Restricted and Permitted Acts Richard McCracken Head of Intellectual Property The Open University

Two types of activity Restricted Acts (What we can do with permission) Permitted Acts (What we can do without permission)

Restricted Acts Copying Making available to the public (publishing) Broadcasting Adapting Dealing in infringing copies Providing means of making infringing copies

Restricted acts continued Storing in an electronic medium Extracting (database right) Communicating to the public (digital networks) Authorising infringement Recording performances

Permitted Acts Using an insubstantial part Fair dealing for the purposes of criticism or review Fair dealing for the purposes of reporting a current event Fair dealing in setting, communicating or answering a bona fide examination question

Permitted acts & licensing schemes Photocopying text (CLA) Off-air recording of broadcasts (ERA and OU schemes)

Insubstantiality A qualitative test Varies according to context and ‘work’ –e.g. literary prose/poetry, musical, film.

Off-air recordings 1988 CDPA – “educational purposes of the institution” 2003 incorporation of EC Directive “premises of the institution” e.g. campus facilities, halls of residence, study centres Access from other premises denied

Web content Restricted Acts apply: –Storing in an electronic medium –Authorising infringement –Provision of premises and equipment for infringement –Communicating to the public –Database rights

Explicit licences Licensing statement

Implicit licences Context-driven Letter to newspaper Interpretation of intent

Rights ownership Staff – terms and conditions Students – terms and conditions Commissioned – contractual Existing - licensing

Do I need to clear? Is it a work? No – use it/Yes - proceed to next question Is it protected? No – use it/Yes – proceed to next question Am I performing a restricted act? No- use it/Yes – proceed to next question Do I have a defence? Yes – use it/No – clear it