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.

Fair Dealing in relation to Collected Works

What do you do if you’re an editor of a collected work such as individual essays and you find that your contributors have all cited passages from the same book? Can you get away with fair dealing or should you seek permission from the publisher?

First things first: fair dealing in situations like this one applies to the work as a whole, NOT to each individual essay. So editors, be wary – if each essay contains a 300 word citation from the same work, the whole collection of say ten essays will have reproduced 3000 words (or thereabouts taking any duplication into account) from the original work and therefore is unlikely to be considered fair.

For a work which is being published, whether by an academic publisher or not, the only defence that can really apply here is fair dealing for criticism and review. This defence only applies to material which is cited from a published work.

But what is ‘fair’? Copyright law doesn’t define it, and the publishing world have tried to define it but since retracted trying to quantify it after the 11 words Danish newspaper court case. Courts take into account the amount taken (both quantity and quality) and the potential impact on the market for the original work (will your work compete with the original?). As a result, ‘fair’ has come to mean ‘only as much as you need to make your point’.

And what’s the aim of the collection? If it is engaging in evaluation and critique of literary work, your defence for criticism and review will be stronger than if it is used extraneously or purely for illustration.

Authors v Publishers

So what’s the consensus amongst the two camps who are often on opposite ends of the spectrum? The Society of Authors advises authors on the use of citations of no more than a total of 800 words in short passages from a book in any one publication. Citing from a work stimulates the market, and rather than your work being a substitute, it becomes an enticement for readers to investigate the original work.

Publishers’ advice can vary, so it is always advisable to check their author agreements and copyright/permissions policies beforehand, but on the whole academic publishers tend to agree with the limits stated by the Society of Authors, even though they now refrain from setting official limits.

Practical Advice

If you do end up in this situation, my advice to editors would be this: arduous as it is, take a word count of the cited passages from that particular book across your collected volume of essays. If your word count comes to 400 or less, I’d say you would be within the limits of fair dealing. If your word count is between 400 and 800 words, then as long as they are all in short passages and not reproductions of 400 words at a time, then the risk is still quite low. If your word count is between 800 and 1000, you would have to make a decision on whether to take the risk and try to get away with this as fair dealing for criticism and review (provided it is for that purpose). Any more than 1000 words in total I would suggest you either cut the number of citations down or contact the publisher for permission, which will come at a fee.

*note: this is not legal advice, but opinion based on research*