Creative Commons “non-commercial” licensing wins court battle


 

 

 

 

Creative Commons, commonly known as CC, has won a legal battle which disputed one of its “non-commercial” licences and could have threatened the whole CC licensing model.

Creative Commons provides free easy to use standard copyright licences which allow creators to share their work with the general public.  The licence which came into question was the CC-BY-NC-SA 4.0 which allows users to copy and share material for non-commercial purposes as long as the original creator is credited.  This licence was used by an American non profit company, Great Minds, which creates high quality educational materials for schools.  Problems arose when a commercial company, FedEx, was asked by schools to duplicate materials for classroom distribution. Great Minds demanded royalty payments from FedEx, however, they refused.  Consequently Great Minds sued FedEx claiming the company was infringing copyright in their materials.

New York judge, Denis Hurley dismissed the Great Minds suit in February 2017, ruling that the CC licence “does not limit a licensee’s ability to use third parties in exercising the rights granted by” Great Minds.  Thus the licence cannot limit a company from being hired to make copies of the materials if the original purpose of the materials is for non commercial use. However, it was found that Great Minds claim was not unreasonable as no court had previously addressed whether or not a commercial copy service could be employed to reproduce materials protected by a CC licence.

To read more about this story see by D Kravets’ article at this link.

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Copyright law has changed for industrially manufactured artistic works

On the 28th July the repeal of section 52 of the Copyright Designs and Patents Act came into force. Previously this meant that artistic works which were exploited as industrial designs would only be protected by copyright for 25 years from the first marketing of the product.  After this period the industrial design could be freely copied by others.  For example, if you have ever wondered why cheap copies of Mies Van Der Rohe’s iconic Barcelona chair, can be found on your local high-street, then this is the reason.  However, the repeal brings these works back into line with other artistic works which are protected by copyright for 70 years after the death of the creator.  This means that works which were previously out of copyright will be back under copyright protection. There is a six month embargo period until the end of January 2017 to allow shops and publishers to clear old stock and ensure that any new copies are made with the permission of the copyright owner.  Any copies which are privately owned should not be affected.

This exception will apply to both 2 dimensional and 3 dimensional works, such as wallpaper, fabric, furniture and jewellery where the original design has come from an artistic work that has been copied.  However, one challenge will be identifying what constitutes a  “work of artistic craftsmanship” as there is no statutory definition.  Originally this term was added to the law in 1911 to reflect the change in what was considered to be art and protect works from William Morris’ Arts and Crafts Movement.  Ultimately if the artistic craftsmanship of a work comes into question it will be up to a judge to make the final decision in a court of law. DACS has provided guidance on this area, which is:

  1. A conscious intention to produce a work of art
  2. A real artistic or aesthetic quality
  3. A sufficient degree of craftsmanship and artistry (existing simultaneously)

For further information please refer to this guide issued by the UK’s Intellectual Property Office at this link.

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It’s illegal in the UK to copy music again

You’re probably not aware, but copying music CDs onto your computer, or making copies of your digital music files, is now illegal under UK law.

Earlier in the year a High Court decision overturned legislative changes that made it legal to copy CDs or download tracks from iTunes, and despite the Government’s efforts they have failed to overturn the decision.

Click here for more information.

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More new copyright law

At the beginning of October the Copyright, Designs and Patents Act (1988) was amended again. More copyright-exceptions have been altered or added, some of which have a bearing on the work of Loughborough University.
 
1. QUOTATION.
s 30 (Criticism, review, quotation and news reporting)
This exception now allows you to reuse a work ‘fairly’ without permission from its copyright-owner for the purpose of quotation (as well as for criticism, review and news reporting). Note that:

  • ‘fair’ is not defined and is a matter for individual judgement (and in the last resort for the judgement of the courts);
  • you may only quote published works in this way, not unpublished ones;
  • a quote may be “no more than is required by the specific purpose for which it is used”;
  • you must acknowledge (i.e. cite) what you quote;
  • if you are using a work under licence (such as an online journal article paid for by the University Library), you have the right to quote it in this way whatever the licence says.

This exception applies to the quoting of other people’s work in work of your own (whether published or unpublished, examined or unexamined). The purpose of a quotation is left unspecified: it need not necessarily be for criticism or review; it could be for a much looser illustrative or indicative purpose, provided that it is ‘fair’ in the circumstances.
 
