| Copyright II | 3 |
Copyright exceptions, licensing and Open Access
In Chapter 2 we saw that copyright is not an absolute monopoly, but is doubly limited, first by a fixed duration or term of years (after which it expires and the work enters the public domain), and, second, by a number of exceptions which permit defined beneficiaries (such as teachers or librarians) to copy works for specified purposes even while the copyright term is still running. We dealt with the term of copyright in Chapter 2; in this chapter we will deal with the exceptions which might apply, to whom, and in which circumstances. We will see that copyright exceptions are governed to a significant extent by EU and international rules, and that in the UK they were greatly extended in 2014. So whether copying took place before or after June (or in some cases October) 2014 may make a crucial difference to whether a copyright exception applies. The new exceptions themselves do not apply retrospectively.
THE 3-STEP TEST
Article 5.5 of the EU Copyright Directive 2001 provides, in wording taken from the Berne Convention, that copyright exceptions in the EU must only be applied:
(1) in certain special cases;
(2) which do not conflict with normal commercial exploitation of the work; and
(3) do not unreasonably prejudice the legitimate interests of the rightsholder.
This ‘3-step test’ must now be applied to all copyright exceptions promulgated by the UK and all other EU member states in their national copyright laws, and it is a necessary yardstick for all EU governments and courts in determining whether individual copyright exceptions are lawful or not and whether they apply in a particular case. The UK government rightly now makes regular reference to it in all proposals for UK exceptions, and it is regularly referred to by UK judges.
Article 5.1 of the Copyright Directive (now included in section 28A of the UK Act) provides that copyright in most works is not infringed by the making of a temporary copy which is: transient or incidental, an integral and essential part of a technological process, and the sole purpose of which is to enable either a transmission of the work in a network between third parties by an intermediary or a lawful use of the work. The temporary copy must also have no independent economic significance.
OTHER EU COPYRIGHT EXCEPTIONS
Apart from the compulsory provisions for the 3-step test and for temporary copies in the EU Copyright Directive mentioned above, the UK and other EU member states may choose what national copyright exceptions they wish, provided they are included in the list of permitted EU exceptions set out in Article 5. This ‘a la carte’ menu seemed workable in 2001 when the Directive was passed, but fell far short of the intended ‘EU Copyright harmonisation’, since different member states chose different exceptions and implement them in different ways. The 5 exceptions in Article 5(2) and the 15 in Article 5(3) are too numerous to set out in full here, but we will refer to relevant wording in Article 5 when we consider individual UK exceptions below. We will see that (as in the ‘Personal copying’ exception, below) any variations in wording may prove important, and may or may not be legal.
As explained in Chapter 2, the EU Copyright Directive (and its copyright exceptions) is at the time of writing still under review in Brussels, both by the European Commission as part of its 2015 ‘Digital Single Market Strategy for Europe’ and the European Parliament following the Reda report (for more on both these, see Chapter 2). The presence or absence of a reasonable licensing scheme is often a key issue in deciding whether a copyright exception applies, both in the EU and the UK. Collective licensing is dealt with more fully below.
The 1988 Copyright, Designs and Patents Act (still the governing UK copyright Act) is nearly 30 years old at the time of writing, so in order to keep it fit for purpose in an Internet society the intervening years have seen many amendments and reforms designed to preserve – but also update – the essential ‘balance’ in the UK copyright system, between (a) the need to enforce the exclusive rights of rightsholders in an age of easy cybercrime and (b) the expectations of Internet users and consumers for reasonable access to copyright works, for research, education or other socially beneficial purposes. The exceptions in the 1988 Act were drafted to meet specific non-commercial copying needs of clearly defined people such as teachers or ‘prescribed librarians’ in what was at the time a largely analogue society, but the scope and meaning of the exceptions were on the whole well understood, and the UK courts had built up a substantial body of clarifying case law to interpret the exceptions, for example in deciding what is or is not ‘fair dealing’.
Over the last decade particularly there have been increasing calls to ‘modernise’ UK copyright exceptions for the digital age, starting with the Gowers Review, which made 54 recommendations for expanded or updated exceptions in 2006, and followed by a government policy document ‘Copyright – The Way Ahead’ in 2009. A further review under Professor Ian Hargreaves proposed further extensions to existing copyright exceptions – and creation of some new ones – in 2011, and despite strong reservations by publishers and other rightsholders, the government largely accepted these in ‘Modernising Copyright’ in 2012. The Hargreaves Review was much criticised at the time, largely for lack of hard evidence for many of its recommendations, but a period of consultation in 2013 resulted in the passage of 5 Statutory Instruments through Parliament in June (or in some cases October) 2014, containing many new or amending revisions to UK law, several of them – despite government Guidance Notes – far from clear. In the sections on individual exceptions below we will adopt the new headings for each of the new exceptions, but will cross-refer to the old exceptions where necessary. It is likely that a significant amount of debate (and possibly litigation) still lies ahead, while UK courts try to interpret new UK exceptions in the light of rather different EU terminology.
PERSONAL COPYING FOR PRIVATE USE
The UK had no exception for personal copying before 2014, although most other EU member states did (and still do). Personal copying exceptions are permitted by Article 5.2(b) of the Directive, on a non-commercial basis, and provided there is provision for ‘fair compensation’ for rightsholders. Most EU member states provide for this via levies on copying hardware, but the UK government has long resisted this, on the grounds (apparently) that a levy would be an unfair tax on copying when not everything copied is a copyright work.
The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 provided, via a new section 28B of the 1988 Act, that personal copies made for private use would not infringe copyright if:
• made by an individual from a lawfully acquired copy held on a permanent basis;
• for that individual’s private use;
• for reasons that are neither directly nor indirectly commercial; and
• not made by circumventing effective technological protection measures.
The phrase ‘lawfully acquired on a permanent basis’ is defined in section 28B(4) as including lawful purchase or gift, or a (presumably licensed) download, but specifically does not include copies borrowed, rented, broadcast or streamed, or acquired via downloads enabling no more than temporary access. Section 28B(8) also provides that the exception will not extend to re-selling the copy made unless the re-seller deletes the original personal copy (although how this will be enforced is unclear).
The Regulations came into force in October 2014, despite protests from rightsholders (especially musicians and the music industry) at the absence of any provision (required by the Directive) for fair compensation or remuneration. After an application by them for judicial review of the government’s actions, citing evidence of likely loss of revenues of £58 million, the High Court found in their favour, and against the government, on 19 June 2015. Mr Justice Green ruled that the government’s previous arguments that any losses would be ‘de minimis’ were not supported by the evidence, and that the exception was therefore unlawful as it was, without provision for fair compensation. The court quashed these 2014 Regulations on 18 July 2015. At the time of writing the position of personal copying in the UK remains uncertain, and it is unclear whether the government will try to re-introduce the Regulations in amended form (presumably with a sufficient provision for fair compensation), or drop them altogether.
Whatever the final legal outcome, a number of important issues remain unclear, for example (a) the extent to which the exception covers e-books and cloud storage providers, and (b) how far technological protection measures can be effectively protected if challenged as too restrictive under Article 6.4 of the Directive and section 296ZEA of the Act (a hitherto untested provision).
Contract override
A more general final issue remains unclear, in this and most of the new exceptions – the provision (in this case in section 28B(10)) that any term in a contract that ‘purports to prevent or restrict’ the making of copies otherwise permitted by this exception ‘is unenforceable’. This has enormous implications for publishing contracts and licences, although at the time of writing the legality of such a blanket ban has not been challenged.
