SCA Blog

The Gowers Review of intellectual property was published in December 2006. The UK’s Intellectual Property Office has now issued a consultation paper proposing a number of changes to the copyright exceptions. The intention of this consultation is to assess how these modifications might be made in order to “… improve access to and use of copyright material for individuals, students and libraries”.

Responses to this consultation are due in by 8 April 2008 and the SCA is planning to submit a response informed by this meeting. In a content rich society, one which purports to support and value the role of the knowledge economy, critics of these proposed measures have voiced that these modifications do not go far enough.

Professor Charles Oppenheim, the SCA IP consultant, led a group of interested parties at the Shaping the Future forum at the British Library on 19 February to discuss:

• Are these measures fit for the digital age?
• What additional modifications should be incorporated in order to encourage the flow of content?
• What are the key areas in which the SCA should be actively lobbying the UK’s IPO in response to the consultation?

Read on for the full discussion and, at the end, a summary of the points agreed.

Charles Oppenheim: The principle is that the more submissions that go in the better. The SCA should put in a submission as well as individual members. So we need to identify the key issues worth highlighting – the gaps, the responses to some of the questions and so on. I’m happy to go through these in terms of different headings such as format shifting, archiving…

Tim Padfield: The more responses the better as long as they are not identical

Charles Oppenheim: Identical responses could be counter productive indeed. So the message I’m getting is that SCA should put in comments but should not be identical as others. So if we look at the document itself there were a number of headings where there were questions and proposals.

Education

The first was about education and in particular whether current exceptions for educational establishments are fit for purpose in the current environment. One point I would suggest is that it is closely tied to educational institutions but a lot of education goes on with other kind of organisations, not necessarily recognised higher education schools etc. Is that an issue to raise?

Tom Morgan: Very much so – museums etc often engaged in work which is closely related to schools and it seems frankly bizarre to limit it in this way – of course distinctions will be perceived by one body or another as arbitrary but it does seem like a strange place to draw the line – the type of institution rather than the activity

Charles Oppenheim: yes, should be about medium not about site

Tom Morgan: point about types of research and lifelong learning

Barbara Stratton: these are distinction which already exist – it rules out support activities

Charles Oppenheim: yes, in terms of the rigid way it has been worded it is only asking for a response to the question but I don’t see why we can’t open the debate

Ralph Weedon: yes, JISC is getting invoved in workplace learning and so that also need to be considered

Charles Oppenheim: yes, it cuts across general government policy that education should cut across these kinds of distinctions

Ralph Weedon: also occurred to me that different licensees often have different sets of licences according to which part of the education system dealing with…

Laurie Kaye: I do a lot of work in the commercial sector and am doing a submission for UK publishers. They are also trying to find a solution, being pragmatic. It is important that each group listens to the other and from the prism of the rights holder how we accommodate the need to update these exceptions while not undermining on-demand systems – there is some fuzzy language

Charles Oppenheim: if we stick to the educational aspect then seems to be a consensus that might be worth raising the question that why is it not being extended to museums and other cultural organisation who play an education role. Any objections to extending it to distance learners?

Kate Leece: it’s well overdue – not recognised in reality – BBC came up against this problem years ago with schools wanting to allow access to children not in schools

Charles Oppenheim: issue of ERA – there is material we would benefit from if this exception was extended

Laurie Kaye: the exception should sit alongside the licence – so there is a mechanism for rights holders to avoid having this exception foisted on them

Ben White: one thing we have done at the British Library is to say there are generic issues why exceptions are more attractive – is it worth a back to basics here and to set out what are the advantages of exceptions and the drawbacks of collective licences

Charles Oppenheim: could say something in an SCA submission about why we believe such exceptions are important and sit side by side with licences - I think an extension of exceptions would encourage the creation of more licencing schemes

Barbara Stratton: I don’t know what a distance learner is in this context – is it a person who is registered as a Distance Learner or anyone who is accessing the works off campus? It should be anyone – part-timers, disabled students, those working at home

Tim Padfield: there is a risk in defining it as they might define it as something much more narrow

Charles Oppenheim: we will have to wait for the draft SI to see how they define it

Tim Padfield: if all they say is that it covers distance learners then…

Charles Oppenheim: often criticise the copyright act for its vagueness of words but have been told it is quite deliberate in order to encourage debate – there are cases where it can be helpful – the more precise the terminology the more restrictive it can become

