This week saw the introduction of some of the UK government’s new exceptions to copyright. These are intended to bring in changes to update copyright law for the digital age, implementing the 2011 Hargreaves Review. But several of the more controversial measures have been held up in the parliamentary process and have yet to take effect.
The changes that have been introduced, in brief, are the following:
Data mining and other research
Researchers will benefit from the introduction of the new text and data mining exception for non-commercial research, as well as the reforms to existing exceptions that will enable limited copying of all types of copyright works for non-commercial research and private study.
The new data mining exception permits the use of automated analytical techniques on text and data to search for patterns, trends etc. In the age of Big Data in fields such as bioinformatics, this kind of research is increasingly important. (Here’s a less serious example: Spurious Correlations). Note that the researcher must have the right to access the underlying material, for example, through a subscription to a publication.
Importantly, this exception is limited to non-commercial purposes. It may be possible to use the results of the research commercially, but the government's Research Guidance requires a researcher ‘to be scrupulous in assessing whether the original purpose of carrying out the text and data mining analysis is solely non-commercial’.
The rules controlling use of copyright material for educational purposes have been simplified and updated. They have been extended from a permission to copy certain types of work by hand, and now allow any use that is for the sole purpose of ‘illustration for instruction’, including for exams. But the copying must be for a non-commercial purpose, must be ‘fair dealing’, and an acknowledgment of authorship should normally be included. The Education Guidance explains that ‘teachers will be able to do things like displaying webpages or quotes on interactive whiteboards, without having to seek additional permissions.’
There are also changes to the rules applying to designated educational establishments – and their use of material within the existing licences such as a CLA photocopying licence. The amount of copying that will be permitted is increased from 1% of a work in any year to 5%, and educators will be able to distribute copied material through secure virtual learning environments.
The current rules allowing provision of copies to individuals for research and private study will be extended to all copyright works. And libraries will be allowed to give access to material using dedicated terminals.
There is already a preservation exception permitting, for example, digitising a book to transfer it to a more durable medium. This has been expanded, and will now cover all types of copyright work including artistic works and film. It will apply to museums and galleries as well as libraries and archives.
Note that commercial libraries or those within commercial organisations are excluded, and research is only covered if it is non-commercial.
An existing exception for copying of works to make them accessible to visually impaired people has been extended and improved. Disabled people generally and disability groups can now make accessible copies of copyright material (such as music, film, books) when no commercial alternative exists.
Public bodies can now publish online the material they hold for public inspection, rather than having to provide paper copies. This is in line with the government’s Digital by Default strategy. There are restrictions; for example, a publication that is already commercially available cannot be released in this way.
No exclusion of the exceptions
Copyright owners should be aware that any contractual terms that try to restrict permitted activities are likely to be unenforceable.
Some had hoped for greater clarity on the century-old requirement for ‘fair dealing’. The government has not introduced a statutory definition as had been hoped. It remains a matter of ‘fact, degree and impression in each case’, relying on court guidance on relevant factors. These include whether the type of use affects the market for the original work, such that the copyright owner would lose revenue, and whether the amount of the work taken is reasonable and appropriate.
More still to come?
A substantial part of the proposed changes have not yet been introduced: controversial changes relating to private copies (of digital music files, for example). and parody and quotation. These were held up in the parliamentary committee stages shortly before the regulations were finalised – perhaps some effective lobbying went on behind the scenes. The IPO press release says that 'the government is ... committed to introducing exceptions for private copying and parody and quotation once they have been approved by Parliament', but it is not clear when this might be.
So the otherwise helpful guidance notes should be read with caution, at least in their current form. For example, the Education Guidance refers to Quotation and Caricature – changes that have not yet come in. We must wait to see if these follow.