13 March 2015

Changes to the Law

An Overview©A presentation for CILIP’s ARLG-SW

12 March 2015

By Emily Stannard

A. © David SlaterB. © Black MacaqueC. ©

Copyright can be fun!

New Statutory Instruments issued

April 2014

1. Personal Copies for

Private Use

2. Quotation and Parody

3. Public Administration

4. Research, Education,

Libraries and Archives

5. Disability

3,4 & 5 became law on June 1st 2014

1 & 2 became law on October 1st 2014

s.29A: Copies for Text and Data

analysis for non-commercial research• NEW!

• Copies of works made under this exception do not infringe

copyright provided:

– The person making the copy has lawful

access to the work

– They are doing a computational analysis of

what is recorded in the work

– For a non-commercial purpose

– The copy is credited to the rightsholder

(unless impossible by virtue of practicality)

• No contract override4

5

s.31: Disability Regulations

(formerly visual impairment)

Equal rights for disabled people:

ability to enjoy a work

Accessible copies can be made

of all works for personal use

provided they are not already

available commercially

on reasonable terms

No contract override

Sum charged for making copy

must not exceed the cost of making and supplying it

s. 31B: Making accessible copies by

authorised bodies*

• Works must be published & lawfully held

• No accessible versions available commercially on

reasonable terms

• Copy-protection to be carried over into the accessible copy

(if it is reasonably practicable)

• TPMs / DRM should not be circumvented

*Educational establishment / a body not conducted for profit6

s.31BA/BB: Making and storing

accessible copies

• Intermediate or ‘master copies’ can be stored / supplied

by/between authorised bodies

• Records must be kept of all accessible copies made and

stored

• Within a reasonable time of making the copy, the

authorised body must notify a collecting society

representing relevant rightsholders or the copyright

owner

7

s.35: Recording of broadcasts

(educational establishments)

• Extended to cover communication off-premises

via a secure electronic network (i.e. VLE)

• If licences are available for this activity then this

exception is negated

ERA licence likely to take precedence in most cases

8

s.36: Copying and use of extracts of

works (educational establishments)

• Copies must be made for non-commercial purpose and

for instruction

• Sufficient acknowledgement of source

• Communication must be via a secure

electronic network (e.g. a VLE)

• Does not apply to broadcasts or standalone

artistic works

• Up to 5% of a work may be copied per year by

an educational establishment

• Licences take precedence (e.g. CLA)

9

What about VLEs now?

Scanned literary works - licence terms, annual reporting

Electronic subscription licences / CLA licence

Newspaper articles – NLA licence

Maps – DigiMap licence permits map use with appropriate

copyright notice

Broadcasts – ERA+

Images – standalone images require permission but

images included in another work do not

Films/Sound Recordings – currently no licences available for

use in VLEs – exception will apply

11

s.40B: Libraries making

works available via

dedicated terminals

Allows digital collection

items to be viewed on site

for ALL research / private

studyWorks must have been

lawfully acquired

If work is subject to

purchase/licence

agreement, communication

must be compliant with that

agreement

Applies to libraries, archives,

museums and education

2014 - C-117/13 Technische Universität

Darmstadt v Eugen Ulmer KG

• University library scanned books to allow electronic

consultation from dedicated terminals

• Users could print out or store the works on a USB stick

• Having unsuccessfully offered the university the possibility of

purchasing its own ebooks, the publisher Ulmer started

proceedings for copyright infringement over unauthorised

scanning

• CJEU held that European libraries can digitise works in their

collections but are limited to only display these works at

dedicated reading terminals (unless there is a national

exception)

• Conclusion? Libraries can digitise works they own for

display on dedicated terminals but can’t permit users to

print out the works on paper or store on USB sticks

unless fair compensation is paid to the rightsholder

12

s.42: Preservation Copying

– Applies to all copyright works

– Must be part of permanent collection (kept

wholly or mainly for reference)

– Copy as many times as necessary

– Must not be able to reasonably purchase a

replacement

– No contractual override

– Can make a replacement copy for another

library/museum/archive (not for profit)

14

s.41: Library Privilege: supply of

single copies to other librariesReceiving library must not be conducted for profit

Authorisation required if the librarian can find out the name and address of

person entitled to authorise the making of the copy (not applicable to

journal articles)

Can make a charge to cover cost of production / no contract override

s.42A: Library Privilege: supply of

published works to users

• Article in periodical / reasonable proportion of a published work

• Supplied by a not for profit library

• User must provide a declaration in writing:

– Name & requested material

– Not previously been supplied with a copy of that material

– No other person with whom they work/study intends to make a similar request at the same time

• Charge to cover cost of production / no contract override

15

s.43: Unpublished works:

supply to usersCan only supply users with a single copy

of an unpublished work if:

16

• The work had not been published before it was deposited or

• The rights owner has not expressly prohibited copying

Same declaration by user as for request

for copy of published works

Can make a charge to cover cost of

production

Contracts/licence terms can override this

exception

What’s changed for Librarians?

