All 5 entries tagged Copyright

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May 06, 2008

What is an 'insubstantial part'?

In UK copyright, under certain conditions that are outlined in this article by the University Legal Compliance Officer, we may use an ‘insubstantial part’ of a copyrighted work without gaining explicit permission. But what is meant by ‘insubstantial part’?

January 04, 2007

Using digital media: copyright, DRM and safe [e]learning practice

I am often asked to give advice on the digitisation of copyrighted content and its distribution online. I’m not an expert on this, and claim no qualifications. But I have studied the issues and attended some good courses. In an attempt tp summarise this knowledge, I have created this (draft) document. You can read this in whatever order you like, either the good news first or the bad!

Key sources on which this is based:

Copyright Made Easier. Wall, Raymond A. ASLIB, London, 2000.
Intellectual Property and Copyright in the Digital Environment CARET. University of Cambridge (excellent web site).
British Universities Film and Video Council course on copyright

The bad news

Contrary to popular belief, there is no blanket ‘fair use for education’ exemption within British copyright law. Furthermore, educational bodies are increasingly considered to be commercial organisations. If we infringe upon the rights of another commercial organisation, they are likely to pursue us for compensation. The position of the university on this, as embodied in its acceptable use policy (AUP) for IT, is that individual members must not use University facilities to commit such infringments. Employees of the University should not commit such infringements in the course of their work.

Although we have a limited license agreement that allows us to reproduce certain copyrighted materials on paper, there is as yet no such agreement covering digital media. Similarly, print media that has been digitised is not covered. The Library are currently piloting a very restrictive digitisation license, but only in a controlled way. There is a good reason for this limitation, from the perspective of copyright holders. Once content has been digitised, it can be redistributed to thousands or even millions of people at the click of a mouse button. When this happens, they no longer have control. Digital rights management (DRM) systems are being developed to allow controlled digitisation and redistribution, but are not yet widely used.

The situation becomes worse when digitised material is uploaded to the web. Redistribution then becomes even more simple. It is often assumed that storing content on a password or permissions protected web page is acceptable. Rights owners would counter that the material may still accidentally or deliberately be ‘leaked’ into a public realm by anyone with access to the restricted page. Imagine if a student were to make a copy and then post it publicly on their blog. Auditing of digitally stored materials may occur, even behind protected pages, and this can lead to painful consequence.

The good news

There are three significant exemptions that we can exploit. Firstly, and most well known, are the various expiration periods of rights under protection. For example:

In literary, dramatic, musical or artistic works copyright lasts 70 years from the end of the calendar year in which the author dies.
Sound recordings, usually 50 years from the end of the calendar year in which the recording is made (there are complications).
Films, 70 years from the end of the calendar year of the death of the last to die of the following persons: the principal director; the author of the screenplay; the author of the dialogue; and the composer of music specifically created and used in the film.

(Adapted from the Cambridge University copyright web site )

However, you might want to use more recent materials. There are two further ‘permitted uses’ available to us:

Making copy for personal research or private study – and that means personal, you cannot use this exemption to make copies for groups of students or researchers. They can of course make their own copies.
Reproducing an ‘insubstantial part’ of a performance or publication for the purposes of criticism or review.

One could argue that much of what we do in higher education, especially the arts, constitutes criticism or review. This enables us to use citations from publications or small lower quality images of artworks without explicit permission (although it is often good practice to ask first, as this keeps artists and publishers sweet). There is a significant caveat: ‘insubstantial part’. This does not necessarily describe a quantity of the original work. To calculate whether you are reproducing a ‘substantial part’ consider this question:

Would the acquisition (or viewing) of my reproduction make the acquisition (or viewing) of the original in some way unnecessary?

If yes, then you have definitely used a substantial part. For example, this is the clause that prevents theatre critics from giving away the ending of a play. Note that you can still use your criticism to convince people that the play isn’t worth seeing on artistic grounds. For more information and ideas on the permitted use for criticism and review, read this blog entry.