FAIR DEALING FOR QUOTATION
Before October 2014 two relatively limited quotation exceptions had existed, which allowed, among other things, quotation of works, making it lawful to make copies where the copying can be defined as ‘fair dealing’ for the purposes of (1) quotation for criticism or review or (2) for reporting current events. Quotation exceptions are permitted under Article 5.3(d) of the Directive, although with somewhat looser application to purposes ‘such as criticism and review’. The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 therefore introduced a new, wider quotation exception in the new section 30 (IZA) to the 1988 Act, under which it is now lawful to make copies and do some other things with a work provided that:
• the work has been made available to the public;
• the use of the quotation is fair dealing with the work;
• the use is for the purpose of criticism or review or otherwise [our italics];
• the extent of the quotation is no more than required for the specific purpose; and
• the quotation is accompanied by a sufficient acknowledgement (unless impossible for reasons of practicality or otherwise).
‘Making available to the public’ is defined in section 20(2)(b) of the 1988 Act as ‘the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them.’
The EU Directive limits quotation exceptions somewhat vaguely to purposes ‘such as criticism and review’, but this is narrower (and clearer) than the broad UK provision above for purposes of criticism or review ‘or otherwise’ (which arguably could include anything). Whether this apparent dilution of the conditions will prove workable in practice, and how widely UK courts will interpret the new wording, remains to be seen.
As to the requirement of ‘sufficient acknowledgement’, article 5.3 (d) specifically includes the author’s name, but the European Court of Justice in the 2011 case of Painer v. Standard Verlag and Others held that this might be limited to ‘the source alone’ (e.g. where a photograph was obtained via a news agency – without the name) and publication was justified under the separate exception in Article 5.3 (e) for public security (in that case, a police search for a kidnapped child).
However, it is still clear from the new Regulations that not all copying for quotation is permitted, but (as before) only fair dealing for the purposes of quotation, and on the other conditions set out above. We will see later that the fair dealing requirement is also crucial to several other exceptions in the UK. So, what is (and what is not) ‘fair dealing’?
Fair dealing
Fair dealing is not defined in the Act, or the Regulations, but it is an essential prerequisite of several copyright exceptions in the UK, and has been for some time, enabling the UK courts to provide clarifying interpretation in a series of decided cases over the years. It is clear that what is ‘fair’ in each case depends to some extent on the exception concerned, and the individual circumstances (and motives) of the copying done, and most judges have agreed that it is a question of degree and impression in each case. It is not an entirely subjective test, though. It must also be judged by the objective standard of whether ‘a fair-minded and honest person would have dealt with the copyright work in the manner in question’. Relevant issues have included:
(a) the amount copied, and not just the quantity, but the quality of the extracts;
(b) the purpose of the copying;
(c) whether licences were available but not used;
(d) whether the copying had the effect of competing with the original (and may therefore conflict with normal exploitation, as prohibited by the Berne 3-step test, above); and
(e) whether the work had been published, or was still unpublished.
Copying of an unpublished work is much less likely to be fair dealing than of one already commercially published, but for the quotation for criticism and review exception (above) the work must have been made available to the public).
In the context of quotation, and criticism or review, any improper motivation – such as an obviously commercial motive – will weaken any defence of fair dealing at the outset. In the leading (1916) case of University of London Press Ltd v. University Tutorial Press Ltd, very extensive extracts were reproduced, with little or no attempt at ‘critical’ commentary, and the primary motivation behind the copying was clearly not critical at all but commercial, making it definitely not fair dealing. However, the term ‘criticism or review’ has otherwise been interpreted liberally by the courts. It may be fair dealing even though the criticism or review concerned is of the theories or philosophy behind the work rather than its actual literary content or style, or of a class of works, such as a style of journalism, and, of course, the criticism or review need not be favourable. It must, however, have some significant element of genuine comment or assessment.
Lord Denning famously said in Hubbard v. Vosper in 1972 that:
it is impossible to define what is ‘fair dealing’. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too long and too many to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions.
With this and other judicial guidelines over the years in mind, it is clear that ultimately, the decision as to whether a use is fair dealing or not must be a matter of impression in each case.
In the case of Fraser-Woodward v. BBC 2005 the claimant owned the copyright in a number of photographs of the Beckham family published in various tabloid newspapers. An episode of a BBC TV programme featured images of the newspaper pages on which the claimant’s photographs appeared. The BBC claimed this was criticism and/or review of tabloid journalism and the methods by which the tabloid press and the Beckhams built and exploited stories to their advantage. The court stated that all that is needed is for there to be sufficient criticism or review and gave the following guidelines:
• What is the real objective of the person using the work?
• Excessive use can render use unfair.
• What is the actual purpose of the defendant’s work?
• The amount copied can be relevant.
• What type of work is reproduced and in which medium?
• Reproduction should not unreasonably prejudice the legitimate interests of the author or conflict with normal exploitation of the work (as in the 3-step test).
Applying these tests the court held that the use was fair dealing. This contrasts with the earlier 2005 case of IPC Media v. News Group Newspapers, in which the use of the front cover of an IPC magazine in an advertisement by a defendant including the defendant’s own magazine was not criticism or review, since the defendant’s use of the work was intended to advance the sales of the defendant’s own products.
Sufficient acknowledgement is defined in section 178 of the 1988 Act as ‘an acknowledgement identifying the work in question by its title or other description, and identifying the author unless:
(a) in the case of a published work, it is published anonymously;
(b) in the case of an unpublished work, it is not possible to ascertain the identity of the author by reasonable enquiry.’
The requirement to identify the author is usually regarded as important, but must perhaps now be read as potentially subject to other priorities, e.g. public security (see Painer v. Standard Verlag, above).
Orphan works (where it is not possible to identify or contact the rightsholder) are now the subject of UK licences under the Enterprise and Regulatory Reform Act 2013 and under the EU Orphan Works Directive 2012 (see, further, below). The general issue of copyright permissions is dealt with in Chapter 7.
Contract override
As with the personal copying exception, the quotation exception also includes a provision that any contract term that purports to prevent or restrict the use of the exception ‘is unenforceable’. For more on this potentially confusing provision, see ‘Personal copying’, above.
FAIR DEALING FOR CARICATURE, PARODY OR PASTICHE
The UK did not have a Parody exception until 2014 (although many EU member states did, under Article 5.3(k) of the Directive), and the arguments for introducing one even then seemed to many people somewhat unconvincing (since the land of Monty Python was not noticeably short of parody). However, the 2014 Quotation and Parody Regulations included a fair dealing exception for the purposes of caricature, parody or pastiche, via new section 30A of the 1988 Act. Section 30A (1) now provides that: ‘Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work.’ The exception depends on any use being ‘fair dealing’ (see above) but some uncertainty is likely in the interpretation of the key terms caricature, parody and (particularly) pastiche.
‘Caricature’ is a fairly well-known term in the English language, but ‘parody’ and ‘pastiche’ are considerably less understood, and are nowhere defined in the Act or Regulations. At the time of writing there have been no UK decided cases to aid interpretation, so a period of uncertainty is likely as to what exactly is covered in the UK and what is not. However, in the case of Deckmyn in 2014 the European Court of Justice offered the following ‘essential characteristics’ of parody:
• evoking an existing work, while being noticeably different from it; and
• constituting an expression of humour or mockery.
In the court’s view, any parody exception under Article 5.3(k) must strike ‘a fair balance’ between the interests of rightsholders in the work being parodied and the freedom of expression of the user of the work relying on the parody exception. In the UK, the government’s Guidance Notes so far suggest simply that the exception applies only to ‘ minor uses’ (whatever that means), and will be subject to the ‘fair dealing’ rules and interpretation set out in the section on the Quotation exception above. How UK courts will combine these various guidelines in practice remains to be seen.