Ralph Weedon: two areas I have come across are firstly, universities who have an arrangement with universities in other countries so that they have students who may not even be registered with your university and just spend some time there – that can create all sorts of issues – and secondly the issue of FE students being taught in FE/HE institutions and access to certain online journals – there is a risk that they might be discriminated against according to what kind of student they are

Charles Oppenheim: that goes back to inconsistencies in licences

Tim Padfield: same argument as MLAs

Charles Oppenheim: ok, so simplification and consistency means greater respect for copyright from everyone

Ralph Weedon: government is still pushing for access and equality to education so would think that anything that’s an obstacle to that should be avoided

Jordan Hatcher: shouldn’t we attempt a definition?

Charles Oppenheim: well, we’ve struggled on for years and there have been stunningly few cases about it…

Jordan Hatcher: but if there were to be litigation it could get the distance learner issue narrowed and that would make it harder for the user…

Charles Oppenheim: but rights holders may also be reluctant to litigate in case it turns out worse for them. It’s a kind of double bluff.

Jordan Hatcher: I wonder how credible the threat to “go ahead and sue us” really is? My open rights group is going to look at parody in our submission and one the questions is whether to further define it and one of the issues is do we like the dictionary definition? That’s what might happen in an actual case so by offering a definition are we helping or hurting ourselves?

Charles Oppenheim: I would be more comfortable if we kept it more vague and say that this exception should apply as broadly as possible to all types of learning situation without suggesting a definition or asking IPO to provide a definition

Format shifting

Charles Oppenheim: let’s move on to format shifting. Not sure if it really applies to SCA members

Jordan Hatcher: in terms of better copyright leads to greater respect, this is one issue we’re going to bring up with the open rights group because format shifting is an area where the consumer has strong views that it should be allowed to do it so if the overall theme is simplicity for copyright then format shifting fits into that

Ralph Weedon: and trying to police it is impossible. Academics are almost certainly format shifting

Laurie Kaye: the music industry probably recognise and accept the broad principle but the devil is on the detail

Tom Morgan: distinction between broad and tight definitions – for format shifting the broad principle doesn’t make sense in terms of user behaviour and it is simply not economical to pursue infringement at this level, or even at higher levels. It will not recover cost of litigation. What actually protects intellectual property is the culture of respect for property – it’s built in – and the cultural aspect is a really important focus of the activity post-Gowers

Jordan Hatcher: important to see copyright law as accessible and reflective of cultural norms. Adverts from the motion picture association are an example of an attempt to try to change the norms. In terms of parody, legisation is consistently looking to increase enforcement levels so need to keep in context that while it may be hard to bring a case now, in the future it may become easier

Research and private study

Charles Oppenheim: moving on to the research and private study exception and possible extension to other media…

Tim Padfield: we don’t want the IPO to define research

Paul Pedley: and it shouldn’t just be people on registered courses

Charles Oppenheim: this excludes an awful lot of bona fide research

Tim Padfield: we are already protecting rights by limiting it to non-commercial research

Paul Pedley: they are not taking on board how much they are taking away

name removed: this is the worst part of the whole document – it is so bad and so muddled and it is also the most crucial

Ben White: there seems to be confusion in the consultation document about what the intention of Gowers was in relation to this section – Gowers definitely wanted to extend it to sound and film and broadcast so we don’t think there are any question marks about this – Gowers is absolutely clear that it should be extended – in the consultation document they are trying to say that there is some doubt – also libraries should monitor the use as a trusted third party

Tim Padfield: there is better protection from libraries than

Ben White: nobody’s going to copy from any recordings in the British Library sound archive as they can’t even touch them! It’s not realistic

Charles Oppenheim: it should cover all types of work, irrespective of medium

Barbara Stratton: have to pick up the point when they get it wrong as government said they accept all the recommendations of Gowers so need to treat it like Gowers is the directive and the consultation document has implemented it wrongly

Paul Pedley: in implementing Gowers they keep questioning it and diluting the spirit of Gowers

Archiving

Charles Oppenheim: what about libraries and archives and the preservation copying proposal about current limitation on kinds of material that can be copied be extended and by how many can be made in case of digital?

Tom Morgan: how relevant is the number of copies in the digital sphere?

