INTRODUCTION
Copyright has become increasingly complex in a world which is now more globally interconnected than ever thanks to digital technology. The disparity between the wording of the national copyright law and everyday practice has become ever more acute, leaving information professionals facing little or no choices when dealing, for example, with the preservation of redundant media. The United Kingdom is one of several countries that has scrutinised its intellectual property laws in recent years, with a swathe of consultations and roundtable discussions between government representatives and stakeholders across both the industry and the users of copyright works. The end result has seen new legislation take shape in the form of statutory instruments, amending some of the exceptions to copyright to better align them with common practice in the digital environment.
THE BACKGROUND
The Hargreaves Review of Intellectual Property (IP) began at the end of 2010 with a remit to investigate whether national intellectual property laws were hindering innovation and economic growth in the UK. Ian Hargreaves, Professor of Digital Economy at Cardiff University, led the review which found that copyright law in particular was more of a hindrance to the digital economy than a help, and subsequently made ten recommendations for improvement. The Government broadly agreed with the recommendations and produced a consultation document at the end of 2011 which invited stakeholders to comment on different areas of copyright, including licensing, orphan works, and many of the exceptions pertaining to education, libraries and research.
The consolidated response to the copyright consultation proposed an overhaul of the education, library and disability exceptions to bring them more in line with digital practices and technology, and also put forward new exceptions for research, private copying and parody. Crucially, the response recommended a clause limiting the amount of power that contractual terms could have over copyright exceptions. Contract law has historically tended to override the acts permitted under copyright law, leading to conflicts in uses of electronic subscription resources, particularly where contracts are not indigenous to the United Kingdom.
Having considered these proposals, the Intellectual Property Office (IPO) was instructed to draft new legislation for copyright with appropriate wording to amend sections of the CDPA. In April 2014, five statutory instruments were issued. Three of the five were accepted by the Houses of Parliament and passed into law on 1 June 2014: The Copyright (Public Administration) Regulations 2014, The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014, and The Copyright and Rights in Performances (Disability) Regulations 2014. However, because of their controversial nature, the remaining two (The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 and The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014) were returned to the IPO for further consultation and refinement. These two eventually became law on 1 October 2014, although after only nine months in force The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 was reversed following a ruling in the High CourtFootnote 1.
NEW LEGISLATIVE CHANGES
The new statutory instruments include a number of amendments to the permitted acts within the CDPA, particularly within existing fair dealing provisions, along with the introduction of several new exceptions. The impact of these exceptions is still unfolding as information professionals strive to interpret the wording of the law in relation to the activities they undertake.
It is important to first consider the impact of the non-fair dealing exceptions (i.e. those which require the copying of the whole of a work) on information professionals, as fair dealing presents its own set of complexities and must be looked at in conjunction with relevant case law. Each element of a new statutory instrument is therefore considered under the section of the CDPA that it adds to or amends, which should make it easier to follow along with the text of the law.
CDPA S 29A: TEXT AND DATA ANALYSIS
Forming part of The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014, text and data analysis is a brand new exception in both the UK and the EU and consequently has no case law attached to it. The exception permits the mining of data and text from digitised or born-digital source material using computational analysis for speed and efficiencyFootnote 2. The exception stipulates that the person making the copy must have lawful access to the work (e.g. a library user) and that the copies must only be made for non-commercial research purposes. The copies must be credited to the rights holder unless impossible by virtue of practicality; it is unlikely that this condition would fail to be fulfilled as most if not all items being analysed would be a straightforward copy of the original and therefore bear an acknowledgement of the rights holder. Contract terms which purport to restrict the acts permitted by this exception are unenforceable.
