A couple of weeks ago I attended an event led by Paul Pedley which I hoped would demystify copyright in relation to HE
The session began with Paul explaining that copyright law hinges on the Copyright, Design and Patents Act 1988, an act which whilst being updated over the years has no supportive case law to clearly define the legislation, as cases are settled out of court for undisclosed fees.
The CDPA is very restrictive when taken at face value, and we were given examples of how dangerous it can be to make assumptions about the meaning of the act.
Reassuringly, S16(3)(a) states that ‘unless the whole or a substantial part of a work has been copied, no infringement of copyright can be claimed’. However, we were then informed of a case in which someone was challenged for taking four words from a 1000 word poem (I forget whether it was authored by Wordsworth or Tennyson) – the accusation being that this was a substantial part of the work. The case was settled out of court, so presumably the defendant didn’t feel too confident that they would win! However, Paul explained that the term ‘substantial’, can refer to either quantity or quality. He advised us of a case whereby less than 1000th of a literary work by James Joyce was deemed to be a substantial part. One might be concerned that a legitimate challenge may at some point be made where for example a conclusive chapter of a book was made available.
Paul advised that given the costs of taking action through the courts, most disputes are settled out of court, meaning no legal precedent is set; any financial settlement is not usually made known to the wider world. because the Act has never been tested in a court of law, there is no such thing as a safe copying limit. There is always a risk involved when copying, and this must be assessed by the person doing the copying.
‘Fair dealing’ is a term often used, implying that copies can be made for research or private study. The CLA view is that ‘research’ is a systematic enquiry into a subject in order to discover facts and principles, and copying for the purposes of employment could never be regarded as ‘private study’. However, these views have never been tested in court!
Paul then moved on to look at licence agreements, which technically should allow more freedom than copyright law allows. The good news is that if one buys a licence and sticks to it, any infringement of copyright cases would be brought against the licence provider rather than the licence purchaser.
After a short break for coffee, Paul focussed on particular areas relevant to us in education.
We can record off-air broadcasts under the ERA licence, but the term ‘broadcast’ does not include on-demand services such as BBC iplayer, listen again weblinks and podcasts. Group viewings can only be held on the premises of the institution, but copies can be made for students to view individually off-campus, and ideally they should sign a declaration stating they only use the recording for educational purposes. Copies of broadcasts cannot be supplied to students outside the UK. The ERA plus licence allows broadcast programmes to be digitised and made available on-campus via the VLE, but the University of Lincoln does not subscribe to this at present.
Paul was unable to give a definitive answer about whether individual copies could be supplied for students at no profit (ie just the cost price for a blank DVD), so I have written to the ERA for guidance.
Next he spoke about adapting material for visually impaired students, and explained that this should only be done if a commercially available source is not available. With the advance of digital technologies this is probably a moot point, as students can elect to increase font size on-screen, but technically it is illegal (but probably low-risk) to print off the enlarged view if the title is commercially available in a large print version.
Finally Paul talked about the future and how the laws must be changed, but this is so difficult with the rapid advancement of technology. He mentioned a few potential developments but concluded that these may well be superseded and what would actually happen is at present uncertain.
The course was very interesting and provided much to think about, although due to the complexities of the legislation very few definitive answers were forthcoming. The general advice is to ensure the licence is adhered to by both staff and students.
JISC Information Governance Gateway
The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age
“Walled Gardens”: How Copyright Law Can Impede Educators’ Use of Digital Learning Materials
“The Future: Developing a copyright agenda for the 21st Century”