A Fair(y) Use Tale: a short film by Eric - PowerPoint Presentation

Slide1

A Fair(y) Use Tale: a short film by Eric

Faden

, YouTube, 2007Slide2

It’s that law that’s the problem!

or is it?

Everyday with copyright

Graham Titley

Plymouth UniversityJune 2016 I hereby assert my right to be identified as the author and creator of this presentation.

COPY RIGHTWITHPLYMOUTHUNIVERSITY

File corrected

1

st

July 2016Slide3

What is Copyright?

Copyright is

the

legal framework

:- to determine what is a protectable work

;- defining authorship, ownership and protection of works;- defining the uses that can be made of a work without seeking a rights owner’s permission.....in a nutshell....Slide4

Copyright is...

Part of a suite of protections known as

Intellectual Property

, also includes:Patents

DesignsTrademarksand frequently they and other laws overlap!Slide5

In some way intellectual property laws cover or has covered just about everything made by man since 1709!

Started small – with written works (Statute of Queen Anne, 1709) - and has grown as invention, knowledge and discovery has grown!Slide6

Copyright covers these works:

(CDPA 1988 (as amended to 2014) – www.ipo.gov.uk):

s3: Literary

, dramatic and musical works;

s3A: Databases;s4: Artistic works;s5A: Sound recordings; s5B: Films;

s6: Broadcasts;s8: Published editions.s191A: Performers and PerformancesSlide7

Still not covered by copyright are:

ideas

– unless you write or record them.

facts – whether scientific, historical or biographical (eg: your name!). (Strawman fallacy)

your image!no ‘copyright’ in UK;celebs mostly use trademark and/or privacy laws.(although Rihanna managed to use ‘passing off’ (a ‘mix’ of copyright and trading laws) to get a shop retailer (

TopShop) to withdraw some t-shirts with her picture on because she hadn’t given permission!).Slide8

Ownership is key

‘Owner’ has more rights than ‘creator’!

should always be creator/author...

BUTnot if an employee and is part of what paid to do (unless otherwise agreed); (except Crown, Parliament and some int’l orgs.)not if a contract states otherwise;

often affected by ‘sales’,Owner licencing,wills!Slide9

so sometimes (or is it

most often

?) ownership is obscure

!

Who owns this presentation?

COPY RIGHTWITHPLYMOUTHUNIVERSITY

Should this have appeared on the title page?Slide10

Creator always retains Moral Rights.

C

annot give these away; only choose to not enforce them!

right to be identified as creator – but only if assert it! (eg: statement or signature on painting);prevent misuse/misattribution;

prevent reputation damage (object to derogatory treatment);right to privacy in photographs or films commissioned for private and domestic purposes (can prevent issuing, showing, and communicating to the public!).Slide11

Duration

Literary, dramatic, musical or artistic works (s12)

70 years from end of year of death of creator.

Film (s13B)

70 years from end of year of death of the lastto die of 4 specified roles.(other rules if persons in roles not known).(different 1957-1994; different again pre-1957).

Broadcasts (s14)50 years from end of year of broadcasting.(should note: a repeat of an out-of-copyright broadcast does not restart period of protection).Published Editions (s15)25 years from end of year published.Slide12

Sound Recordings (s13A)

50 years from end of year made; or

70 years from end of year officially published or officially

made available to public by playing or communicating. (70 years applies only if published or made available within the

50 years from made period!).Performance (s191)50 years from end of year of the performance; or

50 years from end of year an official recording of the performance is released, played or made available to the public; or70 years from end of year if a sound recording released.(terms for recording and sound recordings only applies if released or made available within the 50 years from made period!).Unpublished works (s154(4)(a) & Schedule 1 12(3))Out of copyright on 01/01/2040 if author died before 1969.Otherwise authors death plus 70 yrs.Slide13

Copyright is a ‘dynamic’ subject!

Most recently - Statutory Instrument at end of May.

This removed the protection of showing or playing a film to the public (under free admission) when it is part of a broadcast.

There has been at least 1,350 statutory changes to CDPA since 1988 and uncountable number of cases! (One of which even allowed a modern author to ‘reclaim’ full copyright in works from 17

th/18th C!)Slide14

Only the owner can

copy

issue copies to the public

rent or lend to the publicperform, show or play the work in publiccommunicate work to the public

make an adaptation (which includes translation)......except when there is an exception!

