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!

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.

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!

Should copyright law just be abolished?

A controversial issue for discussion on a Friday, but an interesting one posed by David Allen Green on Twitter this morning (#copyright). Regardless of the arguments for and against copyright, I want to speculate on what it would look like for the education sector were copyright to be abolished.

Contracts

We can all agree that copyright is not suited to the digital age, given that the UK law was drafted in an analogue era. The move to digital and the remarkable growth of the Internet forever changed the landscape to which copyright law applies. As the law has been slow to respond to this landscape, contracts and licences have stepped into the breach to serve as solutions in the interim period, controlling the use of works online. My knowledge of the complexities of contract law is not strong, but as far as I understand it, contract law in the majority of cases supersedes copyright law, particularly when it comes to taking a claim to court. In my view, it is probably easier to prove breach of contract than infringement of copyright, and possibly cheaper too. Now, if copyright were to be abolished, what of licences and contracts? Would they simply disappear? I think not; rights holders (including publishers and recording agencies) would continue to monetise content (to some extent) as a commodity through contracts. When you purchase a song online, you would still have to abide by the terms and conditions of the contract by which you purchase it. If that contract contained a clause which said “upon purchase of this work you agree that it is solely for your own private use”, then if the song was (say) shared online on a public website for free download, the publisher/rights holder would be able to sue the purchaser for breach of contract. And we would return to the inherent problem of organisations pursuing individuals for file-sharing.

Collecting Societies

For educational establishments, a significant element in the abolition of copyright would be their relationship with collecting societies, if they continued to exist. After all, the Copyright Licensing Agency (CLA) would no longer be able to keep its name in a world without copyright. It is difficult to see the need for collecting societies in a world without copyright; this makes the abolition of copyright rather attractive for education, which would save over £100,000 per year in licence fees. But on the flip side, would there still be an incentive for authors and creators to produce content for learning and education? Academics must produce journal articles to remain ahead in their field and to share research, so the incentive to create will not be removed, particularly as they are not independently paid to write. Books perhaps would be another matter; in a world without copyright, should an academic desire to write a book, getting it published could be difficult as publishers may be reluctant to invest in something which instantly could be made available for free across the world. Journal publishers too would become aggregators of a large amount of free content, and without the money they generate from licensing, would likely decrease in quality and perhaps eventually decline. In our capitalist society, people don’t like working for free. Businesses can generate advertising revenue, but publishers would have their livelihoods pulled out from beneath them, meaning no money for salaries and therefore job losses. Would authors write academic textbooks and similar for free? Some are very enthusiastic and may well do, particularly if they are already employed and don’t have to live off what they write, but others would have little incentive as the equation to them looks like a lot of time and effort for no reward.

Plagiarism

Perhaps most significantly: where does a world without copyright leave academic discipline? Copyright surely underpins the foundations of plagiarism, as there is currently a defence in copyright law that if a work of copyright is used for the purposes of examination, it does not infringe so long as there is sufficient acknowledgement. If I, as a student, could copy and use someone else’s entire thesis or dissertation, why would I have to reference it? Could I not pass it off as my own? And if so, where would be my punishment, as I have not done anything wrong? It may not be my original work, but in a world without copyright, why should originality matter? Would it matter if I got a First as a result of reproducing other people’s work? To my mind, there is a lot of injustice in this particular issue – it feels morally and ethically wrong to merely reproduce other people’s work and pass it off as your own, as it levels the playing field. A good plagiarist, who can remix and re-work other people’s work so as to create something sufficiently original, would be more commendable in this instance, as it shows independent skill and judgement, than one who merely spouts verbatim someone else’s work with little or no original intellectual thought.

The academic world seeks to encourage learning and research by building on others’ arguments. There is currently a means for this in copyright law. Without copyright law, what is the criteria for distinguishing a poor student from an excellent one? Writing style perhaps? But if this is copied from another’s work? This sets a poor precedent for the good of society, discouraging original intellectual process and carefully constructed arguments and replacing them with laziness. And with this comes the question of ownership: without copyright, would it matter who the author was? Could you even prove they were the original author? Would it be necessary to? No, for in a world without copyright, the author is bereft; the more appreciative of us would give a hat-tip to the original creator, but others would not. The easy replication and re-use of content means that one is at a loss as to who the original author actually is, and also negates the citation process.