Ben White: should be limited by reasonableness – in Germany it’s the strange and precise figure of 8 – but we don’t really know how many we will need – it should be reasonable – the number of copies deemed necessary and for good practice

Tom Morgan: but the purpose is central because unless we have a clearly stated purpose the rights holders will not be happy and we should be clear that copies will not be available for any other purpose as that would be infringement – discussions with rights holders group suggested that they would be in favour of format shifting for preservation purposes as helps them

Ben White: it supports the market in a number of ways – libraries ask for the material to be available in perpetuity so by having it in law it supports their own institutional sales. A certain Dutch publisher and a music publisher have both recreated their back catalogues from the British Library holdings

Tom Morgan: so it sounds like we’re pushing at an open door but the important issues for us are the issues of detail – not being over-specific

Charles Oppenheim: and also should it just be libraries or also museums etc?

Kate Leece: BBC also interested in that as we have to archive a certain amount

Tom Morgan: from the users end of things we know that there are hundreds and thousands of infringing copies because we have had to just get on and do it otherwise we lose them – and we also have to very actively assess risk not just in terms of not offending anyone but in terms of duty and the understanding that the duty to preserve and disseminate overrides the at least theoretical risk of infringement

Ben White: so what could the wording be that covers not just libraries but also museums, galleries and BBC and other organisations?

Charles Oppenheim: it just talks about archives without specifying what an archive is

Barbara Stratton: but do we want them to?

Charles Oppenheim: well, some museums may not be classed as an archive?

Barbara Stratton: but there is a list of museums and galleries which could be used?

Tom Morgan: yes

Kate Leece: might be too narrow at this point?

Tim Padfield: in the regulations a library is defined but not an archive

Ben White: as a group it would be good to come up with an agreed wording

Charles Oppenheim: that could be a recommendation - that the SCA find a way of defining museums and other appropriate cultural institutions for this purpose

Parody

Charles Oppenheim: so, parody…

Laurie Kaye: I see no need for this exception. Plus in Europe it is bounded by strong moral rights

Charles Oppenheim: it would have to be tied to a stronger moral rights

Jordan Hatcher: in terms of parody there are other forms of legislation that can cover it

Charles Oppenheim: I’m not detecting a consensus view – might be one for individual members to address rather than SCA as a whole

Jordan Hatcher: people in the UK would be very surprised to hear that parody is not actually allowed so if part of this is that the law should better reflect people’s perception of the law then that might be a good argument

SUMMARY OF POINTS Education

• issue: definition of ‘educational establishments’ in law. Museums and galleries also educational role. Extend definition? Not just exception?
• BUT need to avoid undermining new business models
• principle of extending S35 to distance learning accepted as needed
• consider advantages and disadvantages of widening exemptions v collective licensing
• should we seek definition of ‘distance learner’? Could be too narrow?
• principle should be applied as widely as possible
• issues around international students/students with more than one university/different countries
• simplification and consistency = greater respect for the system
• does vagueness raise risks for litigation?

Format shifting

• users believe they can - creates poor view of copyright
• issue of economics - not worth pursuing individual, personal use. Cultural issue
• at EU level, more emphasis on enforcement
• TPM in danger of overriding this exemption (applies across the board)
• question of levies - Gowers thought no need

Research or private study

• do not want IPO to define either or both
• IPO trying to restrict but already restricted to non-commercial research
• poor section - needs putting straight!
• Gowers’ proposal to extend to sound, film and broadcast should be media independent
• better protection here already than under Fair Dealing
• library privilege should include artistic works, sound, film and broadcast
• Government has already accepted Gowers’ recommendations in Budget Report so should remind them - consultation doc is a dilution
• should apply to museums etc as well. Key available, sign declaration
• library deposit copy should be TPS-free

Libraries and archives

• current limitation on type and material should be extended
• additional copy for preservation purposes - BL argue ‘reasonable’: number of copies deemed necessary for purpose of preservation
• supports rights holders interests
• extend to other institutions? How to define?
• overriding ‘public interest’ exemption
• SCA to consider way to identify other cultural institutions over and above libraries

Parody

• no need for exemption?
• want a definition
• would need to strengthen ‘moral rights’ if introduced
• is covered by other legislation (passing off)
• could help in HE/FE - greater clarity could help
• this is an issue for individual members, NOT the SCA