2. PARODY AND PASTICHE.
s 30A (Caricature, parody or pastiche)
This is a new exception and (at the moment) is very open-ended. It allows you to reuse a work ‘fairly’ without permission from its copyright owner “for the purposes of caricature, parody or pastiche”. Note that:

  • ‘fair’ is not defined and is a matter for individual judgement (and in the last resort for the judgement of the courts);
  • if you are using a work under licence (such as an online journal article paid for by the University Library), you have the right to parody it in this way whatever the licence says.

This exception is probably of most interest to members of the School of the Arts and of the Department of English and Drama.
 
3. PRIVATE COPYING.
s 28B (Personal copies for private use)
This new exception is intended to allow private individuals to make copies of copies of works that they own (e.g. making an MP3 copy of a tape-cassette copy of a piece of music). It has no direct bearing on the work of Loughborough University. For more information, see JISC Legal.

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New copyright law : what difference does it make to us?

At the beginning of June the Copyright Designs and Patents Act (CDPA) 1988 was amended. Several copyright-exceptions have been changed which have to do with learning, teaching and research at Loughborough University, and also with the functions of the University Library and Archive. The law has been improved in several ways.

  • SIMPLIFICATION. Some exceptions have been shortened, simplified or re-organized.
  • UNIFORMITY. Some exceptions now apply to all (or almost all) kinds of work.
  • CONTRACT-OVERRIDE. Some exceptions now apply in spite of what any contract says about our reuse of a particular work—contracts include the CLA Licence, other licences and database and e-journal subscription agreements.
  • SECURE NETWORKS. Some exceptions now allow works or copies of works to be made available on the internet by means of secure networks—this includes Learn, E-Reserve and the Reading Lists system.

The amendments to the law affect the following activities:

  1. research and data mining;
  2. accessible copies for the disabled;
  3. reusing works in lectures, classes etc.; and in theses and dissertations.
  4. recording broadcasts;
  5. photocopying and scanning for students;
  6. ‘library privilege’.

There are also future amendments planned for the autumn.

1. RESEARCH AND DATA MINING.
s 29 (Research and private study and text and data analysis for non commercial research)

  • For non-commercial research and private study, ‘dealing fairly’ without permission from the copyright-owner used to be allowed only with literary, artistic, musical and dramatic works—it is now allowed with all kinds of work.
  • Making a copy of a work for data mining for non-commercial research purposes is now allowed, provided that the copy is ‘fair’.
  • You can do all these things with any work that you have access to, regardless of what any contract, e.g. a licence, says.
  • N.B.: this is still a ‘fair dealing’ exception, so you must use your judgement about what is likely to be regarded as ‘fair’.
  • N.B.: this applies to the process of carrying out research, but it does not apply to what you publish when you have completed your investigation.

2. ACCESSIBLE COPIES FOR THE DISABLED.
ss 31A-31F (Disability)

  • An accessible copy of a work may now be made not just for a person with a visual impairment, but for any person “whose disability prevents the person from enjoying the work to the same degree as a person who does not have that disability” (s 31A(1)(b)).
  • An accessible copy may now be made of any kind of work (including broadcasts, films and sound recordings).
  • No contract (such as a licence or subscription agreement) can override this exception.
  • However, the making of accessible copies is only allowed “if the same kind of accessible copies of the work are not commercially available on reasonable terms by or with the authority of the copyright owner” (s 31A(2)(c)) – this means that the University must buy a suitable accessible copy if one is available.
  • Copying under this exception still entails a considerable burden of record-keeping.

3. REUSING WORKS IN LECTURES, CLASSES ETC.; AND IN THESES AND DISSERTATIONS.
s 32 (Illustration for instruction)

This replaces the earlier version of section 32 (Things done for the purposes of instruction or examination) and is much shorter and simpler.  The new section 32 allows you to ‘deal fairly’ with a work without permission from the copyright-owner provided that:

  • you do so “for the sole purpose of illustration for instruction”;
  • the instruction is for a non-commercial purpose;
  • that you are either the one giving (or preparing to give) or the one receiving (or preparing to receive) instruction;
  • that you give an acknowledgement (where practicable).

“Illustration for instruction” includes the setting, communicating and answering of examination questions.  It is assumed that examinations still include dissertations and theses, insofar as they are examined. E-theses are still not covered by this section, but they are covered by s 30 (Criticism, review and news reporting), which is also a ‘fair dealing’ exception.