And finally, remember that if you really must use a substantial part (or whole) of a performace or publication, it is worthwhile simply asking for permission from the copyright owner. Explain to them how you are to use it in education or research, tell them that it will increase the prestige and even sales of their work, and reassure them about how you plan to control access to the reproduction. There are organisations that exist to support this process. I will investigate these and report further.

Robert O'Toole : 04 Jan 2007 16:08 | Tags: Copyright E-Learning Key Entry Warwick University | Comments (0) | Close comments | Report a problem

June 20, 2006

Four case studies in copyright and intellectual property rights

Follow-up to More about how you can use copyrighted material for free in criticism or review from Transversality - Robert O'Toole

This evening I am co-teaching a session on web publishing with Casey Leaver (Comms Office) as part of the Graduate School Skills Programme. As part of this I cover copyright, intellectual property, with reference to the various channels available at Warwick. I will be presenting the students with four fictional case studies to consider. Each raises interesting questions and difficult considerations. They are detailed below.

I have added my own response to each of the use cases. Although we didn't have much time to discuss them properly in the session, the students seemed to have a good understanding of the principles. Note that I am not a lawyer, and hence you should not take this advice as sanctioning any specific act.

Case Study 1

During her summer vacation, a lecturer in aesthetics visits the Fundacio Miró in Barcelona. It is a very relaxed gallery, with no major security presence and none of the ugly signs that pollute the nearby MNAC gallery with warning of criminal charges to be levied at anyone who breaks the rules. On seeing one of the paintings, the lecturer realises that it could form the basis of a lecture. She quickly takes a photograph of the painting. No one seems to mind. Later she finds an internet cafe, and logs into her module web pages on Sitebuilder at Warwick. She uploads the photo of the artwork, and adds it to the resources page for the lecture in which she plans to discuss the artwork. The page has its security permissions set so that only Warwick staff and students can access it. The image will only be used in teaching of the module.

Has she done anything wrong? If so, what do you think she should have done?

Firstly, is the image actually subject to copyright?

As Joan Miró only died in 1983, it is likely that copyright still belongs to the Miró estate, which I suspect means the Fundacio Miró.

Is she then covered by a permitted use?

The permitted use for (group) research or (personal) private study does not apply in this case, as she is using the image in teaching.
She could argue that she is using the work for criticism or review, but this would depend upon the exact way in which it is used.
However, she is using more than an insubstantial part of the artwork, in fact she is reproducing the whole work, although she does not remove the need to refer to the original work.
But she may well be infringing upon the Moral Right of the author in representing his artwork through a poor quality copy. Artists seem particularly keen on using this clause to prevent their work being digitised.

However, there is a further consideration:

Even if the copy were to be considered as one of the permitted acts, the gallery would almost certainly have imposed as a condition of entry a ban on photography and the reproduction of its works. This is common practice. Galleries are firm in their defence of these contracts.

What then should she have done? I suspect that the Fundacio Miró are quite generous towards the use of their images in teaching. They may well have provided permission to use a good quality copy free of charge or cheaply. The lecturer should have contacted the gallery and sought permission. This would also respect the Moral Right of the artist.

One final point: the image was on an access controlled site, which probably means that she would not have been caught. However, it is not impossible. And furthermore, she really should try to do the right thing.

Case Study 2

A research student attends a lecture on cognitive science by a visiting lecturer from Edinburgh. Many of the colleagues in the student's research network are unable to attend, for either timetable reasons, or because they are at other universities. It all seems very exciting, a new theory about how intelligence is founded upon its extension into materials and tools in the world beyond the brain. The visiting speaker is particularly excited about some new examples that he has discovered that will answer the many existing criticisms of such a theory. He explains that he will very soon be publishing a book that details these ideas in full. He expects this to be the most important book in its field ever to be published. However, despite his excitement, he feels the need to try out some of the ideas with a small number of other researchers. He therefore elaborates upon these new discoveries in his lecture. The research student finds that these ideas fit very well with his own work. He also knows that his colleagues at Warwick and beyond will find new impetus to their research from these new ideas. It offers a chance to really bring together all of these people. After the lecture he quickly finds a computer and writes a blog entry to explain everything that he has learnt. His friends all across the world are able to read about these great new ideas right away.