After one year, research libraries in particular acknowledge that their researchers benefit from performing computational analysis on large amounts of information. As the UK is the only country which currently has this exception, it is possible that more global collaborative research to enable the processing and analysis of big datasets will be attracted to the UK. The difficulty lies not in the exception itself but rather in the definition of non-commercial. Recital (42) of the Information Society Directive states that “the non-commercial activity in question should be determined by that activity as such. The organisational structure and the means of funding the establishment concerned are not the decisive factors in this respect.” This statement is expounded upon in The Modern Law of Copyright and Designs:
It would appear that this means that what matters is the nature of the research in question, and that research of a non-commercial nature does not become commercial just because the organisation conducting it receives funding from commercial organisations… However… it is submitted that a narrow view of ‘non-commercial purposes’ must be taken, both because the exception must be construed strictly and because the exception can only extend to cases which pass the three-step test.Footnote 3
However, some research librarians have reported receiving emails from publishers of electronic subscription databases concerned about mass access to articles triggered by the performance of text and data analysis. As information professionals are the gatekeepers of electronic subscription resources, it is vitally important that they are furnished with a wider knowledge of what is happening in their institutions. It is therefore advisable for information professionals to proactively engage with their user communities to ensure that they are aware of text and data analysis and can respond to publisher concerns appropriately.
s.31A-F: Copying for people with disabilities
Prior to the change in the law, the exception permitting copying for people with a disability was extremely limited, applying only to those with a visual impairment. The change has brought about a welcome alignment with the Equality Act 2010 and the copyright legislation now allows accessible copies to be made for people with any disability which prevents them from enjoying a work to the same degree as person without a disability. There are several strands to the new s.31 of the CDPA, including: the copying of works for personal use by disabled persons; the making and supply of accessible works by authorised bodies (educational establishments or a body not conducted for profit); and the making and supply of intermediate copies by authorised bodies to other authorised bodies. Several conditions are common to all: there must be lawful access to or possession of the original; if a charge is made for the making of the accessible copy, it must not exceed the sum of the making and supply of that copy; contract terms preventing the making of an accessible copy are unenforceable; and the same kind of accessible copies of the work must not be commercially available on reasonable terms. In addition, authorised bodies are required to keep records of all accessible copies made and notify, within a reasonable period of time, the copyright owner or the copyright owners' authorised representative that these copies have been made.
Expanding s.31A-F to account for persons with learning disabilities and other non-visual types of impairment has been greatly welcomed by the library sector. Information professionals within educational establishments and not-for-profit libraries or organisations may, for example, now add subtitles to broadcasts or films for deaf or hard-of-hearing users. It should be noted, however, that where a licence does allow the making of accessible copies for disabled users, the licence terms should be followed rather than the statutory provisions.
s.35: Recording of broadcasts (educational establishments)
This exception, which relates solely to educational establishments, has been expanded to include the communication of broadcasts off-premises via a secure electronic network (e.g. a Virtual Learning Environment). However, if licences exist for this activity, the licence terms take precedence.
Given that the Educational Recording Agency (ERA) is arguably the sole licensing body for this activity, this exception is limited only to broadcasts not covered by its repertoire. The ERA previously offered two strands of licence: one for solely recording broadcasts (ERA Basic); and one for recording broadcasts and communicating them to the public via a secure electronic network (ERA+). Following the change in the law, the ERA withdrew its basic licence which meant that educational establishments had little option but to take the ERA+ licence. This has predominantly affected the Higher Education (HE) sector the most as the cost of the licence has risen significantly.
s.36: Copying and use of extracts of work (educational establishments)
Prior to the recent statutory changes, this exception was of little practical value. Only 1% of a work per quarter was able to be copied; this was restricted only to certain types of work, and if a licence was available which allowed this type of copying, the licence terms took precedence. The amount of a work that can be copied per year under this exception by an educational establishment has now increased to 5% provided that the copies are made for instructional and non-commercial purposes. The communication of these works must be made via a secure electronic network and the exception only applies to ‘relevant’ works; broadcasts (covered under s.35) and standalone artistic works are specifically excluded. Licence terms continue to take precedence if they provide for this type of activity (for HE institutions, the licences offered by the Copyright Licensing Agency (CLA) predominantly cover this type of copying and communication to the public).