Moral rights
The Regulations do not provide any specific or additional protection for the moral rights of the author of the original work (the work being parodied etc.), but it is worth bearing in mind in this context the moral rights of all authors to object to ‘derogatory treatment’ of their work, or not to have work they did not write ‘falsely attributed’ to them. These rights may prove to be important in interpreting what is or is not covered by this new exception, and are covered in more detail in Chapter 4.
Contract override
As with many other 2014 exceptions, the parody exception also contains a contract override provision, that any contract term that purports to restrict or prevent the use of the exception ‘is unenforceable’.
FAIR DEALING FOR RESEARCH OR PRIVATE STUDY
Fair dealing for the purposes of research (for a non-commercial purpose) or private study has been a copyright exception for some time, but the relevant section (29) of the 1988 Act has been extended significantly by the 2014 Regulations. In respect of research fair dealing must be accompanied by a sufficient acknowledgement unless this is impossible for reasons of practicality or otherwise. The research or private study must genuinely constitute fair dealing, however (see above). This probably limits the exception to personal activities (such as personal copying) rather than any acts undertaken collectively on behalf of others. As a general rule, the person doing the copying must be the same person as the person doing the research or private study. He or she may possibly ask a friend or some other agent – such as a librarian – to do it for them, but it will not be fair dealing if a librarian or teacher makes multiple copies on behalf of an entire class of students, particularly if licences are available for such collective copying, as they often are.
The 1988 Act also makes it clear (in section 29(3)(b)) that copying by someone other than the individual researcher or student will not be fair dealing if:
the person doing the copying knows or has reason to believe that it will result in copies of substantially the same material being provided to more than one person at substantially the same time and for substantially the same purpose.
Section 29 originally applied only to literary, dramatic, musical or artistic works, but the 2014 Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations amended section 29(4) so as to refer to all copyright works. It is not clear how much difference this will make in practice, but it should be noted.
‘Research’ as a general rule does not include commercial research. Article 5.3(a) of the Copyright Directive in fact limits such exceptions not only to non-commercial purposes but also to ‘scientific’ research, although the definition of ‘scientific’ has often been construed liberally.
TEXT AND DATA ANALYSIS FOR NON-COMMERCIAL RESEARCH
One of the major, and most controversial, of the 2014 changes came in the form of a completely new section 29A of the 1988 Act, providing a new exception for Text and Data Analysis (otherwise known as ‘Text and Data Mining’). This now provides in section 29A(1) as follows:
The making of a copy of a work by a person who has lawful access to the work does not infringe copyright in the work provided that:
(a) the copy is made in order that a person who has lawful access to the work may carry out a computational analysis of anything recorded in the work for the sole purpose of research for a non-commercial purpose; and
(b) the copy is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).
Sub-sections (2) and (3) go on to provide that the exception does not extend to any subsequent dealings with the copy, or dealings for any other purpose, unless made with the consent of the copyright owner. ‘Dealing with’ a work is defined to include any sale or letting for hire, or offering or exposing for sale or hire. All such unauthorised uses will infringe copyright in the work.
This new text and data mining exception raises a number of issues:
Broad scope
The wide scope of the new exception arguably conflicts with the underlying meaning of Article 5.3(a) of the Directive, and – as noted above – it should be (but is not) limited to ‘scientific’ research.
Although the exception is restricted to works to which the researcher has ‘lawful access’, and the Guidance Notes expressly include subscriptions and licences, sources of more dubiously legality are impliedly left open, including access under another exception entirely (with or without the relevant conditions). Although the government reassured authors and publishers that they would be entitled to manage lawful access to their works for legitimate text and data mining purposes, to exclude unlawful and insecure purposes, this is not included in the new Regulations.
Contract override
Like other new exceptions, this text and data analysis exception includes a provision making ‘unenforceable’ any contract term tending to prevent or restrict the use of the exception. It might well conflict with a term in any licence restricting unauthorised text and data mining, even if ‘managed’ mining were included elsewhere in the same licence. Recent evidence suggests that the majority of legitimate text and data mining research requests are in fact already licensed promptly and without difficulty. The potential for unnecessary misunderstanding and confusion amongst both users and rightsholders here is obvious, although the accompanying Guidance Notes do suggest that publishers can continue to apply technological protection measures, and include reasonable limits, for example on download speeds. These Guidance Notes, however, have no binding legal authority.
At the time of writing, the European Commission is committed under its ‘Digital Single Market Strategy’ to introduce legislative measures in late 2015 or 2016 to reform copyright, including proposals (as yet unconfirmed) for a European copyright exception for text and data mining. This may take the form of an exception similar to the UK exception above, but it may be either wider (e.g. to include some commercial uses) or narrower (e.g. by being inapplicable if licences are available). If and when this happens, the current UK exception may well need reconsideration and amendment.
FAIR DEALING FOR REPORTING CURRENT EVENTS
Fair dealing with a work (other than a photograph) for the purpose of reporting current events has been a copyright exception in the UK under section 30 of the 1988 Act for many years (together with criticism and review, but not amended by the 2014 Regulations) and is permitted under Article 5.3(c) of the EU Copyright Directive. However, the report must be accompanied by a sufficient acknowledgement, unless (in the case of sound recordings, films or broadcasts) this is impossible for reasons of impracticality or otherwise.
The events being reported must be current, but the work copied or otherwise used need not be: it may count as fair dealing to reproduce part of an existing literary work (such as a political study, or a scientific report) for example, if it becomes relevant in reporting future current events. The purpose must be the immediate one of ‘reporting’ those events, however, not some wider or more long-term editorial purpose. Otherwise, the term ‘reporting current events’ is generally interpreted liberally. Even if an event may only be of limited public interest, it is still a current event. It appears that the threshold for showing that something is a current event is not particularly high or difficult to surmount, but the distinction between ‘current events’ and ‘events which are currently of interest’ can sometimes become blurred.
In Pro Sieban Media AG v. Carlton UK Television Ltd 1999, the pregnancy of Mandy Allwood, who became pregnant while undergoing a course of fertility treatment and was found to be carrying eight live embryos, was considered to be a ‘current event’, and so was the 1990 World Cup.
However ‘current’ the event, it is important not to forget that the relevant reporting must be ‘fair dealing’ with the work (for ‘fair dealing’ generally, see above). The Court of Appeal decision in Hyde Park Residence Ltd. v. Yelland 2001 illustrates the subjective (and perhaps unpredictable) operation of this fair dealing exception. The case involved an application for summary judgment by a security company owned by Mohammed Al Fayed on the basis of copyright infringement in respect of the publication of still photographs of Diana, Princess of Wales, and Dodi Al Fayed taken from security camera footage on a visit to the Villa Windsor in Paris. Al Fayed had alleged that this indicated that they planned to marry. At first instance, the court held that the use of the video stills was for the purpose of reporting current events and fair dealing in all the circumstances. The Court of Appeal disagreed, and upheld the claimant’s appeal. On a liberal interpretation, the media coverage of Al Fayed’s allegations was a reporting of a current event. However, the dealing with the photographs had not been fair. Their use was excessive in all the circumstances and the point could have been conveyed by text. Also, no fair-minded and honest person would have paid for the dishonestly taken stills in all the circumstances. The Court of Appeal stated – in a new clarification of fair dealing – that the court must judge the fairness by the objective standard of whether a fair-minded and honest person would have dealt with the copyright work for the purpose of reporting the relevant current events in the manner that the defendant did.
INCIDENTAL INCLUSION OF COPYRIGHT MATERIAL
Section 31 of the 1988 Act provides an exception for incidental inclusion of copyright material in an artistic work (such as a photograph), or in a sound recording, film, or broadcast. This is sometimes referred to as ‘passing shot use’. The inclusion must, however, be truly ‘incidental’, which would probably exclude most deliberate acts designed specifically to add value, for example by dubbing in background music (deliberate inclusion of musical and allied works is expressly ruled out by section 31 (3) of the Act). Some other deliberate uses (such as the quotation of a few lines of a literary work by a character in a film) might nevertheless still count as ‘incidental inclusion’ in some circumstances, provided they amount to no more than passing shots.
