CILIP Copyright Conference 2019, 2 April, Hallam Conference Centre, London
This conference consisted of a roughly two-hundred-strong delegate audience, and was aimed squarely at information professionals already experienced in copyright law who attended for yearly updates, rather than newly qualified professionals looking to increase their basic knowledge of copyright practices in the UK.
Below are short summaries of the day’s contents, which focused predominantly on the changing landscape of information legislation in light of Brexit and the impact of new operational models in universities, and how this is blurring international boundaries in regard to which copyright laws applied across complex student bodies.
Below I have tried to summarise my ‘key takeaways’ from the conference. This report is not meant as a complete record of the event but acts as a snapshot from the perspective of an art librarian looking to broaden and update my knowledge of copyright legislation.
Introduction from CILIP chief Executive
Overview to the focus of the conference: Brexit, changes and the need for collaboration across the sector. Note given to ‘Living Knowledge Network’ which launched on the 2nd April via the British Library.
Copyright and Brexit: What Next?
Dr Eleonora Rosati
Global exchanges of information working across international lines are an integral part of research and education activities. Brexit, rather unsurprisingly, will significantly impact on information legislation in the UK. Until we know the final outcome i.e. hard or soft Brexit, it is difficult to fully map out what the impact will be on our laws and how they will interact with EU law. However, it is likely that if Theresa May’s Brexit deal is to pass, there would be little to no change in copyright protections. If a no-deal Brexit is to happen then protections are not guaranteed.
The EU is launching a ‘new digital market’. This directive is focused on the portability of content across EU borders. Post-Brexit, the UK could be barred from this market. However, most EU initiative are ‘directives’ and not laws, so it is not known how this will end up affecting the UK.
Risks to UK post-Brexit (i.e. what should we be thinking about that might change):
- Marrakesh directive – UK could lose copyright protections for the blind
- UK may have to separately codify all exceptions – how would this be done, what is the time scale?
- Clearing rights for broadcasts could be difficult or take significantly longer as rights would have to be cleared in each country and not through the block of EU countries
- Orphan works are not currently protected without EU directive
- Exhaustion – agreement in principle to adopt EU directive but not yet in UK law
- Loss of court of justice as de facto legislator will mean UK will have to codify section 6 of current EU directive
- Would EU still be able to arbitrate ‘difficult’ UK copyright cases? Unlikely with hard Brexit. However, this might allow UK more freedom from CoJ decisions.
- Copyright law is unlikely to be a top priority for UK government post-Brexit and CoJ is likely to continue guiding UK law – however, mechanisms for this are not established and relies on ‘good faith’ between countries.
The underlying need for legislative ‘harmonisation’ should be prioritised, but will this be important enough for our post-Brexit UK government?
Copyright the iceberg, evaluating its hidden depths
Example of a difficult case that required consideration from Naomi Korn Associates.
Problem: Marketing company wants to use quote from The Hobbit.
Needs to consider:
- Use is commercial
- No case for using without paying for rights
- Risk is high as ‘high profile’
- The quote could be considered ‘artistic content’ in and of itself, so protected
- Few court cases to test out the theory, i.e. which way would it go if played out in court?
Top Copyright Lessons and Thirty Years since the Copyright, Design and Patents Act 1988
Professor Charles Oppenheim
A reflection on successes and limitations of current legislation and the creation of a ‘Wishlist’ with which to lobby for change to government.
What has worked well:
- Harmonised previous legislation and accounted for technical development and cultural changes
- Updated library exceptions for copying
- Inclusion of protections to accommodate visual impairment and non-commercial private study.
What hasn’t worked as well:
- Aspects of the law still ambiguous, for example ‘non-commercial’ and ‘commercial’ are not defined, for example, is the outcome or the person doing it that defines whether or not it is commercial? Are private paid researchers covered under ‘non-commercial’?
