THE NEW COPYRIGHT LEGILSATION AND ITS IMPLICATIONS FOR LIS STAFF UC&R Wales AGM, Aberystwyth, 16 June 2004 Charles Oppenheim

HOW THE TALK IS STRUCTURED Background EU Directive and its implementation in the UK Implications

BACKGROUND 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

OWNERS’ RESPONSE Lobby for strengthening of copyright law Develop technical measures to prevent copyright abuse (and have laws to protect such measures) Technical measures include dongles, encryption software, payment mechanisms using credit cards…. Tie users into contracts

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 ….where someone famous made his name!

MAIN CHANGES TO THE LAW Length of term from 50 years post mortem to 70 years post mortem Moral Rights Protection for databases Protection for software EU Directive implemented at the end of 2003 – and the focus of this talk

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)

THE EU DIRECTIVE: Main Rights reproduction right –covers all forms of reproduction –exclusive right to authorise or prohibit permanent or temporary, direct or indirect, in whole or in part reproduction by any means and in any form communication/making available right new exclusive right covering authorisation or prohibition of communication of works to the public by wire or wireless means - covers Internet, Intranets…. distribution right –in relation to physical or tangible copies of works

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 –rights-holders must receive “fair compensation” (but this could be zero!)

Technological Protection Measures legal protection for technological measures, e.g., ID/password, encryption systems, used to protect copyright, related rights and database right protection against acts designed to circumvent technological measures where a person does so intentionally with the intention to infringe or conceal infringement 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 technological measures for the purpose of infringement

Circumvention of TPS proposed changes in UK law may impact negatively on: –preservation copying –Fair dealing/library privilege for non- commercial purposes

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; therefore rights-holder should be forced to drop TPS on demand – but isn’t 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 2004”.

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

CHANGE TO COPYRIGHT DECLARATION FORM I declare that…… …..I will not use the copy except for non- commercial research or private study……. If the patron can sign this, then (s)he can continue to enjoy exception to copyright. No need to sign any form if copying is for commercial purpose

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 (but there is a way round this – see later) 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

POSITION OF INFORMATION AND LIBRARY MANAGERS –impossibility of policing users in terms of commercial or non-commercial: in person at self-service copiers, scanners, etc. over mediated copying or remote document supply –exposure of information specialists in giving advice to users (possible authorisation of infringement)

Impacts and Costs substantially increased costs of compliance: –licences and licensing costs –costs associated with getting individual permissions –higher document supply charges –administrative costs British Library estimate of extra cost of supply of copyright-cleared commercial copies: £2,000,000 to commercial organisations alone additional hidden costs, e.g., identifying rights owners

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 CLA has issued contradictory advice regarding who the scheme is available to, minimum level of usage – so watch this space!

RANGE OF CLA OPTIONS CLA standard licence CLA Business Licence: –Nov. 2002; permits scanning/distribution by ; limits on numbers; artistic works included CLA Sticker scheme already mentioned New scholarly society licence (low level document delivery) – limited use New small business licence launched New FE licence Others under consideration – check the CLA Web site

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 Complications for self-service Negotiations with CLA or individual publishers Problems if publisher is not covered by CLA licence