Conclusion

From the tone of this post, you may gather that I am not for the abolition of copyright, as I recognise its value to creators. But I also recognise the problems with it. Without copyright, truly original content would diminish significantly, and in its place would be remixes of previous content, in themselves no bad thing, but would we really just want that? We all lead busy lives, and I’m sure all of us at some stage have thought about writing a book, but would it really be worth giving up your weekends and evenings for several years to write a masterpiece if you knew you would receive little reward? There are some people who do this, and I don’t say that it is a bad thing, but they are few and far between. We are driven by capitalism, and that means making money wherever we see the opportunity. If content cannot be monetised, services would have to be more so, and so the trade off as a consumer would be to pay significantly more for the services of the creatives who once made a living from their copyright works. For the photographer, it would be the services of his photographic studio; for the musician, it would be the ticket sales of live gigs. For education? I would argue that academic discipline would be sacrificed, although educational establishments would save a lot of money in licensing fees. A world without copyright is akin to the “golden age” presented by Gonzalo in The Tempest (Act II sc.i), an ideal to aspire to but which cannot exist in a capitalist society where money is the driver and not morality and goodwill.

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:

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...

Dealing with the Digital Economy Act: some practical steps for the HE sector

As the consultation period for Ofcom’s Code of Practice for implementing the Digital Economy Act draws to a close, the HE sector must be reminded of their duty to respond in light of the impact this Code may have on academic establishments. Unlike France’s Hadopi law, which deliberately excludes universities, the Digital Economy Act (controversially) applies to all sectors, and it would be remiss of the HE sector not to consider the proposals set out in Ofcom’s Code very seriously.

Looking at some of the key aspects of the Code, it is the commercial ISPs with the largest share of the market who are the primary target. However, should Ofcom perceive consumer migration away from these ISPs as a result of prescribed measures taken to reduce copyright infringement, it intends to reduce the threshold, thereby making the Code applicable to ISPs with a small to medium number of subscribers. Should this happen, there is currently no attempt made in the Code to reflect the issues which public sector entities such as universities would encounter if they were forced to conform to the Code. As such it is best to take a ‘worst-case scenario’ approach to the Code and look at the greatest impact it may have on HE institutions (HEIs), taking into account the complexities of the HE sector.

Key issues that HEIs face at this stage:

• No definition of what an HEI is in relation to the Code
• Difficult to identify and track infringers
• External companies based on university campus – classed as subscribers or ISPs?
• Potentially heavy costs involved in tackling infringement, discovery and appeals
• HEIs assume quasi-judicial role
• HEIs more likely to be prosecuted than individuals
• Data held on infringers must be compliant with the Data Protection Act
• Defences for appeal are limited -“reasonable steps” are undefined
  

Practical Measures to take:

• Lobby Ofcom for clarification of definitions (ISP / Subscriber / Comms Provider)
• Keep abreast of legislative changes and new drafts
• Watch for developments in JANET’s Acceptable Use Policy
• Promote legitimate download and streaming services as alternative to file-sharing
• Review current network infrastructure and policies
• Implement robust notice and takedown procedures
• Set up a clear route for contacting the HEI about copyright infringement
• Review data logs in light of possible Subject Access Requests
• Review current monitoring and discovery practices
• Implement robust regulations for the use of IT systems
• Embed a culture of corporate compliance for all users

Guidance and Implementation

One of the biggest issues is defining a university in light of the Digital Economy Act and subsequently the Ofcom Code. Most universities offer connections to JANET for their staff and students and therefore consider themselves ‘communications providers ‘. Effective policies and procedures are already in place around this model and are enforced as part of student regulations and staff contracts. Any interference with the current system at this stage by a government body such as Ofcom would disrupt network operation and have severe consequences for administration and research progress, as well as increasing cost and impacting staff time.

That said, it would be unwise to sit back and do nothing. HEIs should at the very least review their current policies and procedures, tallying up the number of copyright infringement notices that they have received over the course of each academic year and measuring how effectively these have been dealt with. Annual trends of copyright infringement notifications and subsequent action taken to remedy them should be analysed and key areas identified for improvement if needs be. Data Protection Officers should be consulted about the potential compliance issues of data logs and a contingency plan drawn up to ensure accuracy of reporting. In addition, JISC have developed a series of further practical suggestions to ensure compliance with the Digital Economy Act.

Conclusion

So what else can HEIs do? As many HEIs as possible should respond to Ofcom’s consultation (closing 30th July), drawing attention to the issues outlined above. The HE sector must not assume that just because all the big players are involved (JISC, Consumer Focus, JANET) it should sit back and let them solely bear the burden of response. HEIs are in the business of education, so they more than anyone are best placed to impute good practice in terms of copyright compliance to their network users. Respond now and defend your position.