- Contractual terms are often used to override exceptions to copyright – stronger protections are required
- Text and Data Mining exceptions are often overridden by government advisory note that right owners can stop exception if ‘activities affect the performance of their systems’; this is not always justified
- Requirements on libraries to keep records of exceptions requests – libraries tend to be ‘risk averse’ and cut off access ‘just in case’.
Some wish list items for new legislation or updates to existing laws –
- Exceptions to copyright should be enshrined as ‘rights’. This would then give protections against contractual attempts to override any exceptions
- Full definition of ‘commercial’ and how this applies to exceptions
- Unjustified Threats component from Section 21 of Trade Marks Act (1994) to be added to copyright law. To make it an offence to make unjustified threats of an infringement action when someone has not infringed.
- Advisory note to Text and Data Mining exception to be removed which allows right owners to override exception due to systems pressures
- ‘Fair dealing’ principle should cover all media/format types to harmonise the legislation and make it easier to follow
- The scope of ‘judicial’ exception should be clarified with examples
- ‘Fair Use’ to replace ‘fair dealing’ which would take into consideration changes in technical advances and culture in the future. This would mean ‘case by case’ as opposed as defined by material type and would give more flexibility while ensuring the principle of ‘fair dealing’ is maintained
- Orphan works law needs to be reformed. Lifetime for unpublished orphan works should be based on an assumption about its date of creation, plus 70+ years.
- Moral Rights shouldn’t need to be asserted as they should be recognised as automatic, like copyright itself. It should always become impossible to ‘waive’ your own moral rights, i.e. contracts cannot override fundamental components of copyright law
- Moral Rights do not currently apply to the translation of the original work. Copyright owners (the original creator) should be able to sue if a translation is so poor to give a misleading impression of what has been written
- It should be a criminal offence to claim copyright in something that you did not create or do not hold the rights to
- It should be a criminal offence to impose incorrect restrictions to materials that are made available under a creative commons licence
- Library copying exceptions to be written into Berne Convention
- Libraries, archives, museums (and other not for profit institutions) to have automatic right to digitise in copyright works for non-commercial use
- Wording in current legislation to be updated in light of technological changes. For example, ‘dedicated onsite terminal’ should be amended.
- ‘…ability to apply to secretary of state if you are being denied access to something you are entitled to under an exception to copyright’ is nearly never used as incredibly bureaucratic and difficult to do. A speedier mechanism is required
- ‘Plain English’ referencing is required for acts. For example, ‘296ZE’ is not efficient or meaningful
- Long copyright lifetime for unpublished literary works to be removed
- A reduction in copyright length to life plus fifty years; perhaps this should be reduced further in the future.
Contribution was asked for from delegates to this Wishlist that thoughts/ideas should be taken to LACA for consideration. More information can be found here.
Explaining copyright to businesses
Example of how tools were developed to help advise and support businesses of key aspects of copyright law as relevant to them. For example, ‘I want to copyright my logo’. What if the design was externally commissioned? What matters to businesses in terms of copyright?
- Avoiding being copied
- Avoiding legal action
- Costs of using content
Online website created to support businesses – Business & IP Centre, Newcastle.
Panel Discussion with Charles Oppenheim, Eleonora Rosati and Naomi Korn Associates
Question from delegate: In relation to open access levels, during publicly funded projects, does the Open Government Licence override rights?
Response from panel: Depends on agreement in contract and if signed then a question of which terms win. Changes to law only apply for funding research but in this example, the courts may need to decide as not tested.
Question from delegate: Why is the waive of moral rights needed? (from previous presentation)
Response from panel: Some time spent on why waiving moral rights can be useful: makes managing IP much easier, however, business needs should not override human rights and creators should always be allowed to have the final say.
Question from delegate: When should moral rights expire?
Response from panel: should be tied to lifetime of individual but for thought is needed in this area to flesh out what is reasonable
Question from delegate: Concern raised about big organisations in relation to moral rights
Response from panel: contextual decisions are always required, there are some instances in which waiving moral rights can be a good thing, but informed and free consent should always be maintained.
