From: Dominic Benson <[log in to unmask]>
Date: Wed, 28 May 2014 12:51:50 +0000

Here are some observations from my colleague, Monique Ritchie
(Research Librarian and Copyright Officer)

--

"Actually, the introduction of 5% per annum for works copied by
educational establishments, which are not otherwise covered by a
licence, is an increase over the prior allowance of 1% for such works,
which was impossible to use in practice so no one ever did.

"In theory, its extension to 5% makes it more usable, especially as
the UK is used to working with 5% limits under the UK Copyright
Licensing Agency licence for books and periodicals.  Also, worth
saying that this copying is systematic copying, and will also allow
the copied works to be used or communicated in print/digital formats,
something not typically allowed by any UK fair dealing exceptions
(probably different to US fair use).

"The idea behind the reform I believe is to allow educational
establishments to use a reasonable amount of all materials they need
to use for education/research without harm to the rights holder, and
without undue bureaucracy.

"The UK now has more activities governed by fair dealing (like TDM),
but fair dealing limits are either undefined (as before, to allow
flexibility for users and protection for rights owners) or are
specified (as in this 5% limit) depending on the exception and the
purpose. For example, the text and data mining exception can apply to
100% of any number of whole works simultaneously, because this befits
the purpose of the exception, provided the user has lawful access to
the work/s they are using. In contrast, limits for standard fair
dealing for non-commercial private study or research are still
undefined. Whilst guidance suggests copying a whole work is unlikely
to be fair, it does not expressly prohibit the copying of a whole work
- it could well be fair to do so for preservation, or where the
copying will not harm the rights owner's interests, but is necessary
for to fulfil the purpose covered by the exception being used.

"However, it will bring its own problems if the institution chooses to
exercise their rights under this particular exception. Firstly, while
the entire university can use the same unlicensed extract under
exception, if another course needs a different extract in the same 12
month period (this is any consecutive 12 month period under the new
exception) then they can't use it. Knowing what everyone else is using
across the institution is difficult to impossible, unless all
materials are handled centrally, and this can mean a significant
amount of extra work for libraries and reduced academic freedom /
flexibility. Additionally, if the clock begins counting down from the
date an extract is first used,  then any use under this exception
might have to be monitored against an indefinite range of 12 month
periods, which might also prove challenging.

"So, will it work? That's the key question..."

--

Dominic Benson
--
[log in to unmask] | Tel: +44(0)1895 266143 | fax: +44(0)1895 269741
Electronic Resources Librarian, Brunel University Library, Uxbridge,
Middlesex, UB8 3PH, UK

-----Original Message-----

From: Sandy Thatcher <[log in to unmask]>
Date: Mon, 26 May 2014 19:39:25 -0500

[MOD NOTE: Not so sure about that, Sandy -- let's see if any UK list
readers have time to respond in any detail.  However, having the TDM
exception is surely more than a "modest extension" of fair dealing.]

Don't get too excited. These new provisions are just modest extensions
of fair dealing. E.g., the guidance about copying in educational
settings says the following:

> Does this mean schools/universities will no longer need
> photocopying licences?

> No, schools and universities will still need to hold photocopying licences.
> However, where works are not available under licence, a teacher will be
> able to make photocopies of extracts from works without worrying about
> copyright infringement, as long as they copy no more than 5% of the work
> per annum.

That 5% limit is not even the 10% "rule" that Judge Evans put forward
in the GSU decision.

Sandy Thatcher


> From: Ann Shumelda Okerson <[log in to unmask]>
> Date: Mon, 26 May 2014 18:49:42 -0400
>
> http://www.cilip.org.uk/cilip/news/breakthrough-copyright-law-reform-confirmed
>
>> From CLIP in the UK:  "20 years of hard work by our sector has
>
> resulted, at last, in the recognition that copyright laws are out of
> kilter with the digital age and many of the activities taking place
> across our libraries, archives, museums and educational
> establishments, need to be supported by fit for purpose exceptions.
> This will create legal certainty and achieve a better balance between
> creators rights and user needs, and in doing this make copyright
> itself stronger."
>
>  CILIP writes further:
>
> These vital changes include:
>
> * Much needed digital preservation exceptions to prevent the loss of
> vital sound recordings, film, as well as text based works.
>
> * Allowing the digitisation of analogue collections and their use on
> dedicated computer terminals on the premises of libraries, archives
> and museums.
>
> * New educational exceptions to support teaching, learning and research.
>
> * An expansion of the fair dealing exceptions for private study or
> non-commercial research purposes to cover not just text, as is the
> case today but sound and film also.
>
> * Amendments to Library Privilege so that publicly accessible not for
> profit libraries can make fair dealing copies on behalf of their users
> from all copyright works. It is great to see that for many of these
> education and research exceptions it is recognised that sound and film
> have equal importance in an education and cultural context as text
> based materials.
>
> * A new text and data mining (TDM) exception which will dramatically
> boost non commercial research. In an era of "big data", research must
> be supported by allowing organisations and individuals, who have legal
> access already to copyright materials, to extract facts and data
> contained therein on a large scale. This new exception will provide
> unlimited opportunities to support vital research leading to new
> discoveries and greater innovation.
>
> * Copying into accessible formats for readers who are disabled in any
> way will be allowed, putting all citizens on a level pegging with the
> able-bodied. (Currently the law only allows copying for the visually
> impaired.)
>
> * Vitally, many of these core "permitted acts" in copyright law given
> to us by parliament will not be able to be overridden by contracts
> that have been signed. This is of vital importance, as without this
> provision, existing and new exceptions in law could subsequently
> simply be overridden by a contract. Also many contracts are based in
> the laws of other countries (often the US). This important provision
> means that libraries and their users no longer need to  worry about
> what the contract allows or disallows but just apply UK copyright
> exceptions to the electronic publications they have purchased.
>
>
> *******