Copyright in an electronic environment

Andrew Braid

Licensing and Copyright Compliance

The British Library

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OUTLINE

Introduction

Brief background on copyright

Electronic copyright

Current position

Future

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PURPOSE OF COPYRIGHT

Protection of material encourages dissemination which benefits the public at large

(Statute of Anne 1709)

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

(US Constitution 1787)

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THE LEGISLATION

The Copyright, Design and Patents Act, 1988

SI 89/1212. Copyright (Librarians and Archivists) (Copying of Copyright Materials) Order

SI 89/1068 Copyright (Educational Establishments) (No.2) Order.

SI 92/3233 Copyright (Computer Programs) Regulations 1992

SI 95/3297 Copyright Rights in Performances: the Duration of Copyright and Rights in Performances Regulations 1995

SI 96/2967 Copyright and Related Rights Regulations 1996

SI 97/3032 Copyright and Rights in Databases Regulations, 1997

SI 03/2498 Copyright and Related Regulations 2003

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WHAT IS PROTECTED?

Must have fixed format Literary works Dramatic works Musical works Artistic works Films, videos Sound recordings Radio and TV broadcasts Typographical arrangement of published editions Unpublished works

Each has subtly different rules and traditions (unfortunately)

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OWNERSHIP

The author

The employer

The commissioner (since 1989)

The Crown

Can be overruled by contract

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HOW CAN A LIBRARIAN MAKE COPIES FOR PATRONS?

Take out a licence from the copyright owner, or from someone who acts on its behalf (e.g., RRO, an online host, a content aggregator…)

Make use of one of the exceptions to copyright

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LICENCES

Copyright owner (licensor) grants licensee rights to do certain restricted acts

In return, fees are paid

Trend towards standardised terms

However, a plethora of licensing initiatives around CLA JISC/PA guidelines

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ADVANTAGES OF LICENCES

Licenses can be tailored to the circumstances of different works, authors, publishers and distributors, with specific, variable terms and conditions

Contract terms can be negotiated, renegotiated, and then negotiated again

Global contracts across national legislation

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EXCEPTIONS TO COPYRIGHT

Best known of these is “fair dealing” in UK, “fair use” in USA, “private copying” in continental Europe

Individual may make a single copy - or in some cases, multiple copies, of all, or less than a “substantial” part of a work, without having to ask permission or pay fees

Can be done only under certain conditions

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EXCEPTIONS - LIMITATIONS

Three major limitations:

Quantity

Duration

Purpose

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Unless a substantial part of a work has

been copied, no infringement of copyright

can be claimed.

Substantial relates to both quantity and

quality

Amount which may be copied without

permission is also linked to purpose

QUANTITY

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DURATION

Copyright normally expires on 31 December 70 years after death of author

Exceptions Official publications Unpublished works Anonymous works Sound recordings Films Photographs Maps Others

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Various uses are allowed without the owner’s permission

Fair dealing

Educational copying

Public administration

Libraries and Archives

PURPOSE

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Allows individual users to copy for:

Non-commercial research or private study Criticism or review Reporting current events

PURPOSE - FAIR DEALING

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Multiple copying is permitted under the following circumstances:

Non-mechanical copying by teachers or students: no limits Setting or answering examination questions: no limits, except

examinee cannot use music for performance

Published anthologies (single excerpt of a work)

Performing plays (parents may not be present)

Recording broadcasts (unless a licence exists)

Copying up to 1% of a work (unless a licence exists)

PURPOSE - EDUCATIONAL COPYING

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No limits when copies are required for: Judicial proceedings

Parliamentary proceedings

Statutory inquiries

Royal Commission

PURPOSE - PUBLIC ADMINISTRATION

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PURPOSE – LIBRARIES AND ARCHIVES

Permits librarians to make copies on behalf of users

Strictly controlled Does not apply to artistic works

Preservation and replacement copies

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LIBRARY PRIVILEGE - CONDITIONS

Single article or not more than a reasonable part of a book

Must be for the purpose of non-commercial research or private study

Substantially the same article cannot be requested by anybody else at the same time

Requires signed declaration

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ELECTRONIC SIGNATURES

Advice from the Copyright Directorate is that electronic signatures are legal for copyright declaration forms provided the signature complies with an “Advanced Electronic Signature” as defined in Electronic Signature Regulations 2001. That is:

uniquely linked to the signatory capable of identifying the signatory created using means that the signatory can maintain

under his sole control, and linked to the data to which it relates in such a manner

that any subsequent change of the data is detectable

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EXCEPTIONS ARE A DEFENCE

Exceptions do NOT provide guaranteed immunity against an infringement action

You would have to prove you passed the three step test

Can be risky

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THREE-STEP TEST

Exception to copyright only: in certain special cases which neither: conflict with the normal exploitation of the work; nor unreasonably prejudice the legitimate rights of the

author

Article 9(2) of Berne Copyright Convention

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ELECTRONIC COPYRIGHT

Everything in machine readable form is in copyright

Includes digitised images, e mail, Web sites, e-journals, databases, pre-print archives, etc.

Just because it is available and free of charge does not mean it’s not in copyright.

