New copyright exceptions to come into force on 1st June 2014

A process that had its roots back in 2010 when the Prime Minister announced that IP laws would be reviewed to make them fit for the digital age, has proceeded through an independent review of intellectual property, the Government’s response, and an extensive consultation of key stakeholders, now culminating in a suite of five statutory instruments, which are expected to become law on 1st June 2014.

These are some of the most significant changes in the recent history of copyright in the UK, which, in particular, will serve to benefit consumers, those involved with the education sector, and libraries and their users.

The full text of the statutory instruments, along with a series of guides aimed at a variety of different sectors can be found here.

I’ve summarized below the aspects that are likely to be the most pertinent to music libraries and their users.

Personal copying for private use

Section 28B is a new copyright exception which allows an individual to copy content they own, and which they have acquired lawfully on a permanent basis, to another medium or device for their own personal use. So this exception will make it legal for an individual to rip a CD he or she owns to a laptop or MP3 player, but the same wouldn’t apply to a CD borrowed from a library. The copying must be done by an individual, not a corporate body, and it cannot be passed to anyone else.

Research and private study

Section 29 relates to research and private study. Current copyright law allows for the copying of literary, dramatic, musical and artistic works for non-commercial research or private study, providing the copying constitutes fair dealing. In the new legislation this will remain a fair dealing exception for non-commercial purposes but is being extended to cover all types of copyright work, thereby including sound recordings, broadcasts and films. A new subsection has been added to section 29 to prevent the acts permitted in the legislation from being restricted by contracts.

Copying for criticism, review and quotation

In the current legislation there is a fair dealing exception for criticism and review. It remains the case that the work must have already been lawfully made available to the public, be subject to fair dealing and accompanied by sufficient acknowledgement. However, in the new legislation this exception is being reframed to also include quotation. This broadens the remit of what can fall under this exception, which can now include copying for the purpose of illustrating a point, though the extent of the quotation can be no more than is required by the specific purpose for which it is used. The exception cannot be restricted by contractual terms.

Copying for the purpose of caricature, parody or pastiche

A new exception 30A has been introduced to permit a degree of copying for the purpose of caricature, parody or pastiche to the extent that the use is fair dealing. Once again the exception can’t be overridden by contract. Examples of this type of copying might include excerpts of songs in parody videos. However it’s worth noting that of course moral rights still apply, which would include the right of the copyright owner to object to derogatory treatment of the work.

Copying for users with disabilities

Section 31 relates to making accessible copies for disabled users. The Copyright Act currently provides exceptions allowing accessible versions of literary, dramatic, musical and artistic works to be made for visually impaired people without infringing copyright, where commercial copies of an accessible format are not available. The amendments to the new legislation will extend this provision to include people with any type of disability which prevents equal access (so that would include print disabilities such as dyslexia), and to cover all types of copyright work. Again there is a new clause stating that contractual terms cannot override the exception.

Illustration for instruction

Section 32 was previously entitled things done for purposes of instruction or examination, but has now been renamed illustration for instruction. Although this falls within the part of the Act relating to education, this particular exception isn’t limited to educational establishments, so could equally apply to educational work taking place in public libraries or museums, so long as it is for a non-commercial purpose.

In the new legislation section 32 has become a fair dealing provision for both published and unpublished works, where previously the dealing was only required to be fair for the former.

There is no longer a requirement for the copying to have been undertaken by means of a non-reprographic method. So it will now be lawful for a teacher to use an interactive whiteboard, and a student will lawfully be able to copy down an example in a class onto their laptop.

Once again, contractual terms won’t be able to override this exception.

This exception does contain one aspect of serious concern, however. Up till now, the Act has included a wide exception stating that “copyright is not infringed by anything done for the purposes of examination by way of setting the questions, communicating the questions to the candidates or answering the questions” (with the caveat that this didn’t apply to music performance exams). In the new legislation, however, examination has been bundled together with instruction thereby making it subject to fair dealing, which could considerably restrict the ability to use music materials for the purpose of examination.

Recording of broadcasts by educational establishments

The legislation under section 35 sets out parameters under which educational establishments may make recordings of broadcasts, for which the use must be educational and non-commercial. Currently the exception limits the broadcast to being received by a person situated on the premises of the establishment.

The amended wording allows the use of such recordings to take place both on the premises of an educational establishment and via a secure electronic network which is only accessible to staff or students of the establishment. So that would include a virtual learning environment, or intranet.