Question from delegate: Current problem in law in which 3rd parties undertake government funded work are counted as ‘commercial’. This is particularly problematic in regards to open access; OA being cut due to new laws and companies put off by less profit to be made
Response from panel: We welcome the resisting of pricing for OA from industries and admiration paid to model of divergence of publishers adopted but libraries need to ‘show their muscle’ and band together to negotiate with publishers
Question from delegate: What are the panel’s thoughts on ‘judicial exceptions’ and ‘out of commerce’, also, any thoughts on photographs of example works? i.e. tips for image libraries?
Response from panel: a) judicial exceptions are often abused as law firms think it can cover everything, b) no definition yet on this but may be used in other context in UK law. Some illustrative examples would be useful. Perhaps support can be sought from law librarians to give examples? c) in relation to image licensing, content law should be applied and not copyright law. The friction comes in the relationship between access / income / protection. How are fundamental rights protected while ensuring income is not sabotaged. More work to be done in this area.
Question from delegate: Is there a definition of ‘out of commerce’, also – ‘infringement’ – comment for this area? Also, there are other things undefined like ‘educational’ for which section 107 could apply. *Wellcome are undertaking some big project work regarding licensing. Thoughts?
Response from panel: Lots of questions to unpick but guiding thought is for librarians to ‘not be cowards’ but stakeholders will have different ‘risk’ levels. Could risks be agreed and ‘sign-off’ with stakeholders? The problem comes when partnering with institutions: is it commercial? Is it contractual? It may be useful to think about ‘money changing hands’ as a moral guidance. Also ‘what feels wrong’ can be helpful, i.e. something it is good to trust your gut!
Comment from delegate: National Library of Wales used to have lots of images protected under creative commons but found that this was being exploited by end users.
Response from panel: We are arguing for more protection in this area as part of our ‘wish list’ to the government
Mini stalls exhibited copyright related activities being developed or piloted in UK universities. These were mainly tools than can support teaching in ethical uses of information, as a branch of information literacy, and resource sharing initiatives across institutions. There was also a small stall set up for the promotion of Facet Publishing with books on display focussed on copyright law and wider information legislation.
CREATe Digital Resources – https://www.create.ac.uk/
Play the Game – resources for freely available material that can be to teach people about UK copyright law, policy, creative commons and educational exceptions.
Copyright developments within the UK higher education sector
Jane Secker & Chris Morrison
Chris Morrison is undertaking masters’ research to understand how section 32 of CDPA ‘exception for illustration’ (i.e. educational exception) is being interpreted and whether this aligns with the legislation.
Key thoughts so far:
- Terminology is strange, i.e. ‘illustration for instruction’; why not ‘for teaching’ or just ‘non-commercial’?
- How the definition is understood can be extremely broad, i.e. covers lots of activities and there are lots of grey areas. For example, are virtual learning environments covered for sharing content to support teaching?
- What is the librarian’s role? Should we be changing behaviour or just offering guidance? Divergence of opinion from research applicants so far
- Few institutions/individuals plan for risk in this area or even spend much time considering who is liable or responsible if content is then misused once shared under this exception, i.e. is it the lecturer or the institution?
- Some confusion between rules (i.e. definite yes/no things) and principle or standards, more support needed in sector to develop skills and confidence
- Collective codes of what is ‘fair dealing’ would benefit all institutions
Jane Secker spoke about the research she has undertaken to assess the value of licensing and how it applies to open access.
Data on scanning patterns (using CLA licensing) was examined to establish trends:
- A small number of institutions are doing most, if not all, of these CLA licensed scans
- There is no relationship between number of scans and subscription costs
- Evidence that institutions are wasting time of digitising or buying content that is already available via open access.
Copyseek was a forum to help/advice information professional who needing guidance on copyright legislation online. This was a Jisc-hosted forum that is now closed. A survey was carried out to find out how useful this service was in the sector. All positive feedback and core responses were that the site was very useful to professional work and librarians would like to see the forum developed into a permanent web-based guide.