On the other hand, the inclusion of badges and logos in photographs of football players in the defendant’s football album was found by one court not to be incidental inclusion.
EDUCATIONAL USE
Certain specified educational uses have been included in the copyright law of the UK and many other countries for some time, although – as already seen above – generally limited to defined individual copying as opposed to multiple copying for whole classes or year groups (which is usually licensed under collective licences available to educational establishments such as schools and universities (see p. 71). This is in marked contrast to the copyright laws of some developing countries (at least, developing in the copyright sense) where ‘educational use’ has been notoriously widely defined to enable faculties – and local photocopy shops – to reproduce entire text books with impunity. This kind of educational piracy or wholesale copying is not permitted in the UK or the EU, where a healthy educational publishing market still exists, although in 2010 the Canadian Copyright Modernisation Act introduced a controversial consumer-focused education exception so wide as to be well outside the Berne 3-step test, and over-broad and ill-defined educational and library exceptions for developing countries are at the time of writing still on the agenda of the World Intellectual Property Organisation (WIPO).
However, some important changes have recently been made in the UK by the 2014 Regulations, which we will deal with under individual exceptions below.
Copying for the purposes of illustration for instruction
Section 32 of the 1988 Act originally covered a long list of things done for the purposes of instruction or examination, but most of this is included in new section 32 which now provides a shortened fair dealing exception as follows:
‘(1) fair dealing with a work for the sole purpose of illustration for instruction does not infringe copyright in the work provided that the dealing is:
(a) for a non-commercial purpose;
(b) by a person giving or receiving instruction (or preparing for giving or receiving instruction); and
(c) accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).’
For the meaning of ‘fair dealing’, see above.
‘Giving or receiving instruction’ is defined in subsection (2) as ‘including setting examination questions, communicating the questions to pupils and answering the questions’ (although the vague term ‘including’ implies that other, unspecified, things might be included too). The relationship between ‘education’ and ‘instruction’ is also somewhat unclear, and may not comply with Article 5.3(a) of the EU Directive, which permits such education exceptions only for the sole purpose of ‘illustration for teaching’.
The exception carries the same contract override clause as others, rendering contract terms purporting to restrict or prevent its use ‘unenforceable’, although this may cause some confusion when related to educational licensing schemes under sections 35 and 36 (below).
Anthologies for educational use
Section 33 of the Act, which still seems to apply after 2014, provides a limited exception for education anthologies. Under section 33(1),
the inclusion of a short passage from a published literary or dramatic work in a collection which:
(a) is intended for use in educational establishments and is so described in its title, and in any advertisements issued by or on behalf of the publisher, and
(b) consists mainly of material in which no copyright subsists
does not infringe the copyright in the work if the work itself is not intended for use in such establishments, and the inclusion is accompanied by a sufficient acknowledgement.
Not more than two excerpts from the same author may be used in collections published by the same publisher within any five-year period.
Performing by educational establishments
Section 34 of the Act (unamended by the 2014 Regulations) provides that a performance of a literary, dramatic or musical work at an educational establishment (and in the course of its activities) by teachers or pupils will not count as a public performance for copyright infringement purposes, provided that the audience consists entirely of other teachers or pupils ‘and any other persons directly connected with the activities of the establishment’ – this may include some parents, for example if they are also school governors, but not others; an ‘open’ audience of parents and other guests will almost certainly be a (potentially infringing) public performance.
The playing or showing of a sound recording, film, or broadcast before such an audience for the purposes of ‘instruction’ would however not count as playing or showing the work in public.
Recording by educational establishments of broadcasts
Amended section 35(1) provides that
a recording of a broadcast (or a copy of such recording) may be made by or on behalf of an educational establishment for its educational purposes without infringing copyright, provided that:
(a) the educational purposes are non-commercial, and
(b) the recording or copy is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).
Under the previous law, the recording might generally only be communicated to pupils and staff on the premises, but new subsection (3) now permits communication outside the premises ‘if made by means of a secure electronic network accessible only by the establishment’s pupils and staff’. This permits distance learning, but sensibly on condition of a secure network.
However, under subsection (4) this exception does not apply if, or to the extent that, licences are available and the educational establishment knew or ought to have known that. Such licences are currently available from the Educational Recording Agency ERA (see Appendix B).
In addition, any subsequent dealings with the recordings must have the copyright owner’s permission.
Copying and use of extracts of works by educational establishments
Small extracts of copyright works may be copied by educational establishments under amended section 36:
• for the purposes of instruction;
• for a non-commercial purpose; and
• with sufficient acknowledgement.
As with section 35, subsection 36(3) provides that communication via distance learning outside the establishment’s premises may now be permitted, but only ‘by means of a secure electronic network accessible only by the establishment’s pupils and staff’.
Not more than 5 per cent may be copied in any 12 months, but the existing proviso protecting existing licences is retained (as in section 35 above), so that the exception will not apply if, or to the extent that, a licensing scheme exists (and the institution knew or ought to have known that). The Copyright Licensing Agency (see Appendix B) currently has such a scheme, which is widely advertised.
Making works available through dedicated terminals
New section 40B of the Act, included by the 2014 Regulations, provided a new exception for libraries ‘and educational establishments’ making works available via dedicated terminals on the relevant premises for purposes of research or private study. This should be noted here as it extends to educational copying, but is primarily aimed at libraries, so we will deal with it more fully under library copying, below. The European Commission was planning to bring forward proposals in late 2015 or 2016 for easier access to educational and other works across Europe from dedicated terminals and via secure intranets, but at the time of writing the detail is unknown.
Sections 37 to 44 of the 1988 Act provided a number of copyright exceptions specifically for librarians of what were called ‘Prescribed Libraries’, and much of this remains after the 2014 Regulations, if somewhat unhelpfully re-arranged, with some new exceptions, in new section 42A and sections 40B to 43A.
Single copies for non-commercial research and private study
Previous sections 37 to 39 were amalgamated, somewhat confusingly, in new section 42A of the 1988 Act by the 2014 Regulations, which now provides that a librarian of a non-profit library may make and supply for any person, for the purpose of research or private study, a single copy in such medium as he may request of:
(a) an article in a periodical (regardless of the medium in which it is recorded); or
(b) a reasonable proportion of any other published copyright work.
on the following conditions:
• that the copy is supplied for non-commercial research or private study;
• only a single copy of any single article may be made from any single periodical issue;
• only a single copy of any other work may be supplied to any one person;
• the person making the request has not done so before;
• and makes a declaration that (1) he will only use the work for non-commercial research or private study, and (2) to the best of his knowledge no other person with whom he works or studies will make a similar request for substantially the same material; and
• the librarian is satisfied as to the truth of this.
As before, librarians are entitled to rely on any such declarations unless they are aware that they are false. Finally, the person making the request must pay a sum not less than the cost of making the copy, but this may include ‘a contribution’ to the library’s general expenses.
What is or is not ‘a reasonable proportion’ of a non-periodical work is not defined, but would clearly not include copying the whole work, particularly in light of the ‘non-commercial’ proviso.
Making works available through dedicated terminals
New section 40B of the 1988 Act, inserted by the 2014 Regulations, contains a new copyright exception for libraries and other specified institutions who communicate a work to the public or make it available to the public by means of a dedicated terminal on its premises, if the following conditions are met:
• The work must have been lawfully acquired by the institution;
• It must be communicated or made available to individual members of the public for the purposes of research or private study; and
• in compliance with any purchase or licensing terms to which the work is subject.
