Copyright in an electronic
environment
Andrew Braid
Licensing and Copyright Compliance
The British Library
OUTLINE
Introduction
Brief background on copyright
Electronic copyright
Current position
Future
2
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)
3
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

SI 03/2498 Copyright and Related Regulations 2003
4
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
Unpublished works
Each has subtly different rules and traditions (unfortunately)
5
OWNERSHIP
The author
The employer
The commissioner (since 1989)
The Crown
Can be overruled by contract
6
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
7
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
8
ADVANTAGES OF LICENCES
Licenses can be tailored to the circumstances of different
works, authors, publishers and distributors, with specific,
variable terms and conditions
Contract terms can be negotiated, renegotiated, and then
negotiated again
Global contracts across national legislation
9
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
10
EXCEPTIONS - LIMITATIONS
Three major limitations:
 Quantity
 Duration
 Purpose
11
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
12
DURATION
Copyright normally expires on 31
December 70 years after death of author
Exceptions








Official publications
Unpublished works
Anonymous works
Sound recordings
Films
Photographs
Maps
Others
13
PURPOSE
Various uses are allowed without the owner’s
permission

Fair dealing

Educational copying

Public administration

Libraries and Archives
14
PURPOSE - FAIR DEALING
Allows individual users to copy for:

Non-commercial research or private study

Criticism or review
 Reporting current events
15
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)
 Recording broadcasts (unless a licence exists)
 Copying up to 1% of a work (unless a licence exists)
16
PURPOSE - PUBLIC ADMINISTRATION
No limits when copies are required for:
 Judicial proceedings

Parliamentary proceedings

Statutory inquiries

Royal Commission
17
PURPOSE – LIBRARIES AND ARCHIVES
 Permits librarians to make copies on
behalf of users



Strictly controlled
Does not apply to artistic works
Preservation and replacement copies
18
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
19
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
under his sole control, and
 linked to the data to which it relates in such a manner
that any subsequent change of the data is detectable
20
EXCEPTIONS ARE A DEFENCE
Exceptions do NOT provide guaranteed
immunity against an infringement action
You would have to prove you passed the three
step test
Can be risky
21
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
22
ELECTRONIC COPYRIGHT
Everything in machine readable form is in copyright
Includes digitised images, e mail, Web sites, ejournals, 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
23
IMPACT OF TECHNOLOGY
Copyright has always been a tension
between owners and users
Up until recently, that tension was controlled
by limitations in technology, but no more
24
WHAT IS HAPPENING TODAY
P2P file sharing
Transfer of materials from one medium to
another
Wide-scale infringement of images, text
Wide-scale piracy of music, software, films
25
E-CONTENT PROTECTION:
The Triple Lock
1. Copyright/
Database Right
3. Technological
Protection Systems
E-Content
2. Contracts and Licensing
26
MAIN CHANGES IN COPYRIGHT LAW
since 1988 Act
length of term – 50 to 70 years;
 protection of databases;
 protection of software;
 EU directive (2003)
 exceptions limited to non-commercial purpose;
 restrictions on communication to the public;
 protection for rights management information;
 protection for technical measures.

27
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
28
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?
Onus is on patron to make an honest declaration
29
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
work, the author or any other rightholder, or information about the
terms and conditions of use of the work or other subject-matter,
and any numbers or codes that represent such information.” For
example, “All rights reserved. © Andrew Braid 2006”.
30
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
intention is to enable circumvention of TPMs for the
purpose of infringement
31
PROBLEMS OF 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?
32
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
available at http://www.bl.uk/services/information/copyrightfaq.html
33
IN SPITE OF THE CHANGES IN LEGISLATION
It is said that copyright infringement is the most common
form of law breaking in the UK today



Even more common than speeding
Yet how many actions for infringement take place each
year?
It seems that even the owners do not have confidence in
the law
34
WHAT’S WRONG WITH COPYRIGHT TODAY?
Reacting to the threat of the digital age
Little objective evidence that strengthening copyright law
improves the economic situation for rights owners – see also
EU report on economic effect of database right
Changes in technology have often preceded changes to
traditional roles, the collapse of old business models and the
development of new business models
Copyright has existed for 300 years but that does not mean it
has the right to continue to exist!
35
TO SUM UP





Copyright law has swung too far in favour of owners, say
the users
There is wide-scale infringement going on, yet copyright
owners are reluctant to take action
Owners are increasingly relying on TPMs and contracts to
protect their interests rather than copyright
Millions now use Creative Commons licences and Open
Access because they have no interest in commercial
exploitation of their works
Do we need copyright at all?
36
COPYRIGHT AS A BUNDLE OF RIGHTS
Rights to:
 Control copying
 Attribution of authorship
 Control modification, adaptation or derivation
 Compensation for commercial reuse
 Personal reuse, adaptation
 Post in web repositories and on other web sites
 Licence others to do the same
37
SOME SOLUTIONS – I
Open Access
Open Access occurs when full-text journal articles, plus other
research information are made freely available on-line.
 Author (or employer) pays for publication
 Receives free and unlimited access to other materials
deposited in the same archive under the same conditions
 Favoured by commercial publishers
 Nobody pays
 Everyone deposits material for free
 Everyone who deposits under this model is granted equal
access to all material
 Favoured by academics creating their own archives
38
SOME SOLUTIONS - II
Creative Commons

You are free:
 to copy, distribute, display, and perform the work
 to make derivative works
 to make commercial use of the work
 Limitations
 Attribution. You must give the original author credit.
 For any reuse or distribution, you must make clear to
others the licence terms of the work.
 Any of these conditions can be waived by the copyright
owner if asked to do so
39
WHAT IS THE GOVERNMENT’S RESPONSE?
 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
40
BACKGROUND TO GOWERS
DTI, DCMS and Treasury
Over 500 responses
Growing recognition of Public Value
41
CONTACT
Andrew Braid
Licensing and Copyright Compliance
The British Library
01937 546030
andrew.braid@bl.uk
but not for much longer…….
42