The road to Dubai and beyond: case studies on collaboration
Alex Fenlon and Kate Vasili
Many universities are adopting different operational structures to develop programmes, find resource savings or increase revenue by enrolling more international students. While this can be potentially beneficial to support staff such as librarians, it presents unexpected logistical problems when ensuring adequate resource provision for students. Alex and Katie spoke about how decisions ‘at the top’ were often made in universities without proper time and space given to how this would impact on delivering services. For example, much of copyright law assumes that the student, the place when teaching will be delivered, and the place of the institution will all be the same. In the changing HE landscape this is no longer the case. For example, courses ‘by UK institutions’ are taught abroad. Due to country border copyright restrictions, non-UK based student enrolled at UK based institutions will not necessarily have the same level of access as those based in UK. How is this managed by library staff? How do we ensure that the systems facilitate legal restrictions on access across international student cohorts?
Some of the challenges were defined as:
- How is this navigated with publishers?
- Hidden costs in ensuring access across student
- Full cost of doing business
- Estimated 20% uplift in e-resources fees
- Limits on staff to support across international cohort
- Library is often ‘last to know’ when top tier decisions are made in universities
- Terminology can be inflexible concerning who is a ‘registered student’ and who is ‘staff’, i.e. PhDs, distance learners, students on courses split between institutions…
- Risk to getting this wrong is institutional and financial, i.e. if found to be in breach on copyright
- The need for honesty, openness and transparency
Developing a printed music licence for higher education
Lighting round, looking at a project to create a printed music licence for HE.
- No deal with publishers yet as some issues on costing, hopefully will be finalised by October 2019
- If your HE institution doesn’t teach music, then the licence should not be needed
- The licence would be optional
- There is currently printed music licensing for schools (PMLL) but not for higher education
- There is a genuine need for copying whole works of sheet music for students and tutors
Art UK’s risk management approach to orphan works
Art UK launched in 2016 and has 2.5 million users. It hosts 220,000 digitalised artworks by over 40,000 artists. As such, risk management in relation to copyright, in particular orphan works (i.e. copyrighted material whose creators are either unknown or uncontactable), is extremely important to the organisation.
Orphan works make up roughly 15% of all digitised images on the website. Staff at Art UK undertake specific steps in order to carry out due diligence when clearing rights for posting images to the site.
- Thorough searches are conducted to find out creators’ details, via internet searches and by contacting partner organisations who have expert knowledge, ancestry.com and archives are also used to trace artists
- Subscription databases are used, such as DACS or ‘watch copyright’ website searches
- ‘Art Detective’ project launched to gain help from public
- All searches, correspondence, decisions on rights clearance are documented and centrally stored in QI system
Once due diligence is completed, if works are ‘orphaned’ then Art UK will put up works. They are not risk averse as they thoroughly document and are very happy to apologise and take images down if artist or relatives get in touch.
This positive and proactive approach, i.e. not risk averse by default, could be a good example to libraries, archives and museums in how to manage risk in relation to digitising and hosting images, even for orphaned works.
Panel Discussion (final for the day)
Question from delegate: Are demands ever made (to organisations like Art UK) for royalties from creators/rights holders of works on the site?
Response from panel: When/if such enquiries are made, it is explained to the enquirer that we are a non-profit organisation. If a rights holder, we will take down the images if they are not happy, but we won’t pay money to them.
Question from delegate: If hard Brexit were to happen, what would happen to digitisation projects like those to make Spare Rib magazine accessible online. Would such works need to be taken down?
Response from panel: there are working exceptions in UK law that already allow for these exceptions so no further work should be needed in this area if a hard Brexit were to happen.
Question from delegate: How to deal with unknown artists copyright for projects like Art UK?
Response from panel: For orphan works, we put up 70+ copyright from circa date of work. We tend to put up even if artist is unknown as long as we have done due diligence as often this actually causes the rights holders to come forward for us to talk to, which is what we want!