The institutions specified, in section 40B(2), are libraries, archives, museums and educational establishments.
Some – but not all – of this new law seems to be covered by Articles 5.2(c) and 5.3(n) of the Copyright Directive. Section 40B specifies making available for research or private study, but the requirement in Article 5.2(c) that this should be non-commercial (‘not for direct or indirect economic or commercial advantage’) is missing, which may prove to be misleading and may even be contrary to EU law. Also, Article 5.3(n) limits the whole exception to works ‘not subject to purchase or licensing terms’ (at all), whereas section 40B merely provides that any purchase or licensing terms should be ‘complied with’, which is rather different, and much weaker. It is doubtful how many busy librarians will in practice have time to check compliance with each work’s ‘purchase or licensing terms’ before making it available under this exception, and at the time of writing a period of some uncertainty seems inevitable.
Supply of single copies to other libraries
Previous sections 41 to 43 of the 1988 Act have now been somewhat pruned and replaced with new section 41 which provides (broadly as before) a copyright exception for librarians making single copies of the whole or part of a published work and supplying it to another library but only on condition that:
• the copy is supplied in response to a request from a library which is not conducted for profit; and
• it is not reasonably practicable to contact the rightsholder to authorise making the copy (this proviso does not apply to articles in periodicals).
Like many others in the 2014 Regulations, this exception overrides any contract term which purports to prevent or restrict its use.
Librarians making replacement copies of works
New section 42, replaced by the 2014 Regulations, provides an exception for librarians to copy works contained in their permanent collections in order to preserve or replace them, or to replace copies in the permanent collections of other (non-profit) libraries which have been lost, damaged or destroyed. This exception does not, however, apply where it is reasonably practicable to purchase a copy of the work in question for that purpose.
Single copies of unpublished works
Section 43 of the 1988 Act, inserted by the 2014 Regulations and replacing previous provisions, provides an exception for librarians to provide single copies of unpublished works (such as letters or manuscripts) deposited with them, provided that the copies are supplied in response to a declaration in writing stating:
• the name of the person making the request, and the material required;
• that the person has not previously been supplied with a copy of that material; and
• that the person requires the copy for the purposes of research for a non-commercial purpose or private study,
• will use it only for those purposes, and
• will not supply the copy to anyone else.
The exception does not apply if the librarian is aware (or ought to be) that the work had been published before being deposited, or that the copyright owner had prohibited copying of the work.
COPYING FOR DISABLED AND PRINT IMPAIRED PEOPLE
The UK has had a copyright exception for blind and visually impaired (now known as ‘print impaired’) people since the Copyright (Visually Impaired Persons) Act 2002, which started life as a private members’ bill, came into force in 2003. The 2002 Act provided for the first time two exceptions: (1) a personal right for individual visually impaired people to make ‘accessible copies’ for their personal use, and (2) a right for ‘approved bodies’ like the RNIB to make multiple copies on their behalf. The second, collective copying, exception did not apply if a suitable licensing scheme existed. There were a number of detailed conditions, but these have now largely been included in the 2014 Regulations detailed below.
Provision of ‘accessible copies’ for print impaired people (including, now, dyslexics) has been the subject of much discussion in recent years between publishers and organisations representing print impaired people, particularly under the auspices of the Publishers Association’s Accessibility Action Group, which has now published best practice guidelines.
The Equality Act 2010
This has also coincided with increased protection against discrimination under the Equality Act 2010, and recommendations that the limited UK exception should be extended to all disabled people with a relevant disability. The Equality Act made it illegal in the UK for providers of goods and services (including publishers) to discriminate against disabled people, including print impaired people. ‘Discriminating’ was widely defined as ‘treating less favourably’, or failing to make ‘reasonable adjustments’ to account for the disability concerned. If necessary, a publisher must provide a ‘reasonable alternative method’ of making its goods or services available where a physical feature makes it unreasonably difficult for print impaired people to use them. Publishers are not legally required to provide ‘accessible’ versions of everything they publish, but may rely on, for example, a reasonably accessible licensing scheme. Two suitable such licensing schemes were set up by the Copyright Licensing Agency and the Music Publishers Association shortly after the 2002 Act, but in the light of the 2014 Regulations (below) these schemes may in due course require reconsideration.
The 2014 Disability Regulations
Following a recommendation in the Hargreaves Review, the UK government has now extended the existing exception for visually impaired people to all disabled people with relevant disabilities. This has been permitted since 2001 under Article 5.3(b) of the EU Copyright Directive, which provided for exceptions ‘for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability’. The Copyright and Rights in Performances (Disability) Regulations 2014 were passed in June 2014 to achieve this aim, and now extend the previous provisions to all disabled people with a relevant disability. The Regulations apply to broadcasts and sound recordings as well as the previous literary and other works, and – like most other 2014 exceptions – apply regardless of any contract or licensing term to the contrary.
The 2014 Regulations provide new sections 31A and 31B of the 1988 Act, extending the previous twin exceptions (for personal and collective copying) as follows:
Section 31A provides a personal exception for ‘disabled persons’ to make ‘accessible copies’ of copyright works, if:
• the disabled person has ‘lawful possession or use’ of the work, and
• their disability prevents them from enjoying the work to the same degree as a person who does not have the disability.
Such people may make accessible copies individually, if:
• the copies are made personally by them, or by someone on their behalf;
• for their personal use; and
• the same kind of accessible copies are not already commercially available (‘on reasonable terms’) with the consent of the rightsholder.
Any charges made must not exceed the cost of making and supplying the copy. Subsequent copying, or supplying to other people, will infringe copyright unless authorised by the copyright owner.
‘Disabled persons’ are defined in section 31F as people with a physical or mental impairment which prevents them from enjoying a copyright work to the same degree as people without that impairment. However, this does not include visual impairments with can be improved by the use of corrective lenses to a level normally acceptable for reading without a special level or kind of light.
‘Accessible copies’ are defined as a version of the relevant copyright work ‘which enables the fuller enjoyment of the work by disabled persons’, and may include facilities for navigating around the version of the work, but does not include any changes not strictly necessary to overcome the problems suffered.
Section 31B provides a matching exception for organisations (‘authorised bodies’) such as the RNIB making copies on behalf of disabled people. The definition of authorised bodies is fairly wide, including an educational establishment or any body not conducted for profit. Such bodies may make and supply accessible copies to disabled people provided, again, that they have lawful possession of a copy of the work concerned, but – again – not if the same kind of accessible copies are available on reasonable commercial terms with the rightsholder’s consent. Rather more conditions apply to copies made by authorised bodies, as follows:
• an educational body conducted for profit must make sure that any accessible copies are used only for its educational purposes;
• accessible copies must be accompanied by a statement that they are made under this section;
• with a sufficient acknowledgement (unless impossible for reasons of practicality or otherwise);
• (for works in copy-protected form) the accessible copy must incorporate the same or equivalent copy-protection so far as reasonably practicable (unless the rightsowner agrees otherwise);
• any sums charged must not exceed the cost of making and supplying the copy.
Authorised bodies may also make and supply ‘intermediate copies’ if this is necessary in order to make the accessible copies, and may supply such intermediate copies to other authorised bodies for the same purposes (although not to anyone else). They must also keep records of both accessible and intermediate copies made, and the people they were supplied to, and permit rightsholders a reasonable opportunity to inspect such records (on reasonable notice).
These 2014 Regulations, like most others, also contain a provision that any contract term which purports to prevent or restrict the use of the exception will be ‘unenforceable’. What effect this will have on existing licences for print impaired people offered by the Copyright Licensing Agency and others remains to be seen, and such licences may no longer be necessary, or at least in their current form. Such licences have previously been free of charge, and most publishers have so far largely offered to supply or convert their own digital files at cost.
