Understanding copyright: the theory

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1 Understanding copyright: the theory Andrew Braid Licensing and Copyright Compliance The British Library

2 OUTLINE Brief introduction to copyright How copies can be made Recent changes How The British Library coped with the changes Electronic signatures Future Questions 2

3 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) 3

4 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

5 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Artistic works Films, videos Sound recordings Radio and TV broadcasts Typographical arrangement of published editions Unpublished works Each has subtly different rules and traditions (unfortunately) 5

6 OWNERSHIP The author The employer The commissioner (since 1989) The Crown Can be overruled by contract 6

7 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 7

8 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 8

9 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 9

10 EXCEPTIONS - LIMITATIONS Three major limitations: Quantity Duration Purpose 10

11 QUANTITY 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 11

12 DURATION 70 years after death of author Exceptions Official publications Unpublished works Anonymous works Sound recordings Films Photographs Maps Others 12

13 PURPOSE Various uses are allowed without the owner s permission Fair dealing Educational copying Public administration Library Privilege 13

14 PURPOSE - FAIR DEALING Allows individual users to copy for: Non-commercial research or private study Criticism or review Reporting current events 14

15 PURPOSE - EDUCATIONAL COPYING 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) 15

16 PURPOSE - PUBLIC ADMINISTRATION No limits when copies are required for: Judicial proceedings Parliamentary proceedings Statutory inquiries Royal Commission 16

17 PURPOSE - LIBRARY PRIVILEGE Permits librarians to make copies on behalf of users Strictly controlled Does not apply to artistic works Preservation and replacement copies 17

18 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 18

19 EXCEPTIONS ARE A DEFENCE They do NOT provide guaranteed immunity against an infringement action You would have to prove you passed the three step test Can be risky 19

20 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 20

21 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 Don t forget Moral Rights as well 21

22 CHANGES IN COPYRIGHT LAW Result of pressure from music, software and media industries Other than in USA, changes occur at regional (e.g., EU) or international (e.g., WIPO, WTO) level Five major changes since 1988 legislation length of term; databases; communication right; protection for copyright management information; protection for technical measures 22

23 MAJOR FEATURES OF THE INFORMATION SOCIETY DIRECTIVE All exceptions are limited to non-commercial purposes New civil/criminal offences to by-pass or de-activate copyright management information or to by-pass or deactivate TPS, with the intention of infringing, or concealing infringement New restricted act of communicating information (e.g., placing on Intranets, Internet) 23

24 EXCEPTIONS One mandatory exception (i.e., Member States MUST implement) certain temporary acts of reproduction incidental and part of a technical process; for intermediate or lawful purpose; no independent economic value at all A long list of optional exceptions (i.e., Member States can pick and choose which, if any, they want to include) Each Member State has implemented a completely different set of optional exceptions, so the ultimate purpose of the Directive harmonisation of copyright law has totally failed to occur UK implementation Must comply with European Communities Act 24

25 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 25

26 WHY IS THERE CONTROVERSY OVER 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? 26

27 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

28 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 28

29 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 29

30 PRACTICAL IMPLEMENTATION OF COPYRIGHT IN LIBRARIES Read and understand the law Exchange views with colleagues on points of difficulty Obtain legal advice if need be Publicise legal position to your patrons Ensure your procedures, documents and guides comply Take reasonable steps to prevent infringement Recognise your own limitations Develop a policy! 30

31 WHAT THE BRITISH LIBRARY HAS DONE TO IMPLEMENT THE REVISED LEGISLATION Document supply services Reading room services Raising awareness 31

32 DOCUMENT SUPPLY SERVICES COPYRIGHT FEE PAID No changes required Copyright fee paid Transactional scheme Charges publisher set fees 32

33 DOCUMENT SUPPLY SERVICES LIBRARY PRIVILEGE Cannot now be used for commercial purposes Library privilege Re-registration process required Old registration quoted wording of 1989 Regulations New wording generic so will not need to repeat the process Revised copyright declaration form Form available at 33

34 READING ROOMS CLA Sticker Scheme Implemented November 2003 Staff training Reader awareness 34

35 SPECIALIST MATERIAL Newspapers Discussions with NLA Sticker scheme from August 2004 Maps Discussions with Ordnance Survey under aegis of BRICMICS 35

36 GUIDING OUR CUSTOMERS 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 available at 36

37 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 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 37

38 GOWERS REVIEW 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 38

39 BACKGROUND TO GOWERS Manifesto commitment DTI DCMS Growing recognition of Public Value 39

40 CONTACT Andrew Braid Licensing and Copyright Compliance The British Library

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