There is not necessarily an implied licence to copy

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IMPACT OF TECHNOLOGY

Copyright has always been a tension between owners and users

Up until recently, that tension was controlled by limitations in technology, but no more

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WHAT IS HAPPENING TODAY

P2P file sharing

Transfer of materials from one medium to another

Wide-scale infringement of images, text

Wide-scale piracy of music, software, films

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E-CONTENT PROTECTION:The Triple Lock

E-Content

1. Copyright/ Database Right

2. Contracts and Licensing

3. Technological Protection Systems

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MAIN CHANGES IN COPYRIGHT LAWsince 1988 Act

length of term – 50 to 70 years; protection of databases; protection of software; EU directive (2003)

exceptions limited to non-commercial purpose; restrictions on communication to the public; protection for rights management information; protection for technical measures.

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COMMERCIAL COPYING

Removes fair dealing and library privilege exceptions to copyright for copies made for commercial purposes

Primary impact is on photocopying; electronic licences cover most use of digital materials

Self-service photocopying is not allowed if it is for a commercial purpose

Permission will cost, whether from an RRO, aggregator or individual publisher

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WHAT IS COMMERCIAL COPYING?

Has to do with making money – either for you personally or for your employer

Makes no difference who your employer is – commercial companies may need copies for non-commercial purposes, and non-commercial organisations may need copies for commercial purposes

No need to apply foresight - What was the reason that you wanted the copy at the time you asked for it?

Onus is on patron to make an honest declaration

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RIGHTS MANAGEMENT INFORMATION

Legal protection for rights management information: prohibiting removal or alteration of rights management information acting against persons knowingly involved in distribution,

importation for distribution, broadcasting, communication or making available to the public of protected works from which electronic rights-management information has been removed or altered without authority

Rights management information is: “any information provided by rightholders which identifies the work,

the author or any other rightholder, or information about the terms and conditions of use of the work or other subject-matter, and any numbers or codes that represent such information.” For example, “All rights reserved. © Andrew Braid 2006”.

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TECHNOLOGICAL PROTECTION MEASURES

TPMs used to protect copyright, related rights and database right are themselves protected

Specifically, protection against acts designed to circumvent TPMs where a person does so with the intention to infringe or conceal infringement

Also, protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services, where the intention is to enable circumvention of TPMs for the purpose of infringement

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PROBLEMS OF TPMs

Directive requires that people should be able to enjoy exceptions to copyright

In practice, difficult to see how a TPM can be intelligent enough to do this; therefore rights-holder should be forced to drop TPM on demand – but how?

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GUIDING OUR CUSTOMERS

available at http://www.bl.uk/services/information/copyrightfaq.html

The British Library, in co-operation with the CLA, has developed a series of FAQs covering

General queries Example scenarios Document supply Reading rooms Where to go for further advice

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IN SPITE OF THE CHANGES IN LEGISLATION

It is said that copyright infringement is the most common form of law breaking in the UK today

Even more common than speeding Yet how many actions for infringement take place each

year? It seems that even the owners do not have confidence in

the law

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WHAT’S WRONG WITH COPYRIGHT TODAY?

Reacting to the threat of the digital age

Little objective evidence that strengthening copyright law improves the economic situation for rights owners – see also EU report on economic effect of database right

Changes in technology have often preceded changes to traditional roles, the collapse of old business models and the development of new business models

Copyright has existed for 300 years but that does not mean it has the right to continue to exist!

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TO SUM UP

Copyright law has swung too far in favour of owners, say the users

There is wide-scale infringement going on, yet copyright owners are reluctant to take action

Owners are increasingly relying on TPMs and contracts to protect their interests rather than copyright

Millions now use Creative Commons licences and Open Access because they have no interest in commercial exploitation of their works

Do we need copyright at all?

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COPYRIGHT AS A BUNDLE OF RIGHTS

Rights to: Control copying Attribution of authorship Control modification, adaptation or derivation Compensation for commercial reuse Personal reuse, adaptation Post in web repositories and on other web sites Licence others to do the same

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SOME SOLUTIONS – I Open Access

Open Access occurs when full-text journal articles, plus other research information are made freely available on-line. Author (or employer) pays for publication

Receives free and unlimited access to other materials deposited in the same archive under the same conditions

Favoured by commercial publishers Nobody pays

Everyone deposits material for free Everyone who deposits under this model is granted equal

access to all material Favoured by academics creating their own archives

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SOME SOLUTIONS - IICreative Commons

You are free: to copy, distribute, display, and perform the work to make derivative works to make commercial use of the work

Limitations Attribution. You must give the original author credit. For any reuse or distribution, you must make clear to

others the licence terms of the work. Any of these conditions can be waived by the copyright

owner if asked to do so

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WHAT IS THE GOVERNMENT’S RESPONSE?

April 2005: Labour Party Manifesto “ We will modernise copyright and other forms of

intellectual property rights so they are appropriate for the digital age.”

December 2005: Chancellor announced an “independent review of IPR in the UK” to be headed by Andrew Gowers

February 2006: Gowers issues call for evidence and lists specific areas of issues

Fair dealing, orphan works and use of DRM technology April 2006: Closing date for evidence Autumn 2006: Report of Review

To report to the Chancellor, DTI and DCMS

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BACKGROUND TO GOWERS

DTI, DCMS and Treasury

Over 500 responses

Growing recognition of Public Value

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CONTACT

Andrew BraidLicensing and Copyright ComplianceThe British Library

01937 546030andrew.braid@bl.uk

but not for much longer…….