  • You can now legally show scans or photocopies in a lecture, class etc. without reference to any licence.
  • You can do all these things with any work that you have access to, regardless of what any contract, e.g. a licence, says.
  • N.B.: this is now a ‘fair dealing’ exception (which it was not before), so you must use your judgement about what is likely to be regarded as ‘fair’.
  • N.B.: this Section does not cover the distribution of copies of a work to students for use outside the lecture, class etc. (e.g. by means of handouts or Learn). For this we use either the CLA Licence for photocopying or scanning or section 36 (see below).

4. RECORDING BROADCASTS.
s 35 (Recording by educational establishments of broadcasts)

This section allows you to record and to play broadcasts to students for non-commercial educational purposes.  You may now record a broadcast and make it available to students off campus by means of a “secure electronic network accessible only by [Loughborough University] pupils and staff”.  This was not allowed before.

This section is worded in such a way as to make it necessary for us to rely on ERA Plus and Box of Broadcasts for recording most British broadcasts; but for any broadcast not covered ERA or BOB, you may record it and play it in accordance with the provisions of this section without infringing copyright.

5. PHOTOCOPYING AND SCANNING FOR STUDENTS.
s 36 (Copying and use of extracts of works by educational establishments)

This section traditionally allows members of staff to copy extracts of works into hand-outs and course-packs for students. It has been updated in several ways:

  • any copy made as per section 36 may now be placed on a “secure electronic network accessible only by [Loughborough University] pupils and staff”—in other words you may scan or digitize extracts and put them on Learn;
  • up to 5% of a given work may be copied by Loughborough University within a 12 month period—this is somewhat more restrictive than the CLA Licence, which allows up to 5% of a work to be copied per ‘course of study’;
  • “a work which incorporates another work is to be treated as a single work”—this means that if you want to copy, say, a few pages of a book, and there is a diagram on one of the pages, you can copy the whole of the diagram, despite the fact that it is a distinct artistic work in its own right.

N.B.: this section is worded in such a way as to make it necessary for us still to rely on the CLA Licence for most photocopying and scanning; but if there is a document that you wish to copy and to distribute which is not covered by the CLA Licence, then you may go ahead in accordance with the provisions of this section without infringing copyright. You can check whether a document is covered by the CLA Licence here.

6. ‘LIBRARY PRIVILEGE.’
ss 37-44A (Libraries and archives)

These sections allow libraries to supply copies of (parts of) works to other libraries; they allow libraries to supply copies of (parts of) works to readers for purposes of research or private study; they allow libraries to make replacement copies of works for the purpose of preserving their original copies. Many of these sections have been re-organized and reworded and ss 37-40 have been repealed altogether.

s 40B is an entirely new section: it allows the University Library or Loughborough University as a whole to make works available to the public, for purposes of non-commercial research or private study, on computer terminals on its premises. It says nothing about digitizing (i.e. copying) works for this purpose: but it seems at least possible that a digital copy of a work could be made under s 42 (“in order to preserve or replace that item in the collection”) and then made available under s 40B. A licence or other contract (such as a database subscription agreement) can overrule s 40B.

s 42A is newly-inserted, and essentially combines many of the provisions of the former ss 37–40 in one section—this is the one that allows copying for (inter-library) document supply to readers.

A person requesting a copy to be made under the provisions of ss 42A and 43 must provide a “declaration in writing” that he/she has not previously received a copy of the same material, etc. etc. A signature used to be required for this declaration by s 37(2)(a), but this is now repealed.  This means that requests for inter-library document supply may now be submitted by e-mail without any signature.

Any charge made for copying under the provisions of ss 41, 42, 42A and 43 must be “calculated by reference to the costs attributable to the production of the copy”; but charging is no longer compulsory.

FUTURE AMENDMENTS.

It is expected that s 30 (Criticism, review and news reporting) will be extended to allow ‘fair dealing’ with a work for the purposes of quotation, caricature, parody and pastiche.  An exception for quotation would certainly give more leeway to researchers in what and how they could quote other people’s works in their own publications.  This may happen in autumn 2014.

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Changes to the law take shape

Draft versions of Statutory Instruments intended to amend the Copyright, Designs and Patents Act (CPDA) 1988 are now available via the Intellectual Property Office website (http://www.ipo.gov.uk/types/hargreaves/hargreaves-copyright/hargreaves-copyright-techreview.htm).  These changes are expected to become law in the summer.  Several of the them will affect students and staff at Loughborough University, and how they go about using materials protected by copyright.

