UNDERSTANDING COPYRIGHT: THE THEORY Charles Oppenheim

BACKGROUND TO RECENT CHANGES IN THE LAW Copyright has always been a tension between owners and users Up until recently, that tension was controlled by limitations in technology Machine readable materials pose particular problems for copyright owners

PROBLEMS Easy to copy m/r data, or convert hard copy into m/r form Copies are high quality/perfect Copies can be easily put on an Intranet or the Web and/or sent to large numbers of people Copying costs little or nothing Copying can be done extremely fast Difficult to police

1. Copyright / Database Right 2. Contract and Licensing 3. Technological Protection Systems E-Content E-Content Protection: The Triple Lock

WHERE IS THE PRESSURE TO CHANGE THE LAW BEING APPLIED? International - World Trade Organisation Regional - EU National - USA Days have long gone when UK has been in the forefront in developments in the law - last time was the Copyright Act 1988….when someone made his name! N.B. Further tightening of law promised in Labour manifesto

MAIN CHANGES TO THE LAW Length of term from 50 years post mortem to 70 years post mortem Protection for databases Protection for software EU Directive implemented at the end of 2003

EU DIRECTIVE ON DATABASES “Collection of independent works, data or other materials that are arranged in a systematic or methodical way and are individually accessible by electronic or other means” Each individual item may or may not be subject to copyright

DATABASES If by reason of selection or arrangement there is an intellectual creation, then database gets copyright If nothing creative, but there has been substantial investment in creating the database, then it gets database right If nothing creative, and no substantial investment, then no rights to database as a whole

DATABASES

DATABASE RIGHT 15 years Can be renewed indefinitely if database updated Restricted acts are: copying; making database available to the public

ONE IMPORTANT COURT CASE British Horseracing Bureau versus William Hill Decided by European Court of Justice – no further appeal Restricted application of database right – only applies if you spent significant effort in creating the database in its own right; no right if database just fell out of other activities that were being done Does BT White Pages directory now enjoy database right?

EU DIRECTIVE IMPLEMENTATION: MAJOR FEATURES Reduces fair dealing and library privilege (now only allowed for non-commercial purposes) New civil/criminal offences to by-pass or de- activate copyright management information or to by-pass or de-activate TPS, with the intention of infringing, or concealing infringement New restricted act of “communicating information” (e.g., placing on Intranets, Internet)

Exceptions mandatory exception certain temporary acts of reproduction incidental and part of a technical process; for intermediate or lawful purpose; no independent economic value at all some optional exceptions to reproduction right photographic reproductions on paper; non-commercial individual private reproductions in any medium; specific, non- commercial acts by public libraries, educational establishments, archives; ephemeral recordings by broadcasting organisations using their own facilities for preservation of these recordings in official archives; social institutions for non-commercial purposes –rights-holders must receive “fair compensation” (but this could be zero!)

Technological Protection Systems New law provides a remedy where TPS prevents exercise of permitted acts by a lawful user, but….. –in contrast to power of the rights-holder to regulate access by using TPS, a disadvantaged user has to issue a notice of complaint to the Secretary of State –procedures for a user to enforce a permitted act are cumbersome, lengthy, expensive….

WHY IS THERE CONTROVERSY OVER TECHNICAL MEASURES? Directive requires that people should be able to enjoy exceptions to copyright In practice, difficult to see how an TPS can be intelligent enough to do this class actions can be taken but no penalties imposed if rightsholder fails to comply with instructions Appears that you cannot object if the material is available by licence

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. © Charles Oppenheim 2005”.

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 None of this is a problem for copying internal documents if organisation already has a CLA licence, but note CLA licence does not apply to document supply copies you request, and if the organisation does not have a CLA licence….. Self-service photocopying within organisation not allowed if it is for a commercial purpose Permission will cost, whether from CLA or individual publisher Information and Library Managers are the ones who will have to tell senior management about the extra costs, and tell staff what’s involved in terms of bureaucracy

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

EXAMPLES These are my opinions – use your own judgement! Work relevant to company R&D – C Work relevant to market research or competitive intelligence – C Necessary for satisfying regulatory requirements – C? Done by students on day release from employer as part of their course - NC Preparation of a book or book chapters where royalties are expected - C Preparation of an article for a scholarly journal - NC unless they expect to get paid for it (makes no difference who the publisher is)

University research sponsored by a commercial company - C? Work done by a student who is sponsored by a company for a taught course - NC Preparation for a conference paper - NC, unless speaker gets a fee (very problematic for me!) Work done to assist NHS – NC But work done to assist private medicine - C Work done as part of your professional development - NC

EXCEPTION FOR JUDICIAL PROCEEDINGS Clause 45(1) of CDPA unaffected by new law Many companies now taking an interest in using this exception to avoid impact of new law Clause 178 of CDPA defines it as “ proceedings before any Court, tribunal or person having authority to decide any matter affecting a person’s legal rights or liabilities.” Does this include copies for regulatory bodies? Copies for preparation of patent applications?

CLA STICKER Organisations, individuals and libraries/information units doing document supply can buy books of 20 stickers from CLA Each time a commercial copy is made, one sticker is used up Standard price per sticker (£9, including VAT) charged by CLA Library/information unit can charge less, the same or more as it sees fit Library/information unit returns counterfoils together with collected fees when books of stickers are used up Information manager or patron can make one copy of one chapter or of one article per sticker Virtually all CLA’s publishers have agreed Not much used so far, so scheme may be withdrawn eventually

CONCLUSIONS Best (because it is the simplest) way is to get a CLA licence appropriate to your needs If licences are not appropriate (e.g., because number of copies needed is too low to justify it), consider the CLA sticker scheme DON’T ignore the matter – CLA will be looking for high profile examples of malpractice to sue New bureaucracy Negotiations with CLA and/or individual publishers Problems if publisher is not covered by CLA licence

THE PROBLEMS Librarians are caught in the middle of the war between rights-holders and users Mistake to strengthen copyright laws - this antagonises users Better to open a dialogue!

REMEMBER….. Copyright is less to do with the law than it is to do with management of risk

OPPENHEIM’S RISK CALCULATION R = A x B x C x D A is the probability that what you are doing is infringement B is the chances that the copyright owner finds out about the infringement C is the probability that the owner, having found out about the infringement, chooses to sue D is the likely financial penalty you will suffer If R is less than £1,000, take the risk?