• Preservation copying covers all works

• Declaration form wording no longer statutory

• E-signatures / digital forms / tick boxes accepted for inter-

library loans

• Charge must cover cost of production (no need to

contribute to the library)

• Librarians can copy all types of work for persons doing

non-commercial research / private study

• Can make works available for display via dedicated

terminals17

Fair Dealing

Not to be confused with fair use!

Non-commercial research and private study

Criticism, review, quotation & parody

News reporting (not photographs)

NEW Illustration for Instruction

All require sufficient acknowledgement of author

Will somebody please tell me what

Fair Dealing actually means??!

19

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2

The exceptions and limitations shall only be applied

in certain special cases which

do not conflict with a normal exploitation of the

work or other subject-matter and

do not unreasonably prejudice the legitimate

interests of the rightholder.

Berne 3 step Test / Information Society Directive

Fair Dealing

Objective test: Would a fair-minded and honest

person have dealt with the copyright work in the way

that the defendant did for the relevant purposes?

• Consider:

– Does the infringing use compete with exploitation of

the copyright work by the owner?

– How extensive is the use, and what is the importance

of what has been taken?

– Are there any other relevant factors (such as the

motives of the infringer)?21

22

s.29: Non-Commercial Research & Private Study

Applies to all types of copyright work

Synchronises with library privilege

Restrictive contract terms unenforceable –

no contract overrideImage from Flickr: ‘Researching and taking notes’ by Jimmie. Used under a CC-BY licence https://www.flickr.com/photos/jimmiehomeschoolmom/3968018385

23

s.32: Illustration for Instruction

• Purpose must be non-commercial

• Accompanied by acknowledgement

if possible

• Includes examination use

• No contract override

Quotation

• Use of a quotation from the work (whether for

criticism, review or otherwise) provided that:

– Work has been made available to the public

– Use is ‘fair’

– Extent of quotation is no more than required by

specific purpose

– Quotation accompanied by sufficient

acknowledgement (where possible)

• No contract override

24

Commercial Libraries

New exceptions that apply:

• Supply of journal articles to not-for-profit libraries

• Digitising and making work available on dedicated terminals

• Fair dealing for criticism, review, quotation and parody

• Illustration for instruction (provided purpose is non-commercial e.g. internal training)

• Supply of unpublished works to users

• Copying for preservation purposes25

To Recap: Acts Permitted

Education & Instruction

Special Provisions for Libraries & Archives

Provisions for the Visually Impaired

Judicial & Parliamentary

Proceedings

Fair dealing

Acts done under statutory authority26

What’s next for UK copyright?

• New IP Minister Baroness Neville-Rolfe says:

– Strengthening the IP framework, maximising business innovation and driving growth

– Concentrate on Europe & international scene to ensure proposed copyright reform and digital single market meets the interests and needs of the UK

27

Predictions?

• Court cases involving new

exceptions (UK)

• New exceptions for user-

generated content and e-

lending? (EU)

• To achieve digital single

market, copyright law must

be modernised /harmonised

(single Copyright Title? EU)

28

Recommended Reading

Tim Padfield – Copyright for Archivists and Records Managers – 5th edition due out April

Graham Cornish – Copyright: interpreting the law for libraries, archives and information services - new edition due out soon

Charles Oppenheim – The No-Nonsense Guide to Legal Issues in Web 2.0 and Cloud Computing

Intellectual Property Office

https://www.gov.uk/government/organisations/intellectual-property-office

Twitter: @The_IPO

Unofficial consolidated text of CDPA with changes

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/30872

9/cdpa1988-unofficial.pdf

Copyright User (making copyright law accessible to all)

http://copyrightuser.org/

Libraries and Archives Copyright Alliance (LACA)

http://www.cilip.org.uk/cilip/advocacy-awards-and-projects/advocacy-and-

campaigns/copyright

Twitter: @UKLACA

Thanks for Listening!Follow me on Twitter! @copyrightgirl

Blog: Copyright For Education

http://copyright4education.blogspot.co.uk/