It is still difficult to gauge the impact of this exception, even after a year. Most information professionals working in educational establishments are anxious not to break the law, and given the risk-averse nature of the sector, are often reluctant to test the waters with any seemingly risky activities. The CLA provides a licence for the scanning and inclusion of digital and electronic text-based works via a secure electronic network, but as yet there is no equivalent licence for films and sound recordings. The management of teaching and learning activity in a large educational establishment such as a university is often a challenge for librarians because of the devolved nature of the organisation. Trying to ensure that only 5% of a multimedia work was copied and made available via a secure electronic network would be a virtually impossible task without some element of centralised management, perhaps by a multimedia librarian. The statute does not however require any record-keeping, so any proactive stance taken by an educational establishment would merely be for its own peace of mind. The rise of lecture capture – a process whereby lectures are filmed and then uploaded to a secure electronic network for students to re-watch at their convenience – also poses some copyright issues as it is not wholly compatible with any of the statutory exceptions for educational establishments. However, there may be some reprise for educational institutions for this type of activity by way of the fair dealing exceptions, discussed later in this article.
s.40B: Dedicated Terminals
The wording of Article 5.3(n) from the Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights (2001) OJ L 167 (hereafter referred to as the Information Society Directive) forms the primary basis for the new s.40B of the CDPA. In essence, this exception allows for the making available and viewing of a work via a dedicated terminal on the premises of any library, museum, archive or educational establishment provided the works have been lawfully acquired and the making available of the works does not contravene its purchase or licence agreement or conflicts with the specific wishes of the copyright owner.
This exception has come to the fore of public attention following Case 117/13 Technische Universitat Darmstadt v Eugen Ulmer KG which was referred to the CJEU from the German courts in 2014. The University of Darmstadt library scanned entire books to make them available to its students via dedicated terminals for electronic consultation. Students were able to print from the terminals as well as download and store the books on portable devices. Having unsuccessfully offered the university a purchasing agreement for its ebooks, publisher Ulmer started proceedings for copyright infringement over unauthorised scanning. The dispute made it to the CJEU which handed down its ruling in 2014.
The Court held that European libraries had the right to digitise works in their collections, even if rights holders offered licensing agreements on appropriate terms, but were limited to displaying them rather than allowing users to make any further use of the works unless there was a national exception permitting those activities. Printing out and storing works were considered acts of reproduction which were separate to the provisions made in the Information Society Directive for the display of works on dedicated terminals. It is interesting to note however that an exception exists in the UK for fair dealing with a work for the purposes of non-commercial research and private study; it is possible that this would apply in a case such as this one. The Court also discussed the requirement for adequate remuneration of the rights holder of the work when making a work available via a dedicated terminal. The lack of provision for this requirement in the UK would likely be an issue should a similar British case be referred to the CJEU.
Information professionals are largely fearful of this exception given its relatively untested waters, but it does offer the opportunity for national libraries, archives and museums to digitise fragile material and make it available to view on a dedicated terminal. Information professionals may wish to disable drives for portable devices and access to the Internet from the dedicated terminal to reduce the risk of infringing copyright. The question over printing from the terminal remains, although it is possible that the printing out of portions of a work would be covered by fair dealing for non-commercial research and private study.
s.42: Preservation Copying
The exception allowing libraries to make a copy for the purposes of preserving an item in their collection has been extended to museums and archives and widened to include all types of copyright work. The conditions are that the item must be part of the permanent collection and kept wholly or mainly for reference. It can be copied as many times as is necessary for the preservation of the work and a replacement must not be able to be reasonably purchased. A replacement copy can be made for another library, museum or archive provided that it is a not-for-profit establishment. Contractual clauses which purport to restrict this activity are unenforceable.
The extension of this exception has greatly relieved the burden on information professionals who handle large amounts of fragile material, and has eased their frustration at not being able to make further copies of redundant formats before it is no longer technically possible to do so. There is no requirement in law to retain the original material, and the provision has been future-proofed by allowing as many copies as necessary for preservation given that technologies continue to develop.
s.41–43: Document Supply
Sections 41–43 (excluding s.42) of the CDPA have been considered together here as they are all concerned with document supply. Also known as library privilege, document supply or inter-library loan, s.41 permits the supply of material from one library to another. The conditions of the exception are that the receiving library is not conducted for profit and that if a fee is charged by the supplying library, the sum should only cover the cost of the production of that item. Contract terms which prohibit this activity are unenforceable. Finally, authorisation from the copyright holder is required if the librarian can reasonably find out the name and address of the person entitled to authorise the making of the copy. Helpfully, this particular condition does not apply to journal articles.
