Copyright in an electronic environment Andrew Braid Licensing and Copyright Compliance The British Library

2 OUTLINE  Introduction  Brief background on copyright  Electronic copyright  Current position  Future

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)

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 2003

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Artistic works Films, videos Sound recordings Radio and TV broadcasts Typographical arrangement of published editions Unpublished works Each has subtly different rules and traditions (unfortunately)

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

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

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

9 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

10 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

11 EXCEPTIONS - LIMITATIONS Three major limitations:  Quantity  Duration  Purpose

12 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

13 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

14 Various uses are allowed without the owner’s permission  Fair dealing  Educational copying  Public administration  Libraries and Archives PURPOSE

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

16  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

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

18 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

19 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

20 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

21 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

22 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

23 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

24 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

25 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

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

27 MAIN CHANGES IN COPYRIGHT LAW since 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.

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

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

30 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”.

31 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

32 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?

33 GUIDING OUR CUSTOMERS available at 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

34 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

35 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!

36 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?

37 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

38 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

39 SOME SOLUTIONS - II Creative 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

40 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

41 BACKGROUND TO GOWERS  DTI, DCMS and Treasury  Over 500 responses  Growing recognition of Public Value

42 CONTACT Andrew Braid Licensing and Copyright Compliance The British Library but not for much longer…….