ARA shares briefing on copyright exceptions and limitations

Tim Padfield, copyright advisor to ARA, updates the sector

COPYRIGHT: forthcoming changes to copyright exceptions and limitations

Tim PadfieldThe Government has published a series of regulations that, if approved by Parliament, will come into force on 1 June 2014. They will make significant changes to a wide range of exceptions and limitations to the rights of copyright owners. The following is a summary of the changes; the regulations themselves and ‘plain English’ guides to them are available from the Intellectual Property Office website at: http://www.ipo.gov.uk/types/hargreaves.htm

The following notes deal with exceptions to copyright. The same changes will apply, as appropriate, to exceptions to rights in performances and recordings of performances.


Preservation copying


The making of:
• as many copies as are required for the preservation purpose
• of any kind of work
• in the permanent collections of libraries, archives and museums (including galleries)
will be permitted in order to preserve or replace an item in the permanent collection of the same institution or in the permanent collection of another library, archive or museum so long as the recipient institution is not conducted for profit. Conditions are:
• the original must not be available for loan to the public
• it must not be ‘reasonably practicable’ to purchase a replacement
• further preservation copies may be made from the copies
• digital preservation copies may not be made available online to users unless under licence or another exception (see below)
• any fee charged for supply of a preservation copy to another library, archive or museum may only cover the costs of making the copy
Any contract term that seeks to exclude this exception will be void.

 

Online access to digital materials


Any library, archive, museum (including a gallery) or educational establishment will be permitted to make available online to the public works or copies of works of any kind:
• so long as the works or copies have been lawfully acquired, for instance by purchase of an original, by copying under licence or by copying under another exception such as the preservation exception
• for the purposes of research (including commercial research) or private study
• on dedicated terminals on the premises of the same institution
• in accordance with any contract terms, for instance in a licence


Library and archive copying for users


The exceptions permitting the making of copies for users by librarians and archivists will be extended to apply to all kinds of work, and so will in future apply to artistic works (eg maps, drawings, photographs), films and sound recordings. The exceptions will still not apply to museum and gallery collections, but they will apply to libraries and archives in most museums and galleries.


The exceptions will apply to


• a library that is publicly accessible
• a library of an educational establishment
• any archive


A single copy of


• the whole or part of a published work of any kind (including an article from a periodical) may be made by a librarian for supply to another library that has requested it, so long as the recipient library (and its parent institution) is not conducted for profit. Any contract term that seeks to exclude this exception will be void, but the exception will not apply to the supply of a copy of anything other than an article if the librarian knows or could find out the contact details of someone who could authorise the copying. It seems probable that the recipient library may not copy the copy


• one article in any one issue of a periodical or a reasonable proportion of any other published work will be permitted to be made by a librarian of a library that is not (and whose parent institution is not) conducted for profit and the copy may be supplied to a user. What will be considered to be a reasonable proportion of a published work has yet to be established; for published literary works it has in the past been considered to be about 5% or one chapter, whichever is greater. A declaration must be received before the copy is made (see below)


• the whole or part of any kind of work that had not been published or communicated to the public (eg by being made available online or broadcast) before it was deposited in the library or archive, will be permitted to be made by a librarian or archivist and supplied to a user. A declaration must be received before the copy is made (see below)

There will no longer be a statutory form of declaration for use by a user requesting a copy, but a declaration in writing must still be received. It need not be signed and may be by email. The librarian or archivist may rely on the declaration if he or she is not aware that it is dishonest; if the librarian or archivist does know the declaration is dishonest the copy must not be made.  The declaration must state, at least:


• the name of the user and the details of the work or works to be copied
• that the user has not previously had a copy of the same material
• that the purpose is solely non-commercial research or private study
• that the user will not pass the copy on to someone else
• for a published work only, that so far as the user knows, no-one else with whom he or she works or studies has asked at much the same time for a copy of the same material

I suggest that libraries and archives should prepare a form of words for the declarations (excluding the requirement in the last bullet point above if the declaration is for unpublished material), to ensure that it fits the requirements, and send this to a user who requests copies. The user should return it with personal details as required and details of the works to be copied. A single declaration is sufficient for copies from any number of published works or documents so long as they are all identified in the declaration.

Also:


• any fee charged may cover only the cost of making the copy (and so will no longer be permitted to include a contribution to the institution’s general expenses, but the charging of a fee will no longer be compulsory)
• in the case of a published work, any contract term that seeks to exclude this exception is void
• in the case of an unpublished work, the copy may not be made if the librarian or archivist knows, or ought to know, that the copyright owner (who is not necessarily the depositor) has forbidden the making of copies
• in the case of published works held in archival collections, archivists should consider themselves to be librarians and make copies within the terms of the relevant exception (including the definition of a library)


Archival recording


An archive of an organisation not established or conducted for profit will be permitted to make and keep:


• a sound recording of a performance of a folksong without infringing copyright in the words or the music, so long as the words were unpublished and of unknown authorship when the recording was made, the recording does not infringe any other copyright and none of the performers has forbidden the making of the recording
• a recording or a copy of a recording of a broadcast, without infringing copyright in the broadcast or any work included in it. Any contract term that seeks to exclude this exception will be void

A single copy of a recording of a folksong may be made by the archivist for a user in return for a declaration under much the same terms as for a copy of an unpublished work (see above), and the recording will also be covered by the preservation copying exception (see above). A recording of a broadcast may be copied for a user in return for a declaration under the same terms as for library supply of a copy of a published film or sound recording (see above under ‘Library and archive copying for users’), in which case the archivist will have to act as a librarian;  the preservation copying exception will again apply.