What will the effects of his actions be? Would you do anything differently?

This in fact happened to me recently. I attended a lecture by Andy Clark, who introduced his paper by saying that he was using it as an opportunity to try out ideas for his new book. I did write a blog entry in response, but was careful not to repeat any of his new ideas. Had I spilled the beans publicly on the web, I would understand him not being too pleased. At the very least it might have discouraged him from revisiting Warwick. Alternatively, I could have written a blog entry with restricted access, although my friends outside of Warwick would not have been able to have read it. I could have communicated with them by other means.

Case Study 3

A lecturer is an active member of a discussion forum hosted in the Warwick Forums system. The forum is open to all members of the university. It is a very popular forum, with people from across Engineering and the Warwick Manufacturing Group participating. Such a diverse collaboration of knowledge and skills often leads to new perspectives on old problems. One particular problem seems to be quite intractable, so the lecturer posts a long description of it on the forum. She already has some possible solutions, but just needs a little input from elsewhere. The tactic works, an MSc student offers an unusual insight that inspires a solution from the lecturer. A journal paper follows, along with, a year later, an unusual email from the exams secretary. The student has been accused of plagiarising from the journal article. The plagiarism seems to be quite clever, but the ideas are the same and a few sentences are shared. When the lecturer looks at the student's essay, it appears that some of it has been copied from the forums discussion.

What factors should be considered in resolving this? What could have been done differently?

Ad-hoc collaborative work is not effectively dealt with in law. It would be difficult to identify a single 'author' of the set of ideas that emerge from the discussion. Perhaps copyright could belong to the institution within which the discussion happened? Cases like these are a matter for sensible judgement and good practice. One aspect of that good practice is rigorous attribution. Clearly the student's mistake was in not attributing the ideas to the contributors in the discussion. However, many people are unaware of the conventions for referencing such objects. My attitude would be that the student got it wrong, but that it is not a serious case.

Case Study 4

A researcher regularly writes short articles and publishes them on her blog using Warwick Blogs. The articles usually attempt to make some connection between her work on the history of the Middle East and current events in the news. The blog becomes a popular read for many specialists in the area. After some time, the lecturer is contacted by a friend who asks how she managed to get her work published on the web site of a slightly extreme Islamic student's organisation in France. She is baffled. On looking at the url, she finds a blog like web site, mostly in Arabic, with one of her articles sitting in the middle of the page, surrounded on all sides by arabic, of which she can decipher nothing. The article is about the Arab Revolt of 1916, and the coordinated attacks on trains that were an essential part of it. She is a little concerned, as she has absolutely no idea what kind of context her work is being presented in. It is attributed to her, with a url link to her blog, but it seems to be a very different article when presented out of its original context.

How do you think this happened? Do you think it is likely? Has anything illegal been done? How would you respond?

Again new technology is almost out–stripping our conventional academic practice. When an author publishes a blog entry with public permissions, it can automatically appear on other web sites within an agregation of entries. Warwick Blogs automatically creates RSS XML feeds that enable this kind of syndication. This might be a breach of the author's Moral Right. It might also be a breach of Database Right (which could possibly be used to stop other people from abstracting individual entries from an RSS feed). However, I suspect that it would be a tricky case to prove, given that the author is using a system that offers a public RSS feed.

Something similar to this has in fact happened to me. One of my blog entries appeared on an Arabic language web site, I don't really know the context as I cannot speak Arabic. But I have absolutely no reason to believe that it isn't one of the vast majority of worthy Arabic sites on the web. So I really do not mind, and in fact am quite curious as to what they find interesting in my work.

Has anyone got any other opinions on these cases?

Robert O'Toole : 20 Jun 2006 15:44 | Tags: Copyright E-Learning Warwick University | Comments (2) | Close comments | Report a problem

June 16, 2006

More about how you can use copyrighted material for free in criticism or review

Follow-up to Neat tricks for dealing with copyright? from Transversality - Robert O'Toole

In a previous entry I documented some of the lessons that the E-learning Advisor Team learnt from the BUFVC course on copyright. We found the permitted uses of copyrighted material (that is, what you can do without permission) to be much wider than we had previously assumed. I am seeking further clarification, in particular of the permitted use of copyrighted material for the purposes of criticism and review, as this may well cover many activities within the Arts Faculty.