The Marrakesh Treaty 2013
While all these revisions and extensions to UK law were progressing, discussions at international level for a treaty under the auspices of the World Intellectual Property Office (WIPO) in Geneva finally bore fruit in Marrakesh in 2013, in a Treaty to Facilitate Access to Published Works by Persons Who Are Blind, Visually Impaired or Otherwise Print Impaired (‘the Marrakesh Treaty’). The treaty is not yet in force at the time of writing, but will in due course require all member states of the Berne Convention (most countries of the world) to provide copyright exceptions for print impaired people in their domestic laws, if they don’t already have them. The exceptions will authorise the making and supply of accessible copies of literary or artistic works (including books, audio and e-books, journals or illustrations) for the benefit of print impaired people (including blind, dyslexic or otherwise print impaired people), and the treaty contains similar provisions to those in the UK Regulations, although with some variations in terminology (‘beneficiary persons’ instead of disabled persons, for example, and ‘authorised entities’ instead of authorised bodies).
Crucially, though, the treaty will – when it comes into force – extend the supply of accessible copies beyond any UK copying authorised under the 2014 UK Regulations to include international, cross-border, supply, either directly to beneficiary persons in another member state or to another authorised entity. Not surprisingly, many rightsholders were concerned at the security implications of digital files of copyright works being supplied internationally to comparatively unknown authorised entities in under-resourced developing countries, but it is hoped that international supply, management and record-keeping within the Berne 3-step test (see above) will ultimately be managed and monitored by WIPO itself, under the auspices of its Accessible Books Consortium (replacing the earlier pilot project TIGAR).
The treaty requires ratification by 20 WIPO member states before it can come into force. At the time of writing, the treaty has been signed by the UK and a number of other states, but only ratified by 9 member states. There is some uncertainty as to whether, and how, the EU will ratify, or whether it will be for individual EU member states to ratify one by one, which may take some time, particularly if amending local legislation is required each time. In the case of the UK, much of the law required may already prove to be contained in the 2014 Regulations set out above, but further amending legislation may also be required in due course.
PARLIAMENT, JUSTICE AND PUBLIC ADMINISTRATION
Section 45 of the 1988 Act provides that copyright is not infringed by anything done for the purposes of Parliamentary or judicial proceedings. The Act defines ‘Parliamentary’ to include not only the UK Parliament, the Northern Ireland Assembly, the Scottish Parliament and the Welsh Assembly, but also the European Parliament. Judicial proceedings are also widely defined to include, for example, tribunals. However, the copying must be done for the purposes of those proceedings, so that a solicitor copying evidence as part of pleadings prior to a trial will be protected, but a teacher or librarian copying Parliamentary or case reports for information or teaching purposes might well not be.
Sections 46 to 50 provide further exceptions regarding the proceedings of Royal Commissions and statutory inquiries, public records and other material open to public inspection or on an official register, and certain copying done by the Crown or under statutory authority.
Section 47 (material open to public inspection) was extended by the Copyright (Public Administration) Regulations 2014 by providing that from June 2014 a public body (such as a patent or trade mark registry) which has a statutory duty to make material open to public inspection may make it available online, including ‘by electronic transmission in such a way that members of the public may access it from a place and time individually chosen by them’. This seemed an obvious clarification in the twenty-first century, but carried a risk that copies of, for example, STM journals cited in support of patent applications being made freely available online by the government might conflict with normal exploitation by the publishers (contrary to the Berne 3-step test). The government therefore included an important proviso (in 47(2) and (3)) that the extension to online access does not apply if ‘the material is . . . commercially available to the public by or with the authority of the copyright owner’.
These 2014 Regulations are the only set of 2014 Regulations not to include the prohibition on contract override (that any contract inconsistent with the exception will be ‘unenforceable’). Why this is so is unclear, since public bodies are just as likely as other users to be subject to contract or licensing terms. Why commercial government contracts should be protected, while all other contracts are impliedly put at risk, is not immediately clear.
LAWFUL USE OF COMPUTER PROGRAMS
The Copyright (Computer Programs) Regulations provided permitted acts in relation to computer programs, under which any ‘lawful user’ – who already had a right to use the program – may:
• make any necessary back-up copy of it;
• ‘decompile’ it, where necessary to create an independent program to run with it, or with some other program (not substantially similar to the program being decompiled);
• observe, study or test the functioning of a program in order to determine the ideas and principles which underline any element of the program, if he does so while performing any of the acts he is entitled to do; and
• copy or adapt it (for example, in order to correct errors).
The above exceptions were added by the Regulations to sections 50A to 50C respectively of the 1988 Act.
ACTS PERMITTED IN RELATION TO DATABASES
Under section 50D of the 1988 Act, any person who has a right to use a database, or any part of it (whether under a licence or otherwise), has a right, in the exercise of that right, to do anything which is necessary for the purposes of access to, and use of, the database, or that part of it.
This copyright exception (added by 1997 Regulations) was one of the first examples of ‘contract override’ in English copyright law, with subsection (2) providing that where any of the above actions would otherwise infringe copyright, ‘it is irrelevant whether or not there exists any term or condition in any agreement which purports to prohibit or restrict the act (such terms being, by virtue of section 296B, void’).
DESIGNS AND TYPEFACES
Section 52 of the 1988 Act previously contained an exception limiting copyright protection for certain artistic works, such as designs, when they have been manufactured ‘by an industrial process’. When more than 50 copies of such artistic works were made then the period of copyright protection was limited to 25 years (or even 15 in some cases), compared to the normal term of the creator’s life plus 70 years for other artistic works. The UK government claimed (against some opposition) that section 52 was not in harmony with provisions in other EU member states, and repealed the apparent anomaly by section 74 of the Enterprise and Regulatory Reform Act 2013. Following the repeal, any artistic work, whether two-dimensional or three-dimensional, which qualifies for copyright protection will enjoy the full term of life plus 70 years. At the time of writing, however, the repeal was not scheduled to come into effect until 6 April 2020, to give current rightsowners adequate time to sell off existing copies, and transitional provisions are still under consultation.
Section 54, by contrast, providing an exception for copying typefaces in the course of business, is still in force. This still provides that it is not an infringement of copyright in the design of a typeface (which is an artistic work) to do the following things:
• to use it in the ordinary course of typing, composing text, typesetting or printing;
• to possess an article for the purpose of such use; or
• to do anything in relation to material produced by such use.
This is despite the fact that such use may be based on an infringing copy. There may, however, still be a liability for secondary infringement, such as importing or possessing an infringing copy of the typeface design itself.
TRANSFERRING COPIES IN ELECTRONIC FORM
Section 56 of the 1988 Act provides that where a copy of a work in electronic form, such as a software program, is purchased with an express or implied licence to copy or adapt it (for example, permitting a back-up copy), then where the purchaser is freely permitted to sell or transfer it to someone else, that someone else may also copy or adapt it in the same way, without infringing copyright. A right to make a back-up copy, or any other licensed copy, can be passed on from seller to purchaser without the need for further licensing. However, any additional copy retained by the seller after the transfer of the licensed copy has taken place will be treated as an infringing copy.
COPYING ANONYMOUS OR PSEUDONYMOUS WORKS
Section 57 of the 1988 Act provides that copyright will not be infringed by any act done in relation to anonymous works or works published under a pseudonym at a time when:
• it is not possible ‘by reasonable inquiry’ to identify the author; and
• it is reasonable to assume copyright has expired or that the author died at least 70 calender years earlier.
This does not apply to Crown copyright works, or copyright works of certain international organisations. In relation to works of joint authorship, the reference to ‘the author’ in the first bullet point is deemed to mean any of the authors.
