This is a piece I put previously on the Consilio Editor blog, but there have been changes in the Consilio empire so I don't know whether it's still available - in any case, I might as well have it here too, even if it is a bit old hat by now. I'll try to find the other pieces and post them here too.
I have looked in previous articles at the government’s proposals (or perhaps more accurately the proposals in the UK Intellectual Property Office’s consultation paper on exceptions to copyright) concerning format-shifting and parody. The consultation also covers three other areas dealt with by the Gowers Review of Intellectual Property, and for the sake of completeness I’d better write about them now, as the consultation closes on 8 April.
Accordingly, this piece is concerned first with extending the educational exceptions under the Copyright, Designs and Patents Act 1988 (sections 35 and 36), then with extending the exception for coping for research and private study, and finally with amendment of the library privilege.
Education
The two sections of the 1988 Act that deal with educational exceptions cover recording of broadcasts (section 35) and reprographic copying of passages from published works. In each case, the activity is permitted only if it carried out by by educational establishments, and the exception only applies to the extent that no licensing scheme applies. The Educational Recording Association and the Open University operate licensing schemes permitting the recording of broadcasts, and the Copyright Licensing Agency operates one for reprographic copying - but that does not mean that the sections of the Act are redundant, because there is still work for them to do outside the extent of those licensing schemes.
The Act’s approach of permitting educational establishments to use copyright material without payment until the copyright owners create a mechanism for granting licences (and collecting royalties) is a powerful incentive to put together a licensing scheme. Take payment fr the use of your works, the law says, but until there’s a collective licensing scheme the people who would otherwise be paying can use your stuff without charge. We might reasonably expect that an extension of the exceptions under these two sections would lead pretty quickly to corresponding extensions of the licensing schemes.
Both sections are limited in their usefulness by technological considerations. They were written in a different age. Only people actually on the premises of the educational establishment could be shown or allowed to hear recordings made under section 35, which these days does not reflect the way in which instruction is given, while section 36 applies only to reprographic copying, which effectively limits its usefulness to the production of handouts for distribution to students.
Gowers was keen to have the exceptions defined by intent, category of use and activity rather than by media, as the law does at present. Section 35 does not apply to delivery by web-based means, as in most cases internet transmissions will not fall within the definition of “broadcast”. Webcasts and on-demand transmissions are increasingly used in this area, and indeed in other areas of broadcasting, and interactive elements are often included. As for section 36, this would also broaden out the exception for the digital age.
It might not be necessary to carve out an exception for internet transmissions and on-demand services, as these are not protected by copyright, but they usually contain stuff that copyright does protect. To make a wider section 35 work, it would have to apply to the works that are included in the broadcasts.
These new distribution methods are functionally equivalent to broadcasts, so there is a compelling reason for bringing within the scope of the exception – especially bearing in mind that the main effect of the exception is to provide a incentive to copyright owners to put in place appropriate licensing schemes. But the consultation paper acknowledges that rights owners will be anxious not to see their DVD sales undermined by on-line delivery of the same content under an exception, and that material distributed in this was will be vulnerable to illegal copying. There is, the paper notes, a distinction to be drawn between on-line delivery of material that has already bee broadcast by traditional means or that complements a traditional broadcast, and material that is distributed only in this way. Views are sought on this point. But if material is broadcast in a traditional way, is it not enough that the broadcast may be recorded? Anyone who needs to take advantage of section 35 is able to do so when the broadcast takes place, and allowing them to invoke the same rights when the same material is distributed on-line is an unnecessary complication which might jeopardise the copyright owner’s rights. Where the on-line material is intended to complement the broadcast, then it should be subject to the same exceptions as apply to the main broadcast, but if there is a problem with allowing copying of on-line material it seems harsh to deprive the copyright owner of protection in the way proposed.
Gowers also suggested expanding section 35 to allow the copy to be communicated to students not actually at the establishment - that is, distance learning students. The method of delivery would, however, have to be secure so that the material would not become available to the public at large. Section 35 addresses the question of who may view the recording only by insisting that they are on the premises, and the consultation paper proposes widening this to include all who are “directly connected with the activities of the establishment” - like section 34, which deals with performances.
To ensure that only targeted pupils or teachers are able to see or hear the recordings, Gowers said that the showing should be in a secure virtual learning environment or VLE. Password-protection would be used to ensure that no-one except those permitted to view it would be able to gain access. But passwords are not terribly secure: what steps would the establishment be required to take to ensure that they were not divulged to people who were not permitted to see the recordings? Would pupils have to sign undertakings to keep the passwords secret? That hardly sounds likely.
The section 36 exception does not permit establishments to send material to students by email or other electronic means such as interactive whiteboards or VLEs, only to hand out hard copies. The exception needs to cover other means of “communicating to the public” if it is to be up-to-date, but there would need to be safeguards to ensure that all possible methods of communicating would be subject to security as rigorous as that provided by a VLE.