S.42 relates to the supply by a not-for-profit library to an end user (whether at its library or another library) of an article in a periodical or a reasonable proportion of a published work. The user must: provide a declaration in writing which includes their name and the requested material; state that they have not previously been supplied with a copy of that material; and declare that no other person with whom they work or study intends to make a similar request at the same time. Any charge made under this section (a charge may be made at the discretion of the library) must only cover the cost of the production of the copy. Contract terms which prohibit this activity are unenforceable.
S.43 permits the supply of single copies of unpublished works to users provided the work has not been published before it was deposited or that the rights owner has not expressly prohibited copying. The user must make the same declaration as in s.42 and a charge may be made by the supplying library to cover the cost of the production of the copy. This exception applies to all libraries and archives, both for- and not-for-profit.
The biggest impact of the changes to document supply legislation relates to the user declaration form. Once enshrined in the CDPA as the statutory form which required a physical signature from end users, the changes to the legislation now allow for a much more flexible approach with regards to the user declaration, and may encompass electronic signatures, online forms and email declarations. Declarations should continue to be stored for at least six years in case the library needs to defend itself against claims of copyright infringement. It is worth noting that national libraries such as the British Library operate differently as a result of mandates with publishers.
Fair Dealing
A number of the revised and additional exceptions only apply if the use of the work is ‘fair dealing’. According to the IPO:
‘Fair dealing’ is a legal term used to establish whether a use of copyright material is lawful or whether it infringes copyright. There is no statutory definition of fair dealing – it will always be a matter of fact, degree and impression in each case.Footnote 4
Its undefined nature means that fair dealing is always a matter of legal interpretation, which is why case law is so important when determining whether a use of a work is likely to be fair. Exceptions and limitations are subject to the three-step test which is enshrined in Article 9.2 of the Berne Convention for the Protection of Literary and Artistic Works (as amended on September 28, 1979) TRT/BERNE/001. The Information Society Directive incorporates the three-step test thus in Article 5.5:
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.Footnote 5
‘Special cases’ in this sense relate to the exceptions and defences in national law such as fair dealing. Courts are increasingly taking the conditions of the three-step test into account when preparing a ruling on copyright infringement. The IPO provides some further practical guidance on the interpretation of fair dealing:
Factors that have been identified by the courts as relevant in determining whether a particular dealing with a work is fair include:
• does using the work affect the market for the original work? If a use of a work acts as a substitute for it, causing the owner to lose revenue, then it is not likely to be fair.
• is the amount of the work taken reasonable and appropriate? Was it necessary to use the amount that was taken?Footnote 6
Case law: Substantiality
Copyright infringement occurs when the whole or a substantial part of a work is reproduced. In the last five years, the European Court of Justice (ECJ) handed down a landmark ruling in relation to the definition of a substantial part: Case C-5/08 Infopaq International A/S v. Danske Dagblades Forening (2009) ECR I-6569 was referred by a Danish court and involved a media monitoring company which was scanning extracts of newspapers in order to perform electronic searches and print short text extracts of eleven words without the authorisation of rights holders for its clients. The Court ruled that extracts of eleven words could be a substantial part provided that the extract contained an element of the work which expressed the author's own intellectual creation.
