Understanding copyright:
the theory
Andrew Braid
Licensing and Copyright Compliance The British Library
OUTLINE
Brief introduction to copyright
How copies can be made
Recent changes
How The British Library coped with the changes
Electronic signatures
Future
Questions
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)
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
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
OWNERSHIP
The author
The employer
The commissioner (since 1989)
The Crown
Can be overruled by contract
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
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
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
EXCEPTIONS - LIMITATIONS
Three major limitations:
Quantity
Duration
Purpose
QUANTITY
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
DURATION
70 years after death of author
Exceptions
Official publications
Unpublished works
Anonymous works
Sound recordings
Films
Photographs
Maps
Others
PURPOSE
Various uses are allowed without the owner’s permission
Fair dealing
Educational copying
Public administration
Library Privilege
PURPOSE - FAIR DEALING
Allows individual users to copy for:
Non-commercial research or private study
Criticism or review
Reporting current events
PURPOSE - EDUCATIONAL COPYING
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)
PURPOSE - PUBLIC ADMINISTRATION
No limits when copies are required for:
Judicial proceedings
Parliamentary proceedings
Statutory inquiries
Royal Commission
PURPOSE - LIBRARY PRIVILEGE
Permits librarians to make copies on behalf of users
Strictly controlled
Does not apply to artistic works
Preservation and replacement copies
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
EXCEPTIONS ARE A DEFENCE
They do NOT provide guaranteed immunity against an infringement action
You would have to prove you passed the three step test
Can be risky
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
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
CHANGES IN COPYRIGHT LAW
Result of pressure from music, software and media industries
Other than in USA, changes occur at regional (e.g., EU) or international (e.g., WIPO, WTO) level
Five major changes since 1988 legislation – length of term; databases; communication right; protection for copyright management information; protection for technical measures
MAJOR FEATURES OF THE INFORMATION SOCIETY DIRECTIVE
All exceptions are limited to non-commercial purposes
New civil/criminal offences to by-pass or de-activate copyright management information or to by-pass or deactivate TPS, with the intention of infringing, or concealing infringement
New restricted act of “communicating information”
(e.g., placing on Intranets, Internet)
EXCEPTIONS
One mandatory exception (i.e., Member States MUST implement)
certain temporary acts of reproduction
incidental and part of a technical process; for intermediate or lawful purpose; no
independent economic value at all
A long list of optional exceptions (i.e., Member States can pick and choose which, if any, they want to include)
Each Member State has implemented a completely different set of optional exceptions, so the ultimate
purpose of the Directive – harmonisation of copyright law – has totally failed to occur
UK implementation
Must comply with European Communities Act
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
WHY IS THERE CONTROVERSY OVER 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?
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
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
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?
PRACTICAL IMPLEMENTATION OF COPYRIGHT IN LIBRARIES
Read and understand the law
Exchange views with colleagues on points of difficulty
Obtain legal advice if need be
Publicise legal position to your patrons
Ensure your procedures, documents and guides comply
Take reasonable steps to prevent infringement
Recognise your own limitations
Develop a policy!
WHAT THE BRITISH LIBRARY HAS DONE TO IMPLEMENT THE REVISED LEGISLATION
Document supply services
Reading room services
Raising awareness
DOCUMENT SUPPLY SERVICES – COPYRIGHT FEE PAID
No changes required
Transactional scheme
Charges publisher set fees Copyright fee paid
DOCUMENT SUPPLY SERVICES – LIBRARY PRIVILEGE
Cannot now be used for commercial purposes
Re-registration process required
Old registration quoted
wording of 1989 Regulations
New wording generic so will not need to repeat the process
Revised copyright declaration form
Library privilege
READING ROOMS
CLA Sticker Scheme
Implemented November 2003
Staff training
Reader awareness
SPECIALIST MATERIAL
Newspapers
Discussions with NLA
Sticker scheme from August 2004
Maps
GUIDING OUR CUSTOMERS
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
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 2001. That is:
uniquely linked to the signatory
capable of identifying the signatory
created using means that the signatory can maintain
GOWERS REVIEW
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
BACKGROUND TO GOWERS
Manifesto commitment
DTI
DCMS
Growing recognition of Public Value
CONTACT
Andrew Braid
Licensing and Copyright Compliance The British Library
01937 546030