Research, private study, data-mining.  Section 29 of the CDPA (http://www.legislation.gov.uk/ukpga/1988/48/section/29), which at the moment is a ‘Fair Dealing’ provision for non-commercial ‘Research and private study’, will be extended to cover all works, and not just literary, dramatic, musical and artistic ones; it will also include a new sub-section allowing copying for the purpose of non-commercial data-mining and text-mining (http://www.legislation.gov.uk/ukdsi/2014/9780111112755).  This will increase the scope of what material can be copied by people engaged in individual research or study at Loughborough University, whether staff or students; but of course it does not cover copying done by or for people engaged in collective study, i.e. students all enrolled on the same module.  Copying for this purpose must still be done under the CLA Licence.

Criticism, review, quotation.  Section 30 (http://www.legislation.gov.uk/ukpga/1988/48/section/30), which at the moment is a ‘Fair Dealing’ provision for ‘Criticism, review and news reporting’ will become a provision for ‘Criticism, review, quotation and news reporting’; there will be a new sub-section dealing specifically with ‘quotation’; there will also be a new sub-section allowing ‘Fair Dealing’ for the purposes of ‘Caricature, parody or pastiche’ (http://www.legislation.gov.uk/ukdsi/2014/9780111112717).  These changes will presumably allow greater latitude to researchers Loughborough University in what they may legitimately copy by way of quotation in their publications.

Accessible copies for persons with disabilities.  Sections 31A-31F (http://www.legislation.gov.uk/ukpga/1988/48/part/I/chapter/III/crossheading/visual-impairment), which at present concern the making of accessible copies for people with visual impairments, will be amended to allow the making of accessible copies for people with any relevant disability – e.g. dyslexia (http://www.legislation.gov.uk/ukdsi/2014/9780111112694).  This will certainly be valuable to members of the University with disabilities that make it difficult for them to use copies of particular works in their present forms.

Education and instruction.  Section 32 (http://www.legislation.gov.uk/ukpga/1988/48/section/32), which allows certain kinds of copying and other reuse of certain kinds materials for educational instruction and examinations, will be replaced by a much simpler ‘Fair Dealing’ provision for ‘Illustration for instruction’ (http://www.legislation.gov.uk/ukdsi/2014/9780111112755).  ‘Illustration for instruction’ will be taken to include things reused in examinations – and of course this will include material reused in dissertations and theses.

Recordings of broadcasts and multiple photocopies.  Sections 35 and 36 (http://www.legislation.gov.uk/ukpga/1988/48/section/35 ; http://www.legislation.gov.uk/ukpga/1988/48/section/36), which allow the recording of broadcasts and the making of multiple copies of extracts of works by educational institutions for use in classes, lectures etc., will be amended so as to allow these recordings and copies of  to be made available to distance learners by means of secure authentication – e.g. using Learn or Box of Broadcasts (http://www.legislation.gov.uk/ukdsi/2014/9780111112755).  These amendments also effectively require the University to continue to subscribe to Licences from ERA and CLA.

A Government guide to these changes is available here: http://www.ipo.gov.uk/response-copyright-techreview.pdf.

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Copyright in designs extended from 25 -70 years

File:Ngv design, ludwig mies van der rohe & co, barcelona chair.JPG

Barcelona chair designed by Ludwig Mies van der Rohe and Lilly Reich. Image courtesy of Salko, 2009 licensed under a CC 3.0 Licence.

Last month, the government passed the Enterprise and Regulatory Reform Act which repeals section 52 of the CDPA 1988.

This is good news for designers, as designs which qualify for copyright protection are now protected for 70 years from the death of the creator. Previously works were only protected for 25 years from the date the work was placed on the market. The new measures will apply to works created before 1987 where the work is a creative design which has been manufactured or exploited through an industrial process.  The types of works affected will include certain types of furniture, jewellery, lamps and ceramics. However, not all works will necessarily be classed as artistic works and will not be afforded copyright protection.  The changes will not apply retrospectively so retailers will be able to continue selling unauthorised stock.

The Design Council and designers such as Sir Terence Conran and Tom Dixon have welcomed these changes.  Click here to read their comments. For further information about the difference between copyright, design right and registered designs please follow this link.

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