Case law: Requirement for acknowledgement
In 2010, SAS Institute brought a copyright suit against World Programming Ltd (WPL) for a number of infringements, one of which was that WPL produced guides to its programs in which it set out keywords from SAS institute's guide to compare their functionality (C-406/10 SAS Institute Inc. v World Programming Ltd [2012] RPC 31). The court ruled that this use was fair dealing as the guides did not compete with the rival software company's product and the extent of reproduction was small compared to the work from which the keywords were taken. It was also proportionate to and necessary for the purpose of the review. However – the defence did not stand because there was not a sufficient acknowledgement of the source. Copinger & Skone James on Copyright elaborates further in section 9–34:
The acknowledgement of the work may take the form of identification of its title or some other description of it… Identification of the author need not be by reference to the author's proper name, particularly if this would be unlikely to have any particular significance or would be meaningless to the bulk of the intended audience. Use of a pseudonym by which an author is known to the public will therefore be sufficient.Footnote 7
In Pro Sieben Media v Carlton Television [1999] 1 WLR 605, a logo in the top right hand corner of a recorded broadcast was considered sufficient acknowledgement of the rightholder.
s.30: Fair dealing for Quotation
An exception for quotation had not previously featured in the CDPA in spite of its inclusion in the Information Society Directive. The statute now permits the use of a quotation from a work, whether for criticism, review or otherwise, provided that the work has been made available to the public, the use is fair, the extent of the quotation is no more than required by the specific purpose and accompanied by sufficient acknowledgement of the author where possible. Contract terms which purport to restrict this exception are unenforceable.
Libraries, museums, archives and educational establishments have embraced this new exception and are already using it to enhance their collections. Examples of use include the engraving of quotations on to the fabric of buildings and the use of quotations to provide context to specialist archives. Quotations are also used online by information professionals in blogs and in exhibitions.
However, the one grey area with this exception is the use of images. The question over whether it was possible to quote an image was raised in the ECJ with Case C145/10 Eva-Maria Painer v Standard VerlagsGmbH and Others [2011] E.C.D.R. 297. This case involved a newspaper's use of a whole photograph of a girl who had been missing but was then found many years later, and the photographer sued for copyright infringement. The judge in the case declared:
In the case of photos it seems possible that a full quotation can also be a quotation within the meaning of that provision. If only parts of photos could be published under Article 5(3)(d) of the directive, this would significantly restrict the application of that provision to photos.Footnote 8
This would seem to imply that the quotation of whole photographs and other images is possible and permitted by the exception; however, it would be wise to exercise caution when reproducing whole images for quotation purposes as the economic value of the image must not be significantly undermined.
s.32: Fair dealing for illustration for instruction
S.32 of the CDPA had previously only permitted the hand-drawn reproduction of limited types of copyright work for instructional purposes. This exception now applies to all types of copyright work provided the purpose of the instruction is non-commercial and is accompanied by an acknowledgement of the author if possible. Examination use is also included in this section, and any contract term purporting to prohibit this activity is unenforceable.
The changes to this section of copyright law have been invaluable for information professionals and educators alike. Universities in particular have been making full use of this exception by including extracts of works in PowerPoint slides, using figures to illustrate specific teaching points and reproducing excerpts of music for instruction. It should be stressed that this exception does not solely relate to educational establishments but rather permits anyone who is delivering training or teaching for non-commercial purposes at any establishment to use extracts of works for instructional purposes.
WHAT NEXT FOR COPYRIGHT?
With a new IP Minister, Baroness Neville-Rolfe, at the helm, the Government has indicated that it is committed to strengthening the IP framework, maximising business innovation and driving growth. Recent developments in Europe have also been significant. A restructuring within the European Commission (EC) has pushed copyright to the top of the agenda in relation to the development of a Digital Single Market. The EC launched a copyright consultation towards the end of 2014 which consisted of eighty questions about every aspect of copyright law, including user-generated content, e-lending, licensing and orphan works. Following the consultation, Julia Reda, the Pirate Party MEP, was asked to write a non-legislative report for the EU Parliament on proposed changes to copyright and priorities going forward. In July, the EU Parliament adopted Reda's reportFootnote 9, signifying a breakthrough for user rights and limitations and exceptions in copyright. The EC is now preparing a draft legislative proposal for copyright reform, which will be immensely influential in deciding the fate of national copyright law in the UK. The proposal is due to be released by the end of the year.