COPYING ABSTRACTS
Section 60 of the 1988 Act permits the copying (or issuing to the public) of abstracts which accompany published periodical articles on scientific or technical subjects. Such abstracts are commonly a feature of medical and scientific STM journals, and are frequently copied. The abstract must be primarily an abstract rather than anything more (such as an extended editorial): it must have the function of describing or summarising (‘indicating’) the contents of the article. The article must also have a ‘scientific or technical’ subject – although this sounds rather narrow, it may well be wide enough to cover abstracts of any similar specialist or professional articles, even in the social sciences or arts generally, provided they were pure abstracts accompanying the articles concerned.
The exception does not apply if there is a licensing scheme available for such use; at the time of writing, there is not.
‘Orphan works’ are literary or other works which are still in copyright, but whose copyright owners or rightsholders cannot be found – even after diligent search – in order to grant permission to reproduce them, or substantial parts of them. It is important to keep in mind that orphan works are still protected by copyright (even though, for example, they may be out of print or are no longer being made available commercially). Works which are out of copyright altogether, or whose term of copyright has expired (sometimes referred to as ‘in the public domain’), may freely be copied without the permission of the rightsholder. Until new laws in 2012 and 2013, however, it was not legally possible to copy orphan works, which created serious problems for users (such as librarians wishing to digitise their collections, or authors and publishers of anthologies) and rightsholders alike.
After much lobbying and consultation, the 2012 EU Orphan Works Directive required EU member states to provide a copyright exception for limited, non-commercial, uses of copyright works by certain specified cultural institutions, such as libraries, archives, and some educational institutions who wish, after ‘diligent search’ for the rightsholder, to copy orphan works for non-commercial purposes. Such exceptions are permitted under Article 5.2(c) of the Copyright Directive, and the UK implemented the Directive by the Copyright (Certain Permitted Uses of Orphan Works) Regulations 2014.
The cultural institutions covered are ‘publicly accessible libraries, educational establishments or museums as well as . . . archives, film heritage institutions and public sector broadcasting organisations’, and the works covered include books, journals, newspapers, magazines or other writings and films or audiovisual works contained in their publicly accessible collections. However, the institutions concerned may not use the orphan works ‘for aims other than their public interest missions, notably preservation, restoration and the provision of cultural and educational access to works contained in their collections’. The institutions must also keep records of all copying of orphan works by them, identify the rightsholder each time the work is copied, and make provision for ‘remuneration’ of any rightsholder who reappears and makes a claim within five years of the copying.
It will be seen that this is a fairly limited exception for non-commercial copying by a narrowly defined class of publicly accessible institutions, but it solved at least the library orphan works problem across the EU. Two things should be particularly noted:
• no work may be defined as an orphan work without a ‘diligent search’ (including certain listed sources, see below), and
• any work defined as an orphan work under the Directive by any EU member state may also then be regarded as such by any other member state.
UK orphan works licensing
The UK solution was twofold: a copyright exception under the Directive (as above), but accompanied by a licensing scheme for non-exclusive commercial (or non-commercial) purposes. The Enterprise and Regulatory Reform Act 2013 had already provided in the UK for authorised licensing schemes for orphan works, both for commercial and non-commercial uses, but again conditional on diligent search, and fair remuneration for returning rightsholders. This was implemented in the Copyright (Licensing of Orphan Works) Regulations 2014 on the following basis:
• Orphan works licences for the UK are available directly from the Intellectual Property Office (IPO).
• The licences apply to all copyright works, including embedded works.
• Licences are non-exclusive and may not be transferred or sub-licensed.
• Evidence of ‘diligent search’ is essential (from sources specified).
• Diligent searches and licences are valid for seven years.
• Licensees must undertake not to infringe the author’s moral rights.
• IPO may charge a ‘reasonable’ fee (based on similar licences elsewhere).
• Licence fee revenue must be held in a ring-fenced account for returning rightsholders.
• IPO must maintain and update a freely accessible register of licences granted.
At the time of writing, some 200 orphan works licences have been granted on the above terms by the IPO, although the level of fees charged varies widely. For contact details of IPO, see Appendix B. The sources which must be consulted for the purposes of diligent searches currently include Books in Print, the WATCH database of writers and artists’ copyright holders, Companies House, The Copyright Hub, and other databases listed from time to time in IPO user Guidelines.
COPYRIGHT LICENSING AND COLLECTIVE MANAGEMENT
One of the features of EU and UK copyright debates in recent years has been not so much a political or economic issue with copyright itself but more a practical issue with how the copyright system works for users. At the time of writing, one particular problem relates to cross-border licensing of music. Music licensing, however, provided one of the earliest solutions to copyright licensing – the idea of collective licensing.
COLLECTIVE LICENSING
Composers and their publishers in France realised as early as the 1850s that for them individually to negotiate and manage small copyright payments for performances of a wide variety of their works on a regular basis was not feasible or economic, but that it might be if they joined forces to do it collectively. And so one of the first collective management organisations (CMOs), SACEM, was born. The UK’s equivalents, PRS and MCPS, followed in 1911 and 1913, now joined by many more reproduction rights organisations (RROs) worldwide. RROs today act on behalf of large numbers of their rightsholder members (often tens of thousands of authors, musicians or artists) to manage their rights on a collective basis including negotiating licences and collecting and distributing licence fees. Sometimes rightsholders license via individual licences, but CMOs more often license by way of blanket or collective licences. This system of collective licensing has proved workable both for rightsholders and users (especially regular users such as libraries, schools and universities), and is increasingly offering solutions to the whole issue of licensing in a digital world.
Collective management of copyright was first recommended for the print world in the UK by the Whitford Committee in 1977, following concerns about widespread illegal photocopying, particularly in schools. Whitford proposed that UK rightsholders should set up a voluntary licensing scheme to provide users with a licensing basis for copying parts of copyright works to the extent not already permitted by ‘fair dealing’ copyright exceptions. As a result the Copyright Licensing Agency (CLA), a joint venture by UK publishers via the Publishers Licensing Society (PLS) and authors via the Authors Licensing and Collecting Society (ALCS) (now also representing artists via DACS), issued its first collective licences in 1983. Licences were initially focused on photocopying from books, journals and magazines, but now increasingly cover digital uses as well. In addition, there are bilateral arrangements with RROs worldwide to represent each other’s rightsholders on a reciprocal basis, so UK creators regularly receive licence payments for use of their works overseas as well as at home. The International Federation of Reproduction Rights Organisations (IFRRO) nowadays represents the copyright interests of RROs and their author and publisher members internationally.
While collective licensing in the UK relies on voluntary licensing, jointly operated with the support of rightsholders, most RROs overseas are public or government organisations operating under statutory levy systems. RROs (and all CMOs) are increasingly regulated both in the UK and EU (for more on this, including the EU Collective Rights Management Directive 2014, see below).
KEY FEATURES OF COLLECTIVE LICENSING IN THE UK
Most UK RROs share some important common features:
• They are mandated (directly or indirectly) by copyright rightsowners, and act on their behalf;
• Works (and complete lists) may be ‘opted out’ at any time, particularly essential for Extended Collective Licensing (see below);
• Licences are restricted to limited extracts of works, e.g. (for books) individual chapters, articles or percentages of text;
• Licensees include educational institutions, public or government bodies, and business and commercial users;
• Licence fees are negotiated via regular collection of sample copying data, and revenues are distributed regularly to rightsholders via mandating organisations in agreed proportions;
• RROs indemnify licensees against any risk of claims by rightsholders.