(What is a ‘Copy’?)Slide15

Content users need the exceptions!

Fair dealing for research & private study (s29);

Text and data analysis (s29A);

Fair Dealing for criticism, review, quotation, news reporting (s30);work made available; use is fair;

use only as much as necessary; source acknowledged.Fair Dealing for purposes of caricature, parody, pastiche (s30A).Slide16

Non-commercial establishments also need the exceptions!

Disabled persons (accessible copies) (s31B);

Illustration for instruction (s32);

includes fair dealing for examination.Performing or playing in education (s34);

Recording of broadcasts in education (s35);Copying and use of extracts in education (s36);Lending of copies in education (s36A);Lending original items by all (s40A);Making works available through dedicated terminals (s40B)Slide17

Copyright everyday

is a ‘tiptoe through the (h)ells’ of

law licence

and la risqué!Slide18

ILL and Document Supply

CDPA s28A Making of temporary copy to enable transmission and lawful use

transient or incidental [or] integral and essential; must have no economic significance.

CDPA s41 Copying by Librarians: supply of single copy to other libraries. Intended to cover supply of those ‘difficult to trace the owners of’ works.

CDPA s42 Copying by Librarians: replacement copies. original and copy become reference only (can only loan to another library).Slide corrected 1st July 2016Slide19

ILL and Document Supply

CDPA s42A Copying by Librarians: single copy of published works.

C

overs ILL/Document supply in response to request and declaration.

Can supply journal articles and ‘reasonable proportion of other published works’. Can source from another library.

A contract cannot prevent an act that would be allowed under this clause – so can supply even if terms say you cannot!Slide corrected 1st July 2016Slide20

ILL and Document Supply

ERA – Educational Recording Agency Licence

Make and share recorded free-to-air broadcasts

CLA - Document Supply Licence

Library licenced to provide articles, book section copies and CFP (‘hidden’ licence; only library CLA has ‘outed’ is BLDSC!).CLA - Copying Licence (now incl. NLA) but is only for copies for a course of study or

your ‘business’ (includes book copying for this purpose)(also allows some licenced bodies to exchange ‘licenced’ copies).Slide21

This slide removed 1st July 2016Slide22

This slide removed 1st July 2016Slide23

We do have a collective ‘power’ to change

practice

Growth of gathering an electronic signature was evidence that helped bring about the

demise of the actual signature requirement!Challenge!

Push the boundaries! Can we do the same by making use of the temporary copy exception to improve efficiency of delivery for lawful use?Slide24

Your everyday questionsSlide25

Receive a request for a copy of a book chapter and the introduction. Is this two single separate items or does the introduction not count as a chapter?

Answer – they are independent and count separately. Only chapter connected notes/references can count within a single copy.

Is

it

only OK if within the 5% limit?

Yes, could copy if within 5% limit and for local use.However.....Slide26

Answer can also depend on the reason for request!

1) If for student course use/DLE/your ‘business’:

either

CLA licence applies – for HEIs soon to be the greater of 10% or 1 chapter if publisher participates; {5% or 1 chapter for other sectors}or

CDPA s36 5% (as print or secure network access).2) If for requestor’s own personal use: Get them the book! User can decide if copying is fair and copy themselves

.Slide corrected 1st July 2016Slide27

3) If for another library:

CDPA s42 allows you to supply a ‘reasonable proportion of any other published work’.

If you decide that it is reasonable to include the introduction and a chapter then must be prepared to defend that decision if challenged.

A Contract/licence cannot prevent the supply of anything that would be allowed under this section, so other non-article based content (e.g.:

Elsevier Clinical Key) could potentially be used.

Slide corrected 1st July 2016Slide28

Receive request for 2 articles from same issue?

1) Theme issue/supplement

No – counts as an ‘issue’ & 1 article per

issue (s42A).

(but can provide copy of whole part if ‘one’ article!)2) Article in multiple parts

Yes – no ‘evidence’ for this but it is ‘reasonable’ to consider that part 1 and part 2 constitute sections of the same ‘whole’ article. (bear in mind this is opinion and colleagues have the right to decide their own position!)Slide29

3) Journal issue over 70 years old

Yes - publisher copyright lasts for 25 years.

(in 2016 = 1990 or earlier) CDPA clearly only applies to works in copyright, so if published version is out of copyright then can be copied!

(remember though – the words are 70 years from death of author, so supply under the same ‘rules’ – for private study and research and not for sharing).