Fair dealing


Fair dealing for the purposes of non-commercial research or private study will apply to all works, not just to literary, dramatic, musical and artistic works. Any contract term that seeks to exclude this exception will be void.

Fair dealing for the purposes of criticism or review will be extended to quotation for any purpose, so long as:
• the work quoted has been made available to the public (eg published)
• no more is quoted than is necessary for the immediate purpose
• the author and source are acknowledged unless to do so is impractical
Any contract term that seeks to exclude this exception will be void.
Fair dealing for the purposes of caricature, parody or pastiche will be introduced. Any contract term that seeks to exclude this exception will be void and no acknowledgement of the work parodied will be required.


Education


The making of single copies for educational purposes and of copies for the purposes of examination will be now be fair dealing, which means in essence:
• it must not compete with the copyright owner, for instance by providing a substitute for purchased copies
• it will involve the copying only of what is necessary for the immediate purpose, which will not normally  be the whole work
• it may only be for a non-commercial purpose
• the author and source must be acknowledged unless to do so is impractical
Permitted uses will include:
• making of single copies by students and teachers
• writing exam questions, communicating the questions to students and answering the questions
• use in theses and dissertations, but not their publication, online or in hard copy, after examination
Any contract term that seeks to exclude this exception will be void.
Most multiple copying of works for non-commercial purposes of instruction and most recording and copying of broadcasts for non-commercial educational purposes will continue to be under licence. Such licences must in future:
• permit online communication of the copies to staff and students (but no-one else) on or off the premises so long as it is by a secure, closed network
• require an acknowledgement of the work and its author, unless this is impractical
In the case of the copying of works other than broadcasts:
• copying may not be of any artistic work (such as a map, drawing or photograph) unless it is incorporated into another work, for instance as an illustration in a book
• licences must permit copying of at least 5% of a work in any 12 month period (previously 1% in any quarter). For this purpose a work includes one that is composed of more than one individual work, and so includes a journal comprised of many articles or an encyclopedia.

Multiple copies of works for which there is no licensing scheme (eg films, unpublished literary works like letters) will be permitted to be made but the copying must be under the same terms.

Disability


The existing exception permitting the making of an accessible copy for the use of a visually impaired person will be extended to any person who has a physical or mental impairment that prevents him or her from enjoying the work to the same degree as a person without that disability, unless the impairment can be treated simply by the use of corrective lenses:
• the disabled person must own or have access to the work copied (eg by being a library user)
• a work of any kind may be copied in whole or in part
• the accessible copy may include facilities for navigating around the work, but may not include changes that are not required to deal with the disabled person’s disability
• the copy must be solely for the personal use of the individual disabled person
• an accessible copy may not be made if one of the same kind is available commercially on ‘reasonable terms’
• any fee charged may only cover the cost of making the copy


Text and data mining


A new exception will permit copying for ‘computational analysis’ (that is, analysis by computer for instance to identify patterns or trends that would not otherwise be apparent) of the contents of any work for the purpose of non-commercial research by the person making the copy:
• the user must have lawful access to the work copied (eg by owning it or by being a library or archive user)
• the author and source must be acknowledged unless to do so is impractical
• the copy may not be transferred to anyone else, except with the copyright owner’s permission
Any contract term that seeks to exclude this exception will be void.


Private copying


You will be permitted to copy, as many times as necessary, and to copy the copy of:


• any work other than a computer program that you own, including one downloaded permanently, but not one streamed nor one copied under another copyright exception
• for personal use, including temporary loan to someone else and for backup, format shifting and cloud storage


You will not be permitted to pass the copy permanently to someone else and if you cease to possess the original for any reason you will have to destroy any copies.

This exception will apply retrospectively to relevant copies already made. Any contract term that seeks to exclude this exception will be void.

 

Tim Padfield
6 May 2014

 

Update from Tim Padfield 1 June:

Parliament has approved three of the five sets of regulations, and they will as planned come into force on 1 June. They cover: extension of fair dealing; changes to library and archive preservation copying and copying for users; onsite online access in libraries, archives and museums; education; disability; text and data mining; Crown use.

Two sets of regulations have been delayed for further consideration by Parliament: private use; quotation and parody.

Archivists may therefore, among other things, make preservation copies and supply copies of artistic works, films and sound recordings from 1 June and they may receive a declaration by email without needing to use the form'.

Read Tim's original briefing above.