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.
Showing posts with label fair dealing. Show all posts
Showing posts with label fair dealing. Show all posts
Tuesday, 17 January 2012
Tuesday, 9 November 2010
Fair Use v Fair Dealing
There’s been a lot of speculation following Cameron’s announcement of a review of IP Law about the implications of moving towards a ‘fair use’ provision in copyright law. Rights holders are against it, educational institutions should be for it, but what does it really mean?
Spot the Difference
Although it’s not easy to do, let’s compare and contrast US Copyright Law with UK Copyright Law:
The major difference which Cameron arguably hasn’t taken into account is that the US has a system of Copyright Registration, whereas the UK does not. This system strengthens the hand of the rightsholder and allows them greater protection for their work, enabling them to claim significantly higher damages when infringement occurs. This, in my opinion, could be where an attempt to move towards US law may fail – rightsholders will simply see a move to expand fair dealing exceptions as an excuse for commercial entities to use their works for free.
Fair’s Fair...
So, the burning question.. what’s the difference between fair use and fair dealing?
One major difference is that the US Law lists the factors to be taken into consideration when determining whether the use made of a work is fair. These factors are as follows:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
These factors relate to a wide range of purposes for which use of copyright work is not considered an infringement. These purposes include criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.
In the UK, there is no such definition of ‘fair’ in the Copyright Act. Rather, it is subject to the whims of case law, and since the eleven word infringement case in Denmark, societies and publishers are afraid to define the scope of what is considered ‘fair dealing’. Instead, UK fair dealing sets out provisions for each particular purpose rather than grouping them all together. Thus, criticism and review becomes one, non-commercial research another, and so on. Some fair dealing provisions do not extend to unpublished works (criticism and review, for example), whereas in the US “the fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." (US Copyright Act)
My thoughts...
This may be an ideal opportunity for educational institutions to provide a wish list of extensions to the fair dealing provisions set out in the Copyright Act to the government's review. As such, it should be seized by those working in education. Ideally, we would like to see 'fair' defined in UK law as it is in US law, and an expansion of the educational exceptions so that they are less technology-specific and allow for the use of material for the purposes of teaching/delivery of courses within educational institutions.
However, my cynical side is inclined to think that 6 months is not long enough to undertake a review of IP Law, when the Gowers Review took at least 4 years. And the provisions made there haven't even been implemented yet. My personal feeling is that if Cameron wants to go down the fair use path and widen the exceptions, chances are that he may have to make the process of dealing with copyright infringement easier for rightsholders. Without a system of copyright registration or even a central Copyright Office, the ideals of the fair use provisions may just be a slice of Google pie in the sky...
Spot the Difference
Although it’s not easy to do, let’s compare and contrast US Copyright Law with UK Copyright Law:
Both are subject to the Berne Convention
Copyright duration is 70 years from the death of the author/creator in both laws
Copyright is an automatic right in both laws
Both recognise moral rights (to an extent)
Both have exceptions and/or defences to copyright infringement
The US has a system of copyright registration, the UK used to but it was abolished a long time ago
The major difference which Cameron arguably hasn’t taken into account is that the US has a system of Copyright Registration, whereas the UK does not. This system strengthens the hand of the rightsholder and allows them greater protection for their work, enabling them to claim significantly higher damages when infringement occurs. This, in my opinion, could be where an attempt to move towards US law may fail – rightsholders will simply see a move to expand fair dealing exceptions as an excuse for commercial entities to use their works for free.
Fair’s Fair...
So, the burning question.. what’s the difference between fair use and fair dealing?
One major difference is that the US Law lists the factors to be taken into consideration when determining whether the use made of a work is fair. These factors are as follows:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
These factors relate to a wide range of purposes for which use of copyright work is not considered an infringement. These purposes include criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.
In the UK, there is no such definition of ‘fair’ in the Copyright Act. Rather, it is subject to the whims of case law, and since the eleven word infringement case in Denmark, societies and publishers are afraid to define the scope of what is considered ‘fair dealing’. Instead, UK fair dealing sets out provisions for each particular purpose rather than grouping them all together. Thus, criticism and review becomes one, non-commercial research another, and so on. Some fair dealing provisions do not extend to unpublished works (criticism and review, for example), whereas in the US “the fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." (US Copyright Act)
My thoughts...
This may be an ideal opportunity for educational institutions to provide a wish list of extensions to the fair dealing provisions set out in the Copyright Act to the government's review. As such, it should be seized by those working in education. Ideally, we would like to see 'fair' defined in UK law as it is in US law, and an expansion of the educational exceptions so that they are less technology-specific and allow for the use of material for the purposes of teaching/delivery of courses within educational institutions.
However, my cynical side is inclined to think that 6 months is not long enough to undertake a review of IP Law, when the Gowers Review took at least 4 years. And the provisions made there haven't even been implemented yet. My personal feeling is that if Cameron wants to go down the fair use path and widen the exceptions, chances are that he may have to make the process of dealing with copyright infringement easier for rightsholders. Without a system of copyright registration or even a central Copyright Office, the ideals of the fair use provisions may just be a slice of Google pie in the sky...
Monday, 28 June 2010
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*
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*
Subscribe to:
Posts (Atom)