EU AND UK DEVELOPMENTS
This system has worked remarkably well for many years, but is increasingly subject to government scrutiny. In Europe, the EU Collective Rights Management Directive was adopted in 2014, concentrating on the rights of rightsholders to decide how their rights are to be collectively managed, the governance of CMOs, copyright clearance across national boundaries, and efficiency and transparency in management and distribution of revenues. It is due to be implemented in member states (including the UK) by April 2016. Meanwhile, CMOs in the UK are regulated by the Copyright (Regulation of Relevant Licensing Bodies) Regulations 2014, which provide for mandatory codes of practice, including minimum standards of governance and transparency, where voluntary codes don’t already exist.
The 2014 Regulations have also provided, for the first time in the UK, for Extended Collective Licensing (ECL), a system of deemed or indirect mandates, familiar in Scandinavia, under which RROs that already represent a majority (or at least a representative proportion) of rightsholders in a given area can apply to the Secretary of State for authority to offer licences on behalf of all rightsholders in that area, on the basis that (1) sufficient advance notice is given, enabling (2) ‘clear, informed consent’ and (3) that any rightsholders who object may opt out. It is hoped that this extended system may significantly facilitate twenty-first-century collective licensing.
DIGITAL LICENSING
While increasing development of best practice by CMOs, supported by statutory regulation, is likely to aid licensing of copyright works nationally and worldwide, it is already helping to offer solutions to the increasing need by users for copyright licensing to be easier and more streamlined, including (ideally) simple, click-through digital transactions. The challenge for users in finding who owns the relevant rights in multiple copyright works and obtaining permission from them to do the copying required, has been a major copyright issue for many years, especially if done on an individual, work-by-work basis, and even worse in the case of orphan works (on which see above). Rightsholders, including CMOs, are increasingly finding solutions to this perennial problem via the UK’s ‘Copyright Hub’.
CREATIVE COMMONS LICENSING AND OPEN ACCESS
CREATIVE COMMONS
‘Creative Commons’ as a movement developed within the (originally US) academic world that aimed to offer an alternative, and more liberal, licensing model for copyright works. It is particularly aimed at academic authors and creators who may wish to make their copyright texts and articles available to everyone either free of charge, or at least on much less controlled or managed terms than most commercial licences have needed to adopt. Creative Commons was launched in 2001 by Professor Lawrence Lessig and others as a half-way house between totally ‘free’ licences and traditional copyright licences, under which authors could specify what free uses can be made of their work, and which activities, if any, they wish to restrict or control.
Some authors may wish to make some – or all – of their copyright works freely available to the whole world, without restrictions of any kind, perhaps for academic, scholarly or research purposes. However, original copyright works often have considerable commercial, as well as academic, value, and most lawyers would advise at least some caution about being too ‘free’ with commercial content unless the creators are really sure that is what they want. Caution may particularly be advisable with any licences which last for the full term of copyright (i.e. for 70 years after the end of the year in which the author dies) – is this really what the author – and his or her heirs – intends, long-term, or would the author be better advised to limit the term of Creative Commons availability, at least initially? Second, some early Creative Commons licences claimed to be ‘irrevocable’, which raises difficult contract issues – does the author or rightsholder really want to abandon his or her rights for ever, or might they need to make some allowance for second thoughts later on, particularly if the work may have commercial potential?
Finally, most authors, however freely they wish to grant access to their works, will still wish their moral rights as authors (particularly their right to be identified as the author, and to object to any derogatory treatment of their work) to continue to be protected (for more on moral rights, see Chapter 4). Most Creative Commons licences do make allowance for moral rights, but it would be wise to check, and clarify any such provisions if necessary.
At the time of writing, the six kinds of Creative Commons licences in most regular use are:
(1) BY (attribution) licences, under which licensees may copy, distribute, display and perform the works, and also make derivative works based on them;
(2) BY-ND (attribution but no derivatives) licences, where licensees may do all the above, but only in relation to verbatim copies of the original work;
(3) SA (share alike) licences, where any derivative works may be distributed only under licence terms identical to those governing the original work;
(4) BY-SA (attribution, share alike) licences which combine (1) and (3) above;
(5) BY-NC-ND (attribution, non-commercial, no derivatives) licences, which are similar to BY-ND licences, but excluding any commercial uses; and
(6) BY-NC-SA (attribution, non-commercial, share alike) licences, which are similar to (5) above, except that derivative works may be produced but only on SA terms in (3) above.
This alphabet soup labelling may be confusing to some potential licensees, but does at least attempt to be comprehensive. It does, however, reinforce the need to make it clear which Creative Commons licence exactly is being used each time (particularly if any subsequent licensing activity – especially commercial activity – is envisaged). Further details on current available licences may be found at www.creativecommons.org.
Open Access has been defined by the UK Joint Information Systems Committee (JISC) in the following terms:
Open Access occurs when full-text journals, plus other research information . . . are made freely available online. One approach to achieving Open Access relies on researchers depositing their papers or data in a digital repository from which they can be freely accessed.
Like Creative Commons, the Open Access movement had its roots in the academic world, but Open Access is now a major issue for many authors and publishers, particularly academic or STM publishers for whom academic journals, monographs or texts may be their main (or indeed only) market. If the work concerned is to be made freely available – or perhaps already has been – to the academic or research market, that may not leave very much in the way of a viable commercial market for any academic publisher. At the very least, it may immediately render any publishing licence effectively non-exclusive, and thus less valuable than an exclusive licence may have been. It may also block, or seriously complicate, any intended sub-licensing later on.
Despite the initial reservations of some publishers for these and similar reasons, a number of key funding organisations such as the Wellcome Foundation and the US National Institutes of Health began to make Open Access publication a core requirement of any research which was funded by them. This, not surprisingly, presented academics, and academic and STM publishers, with something of a dilemma, especially if the funding concerned covered only the research itself, but not any subsequent publication. The publishing process often not only adds value to the research itself, in the system of selection and commissioning as well as peer review, but also in any final adoption by established journals with international reputations and brand names. Any commercial publisher wishing to avoid making a loss has to charge something for these costs and overheads, of course, including associated digital archiving, subscription, search and delivery services. Some publishers have felt able to offer Open Access publishing on an ‘author (or author’s funding institution) pays’ basis, while others have adopted a more hybrid model.
There are two main Open Access models at the time of writing:
• ‘Green’ Open Access – under which the version of the article deposited on the author’s website (or, more commonly, in an institutional repository) is the ‘accepted’, peer-reviewed, version, without the publisher’s final editing or house style, and the final published version is usually only made accessible on open access terms after an initial embargo period of six or twelve months (during which the publisher’s own subscription version has at least a limited chance to sell to its commercial market); and
• ‘Gold’ Open Access – under which it is the publisher’s own ‘version of record’ which is published on Open Access terms on publication, but with the publishing cost met by an ‘author pays’ charge in the form of an Article Publishing (or Processing) Charge (or APC). Several major journal publishers have adopted this ‘Gold’ model, in many cases via increasingly open access journals.
In 2012, an influential report by Dame Janet Finch recommended a ‘balanced’ approach to Open Access in the UK, with a system facilitating both the Green and Gold models, although with a preference for Gold, and an improved structure for article and data repositories, and the UK government accepted the report’s findings. In August 2015, the government announced a further review of goals and priorities for Open Access in the UK, which may consider some of the outstanding issues around Open Access publication, including not only the available models but also the viability (or otherwise) of APCs as a means of funding research publication.
At the time of writing, there also seem to be a number of other unresolved issues, including the effect of Open Access publication on more traditional subscription models, and whether (and how far) commercial licensing (and sub-licensing) is going to remain viable if the publisher doesn’t control exclusive rights, how editorial standards of purely Open Access journals will be maintained, and how authors’ moral rights (e.g. to be credited) are going to be preserved. In due course, also, the wider issues of ownership of copyright and related rights will have to be resolved, and who, if anyone, is going to protect those rights in an online world. For a more detailed discussion of Open Access issues, see the 7th (2014) edition of Lynette Owen’s Selling Rights.