is incidentally included in the photograph, this would be unnecessary – deliberate inclusion, on the other hand, may be seen as infringement.

Hargreaves Review recommendations: impact on cultural and education sectors

After days of speculation, rumours and leaks, the results are finally in... but what impact, if any, will they have on the education and cultural sectors?

1. Format-shifting

Under current copyright law there is no provision to format shift for private use, meaning that when you purchase a CD, it is technically an infringement to copy it to your computer and then add the tracks to your iPod. For libraries and archives, however, there is a narrow provision in the Copyright, Designs and Patents Act which permits the making of a replacement copy of a literary, dramatic or musical work in order to preserve it. The scope is narrow because it doesn’t extend to artistic works such as photographs, or to sound recordings or films, many of which are stored in archives unable to be used because the technology has moved on and the hardware on which to run them is obsolete. This recommendation will bring copyright law in line with the practices across the UK in terms of format-shifting between devices and give the Copyright Act more credibility in the eyes of consumers. More importantly though, it will allow cultural heritage institutions to convert their collections from an obsolete format to one which will run in the digital age. These will be of great benefit to researchers, particularly those involved in the Arts subjects.

2. Text and data mining

Text and data mining are processes which researchers can use to analyse information. Algorithms are programmed to look for relationships between certain facts across a wide range of data and information, which enables rapid delivery of research data and results. However, numerous contracts do not permit text and data mining, and there is also a question over whether the process infringes copyright and database rights, as it has to copy the information in order to analyse it. The Hargreaves Review is keen to promote the concept of text and data mining at EU level and is keen that copyright law should not hinder scientific research by blocking these processes, as they will be key to the development and growth of scientific research.

3. Legislation to prevent exceptions in copyright law being superseded by contract

Following on from the second point, this recommendation is extremely important to allow researchers as well as the education and cultural sectors to benefit from the exceptions which have been outlined in both the CDPA and the EU’s Information Society Directive. The Review proposes an adoption of all Article 5 exceptions, including parody. The education sector in particular has a lot of problems with contracts containing extremely narrow permissions to use licensed works in certain ways, and libraries have struggled for years with contracts which specifically restrict actions which are permitted under copyright law. This provision would allow these sectors to breathe easily once more, and not continue to live in fear of breaching a contract at the expense of doing a permitted act.

4. Orphan works

An incendiary subject for those with a vested interest, but with the likelihood of a Directive from the EU on orphan works, the Hargreaves Review had little choice but to recommend legislation. However, they have proposed an interesting solution: the creation of a cross-sector and cross-border Digital Copyright Exchange, involving rights holders and creators, to be the framework for cross-border copyright licensing and governed by IPO-approved codes of practice. Within this framework, orphan works must be tried and tested to see whether they are truly ‘orphans’. Legislation will also enable extended collective licensing similar to the Nordic model to support mass digitisation in specific areas, a proposal which will be welcomed by the cultural heritage sector. Institutions however must continue to carry out diligent searches to try to discover the rights owner. Should a rights owner come forward to claim an orphan, there will be no liability for past use of that orphan but future use would be subject to negotiation with the owner. Additionally, any materials which had never been created or intended for commercial purposes would be subject to a nominal licence fee for use.

Final thoughts...

Sadly, the recommendations do not solve the issue over the use of images for teaching purposes, but it’s not a bad start – the recommendation to implement all the provisions in Article 5 of the Information Society Directive which would allow for parody (about time) and format shifting for preservation purposes will be welcomed, particularly by archives and libraries. There is also a desire to make copyright law adaptable to new technologies, a very wise move in an age where digital technology is so rapidly changing. The recommendations are based on the evidence provided, but whether the Government chooses to implement them, and furthermore how they are implemented remains to be seen.

Talking about copyright issues in education with the UK's Intellectual Property Office

If you’d asked me a year ago to describe my thoughts towards the Intellectual Property Office I would probably have used words like ‘distant’ and ‘unresponsive’. I’ll be the first to admit my frustrations with the IPO over the Gowers Review, seeing as I, like many of my colleagues, spent a lot of time constructing a response to the second round of consultations only to watch it disappear into a vacuum. Then the Prime Minister announced a review of UK IP laws last November. Some more cynical colleagues of mine felt little enthusiasm for this, as it looked like a complete disregard of the efforts expended by the Gowers Review and re-examined the same set of issues. But I was optimistic – this review was destined to be different, heavily evidence-based with a focus on growth and innovation.

