In October the latest batch of revisions to British Copyright law flowing from the Hargreaves review finally came into effect. Jason Miles-Campbell, formerly Jisc Legal Manager, looks ahead and asks, ‘What’s in it for the world of the audiovisual?’
About the Author: Jason joined Jisc Legal in 2004 as the Service Manager. Jisc Legal's role is to ensure that legal issues do not become a barrier to the development and adoption of new information and communication technologies in the UK further and higher education sectors. Jason's job is to efficiently allocate the Service's resources to the many demands on its expertise, to lead in terms of the Service's front line work, and to contribute to the development of its strategy. Jason studied English Law and French Law at University College London in the dark and distant past. In 1994 he became a lecturer in law, specialising in European law, consumer law, and then IT law, and his ten years' experience in higher education included a stint as head of department. In 2004, he moved on to join Jisc Legal, and has been assisting the further and higher education sectors in his current role since. In 2008, he added an LL.M. in IT and Telecoms Law from Strathclyde University to his qualifications, and in 2012, he became a certified PRINCE2 project management practitioner.
Fair Dealing The concept remains the same, but its role becomes more important with the new education exception and the inclusion of video in the private study and non-commercial research exception. My experience with Jisc Legal shows that it is easy to jump to a risk averse, restrictive judgement of what is fair, and perhaps miss opportunities for use. It is not a reckless free-for-all either but sensible, reasoned decisions need to be taken. For many colleges and universities, for example, I recommend that a particular designated person, one who can identify the institution’s risk appetite, ensure consistency, and work from a position of knowledge and experience, takes fair dealing decisions.
So how to decide what’s fair? Although the judgement will need to be taken in respect to the circumstances of each proposed use, the following factors are likely to help in the justification of fairness: using as small an excerpt as possible for the purpose being pursued; restricting the audience and availability of the output as far as practicable; and considering the overall effect on the rights holders involved – avoiding use detrimental to economic exploitation of the work, and trying to leave the rights holders with as much control over further dissemination as possible. Of course, it is always worth considering whether the fair dealing judgement can be avoided altogether, by use of openly licensed material, for example. But users should not be afraid of using the fair dealing provisions – that is what they are there for.
Private Study and Research Prior to these changes, the fair dealing exception for private study and research only applied to literary, dramatic, musical and artistic works, and not video and broadcasts. The Regulations have removed that restriction, meaning an individual can make a personal copy of a video for the purposes of study or for non-commercial research, provided that doing so is fair. What’s more, you know those ‘For domestic use only’ statements found on DVDs that cast doubt on our ability to make use of the fair dealing rights? An amendment makes clear that contract terms purporting to prevent or restrict the permitted uses are unenforceable. It might be nice, if you are involved in dissemination of audiovisual materials, to add to your terms and conditions ‘Nothing contained in this agreement prevents or restricts fair dealing with this work under the terms of the Copyright, Designs and Patents Act 1988.
image © Joanna Ortynska – http://www.musestouch.me | CC BY
Illustration for Instruction This enigmatically titled new exception allows fair dealing with a work for educational purposes. As with the other amended provisions, it also applies to video. ‘Illustration for instruction’ is a phrase handily borrowed from the European directive, but, to you and I, probably means ‘teaching.’ There is nothing that suggests this is just face-to-face teaching, so is likely to stretch to VLEs, MOOCs and any other acronyms where you can justify the fairness in your dealings with the works. Clearly, sticking Disney’s output onto the open web might just stretch the limits of fairness (and your legal department).
Learning to Make Films and Film Soundtracks, and the Use of Film in Examinations Once upon a time there was section 32(2), sometimes known as the ‘media studies exception,’ which allowed those giving or receiving instruction in filmmaking and film soundtrack making a get-out from infringement. That has now been subsumed into the general ‘illustration for instruction’ exception above. Likewise, the former s.32(3) which allowed the use of copyright works (including video) in formal assessment is also assimilated. Although merging filmmaking and examination into ‘illustration for instruction’ simplifies matters, it does mean that these are now subject to the ‘fair dealing’ test, whereas before these were automatic rights.
Criticism and Review Fair dealing for criticism and review remains as it was. As before, provided it can be justified as fair, the use of video and other audiovisual resources is permitted. The Channel 4 ‘Clockwork Orange’ case, some twenty years ago, tells us that the inclusion of excerpts totalling 10% of a film as part of a critique may be justifiably broadcast under this exception to an open audience.
image © Martin Fisch - https://www.flickr.com/people/marfis75/ | CC BY
Libraries and Archives Libraries and archives have a special place in the Copyright, Designs and Patents Act, and it too is updated. As with other areas, limitations on the type of work covered are removed. So, for example, supply of single copies to other libraries under s.41 now includes published audiovisual recordings. A new s.40B now permits libraries to make available lawfully acquired works in their collection to the public on ‘dedicated terminals.’ A recent case makes clear that this can include digitisation of the works to allow such a facility. However, any access must comply with any ‘purchase or licensing terms’ and it remains to be seen how far, in practice, that therefore allows access.
Copying for Disability Whereas the previous law limited making accessible copies for the disabled to making copies of ‘a literary, dramatic, musical or artistic work’ for visually-impaired persons, the new version extends to all copyright works (including audiovisual, of course), and permits copying to meet the needs of all disabled persons. The wording also allows the making of a subtitled or audio-described version in order to meet the needs of a learner – this was, at best, restricted under the previous version of the legislation.
Text and Data Analysis It is likely to be a niche market, but if you wish to copy video to carry out computational analysis for the sole purpose of non-commercial research, the new s.29A allows this, provided you already have lawful access to the resources. So, clever analysis of your video collection may be on, but it is not going to help you do an automated analysis of the proportion of male and female dialogue in all UK films since 1960, unless you already have lawful access to all those films.
Parody, Quotation and Private Copying Due to questions being raised in the process of parliamentary scrutiny, regulations covering parody and quotation, and private copying, have not yet made it into law. They are currently tabled to return in October, though there may yet be opposition from rights holder organisations as to the private copying provisions, and their compatibility with European law. As with the other exceptions, these would extend to audiovisual materials. Those who may have ripped the odd DVD onto their media player or mobile phone will be glad to hear such activity may become legal if the private copying exception makes it through.
Rights in Performances It has not always been the case that, where exceptions apply in copyright, these have been effectively matched by similar provisions dealing with the ‘related rights’, and, in particular, rights in performance. Of course, when it comes to video and other audiovisual material, rights in performance are pretty relevant. The good news is that Schedule 2 of the Copyright, Designs and Patents Act has been amended, meaning that rights in performance should be taken care of when making use of the new rights.
In Summary In summary, go fairly fill your boots with reasonable bits of stuff in the audiovisual world, as long as you are going to use it for private study, non-commercial research, teaching, or criticism/review. Audiovisual is no longer the poor relation of the copyright exceptions world, so it is time to get exploring the possibilities.
Jason Miles-Campbell
Jisc Legal closed at the end of 2014. Technology and the law support is now provided by Jisc. Contact: customerservices@jisc.ac.uk, or call: 0203 006 6077.