Slide corrected 1st July 2016Slide30

4) From same user

C

an rely on the Declaration

[Declaration is not false! – you only ‘declare’ not had a copy of the specified article before.]

Second and subsequent articles should be CFP – the ‘fee’ is passed to the owner. Can be expensive!Practical alternative (but becoming more difficult due to digital first strategy!) –

can you borrow the part for the user? They can then use own judgement to decide if copying is fair dealing for private study.BUT if you become aware of this situation then you are professionally and legally obliged to act to fulfill s42A(1)(a) “one article in any one issue”.Slide31

Readers who, for whatever reason, cannot download SED ask us to print it, rescan it and email a pdf.

No definitive answer on this one – it’s an assessment of risk!

HESS/DS service agreement does allow processing and handling – but does this qualify? You

are bypassing any embedded, provider service-required rights management

and downloading something not created for you and, generally, providing an unrestricted copy!BLDSC moving

from DRM/File Open to a personal account. This should help as user logs in online and downloads the pdf (with 3 year shelf-life!).Slide32

Assuming exhausted BLDSC help, this becomes more about assisting your user

- ‘

Service’ first mentality

!Work with user to resolve technical issues.

Use only as a ‘last resort’ available solution. If was an absolute technical necessity – perhaps!You must reiterate that the copy supplied is for their own personal use and cannot be shared by any means.

Better still, talk to BLDSC to find a better document delivery solution!Slide33

S

upplying another library from e-journals.

Previously advised must print; rescan; save to hard drive; send via drop-box or email; delete from hard drive.

CDPA s42A makes no distinction between print and electronic,

and states a contract cannot stop you supplying. How you ‘supply’ is not defined!Therefore you can supply a journal article from any source and use any reasonable method to deliver.

Slide corrected 1st July 2016Slide34

Would recommend including standard form of message, e.g.:

“For receiving library: you must delete all copies of this

[email and attachment]

after forwarding to the requesting user.”“For end-user: The copy is provided for personal use only, may not be copied or passed to others by any means.”Slide35

Digitisation request for material not covered by CLA licence

CLA represents some not all publishers; but is the only UK licencing body. The CLA user guidelines (page 10 ‘Direct

p

ermission’ states “licence is not contravened by a licensee obtaining direct permission”. Can try the US-based CCC (can be slow and incur costs!) but generally.... I

f publisher not in CLA you can only rely on 2 routes:UK Law or gaining direct permission.

CDPA s36 Copying of extracts by educational establishments required for instruction; acknowledged; limit of 5% from a book across whole institution in any 12 month period; Slide36

all who can view copy must be made aware that for educational purposes only and they must not share a copy by any means.

Secure network is OK; not broadcasts; an artistic work only if incorporated into another work.

Direct permission

– (NB

: ONLY option if CLA title level exclusion or non-education!) Can be ‘tortuous’ and slow, but trumps everything! If the owner says you can do it, then CLA and Law doesn’t apply! Keep any documentation.

No reporting requirements, unless direct permission requests it (although will need to monitor 5% rule!)Slide37

Can I do copyright cleared/copyright fee paid copying?

No! Additional licence & for reasons of practicality!

Most libraries/organisations do not have the time or systems in place:

to identify and separate the ‘charge’ and the ‘copyright fee’;

to allow the processing of the fees;to hold such fees in escrow prior to payment;to identify content owners; and to facilitate the payment of the fees to the respective content owners in a sensible and timely manner.

The work, time and expense involved is horrendous!Therefore CFP supply is generally restricted to larger libraries with CLA Document Supply Licence Slide amended 1st July 2016PS: can also buy CLA DS Lite licence – which allows the supply a limited number of CFP. Contact CLA for info.Slide38

Can you copy an ILL?

No (except for own preservation purposes)

Declaration states copy is for own private study and research so to copy for any other purpose (other than for personal preservation) would make both the copy and the original ILL copy ‘infringing’.

{I understand a DS solution to support collaborative working may come soon!}Slide39

The question was ‘tied’ to copying and then providing that copy in a thesis/dissertation.

In 2014 UK Law changed; s32 now more restrictive as all use for ‘examination’ now has to be fair dealing.

