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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