COPYRIGHT ISSUES FOR SCHOOLS AND COLLEGES

Professor Charles Oppenheim

January 30th 2013ESCC Annual Services to Schools

ConferenceAmex Stadium

CAVEAT

• I am not a lawyer and can accept no responsibility for anything you choose to do, (or not do,) as a result of listening to me

• I can be contacted after the event at c.oppenheim@btinternet.com

OWNERSHIP• First owner is usually person who created it• Employers usually automatically own the copyright in

materials created by employees as part of their employee duties; teaching is definitely part of employee duties, so copyright in works created for teaching belongs to the college/school

• What if someone changes jobs?• What if someone is a peripatetic teacher covering

several institutions?• Freelancers and students own their own copyright!

LITERARY WORKS

• Printed• Hand-written• Everything in machine-readable form, including

Internet• No implication of literary merit• Single words, facts, short sentences do not get

copyright

OTHER TYPES OF WORKS

• Artistic works – paintings, photos, sketches, maps, sculptures – and your signature

• Musical works – notation (lyrics are literary works)

• Sound recordings, films, videos, radio broadcasts, TV broadcasts – can be analogue or digital

AFTER COPYRIGHT HAS EXPIRED

• The material is said to be in the “public domain”• You can then do what you like with it• Copyright lasts a LONG TIME, but it is reasonable to

assume that anything published that is over 120 years old is out of copyright

“RESTRICTED ACTS”• The copyright owner can authorise, or refuse to authorise, a third party

from doing any of them• Copy• Issue copies to the public. “The public” includes any sub-set of the public

comprising two or more people; family/close friends do not count as “public”, but pupils do count as “public”

• Rent or lend (though libraries ARE allowed to do this)• Perform, show or play in public• Broadcast• Adapt or amend the work• Communication to the public, i.e., placing on a Web site, attaching to

emails, putting on a VLE, etc.

INFRINGEMENT

is when you do a restricted act without the permission of the copyright

owner

INFRINGEMENT• Directly infringe• Authorise infringement• Importing, selling goods knowing they were

infringing• Penalty is usually civil court action with damages

– there have been a number of cases involving schools and colleges over the years

• Criminal offence for, e.g., piracy

TO INFRINGE

• You do the restricted act on either the whole work....

• ...or to a “substantial part” of that work• “Substantial” is NOT what you think it is

SO HOW CAN ONE COPY?

• Buy a licence from the copyright owner, or someone who acts on its behalf (or have ESCC do that for you!)

• Make use of one of the exceptions to copyright• Make use of material where the owner has EXPLICITLY

waived copyright or has given a Creative Commons or similar free licence – not discussed further here, but there is a very large range of educational materials (text, images, moving images, sounds…..) available under such free licences

LICENCES

• Copyright owner, or his/her/its authorised representative (licensor) grants licensee rights to do certain restricted acts

• In return, fees are (usually) paid and terms and conditions imposed – you must follow them.

• An example are the CLA Licences. Under the CLA licence, you can only make multiple copies for teaching from items that your school/college OWNS. You cannot make multiple copies from items borrowed, say, from a local public library, or from an item the teacher happens to personally own.

OVERVIEW OF LICENCES FOR SCHOOLS AND COLLEGES

• http://www.copyrightandschools.org/• But note that this is produced by the licensing

agencies themselves, so don’t necessarily believe you MUST have a licence for everything

MPLC

• Aggressive marketing, making legally dubious claims about likelihood of infringement.

• Limited repertoire of films (which in any case are not fully listed on its web site) – other film licensing agencies have a much bigger range

• Only needed for showing of films in its repertoire for NON-EDUCATIONAL purposes, e.g., an end of term treat.

• Ignore MPLC unless you plan to show one of its films. No point in taking out its licence just as an “insurance policy”.

EXCEPTIONS TO COPYRIGHT• Best known of these is “fair dealing”• Individual may make a single copy – or, in rare cases, multiple copies, of

all, or a “substantial” part, of a work, without having to ask permission or pay fees

• Must be “fair”, i.e., not damage the legitimate commercial interests of the copyright owner

• Must be for the person him or her-self, or for a friend/colleague• Must be for one of the three permitted purposes, i.e., non-commercial

research or private study, or criticism or review, or reporting current events (N.B., education is NOT a permitted purpose for fair dealing, but is partly covered under educational exceptions – see later slide)

• Must pass all these tests to be legal

LIBRARY PRIVILEGE

• For prescribed libraries only; all FE college and school libraries are prescribed libraries

• Librarian (ANYONE working in a library, including volunteers) may make a copy of an item for a patron/user

• Immunity against an infringement action, so long as ground rules (not discussed further, but library staff are obliged to make themselves familiar with them) are followed

EDUCATIONAL EXCEPTIONS• Allow a teacher or pupil to copy items onto a white board or blackboard,

or into an exercise book (say) by hand. No reprography or electronic copying, including keyboarding, allowed

• Also allows copying and showing films for film making class• Also allows copying and showing of films or broadcasts for educational

purposes, where no licensing scheme (e.g., ERA) is in place• OK to perform a play, musical work, etc., again for educational purposes

only. • Showing of films, etc., as an end of term treat (say) always requires a

licence, as do live plays/musicals, etc. for parents and pupils.• N.B. an educational establishment can lend copyright works – to anyone!

EDUCATIONAL EXCEPTIONS

• Allows a visually impaired person (or the library/educational establishment) to make an “accessible copy” for the student

• Applies to those with impaired vision, or with a physical disability that means they cannot turn pages

• Does not apply if commercial version of item is available

• Does not apply to dyslexia, etc. – yet!

EXAMINATION EXCEPTION

• Anything but music (when the exam is playing the music) can be copied for the setting or answering of exams – source must be given wherever possible

• Exams include any coursework which is marked (summative, not formative)

• Copying old exam papers to show students the sorts of questions that might arise in their forthcoming exam is OUTSIDE this exception, but most exam boards grant a free licence for you to do this

COMMON PITFALLS• Assuming all copying is OK under “fair dealing”, forgetting how restrictive

that is and that it NEVER applies to copying for class use• Assuming that if it is 5%, or one chapter, then it is OK to copy – simply not

true!• Doing things under CLA, etc. licence which are outwith the licence terms• Falling for letters from MPLC and their ilk without double checking

whether you really need the licence• Requiring pupils to assign copyright to school/college as a condition of

enrolment; this unfair contractual term would be struck down by a Court. You MUST ask for permission each time you want to reproduce pupils’ work – and respect the answer if it is “no”.

• Copying sheet music – there are virtually no circumstances when this is legal

GOOD PRACTICE

• Make sure all staff have read, understand, and abide by, the terms of conditions of their licences

• If you get a complaint from someone claiming you have infringed, immediately take down/make unavailable the allegedly infringing materials whilst you investigate the validity of the complaint. Then take urgent legal advice. Ignoring the complaint is dangerous!

• If you decide the complaint is justified, an apology is normally enough to satisfy complainant, though you may need to offer compensation.

• If you think complaint is unjustified, then challenge the complainant and/or restore the allegedly infringing materials

• Get staff to explore the wealth of Creative Commons-licensed teaching materials available on the Web

TIME FOR QUESTIONS!