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Copyright: back from the dead and fit for the internet age?

Frances Anderson from VWV looks at the issues of copyright in higher education in this digital age

A few years back, a prominent politician at a media conference declared that, overwhelmed by internet piracy and the challenge of digital technology, copyright was ‘dead’. Those involved in university teaching and research may have some sympathy with this view, given the restrictions it imposed on use of modern tools to disseminate, analyse and preserve copyright materials.

However, conference delegates with a sense of history had reason to doubt his analysis. Copyright has been threatened by technological changes before, yet copyright owners and legislators have so far always managed to secure reforms, enabling copyright to adapt, survive and thrive.

Copyright reform – the daughter of invention

Students of copyright will know that it has evolved constantly in response to technical and social changes. Examples abound – early on, balancing the interests of authors, publishers and the public arising from the arrival of the printing press; later, with the invention of gramophone records, the law being updated so that composers benefitted from the sale of recordings of their compositions. Copyright protection of films came with moving pictures, performers obtained legal protection against bootleg recordings of performances in 1925, and in 1985, legislators felt it necessary to provide statutory confirmation that computer programs were indeed copyright works.

Copyright owners have also responded to these challenges with the development of collecting societies, at first so they could collect royalties from record companies and entertainment venues and distribute them to composers and publishers. Later, in response to rapid technology changes in the 1970s, other collection societies sprang up to deal with artistic works, newspapers and reproductions for educational purposes.

The call for change

A growing awareness of the value to the UK economy of its knowledge and creative industries and institutions, and the challenges implicit in new digital technologies, led governments to commission a series of reports on intellectual property in the early 2000s. In 2010 the Prime Minister announced a review of intellectual property law, to ensure that it was ‘fit for the internet age’. Professor Ian Hargreaves led that review, which in 2011 proposed changes to improve use of copyright works in a digital context, ensuring that rights could be licensed speedily and protected effectively.

Benefits for higher education

In addition, he challenged the government to deliver modern copyright exceptions taking into account technology changes, to aid non-commercial research, teaching, library archiving, and data mining, all of which would have a beneficial impact
on universities and research organisations. Legal changes have been introduced in the last couple of years to meet these challenges.

Teaching, research, archiving and data mining

The law has been changed to facilitate multi-media teaching and distance learning without infringing copyright, extending its scope to certain artistic works, films and sound recordings, recognising the realities of modern teaching methods.

Extracts from all types of published copyright works can now be copied for non-commercial research purposes – including films, broadcasts and sound recordings. Libraries, educational establishments and museums can now offer access to such copyright works via electronic terminals for research and private study. 

Archives can now make copies of all types of works in their permanent collections in order to preserve them, where they cannot otherwise be easily replaced – including sound recordings, films, broadcasts and photographs.

Text and data mining of copyright work for non-commercial research and analysis is also now permitted without having to obtain the consent of the work’s owner, provided the researcher first acquires a copy of the work lawfully.

Orphan works

A new scheme enables the use of copyright works, whether for research or commercial purposes, where it is not possible to obtain permission from the copyright owner because their identity is unknown.

The scheme involves the granting of licences by the UK Intellectual Property Office in return for fees which are then held for the copyright owner in case they come forward in the future. Prospective licensees must undertake extensive due diligence first, to seek to identify the authors of such works and obtain licences direct from them, before applying for a licence from the IPO.

This went live at the same time as an EU Directive, which enables cultural institutions to digitise and display on their websites certain types of orphan works for non-commercial purposes. The UK scheme is more ambitious, permitting both commercial and non-commercial exploitation of all types of copyright work, and creating an opportunity for rights owners to collect revenues from licensing.

Extended collective licensing and copyright hub

Two further Hargreaves recommendations related to facilitating lawful licensing of copyright works in a digital environment.

The first involves existing copyright collection societies extending their scope of activities beyond licensing works on behalf of their members, to all works in their field of operation – subject to individual (non-member) copyright owners having a right to opt out of the scheme. Enabling legislation is now in place – though it is not clear what appetite collecting societies have to play this role. Hargreaves also highlighted the need to regulate collection societies to ensure that they operate fairly and openly – and there is a forthcoming EU directive on these societies aimed at facilitating cross border licensing.

The second is a forum for licensing copyright works more cheaply and easily, recognising that while it is easy to find visual, musical and literary content online, it can be much harder to identify its owners and obtain permission to reuse such content. The ‘Copyright Hub’, a new kind of exchange for digital content users, is being developed with support from government and industry bodies. Research continues on ways to identify different types of copyright works, link them with their owners and develop a low-cost licence exchange.

Consumer rights and other exceptions

Recent legislative changes have also:

  • Brought the UK closer to Europe in permitting limited format shifting – permitting people to make copies for personal use, from CDs, e-books or other copies of works which have been lawfully acquired.
  • Made it easier for disabled people to access copyright materials, by extending the scope of such rights beyond visually impaired people to anyone with an impairment, and the range of materials covered has been extended to include films and broadcasts.
  • Permitted people to make limited use of creative materials for caricature, parody or pastiche and to make longer quotations from works without the permission of their rights holders.

A shot in the arm for copyright?

For copyright users and consumers, including university academics, librarians and archivists, these recent changes should be welcome, as they address at least some of the challenges posed by new technology, achieving greater format neutrality, and removing some anomalies which, arguably, should have gone some time ago. They also provide clear evidence of the continuing utility and adaptability of copyright as a means of supporting copyright owners and the creative industries. However a number of people are now calling for greater harmonisation of copyright law between EU member states and further reform to reflect modern methods of accessing and using information – so the evolution of copyright continues.

Frances Anderson is a Consultant Solicitor with leading education law firm Veale Wasbrough Vizards (www.vwv.co.uk). For further information on intellectual property please contact Frances on 0121 227 3708.

 

 

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