June 07, 2006

Neat tricks for dealing with copyright?

Follow-up to E–learning Research: copyright and the principle of fair dealing in education from Transversality - Robert O'Toole

Yesterday, the E-learning Advisor Team attended a training course at the British Universities Film and Video Council on copyright. The course was taught by Richard McCracken, Head of the Rights Department at the Open University, and his assistant Alma Hales. It was a very good course, and effectively covered the legislation and good practice with well thought-out examples. It also revealed some of the processes and techniques used by the OU.

Firstly a statement: I'm not a lawyer! This may be imperfect advice, so do not rely on it, make your own judgements.

Richard started the day by stating that, although he has lots of expertise in the field of IPR and copyright, he is not a lawyer. So the person responsible for managing rights in the UK's most content dependent university is just an ordinary person on an ordinary salary. This kind of work can be done without constant recourse to expensive lawyers. As the session proceeded, Alma and Richard demonstrated how they are constantly required to give advice as to what is acceptable. It seems that they have a good body of knowledge and experience upon which to safely proceed, getting legal support where necessary.

Alma then stepped through, in an effective way, the implications of UK copyright legislation. The details of what is not permitted were clarified. This was quite familiar to me, except for the details of two 'restricted acts':

  • providing means for making infringing copies;
  • authorising infringement.

I asked for more detail on these, raising a familiar example:

What if a university provided a web publishing facility to all of its staff and students, and one of them used it as a means for making infringing copies?

The response was that the university should have:

  1. a set of terms and conditions, agreed to by all members, that prohibit such acts;
  2. mechanisms for guiding users in understanding the legality of their acts;
  3. an effective complaints mechanism, and a swift "take down" policy, so that illegal content can be removed as soon as a complaint is received.

Warwick does well on points 1 and 3, which are relatively easy to do. All members must sign an agreement. We also have an effective complaints and take–down procedure (in Warwick Blogs there is a Report a Problem link, and in all systems content is easily attributable). However, the second point is much more difficult. We assume that users understand blatant copyright abuse, but it seems that they are poorly educated on the more complex issues such as breach of moral right.

What is meant by moral right? In British copyright law (not US), an 'author' (creator of the copyrighted material) has protection from instances in which their content is misused so as to misrepresent the content or the author. Artists often assert the moral right not to have their work misrepresented by being digitised, shrunk and presented on screen. Importantly for education, moral right over-ride any permitted acts, such as the use of an artwork in a review.

Permitted acts – using copyrighted material without permission

And so we first received the bad news: copyright is both strict and pervasive. Alma softened the blow by explaining some of the 'permitted acts' that allow us to use copyrighted material without necessarily having permission. It should be noted at this stage that:

  • the existence of permitted acts should not be used as an excuse to avoid having an effective copyright clearance process, as permitted acts are in fact quite rare, and always need to be thought about carefully.

As I have explained in the past, the most well known permitted act, the right to use content for private study or research, does not actually permit the use of copyrighted material in teaching or online. I'm surprised by just how often people who really should know better get this wrong.

There are some useful permitted acts. For example, we can copy an 'insubstantial' part of a copyrighted object. This is commonly taken to simply mean a specific percentage or a certain number of words. There are some accepted conventions, but unfortunately they are misleading. For example, if I were to reproduce online the most significant 400 words from a book of a thousand pages, I would be quite seriously in breach of copyright. If my act of copying damaged the commercial success of the book then things could get quite expensive for me.

A second permitted act is potentially much more useful. It may be possible to reproduce copyrighted material if that reproduction is for the purpose of criticism or review. This again is a matter of judegement. The copied material must be essential to the purpose, not incidental, although it is not necessarily the case that the review has to be about the copied material.

At this point the OU people made an interesting revalation. They use this type of permitted act to add some quite interesting content to their productions. They played an extract from a production that they made for the BBC. The production included scenes from a mainstream Hollywood movie. They did not have to pay a single cent for the rights to use the content. The OU production, however, was not a film studies programme, it was about science. They used an act of critically assessing a scientific gadget used in the movie to explain some scientific principles, thus making the science more interesting in true OU style.

I want to investigate just how far this permitted use can be taken. I suspect that much of what happens in the Arts Faculty is in fact criticism and review. The key is to make sure that the content is used in this way. For example, if a lecturer uploads a copyrighted image to a web site, but immediately makes a critical assessment of that image, is that then a permitted act? Also, it must not breach the moral rights of the author. I shall investigate.

In the second half of the course, Richard explained the copyright clearance process employed by the Open University. Content creators at the OU are expected to refer all possible uses of copyrighted material to the rights management team. The OU employs full time specialists to perform this role. Obviously the OU is content dependent, but as other universities become more digitally native, they should consider if they also require such an office. As Richard explained, there role goes beyond copyright clearance, they must help content authors prioritise. They suggest identifying early on which copyrighted material is most central to the content, so that more time and money can be spent upon obtaining clearance. The clearance process itself is greatly assisted by having full time experts who understand contracts and have many contacts within the business.