Then there is the question of who may be permitted access to the material, and again the answer is (probably) those people mentioned in section 34 to whom a school play might be open – a definition carefully crafted in the 1988 Act to make clear that parents might be present as well as staff and students. Again, questions arise about keeping passwords secret, and the same solution as is proposed in section 35 is likely to be adopted.
As for the range of works that should be covered by section 36, the present limitation to literary, dramatic and musical works – the only sorts of works that can be run through a photocopier, apart from typographical arrangements – is out of step with the possibilities of modern teaching technology. But if sound recordings and films were included, they would be made more readily available and this might have an adverse effect on existing business models – as discussed above in connection with section 35.
One problem for the government when considering changes to copyright (and many other areas of law) is the impact of European Community law (or what the consultation paper sloppily terms “European law”). Happily for the government, the information society directive makes no stipulations about what can and cannot be done in the education field, as far as the reproduction right and the right of communication to the public are concerned: so the proposals should not fail on this score.
Accordingly, this piece is concerned first with extending the educational exceptions under the Copyright, Designs and Patents Act 1988 (sections 35 and 36), then with extending the exception for coping for research and private study, and finally with amendment of the library privilege.
Education
The two sections of the 1988 Act that deal with educational exceptions cover recording of broadcasts (section 35) and reprographic copying of passages from published works. In each case, the activity is permitted only if it carried out by by educational establishments, and the exception only applies to the extent that no licensing scheme applies. The Educational Recording Association and the Open University operate licensing schemes permitting the recording of broadcasts, and the Copyright Licensing Agency operates one for reprographic copying - but that does not mean that the sections of the Act are redundant, because there is still work for them to do outside the extent of those licensing schemes.
The Act’s approach of permitting educational establishments to use copyright material without payment until the copyright owners create a mechanism for granting licences (and collecting royalties) is a powerful incentive to put together a licensing scheme. Take payment fr the use of your works, the law says, but until there’s a collective licensing scheme the people who would otherwise be paying can use your stuff without charge. We might reasonably expect that an extension of the exceptions under these two sections would lead pretty quickly to corresponding extensions of the licensing schemes.
Both sections are limited in their usefulness by technological considerations. They were written in a different age. Only people actually on the premises of the educational establishment could be shown or allowed to hear recordings made under section 35, which these days does not reflect the way in which instruction is given, while section 36 applies only to reprographic copying, which effectively limits its usefulness to the production of handouts for distribution to students.
Gowers was keen to have the exceptions defined by intent, category of use and activity rather than by media, as the law does at present. Section 35 does not apply to delivery by web-based means, as in most cases internet transmissions will not fall within the definition of “broadcast”. Webcasts and on-demand transmissions are increasingly used in this area, and indeed in other areas of broadcasting, and interactive elements are often included. As for section 36, this would also broaden out the exception for the digital age.
It might not be necessary to carve out an exception for internet transmissions and on-demand services, as these are not protected by copyright, but they usually contain stuff that copyright does protect. To make a wider section 35 work, it would have to apply to the works that are included in the broadcasts.
These new distribution methods are functionally equivalent to broadcasts, so there is a compelling reason for bringing within the scope of the exception – especially bearing in mind that the main effect of the exception is to provide a incentive to copyright owners to put in place appropriate licensing schemes. But the consultation paper acknowledges that rights owners will be anxious not to see their DVD sales undermined by on-line delivery of the same content under an exception, and that material distributed in this was will be vulnerable to illegal copying. There is, the paper notes, a distinction to be drawn between on-line delivery of material that has already bee broadcast by traditional means or that complements a traditional broadcast, and material that is distributed only in this way. Views are sought on this point. But if material is broadcast in a traditional way, is it not enough that the broadcast may be recorded? Anyone who needs to take advantage of section 35 is able to do so when the broadcast takes place, and allowing them to invoke the same rights when the same material is distributed on-line is an unnecessary complication which might jeopardise the copyright owner’s rights. Where the on-line material is intended to complement the broadcast, then it should be subject to the same exceptions as apply to the main broadcast, but if there is a problem with allowing copying of on-line material it seems harsh to deprive the copyright owner of protection in the way proposed.
Gowers also suggested expanding section 35 to allow the copy to be communicated to students not actually at the establishment - that is, distance learning students. The method of delivery would, however, have to be secure so that the material would not become available to the public at large. Section 35 addresses the question of who may view the recording only by insisting that they are on the premises, and the consultation paper proposes widening this to include all who are “directly connected with the activities of the establishment” - like section 34, which deals with performances.
