Copyright law gets the upper hand - how contracts can no longer remove many rights users have in UK copyright law

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In a recent survey, carried out by the Libraries Archives and Copyright Alliance (LACA), 65% of respondents were aware of the many positive changes to UK copyright law that took place in 2014. As I blogged about at the time, many of these were aimed at making the lives of students, researchers and librarians easier. For example, widening copyright exceptions to allow copying of anything by anyone for people with disabilities, through to the “Big Data” exception that allows data mining for non-commercial purposes.  Many of these changes have supported the education and learning that takes place in an archive, library or other educational institution.

Protection of copyright exceptions from override by contract 

One of the most important structural changes to the law in 2014 was to protect copyright exceptions from override by contract. Given that the freedom of contract in UK law is a very important legal principle, before 2014 libraries were faced with a situation where contracts were removing most copyright exceptions. According to a study commissioned by the government’s Strategic Advisory Board on Intellectual Property, whether contracts could vary copyright exceptions was decided on a case by case basis by the courts, thus providing essentially little if no clarity for libraries or educational establishments. However, as a result of the 2014 changes, many UK copyright exceptions can no longer be “trumped” by provisions in a contract. This means that no matter what your licence, subscription agreement or contract with a publisher says, for most UK educational and library exceptions (see the list below), you can ignore what the contract says. This is because the law now states for these exceptions, that they cannot be overridden by contracts or licence agreements:

To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.1

Whereas exceptions have traditionally not been seen as a right as such, as many of the UK education and research exceptions can no longer be removed by contract,  they are now to all intents and purposes new rights that learners, libraries and researchers have been granted in the law.

Are people aware of these important new rights?

Of the 117 people who responded to the LACA survey on contracts, 65% were aware of the 2014 changes to copyright law, 26.5 % were not aware, and  8.5% answered “don’t know” (one person skipped this question). Crucially in response to the question “Are you aware that most library, research and education copyright exceptions in the UK cannot be overridden by terms and conditions in a signed contract?” only 52% said yes, with 38.5% saying no, and 9.5% responding don’t know.

Assuming that most people who answered are fairly engaged with copyright, as the questionnaire was promoted through LACA’s twitter feed @UKLACA, it is clear that greater awareness and training on copyright law and where it can support the works of librarians and archivists, is needed. Something that LACA will certainly consider further. 

Contracts in the digital age

This important change to the law is all the more vital in the digital age, given that purchased electronic materials will usually come with a licence or a contract. Before 2014 this meant effectively that whether people could copy for educational and other purposes was no longer the decision of parliament in the public interest, but the decision of the individual or publisher licensing the library. 

Organisations like the British Library, the Wellcome Trust, LACA and Universities UK worked for many years highlighting to government the importance of this issue for research and education. By protecting exceptions that relate to education, research and libraries the government has now sought to protect many of the activities important to learning in the digital age.

How will these new rights help me?

Here are just a few areas where contracts can no longer remove the exceptions in copyright law that UK based institutions can enjoy:

Document Supply:  Whereas paper journals, books etc don’t come with a licence (unless distributors like Swets impose them on the library), electronic journals and other e content does. The licences for use of electronic materials also vary from publisher to publisher, making understanding and compliance at any scale extremely time consuming and problematic. The good news now however is that for document supply purposes, it doesn’t matter what the contract for the e subscription or licence says, you can under UK law (s.42A) supply an article or a book chapter to a student for the purposes of their own study and (non-commercial) research.

Copying for the Disabled:  Until 2014 the UK used to have some of the most unfriendly copyright laws in Europe for disabled people. However now, not only can libraries supply a whole copy of something to them, it does not matter whether any  contract with the provider allows or disallows this activity. What is important is that copyright law allows this.

Text and Data Mining:  One of the major new exceptions we saw in 2014 relates to data analytics of big data. Although, because of the Copyright Directive this was limited to non-commercial use, someone who has legal access to an in copyright work can now use a computer to analyse it. This is vitally important as most e journals and websites come with some form of terms and conditions. However now these terms and conditions can be ignored, if you have legal access to the work. 

Illustration for Instruction:  This exception allows someone who is “giving or receiving instruction” for a non-commercial purpose to use a fair proportion of an in-copyright work. As with all the other exceptions that prevent contract override, teachers and others giving or receiving instruction can irrespective of the contract governing use of the work, use a fair proportion of the work (as long as where practical the copyright holder is acknowledged).

Rebalancing copyright

The UK government was not the first country to protect copyright law from freedom of contract, but is certainly one of the front runners. We already see in the proposed Digital Single Market Directive some but not all of the exceptions introduced being protected from contract override. To me this important move to protect copyright law from private contracts represents another stage in the digital maturity of copyright law. For example since 1996 in the rush to protect publishers publishing online we have seen exceptions in Europe being trumped not only by contract law, but by technical protection measures, or more colloquially (and misleadingly) DRMs also. It feels perhaps that this tide is changing, and governments are starting to rebalance copyright in the digital age by ensuring that exceptions are protected at the very least from contractual override.

If any librarians would like further clarification of anything written about in this article (as inevitably with copyright law the article has been simplified somewhat!) please contact LACA @UKLACA or email policy@cilip.org.uk and we will happily respond.

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UK Exceptions That Cannot be Overridden by a Contract / Terms and Conditions

s.29            Research and Private Study  (Fair Dealing)
s.29A         Copies for text and data analysis for non-commercial research 
s.30           Quotation
s.30A         Caricature, Parody or Pastiche
s.31A         Disabled Persons: copies of works for personal use     
s.31B         Making and supply of accessible copies by authorised bodies     
s.31BA      Making and supply of intermediate copies by authorised bodies 
s.32           Illustration for Instruction
s.41           Copying by librarians: supply of single copies to other libraries 
s.42           Copying by librarians or archivists etc: replacement copies of works 
s.42A        Copying by librarians: single copies of published works 
s.50A        Back up copies (of computer programs)
s.50B        Decompilation (of a computer program)
s.50BA     Observing, studying and testing of computer programs 
s.50C        Other acts permitted to lawful users (relating to computer programs)
s.75           Recording of broadcast for archival purposes 
s.296B       Avoidance of certain terms relating 

Benjamin White is one of a range of speakers at the upcoming CILIP Copyright Conference on the 7th of April in London. The event provides a great opportunity to learn more about current developments in copyright law and practice and how it will impact you, your organisation and the users of the services you provide.

 

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