So, strictly (legally),

no

– cannot copy any article for a thesis without permission!Why?If an article is provided ‘free’ via an open access thesis, even though article is not necessarily easily discoverable, it could be argued that provision circumvents publisher paywalls and results in economic damage – this would not be ‘fair’!Slide40

In my opinion all HEIs must look again at their regulations and change them where necessary to ensure that they are compliant with the law and not asking a student to break the law!

Plymouth, with online submission only, certainly is!

S

uggest changing regulations to allow either final author’s draft (with link (eg: DOI) to published version) or a simple bibliography (with links).

Otherwise (and practically) – yes. Not best option – it’s a risk decision! Must redact after marking but before ‘release’ or place thesis on embargo (for 25 years) – with consequential ‘affect’ on UK thesis service!Slide41

Report published by own institution and copy held in library. Can you copy the whole item and supply via ILL?

No!

You are an agent of the owner and not the owner. In order to copy the whole item you would need the permission of a person within the institution of high enough standing and competency to make that decision on behalf of the institution. Who that is will vary, but could be CEO or a senior administrative manager.

In practice – unlikely to object but you need to ask!

They could give a ‘blanket’ OK, rather than title-by-title. Always keep any permission on file!Slide42

If you scan from stock to supply ILL can you keep the scan and create a ‘collection’?

Risk assess – but I would say don’t!

There appears to be nothing that says you can or cannot! However, the created copy may well be ‘infringing’ because the reason for its ‘existence’ does not meet any of the exceptions or fair dealing defences!

You may see it a matter of practicality rather than law and think ‘why not? – it’s low risk if I don’t make the ‘collection’ available to anyone else.’

My opinion - most institutions, because of ad hoc nature of requests, would rather do on-demand than hold for a future request (just-in-time not just-in-case).Slide43

I’ve got a collection of print CFP articles. Can I digitise and make available?

No!

CLA HEI Licence 2013-July2016.

(similar in other licences?)

3.2 Can own CFP copies (and add to print collection).3.3 states number of copies made must not exceed number of students on course of study (question – how do you monitor that if in print collection and out on the shelves as ‘reference’? It also assumes CFP only obtained to support a course!).4.1.1 authorises the making of digital copies from CFP for a course collection....

.... and for back-up purposes;both can be stored on a secure network.4.2.2 Must include a ‘notice’ in the digital copy.Slide corrected 1st July 2016Slide44

but

4.2.9 Except as permitted by the licence, digital copies may not be systematically indexed with intention of creating a digital library or learning resource.

BL On-Demand

Terms (main service that supplies CFP copies).

“...unless you have the permission of the copyright owner or of The Copyright Licensing Agency Ltd or another authorised licensing body or they can be saved as permitted by statute, then you must not copy, scan, transmit or store electronically any copies that you receive from us.”So would seem from CLA

licence and/or BL terms – cannot digitise to create a collection. What about the law?Slide45

CDPA 40B ‘Making works available through

a dedicated terminal’

Copyright is not infringed by communicating or making available via a dedicated terminal on premises if:

lawfully acquiredprovided for private study or researchcommunicated or made available in compliance with any purchase or licensing terms to which the work is subject

What this section ‘means’ and ‘allows’ has been subject of much recent ‘inconclusive’ discussion, but the ‘purchase or licensing terms’ comment seems to also exclude this as an opportunity!

Slide corrected 1st July 2016Slide46

Plymouth CFP Collection Experience.

2006 became a development partner with

Talis

Aspire Reading List system.Extensive print CFP and ‘extracts’ collection (we called ‘Offprints Collection’).High cost of processing and maintaining;

Poor storage (plastic wallets ‘jammed’ vertically into 6 filing cabinets);Had lots of legacy content;Uncertain use! – some definitely well used (kept disappearing); others seemed to be ‘just-in-case’!

Needed an alternative approach that facilitated access and use by all!Slide47

Decided – too risky to digitise at that time, so would use Aspire and improve licence compliance!

2008/9

- ‘Collection’ completely reviewed. Took 7 months in total. Some were now subscribed content!

If not subscribed and connected with current module - checked for continued academic relevance. If still needed - added to module reading list and digitised. Became integral part of new management procedures for control and CLA reporting, esp. since TADC introduced.If not required or not linked to current module or academic – destroyed.

Now all digitisations, CFP or licenced, are only part of an Aspire Reading List and linked to a course of study.Slide48

Contact:Graham Titley

graham.titley@plymouth.ac.uk

or post a question on LIS_ILL

(I am not a personal member on FIL list)

Any questions?