Having said all that, this is one of the provisions in the Copyright Act which doesn’t apply “if, or to the extent that there is a licensing scheme certified for the purposes of this section providing for the grant of licences”. In the UK the Educational Recording Agency is the body that licenses educational recording, so the terms of that licence take precedence.

Copying and use of extracts of works by educational establishments

Copying under section 36 must be for non-commercial educational purposes. Whereas previously this exception was limited to literary, dramatic and musical works, it is now extended to include film and sound recordings, and mirroring section 35 the material can be supplied to authorised users via a secure authenticated network such as a VLE.

For material for which no licence is available (which, unless you work in a school, is currently the case for printed music) previously there was an extent limit which meant that an institution could copy 1% of a work in any quarter of a calendar year. This has now been expanded to 5% of a work in any period of twelve months, which is at least a step in the right direction.

However, note that, as with section 35, copying under section 36 is not authorised if a licence is available – whether or not the institution has decided to purchase it. So an educational establishment wouldn’t be able to copy from a book or a journal under this exception, on account of the existence of the CLA licence.

Libraries copying for users (published works)

Under section 37 a prescribed library may make and supply a copy of an article or a reasonable proportion of a literary, dramatic or musical work to a library user on the basis that the user requires the copy for the purpose of non-commercial research or private study. The user has to provide a signed declaration and must pay a sum not less than the cost attributable to the cost of producing the copies.

Under the new legislation, all references to prescribed libraries have been removed, and replaced with “libraries which are not conducted for profit”. In line with the amendments to research and private study the provision is extended to cover all types of copyright work. A customer still needs to provide a written declaration, but this no longer requires a signature and thus can now be received electronically. Libraries will now have the flexibility to choose whether to charge for the making and supplying of a copy of a work, with the only stipulation being that any charge must be calculated by reference to the costs attributable to the production of the copy. Finally, this is another exception that cannot be overridden by contract.

Libraries copying for users (unpublished works)

Requirements for making copies of unpublished works on behalf of a user are similar, except under section 43 the work must have been unpublished at the time it was deposited in the library, and the copyright owner must not have prohibited copying of the work. Again under the new legislation provision is expanded to all types of copyright work , the declaration need no longer be on a set form, or require a physical signature, and the copying library can choose whether to impose a charge.

Copying by libraries for other libraries

In terms of the provision for libraries to copy and supply other libraries with copyright works, where this was previously limited to literary, dramatic and musical works (with the proviso that for non-journal publications the name and address of a person entitled to authorise the making of a copy of the work cannot by reasonable enquiry be ascertained) the provision has now been extended to cover all types of copyright work. Again there is now no requirement to charge a fee, and contract terms no longer override the exception.

Copying by libraries to preserve or replace copies of works

Currently there is provision to make a single copy from a library’s collection in order to preserve or replace it in the library’s own collection, or to replace a lost, damaged or destroyed item in another library’s collection. There are limitations however – the item must be in the library’s permanent collection, and in a part of the collection which is wholly or mainly for the purpose of reference on the institution’s premises. The exception only applies to literary, dramatic and musical works, and only if it isn’t reasonably practicable to purchase a copy to fulfil the function.

Under the new legislation this provision has been expanded to include all types of copyright work, which will be of particular relevance to music libraries in terms of preserving audio collections. There is no longer a limit of making a single copy, and the work can be copied as many times as is necessary to preserve it. Finally, the exception cannot be overridden by contractual terms.

Libraries and educational establishments etc. making works available through dedicated terminals

Section 40B is a new exception which allows publicly accessible libraries, educational establishments, museums and archives to make works they have lawfully acquired available to members of the public for the purposes of research or private study through dedicated terminals on the institution’s premises so long as it is made available in compliance with any purchase or licensing terms to which the work is subject.

Certainly the exceptions to be implemented in June are for the most part a positive development in providing additional scope for using copyright material for personal use and to facilitate learning, teaching and research.

But are there any areas where music consumers, researchers, educators or librarians feel the legislation still falls short of uses that we would deem reasonable? Are there other aspects you would like IAML (UK&Irl) to be exploring with the creative industries?

Many musicians will be familiar with the Music Publishers Association’s Code of Fair Practice, which complements the Copyright, Designs and Patents Act in providing additional allowances that members of the MPA have agreed music users can undertake without a risk of litigation. It seems likely that the MPA will want to revisit this in light of the new legislation, so are there any additional areas we might ask them to consider?

Do leave any comments here, or email me directly at c.kidwell@trinitylaban.ac.uk

Claire Kidwell

Chair, IAML (UK&Irl) Trade and Copyright Committee