Comment from delegate: Some confusion from other sections in regards to photography orphan works (i.e. worry about loss of income) but unfounded due to diligence searches and pragmatic approach
Comment from delegate: similar system piloted at Tate (as used by Art UK). So far, put online with the note to say ‘rights in limbo’ or similar and no one has yet complained.
Question from delegate: Does open access status make a difference to the behaviour of how people share?
Response from panel: Yes, this can establish a good ethos for brokering agreement
Question from delegate: when can copyright symbol be used?
Response from panel: always use copyright symbol with name or estate of creator and change the credit line as required.
Comment from delegate: currently then there is no ‘creative commons’ attribution, ‘all rights reserved’ is the default. Perhaps it could be ‘as standard’ ‘no rights reserved’ under non-commercial usage. Perhaps work on a rights statement during small digitalisation projects would map out what might be possible.
Comment from delegate: There is a website for guidance on orphan works – digitising morgan
Question from delegate: Issues can occur with how holds rights to content across countries, i.e. employees vs. employer. How do we navigate this?
Response from panel: Brexit will not change this problem; it already exists and has to be looked at on a case by case basis.
Question from delegate: What does ‘commercial’ actually mean in relation to copyright?
Response from panel: although more guidance in the legislation is needed, the below are some main thoughts –
- Document created by COA/BL (2013) on what is ‘non-commercial’. [Couldn’t find online, but below are links to other useful website]
- It is concerned with the activity and not the organisation
- Case law example to look at – HMSO vs. Greenamps: researcher gained access to resources via university (using student’s login) and the question of whether or not the access was for ‘non-commercial use’ was raised. It was found to be commercial due to the nature of the activity.
- Company research is currently uniformly classed as ‘commercial’ as it is in aid of commercial interests but could be seen as ‘non-commercial’ if for ‘in house’ training?
Question from delegate: How to deal with descendants? What happens if they disagree? (i.e. in the case of Art UK)
Response from panel: This will entirely depend on case by case basis. Often one person self elects themselves as representative for the estate.
Question from delegate: Has the EU been good for copyright in the UK?
Response from panel: “UK lawyers will moan”, but EU directives help to flesh out guiding principles. However, not always good when unelected officials (in Brussels) are pushing their own agendas.
Question from delegate: What are your thoughts on during metadata entry regarding declarations from creators and retention policies?
Response from panel: from a culture heritage perceptive, this is fully covered in professional standards but ‘contract literacy’ may be needed in sector regarding wills and deed statements regarding use of works.
Panel’s ‘take homes’ from the day
- Any solutions we come up with today won’t be ‘future proof’. We need to keep on thinking through problems and new situations as they arise
- Libraries/librarians need to use their ‘muscle’ with publishers and not be afraid to take on risk as long as they do due diligence
- There is lots of knowledge out in the community. It is only through events like these and online forums that this can be shared so we can support each other for the benefit of all
- Try to be brave when considering copyright. Don’t be risk averse by default!
- We are all still learning and there are no definite rights/wrongs when it comes to copyright as usually cases are extremely situational and there are many grey areas in the legislation.
- Try to apply the ‘how would you feel’ model when concerning a copyright holders’ stance on a situation. Ethics is a part of copyright and the ‘human’ component should not be cut out in favour of big companies stamping ‘all rights reserved’ over everything…
- Education for creators would be help in copyright law, in particular how creative commons works.
Further thoughts: on the day as a whole, we were given timely updates on core issues affecting copyright. Much time was spent on the fundamental principles that govern a librarian’s role in copyright guidance and what should be prioritised. It was extremely useful to hear some insight into how Brexit may affect legislation and in particular exceptions and how these are protected. Real world ‘tricky’ situations in which current definitions do not help (i.e. what is ‘non-commercial’?) were useful in illustrating what we can do now within current legislation to advise and inform and also what we would like to see adopted and added into UK copyright law for the future.
Hannah Dunne-Howrie, National Art Library