Note: I am not a lawyer. You should not regard this article as providing perfect and sufficient advice.

Permitted use for criticism and review

British copyright legislation includes some significant protection of what could be conceived as "free speech". The use of copyrighted material for criticism and review is an essential component of this.

Imagine that a theatre company puts on a production of the Merchant of Venice that presents Shylock visually in a way that could be considered to be anti-Semitic. Under the normal contractual and copyright terms the company could forbid the audience from distributing images of the production that demonstrate this feature. A journalist covering this story would be prevented from proving the alleged anti-Semitic visuals to the public by reproducing a photograph of the production. The debate concerning the production and anti-Semitism in Shakespeare would be to some extent weakened. However, UK copyright legislation allows the journalist to reproduce such a photo for the purpose of criticism and review, thus allowing the public to make up their own minds on the allegations of anti-Semitism.

Clearly the legislation is vital in such an extreme case. But it is also intended as a general support to activities of criticism and review. It supports all such open debate, and is thus essential in supporting the very essence of arts education and research.

Limitations on fair dealing for criticism and review

We can therefore safely reproduce copyrighted materials if such an act is essential to criticism and review. There are, however, restrictions. The first of these is stated clearly by Raymond A Wall in his very useful book Copyright Made Easier:

Copying or quoting a sufficient extent or significance to render consultation of the original unnecessary or less necessary would be unlikely to be judged 'fair' in court. Wall 2000, p177

There are two aspects to this limitation. The most easily understood of these is the limitation on the quantity of material copied. Most people are familiar with the idea that they cannot copy an entire book, play, movie, song or other such production. There are commonly accepted definitions of this regarding the quantity that can be copied from a book. However, this is in fact much less important than the second aspect. It isn't the quantity that really matters, it is the significance of the copied excerpt.

Consider if a reviewer were to reproduce a paragraph from a book. If that paragraph contained a statement of the purpose of the book, then potential readers would still have to read the book. If the paragraph contained the conclusion or most important piece of information in the book, the readers would no longer need to consult the original. This would then not be protected by the permitted act of criticism or review.

Note that "significance" is entirely a matter of judgement, until the damage has been done. Any use of copyrighted material in criticism or review may be challenged by the copyright holders in court. There is therefore always a risk in using this defence.

I have a possible permitted act of criticism or review that I am investigating. Consider if you took a photo of an artwork and reproduced that image as a digital image online. If the digital image were of a significantly low quality or size, then it would not render seeing the original unnecessary. Is this safe?

Protecting the moral rights of the author

Whenever we use a copyrighted work for criticism or review, we are still compelled to protect the 'moral rights' of the author. For example:

Any reproduction must be accompanied by sufficient acknowledgement. Wall 2000, p177

We must also ensure that we do not distort or misrepresent the author or their works. This limitation is quite significant. Authors can argue that the presentation of an edited or extracted part of their work presents it wrongly. Artists frequently use this moral right to object to their work being presented on screen. Again this is a matter of judgement. Our best defence is to seek advice from the author as to what is acceptable, and to explain in the criticism or review that the presentation of the artwork in the reproduced sample is only a partial representation of it.

My understanding of the use of copyrighted material for criticism or review still leads me to believe that it allows much more flexibility to arts education than I had previously believed. However, such activities face risks that have to be considered and managed carefully. We need to ensure that users of our web publishing tools are sufficently guided as to these risks and the processes that they must follow in order to lessen them.

Robert O'Toole : 16 Jun 2006 11:57 | Tags: Copyright E-Learning Warwick University | Comments (0) | Close comments | Report a problem

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:

a set of terms and conditions, agreed to by all members, that prohibit such acts;
mechanisms for guiding users in understanding the legality of their acts;
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: Copyright E-Learning Warwick University | Comments (8) | Close comments | Report a problem