No-one was more surprised than I when the IPO set up a Twitter account and a blog dedicated to the Hargreaves Review. Not only that, an entire area of the IPO website was devoted to the Review panel, outlining the scope of the review and the submission process. The panel proactively met with numerous stakeholders, blogging about their visits on the website. I was immensely impressed by the ways in which the IPO actively engaged with the public and by the transparency of the whole process, and my faith was restored.

A chance encounter on Twitter with members of the IPO during the recent BBC Radio 4’s ‘Unreliable Evidence’ show on IP (in which the IPO featured) led to an invitation to visit the IPO to meet the copyright team. To say I was excited is an understatement, as I’m sure those who know me will agree! The agenda for the morning was set out as follows: tour, meet communications team, meet business outreach and information centre teams, tour of Copyright and IP Enforcement Directorate, presentation to and discussion with the copyright team on key issues.

The day itself was a fascinating overview of how the IPO functions and the services it provides to businesses, creatives and the wider public. Matt Navarra, the IPO’s Communications Manager, was my guide for most of the day, and after a customary tour of the facilities we settled down at his desk to look at what was happening in the world. Some of Matt’s current responsibilities include managing the IPO’s Social Media Channels, liaising with broadcasters and journalists who want to run news stories or create TV/Radio shows about IP, internal communications, working on the Hargreaves Review, launching the new ‘Peer to Patent’ web tool, finalising the IPO’s World IP Day plans, and generally keeping close links with the Minister for Intellectual Property. I thought my day job was busy!

After dealing with a few urgent inbox items, Matt introduced me to the Information Centre team. This is the hub of the IPO’s communication with the public, where a team of call centre staff answer calls on IP from all over the country. Approximately 300 of the 9000 calls received every month were about copyright, which staff said provided some of the more challenging calls. The Sales and Service team provides paid-for services to larger businesses to deal with their licensing needs, IP questions and undertaking research on their behalf, such as patent searches. The IPO are keen to extend these types of services to cater for the needs of small to medium sized enterprises, as they recognise that smaller businesses are interested in these paid-for services too. The Business Outreach and Education support SMEs and the education sector in understanding and using IP; a key way in which this is achieved is through the holding of free IP Awareness events and other outreach activities across the UK throughout the year.

From the Information Centre we moved on to the Copyright Policy and IP Enforcement Policy Directorate (CED); here, small teams of about 3 people focus on specific areas, such as EU and International copyright and enforcement issues, managing the copyright legal framework, or focussing on particular issues such as the digital agenda. They continually monitor case law and policy issues as they develop both here and in Europe. Teams also cover civil and criminal enforcement policy in relation to IP. Steve Rowan (Deputy Director – Copyright and IP Enforcement) is one of two managers who head up this unit. He also appeared on the previously mentioned BBC Radio 4’s ‘Unreliable Evidence’ show about IP.

In a large seminar room, I was invited to present issues which I saw as key to the education and cultural heritage sectors to the copyright team – an extremely unique opportunity. I explained our frustration with inadequate or absent licence agreements, in particular to address the growing need for placing audiovisual material on Virtual Learning Environments to deliver courses to students in partner institutions overseas. I voiced our concern about the rising cost of licences from collecting societies, some of which are attempting to force us to adopt licences which we don’t need and which effectively make us pay a second time for content covered by independent electronic subscriptions. Contractual clauses limiting the provisions under copyright law are another big issue for education; it would be ideal if our legislation had a similar clause to the Irish Copyright Law preventing contracts from restricting what can be done under copyright law.

Unfortunately, time quickly slipped away (as it tends to do when talking about copyright!) and I wish I could have spent longer discussing each issue in more depth with the team. Before my visit came to an end I was able to speak on one further point: the practical problems that the education sector faces on a daily basis with the use of images in teaching. Schools and colleges regulated by Ofsted are required to use images in teaching, but there are very few teachers who know much if anything about copyright. A legislative solution to the problem would be ideal, but failing that a licensing scheme could work, provided that it was sufficient to meet the needs of the sector.

All in all, I had a very illuminating morning; I never realised how widespread the IPO’s activities were and how keenly they defend the interests of the UK legal system relating to IP. The team I met were fairly young, both in terms of age and length of time in post, but had a refreshing grasp on the complexities of copyright law and the issues involved. I feel more confident now that whatever the outcome of the Hargreaves Review, there is a team of people who are more prepared than ever to engage with the different sectors and who are capable of dealing with those sectors' specific needs. Everyone recognises that copyright law is in need of reform, and I remain positive that, legislative change or not, we are in good hands.

Follow @The_IPO on Twitter for information and updates or visit their Facebook page

(all views expressed are my own)