To ensure that only targeted pupils or teachers are able to see or hear the recordings, Gowers said that the showing should be in a secure virtual learning environment or VLE. Password-protection would be used to ensure that no-one except those permitted to view it would be able to gain access. But passwords are not terribly secure: what steps would the establishment be required to take to ensure that they were not divulged to people who were not permitted to see the recordings? Would pupils have to sign undertakings to keep the passwords secret? That hardly sounds likely.
The section 36 exception does not permit establishments to send material to students by email or other electronic means such as interactive whiteboards or VLEs, only to hand out hard copies. The exception needs to cover other means of “communicating to the public” if it is to be up-to-date, but there would need to be safeguards to ensure that all possible methods of communicating would be subject to security as rigorous as that provided by a VLE.
Then there is the question of who may be permitted access to the material, and again the answer is (probably) those people mentioned in section 34 to whom a school play might be open – a definition carefully crafted in the 1988 Act to make clear that parents might be present as well as staff and students. Again, questions arise about keeping passwords secret, and the same solution as is proposed in section 35 is likely to be adopted.
As for the range of works that should be covered by section 36, the present limitation to literary, dramatic and musical works – the only sorts of works that can be run through a photocopier, apart from typographical arrangements – is out of step with the possibilities of modern teaching technology. But if sound recordings and films were included, they would be made more readily available and this might have an adverse effect on existing business models – as discussed above in connection with section 35.
One problem for the government when considering changes to copyright (and many other areas of law) is the impact of European Community law (or what the consultation paper sloppily terms “European law”). Happily for the government, the information society directive makes no stipulations about what can and cannot be done in the education field, as far as the reproduction right and the right of communication to the public are concerned: so the proposals should not fail on this score.
Copying for research and private study
Section 29 of the 1988 Act, as amended, permits copying of literary, dramatic, musical and artistic works, and typographical arrangements, provided it amounts to fair dealing for the purposes of non-commercial research and private study. Gowers recommended that it be extended to cover all forms of content – in other words, to bring sound recordings, films and broadcasts within the scope of the exception. Students of music and film might find this particularly helpful. However, rights holders might well worry about this: the exception, limited only by the requirement that the use be “fair dealing”, whatever that is, has in the past justified all sorts of things that could never realistically be considered fair. The idea that this particular Pandora’s Box might be opened up again will cause understandable concern on the part of rights holders.
The consultation paper floats four ideas for dealing with abuse of the exception: guidelines (something that was tried before, years ago, by the British Copyright Council, and withdrawn, which does not bode well); requiring a formal link to a course of study or an educational establishment; limiting the amount of a work that can be copied; and limiting the exception to particular courses or educational establishments. All are fraught with difficulty, but clearly if the exception is to be expanded but still kept under control some sort of constraints outside the straightforward wording of the section will be needed. In the absence of clear guidance, the one thing that can be predicted with absolute certainty is that some people will take great liberties under the impression (genuine or just assumed for convenience) that they are allowed to do so.
Digital rights management is an important issue here. Section 297ZE of the obviously much-amended 1988 Act provides for complaints to be made to the Secretary of State where a person has been prevented from copying a work which they would otherwise be permitted to copy under section 29, because of digital rights management systems being applied. This mechanism is already in place for the existing section 29, and would automatically provide the remedy demanded by the information society directive for any extension to the permitted act. This is another matter that causes concern to rights holders, who fear that it might have an adverse impact on their business models. The exceptions themselves should be of limited effect, though – the use has to be fair dealing and for the limited specified purposes – so the “workaround” of the notice of complaint procedure will rarely be invoked – or at least properly invoked.
Library privilege
Finally, Gowers recommended that the existing library privilege in section 42 of the 1988 Act should be amended to allow libraries to copy the master copy of all classes of work in permanent collection for archival purposes and to allow further copies to be made from the archived copy to mitigate against subsequent wear and tear. He also recommended that libraries be allowed to format shift archival copies to ensure that records do not become obsolete.
These recommendations seem at first glance irrefragable. It must be a Good Thing to put libraries in a position to preserve items in their collections. Chances are that preservation activities will have no copyright implications at all: if something needs preserving, it is likely to be so old that copyright will have expired. That is not, however, necessarily the case with films (although the 70 years pma term only applies to post-1995 examples of that art form, older ones being protected for 50 years from making or first release – still long enough for celluloid to suffer damage, though) or sound recordings (tapes need careful storage if they are to survive more than a couple of decades), so there is likely to be good reason why a library or archive would wish to carry out such preservation work and need a copyright exception. Suitable safeguards would be needed, and only the right sort of organisations should be allowed to benefit from the exception (the consultation paper opens up the possibility of reviewing the range of organisations, about which Gowers had made no recommendations). But all in all the issues raised in connection with these permitted acts are of less importance than the others reviewed above.
Conclusion
The review closes shortly and proposals for legislation will follow. Whether the changes will follow the models described in the consultation paper or not remains to be seen – but this is clearly a document more in the nature of a white than a green paper.
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