The BUFVC copyright course was extremely valuable. Apart from giving us a better understanding of what is not permitted, we came away with ideas that may allow us to use more copyrighted content.

During the session, we discussed the issue of deep linking. The OU people recommended that this is only done with the permission of the site owners. There is no legal reason for this, but some sites demand that links should go to their home pages. Today the History Department receieved an email from a US based image archive telling them not to deep link. There is no legal force behind this threat, however the archive could configure their servers to reject requests that result from following links on Warwick web pages.


Robert O'Toole : 07 Jun 2006 15:06 |  Tags:    |  Comments (8) |  Report a problem

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  1. Steven Carpenter

    I want to investigate just how far this permitted use can be taken.

    I'd also remember the other points Alma made about this; don't try and lever the fair dealing exclusions so far that it's obvious you are trying to avoid paying the rights holder at all costs, be aware that rights clearance needn't always involve payment, particularly if you are working under ERA, and make sure that critical evaluation is built–in from the very beginning of your course design.

    I thought the most interesting aspect of the day was the existence of a rights management team, handling all negotiations with rights holders. The rationale for this makes sense; negotiating and maintaining close relationships with commercial rights managers is often a complex process, but one that clearly relies on a degree of (earned) trust and goodwill on both sides.

    08 Jun 2006, 08:40

  2. Jenny Delasalle

    I agree that a rights management team is a good idea. Lots of people need advice on copyright matters as it is very difficult to keep up to date with the licences and exemptions as they are developed. Not only that, but who is recording the rights that have been granted? How & where should we describe that copyright has not been breached because we have permission? A rights management team would be able to advise and co-ordinate.

    We do have a Legal Compliance Officer now, however. Clayton Jones in the University Secretary’s office has put together a notice and web page on copyright, with reference to the photocopying and scanning licence offered by the CLA:
    http://www2.warwick.ac.uk/services/gov/legalcompliance/copyright/

    13 Feb 2007, 11:00

  3. Robert O'Toole

    who is recording the rights that have been granted?

    It would make sense to have a central register of granted rights, libraries that we have access to, and other sources. Not only would this aid compliance, but also ensure that people are using the sources that we do have access to. Perhaps we could use the same system as the CAS Image Database?

    13 Feb 2007, 11:08

  4. Jenny Delasalle

    Except that it seems very slow: I can’t see any of the keywords. That could be my computer or something permissions based, of course.

    I think that there are many issues here: a central database of digital images that can be used in teaching with descriptions of how they can be used is one thing. If we have resources that we own in the University it would in theory be good for us to enable other departments to share & use them. A central unit to manage the rights associated with University of Warwick materials would certainly be useful in this context.

    Also if we are using materials for which we have obtained permission from other rights holders, a central unit that can keep records for such permissions and provide examples and advice to other departments on how to obtain such permissions could be valuable. It may be that the permission granted for materials used in one department is applicable accross the whole university so that other departments could also use those resources, or it may be that a fee has been paid based on the number of students who would be using the resource, and a central unit could make the difference in negotiating such deals as well as keeping track of the permissions.

    With an institutional repository it is very important that there is someone to offer advice on what can in fact be added in to the repository and who owns the rights. It’s also important to get the rights descriptions accurately recorded.

    I believe that there is a need for a rights management team here at Warwick, and we will also need a repository for the materials they manage the rights of.

    13 Feb 2007, 12:17

  5. Jenny Delasalle

    Aha, well, it looks very nice in Mozilla. How would someone go about building such a database?

    13 Feb 2007, 12:30

  6. Robert O'Toole

    Simple to build. The records are actually stored in a blog. This has many advantages, not the least of which is that it requires no database design and support (there is no database design and support service at Warwick). Each entry is actually a blog entry, written following a simple structure and set of conventions. The entry can contain links, text, images, video, audio. It is also possible to allow people to comment on an entry, so for example they could add notes about how they have used the resource. Authorsip rights can be assigned to individuals and groups of people.

    The most important thing is that each entry is keyword tagged according to an agreed taxonomy. That then sorts entries into the categories used by the querying facility.

    The blog records are then exposed in a Sitebuilder web site using a special interface that I have designed. At the moment this is an unsupported prototype. However, I will be converting it to use more standard Sitebuilder functionality very soon. Any permission controls set on the blog entry apply in the Sitebuilder interface.

    The system is being used by CAS, Renaissance Studies, and soon also the Language Centre and History.

    13 Feb 2007, 12:43

  7. Robert O'Toole

    The Image Database is currently broken in Sitebuilder 2 ID5 on Internet Explorer. I’m working in a fix right now!

    13 Feb 2007, 12:58

  8. Robert O'Toole

    a central unit that can keep records for such permissions and provide examples and advice to other departments on how to obtain such permissions could be valuable

    That’s exactly what the OU have. The BUFVC workshop is run by that unit. Of course the OU creates much more material, printed, online and on TV and radio. But the use of such material is also increasing dramatically at Warwick, and many of us (e-learning advisors, careers, library etc) are being asked to give advice on these issues.

    13 Feb 2007, 13:01

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