CILIP eCopyright Executive Briefing

CILIP's eCopyright Executive Briefing on Thursday 9 May drew together a broad range of speakers to shed light on the issues surrounding copyright, both in the physical and digital domains.

Despite being a self-confessed copyright novice I was drawn to the briefing by the digital aspect, as I'm very conscious that the online services and resources we develop need to be underpinned by coherent risk management policies, including copyright.  This was therefore an opportunity for me to get an understanding of the current copyright landscape and the issues that might merit further attention.

The current UK legal situation
The following comes with the caveats that some laws may not apply to Guernsey and that I am no legal expert and am quite able to misinterpret evidence and conflate conclusions!

Two themes came through from all the speakers when discussing current UK and EU copyright legislation:  UK law is in flux as we wait for the Government to introduce new legislation following the Hargreaves Review 2011 and decisions in individual cases can have profound affects on copyright law as a whole.

Developments in law: Hargreaves and beyond
The Hargreaves review sought to develop a copyright system that would 'support growth of the UK’s increasingly intangibles intensive economy' stating that this requires:

• an 'efficient digital copyright licensing system, where nothing is unusable because the rights owner cannot be found;
• an approach to exceptions in copyright which encourages successful new digital technology businesses both within and beyond the creative industries;
• a patent system capable of preventing heavy demand for patents causing serious barriers to market entry in critical technologies;
• reliable and affordable advice for smaller companies, to enable them to thrive in the IP intensive parts of the UK economy;
• refreshed institutional governance of the UK’s IP system which enables it to adapt organically to change in technology and markets.

Professor Charlotte Waelde gave an interesting overview of how legislation based on Hargreaves might impact on libraries.  From a public library perspective I was particularly interested in the concept of 'Extended Collective Licensing' which would enable libraries to license on behalf of rights holders who are not members - with the onus being placed on rights holders to opt out.  This could be used to operate large digitization schemes (such as rare book collections), where individual licensing could be prohibitively expensive.  As Professor Waelde stated the 'collecting society would need to:

show it is representative of rights holders affected by the scheme.

demonstrate support of its members

be subject to a code of conduct; governance, transparency; protection for non-member rights holders.'

Copyright in the courts

Peter Wienand from Partner, Farrer & Co gave a insightful talk into how copyright is operating in the courts. Following the Infopaq International A/S v Danske Dagblades Forening 2009 case the EU courts now appear to be suggesting that 'originality and intellectual creation' are at the core of what is protected by copyright and that this could take the form just an 11 word sentence.  This is quite a shift from the English law understanding that the test of a breach of copyright was based on substantiality.  In this case copyright was found to have been breached by the news aggregating website Meltwater Group, who harvested and displayed online newspaper content to be read by a third party.

Another case (Football Dataco Ltd v Yahoo! UK Ltd [2012] CJEU) raises issues as to who is responsible for copyright infringement, as it was found that the "person who provides facilities to enable users to download infringing material is jointly culpable" (Wienand, P.).  As became clear in the Q&A following Wienand's presentation, 'providing facilities' could be as simple as posting a link in a tweet to a infringing material.  Wienand's concluding advice was that it was necessary to take a proactive approach to copyright, be it in staff training or, as suggested by Heather Caven from the V&A a traffic light system to warn staff of potential copyright breaches when posting resources online.


Keepers or conduits of knowledge
Aside from the legal issues surrounding copyright there was also interesting discussion about the potential that digitization combined with copyright gives libraries to claim ownership of digital versions of physical resources that they hold.  Dr. Dafydd Tudur (Rights & Information Manager: The National Library of Wales) drew a distinction between libraries as keepers or conduits of knowledge.  The National Library of Wales has sought to place itself as a conduit of knowledge and, where possible, allows unrestricted access to and use of its digitized resources.  This policy decision was taken after a situation in which a user complained he was unable to download the digitized version of book.  Though the printed book was no-longer in copyright by digitizing the work the National Library had created a new copyright and now owned the digital version.  I paraphrase, but I think this is the gist of the matter.  This begs questions as to who owns national culture and whether libraries can really claim copyright when digitizing resources, an activity Dr. Tudur felt was little more creative than photocopying.



Heather Caven stated that The V&A took a similar view, believing that their collection belongs to the public and want individuals to be be able to freely access and use the collection online where possible.  Heather Cavern made a persuasive argument that organisations do still benefit if they offer free access to images of materials they hold the copyright to online, in particular from;

• increasing access to the resources
• ensuring a wider audience for the host organisation's resources
• building a larger network for host organisation to communicate with
• improved PR for the host organisation

Creative Commons
Throughout the day the Creative Commons system was referred to as a good way for libraries to copyright resources that they produced.  As Kate Vasili (Copyright officer at Middlesex University) states, Creative Commons licences are increasingly used  and have global recognition.  Creative Commons licences certainly seem to offer a way for libraries to request acknowledge of their 'ownership' of digitized resources, while enabling users access to and use of the content.


Seamless digital & physical services

One theme that came across strongly during the day is that organisations need to cease treating their physical and digital services as distinct entities and instead take a holistic approach and work towards a 'seamless service' (Cavern,H.).  There are sound reasons to adopt this approach, from the customer care rationale that customers don't differentiate between the physical and digital aspects of a service, to the fact that data drawn from digital services can greatly help management take business decisions.  Libraries' Facebook and Twitter presences need to be treated and managed in the same way as a physical, in-house service.  This means that these services also need to be brought under the same copyright management systems that are applied to physical services.

The concept of 'seamless' service could also be used to generate revenue.  While Heather Caven advocated free access to digitized resources she did emphasize that the V&A was working to generate revenue by enabling website visitors to 'click-through' to the V&A shop, to purchase copies of the digitized resources.  

Developing policy and practice
What next?  Much hinges on the form the new UK copyright framework takes later this year and the extent to which it impacts on Guernsey.  In the immediate future I intend to have a careful look through Dr. Jane Secker's (Copyright & Digital Literacy Advisor: LSE) Short Guide to Copyright for LSE Staff to see what could be usefully included in our own staff training.  In the longer term I feel there are questions to be resolved as to what level of training different roles need in order to pro-actively manage a copyright system and whether a designated member of staff is required to monitor changes to copyright law and co-ordinate training.  As Suzanne Hardy (Senior Advisor: Newcastle University) pointed out, 'courage is knowing what not to fear'.