Wednesday, 20 June 2012

16 Things about Copyright

Love it or hate it, I’ve learned over the years that copyright and related issues are fundamental to pretty much everything we do in Higher Education. Although neither a lawyer or a copyright expert, here are a few items that I’ve picked up along the way.....

22 01 07 - I Don't Know Any More

The effect copyright has on most people
Image by Cliph under 
a CC BY-NC-SA 2.0 license 
1. Copyright law exists to protect the rights of those who produce original creative works.
These include musical compositions, literary works (including song lyrics, plays and screenplays), visual works (including photographs, paintings, drawings, maps, logos and/or trademarks, architectural designs and sculptures), films, television programmes and sound recordings. Less obvious examples include software programs and  and the kind of typesetting and graphical layout used in academic journals.

2. The person who creates the original work is normally the copyright holder.
There is one major exception to this, which is when people create such works in the course of their normal employment, in which case the copyright normally belongs one's employer. However, things can be a bit more complicated in the wacky world of HE where there is quite a degree of variation in contractual agreements at various Institutions - especially in the case of producing materials used in teaching. So in some Universities teaching materials are the copyright of your employers, and in others, employers waive their rights of ownership over these, as is often the case with academic books and publications. The copyright holder has the exclusive right to copy the work, sell it or lend it to the public, perform it in public and/or broadcast it where appropriate, and to make further changes and adaptations to the work. Anyone who does any of the above when they are not the copyright holder is committing an infringement, or an infringing activity. The copyright holder also has the moral right to be identified as the creator of the work, and for the work not to be subject to defamatory treatment.

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3. Copyright is automatically generated when someone creates an original work of the type mentioned above.
The creator doesn’t need to apply for copyright to some external body, and neither do they have to display the copyright symbol, ©, in association with the work for it to be protected (although it might be a good idea to do so). It is effectively a property right that can be bought, sold, inherited, and rented. It is important to understand that here has to be an actual “creative work”, or physical manifestation of an idea, to be copyrighted - ideas themselves are not copyrighted. So if I have an idea for a chart-topping song, I have to actually write it down for it to become copyrighted. Copyright is also not an index of quality - so as a keen hobbyist musician, I can (and some would say usually do) go home, write and record any kind of meandering twaddle and it is still copyrighted.

4. Different kinds of copyrighted works are afforded different types of protection.
This is where the fun starts. Probably the most important of these is the duration of the copyright - i.e. for how long a work is copyrighted. It broadly goes like this:

  • Literary, dramatic, artistic and musical works are protected for 70 years after the death of the author/artist/composer
  • Sound recordings are protected for 50 years after the recording was made
  • Television programmes are copyrighted for 50 years after they are first broadcast
  • Typographical arrangements and publications are protected for 25 years after the first edition of the publication
  • Film weighs in as the most complicated, as the duration of copyright here is for 70 years after the death of the last surviving member of either the directors, screenplay writers or composers of any music written especially for the film.

Once the copyright has expired, these works become part of the public domain, and can be copied, performed or published again.

6. It is important to realise that the copyright duration over a certain type of creative “artefact” can be different from the content within the artefact.
So in the case of said  musical twaddle described above,  the recording itself will be out of copyright in 50 years, but the composition will still be copyrighted for another 20 years. So if someone else decided they wanted to re-record it, or perform it in public they would still need my permission (or that of my estate), and may well have to pay some royalties. I do fully understand the magnitude of the unlikeliness contained in this latter scenario by the way.

7. Copyright law is complicated.
It’s not rocket science complicated, but it is detailed and often seemingly  inconsistent, and the variation in copyright durations above is just one example. It also often seems to lack clarity in terms of its enforcement. So whilst there are maximum fines and prison sentences set by law, there does not seem to be any clear structure or guidance as to how these should be applied. So it’s not like getting caught speeding where there are fairly clear guidelines about what penalties are applied (£60 fine and 3 points on your licence for doing 35 in a 30 zone in the outskirts of Sheffield. Allegedly). It becomes further complicated by the fact that in a great many instances where infringements end up as legal cases, it has been up to the rights holder to bring the matter to court. The rights holder appears to need to be able to for example, demonstrate that the infringement has resulted in a direct or indirect loss of income to them, and these claims can be countered by a  number of mitigating factors used by the defense. A good example of this complexity, including a range of mitigating circumstances, can be seen in a recent case where a consortium of British publishers unsuccessfully tried to sue Georgia State University (GSU) for infringements relating to upload journal article sto their Intranet. I’ve provided some links below for those wishing to see more details of the case.

8. It is not just ok to use copyrighted material in education.
This is a myth that I have heard proliferated so many times in HE that I’ve lost count. One of the issues with our widespread use of the Internet and IT based resources is that it’s so easy and so tempting just to right-click on an image (or a video clip, sound clip or chunk of text for that matter), save it to your machine and pop it into whatever PowerPoint presentation you’re currently working on for your next lecture. The fact that this lecture may take place “behind closed doors” does not make it ok. The myth is then literally proliferated as the same PowerPoint may then be uploaded onto the campus VLE, and subsequently downloaded by tens or hundreds of students. The metaphorical closed doors of a password protected VLE are still no defence.

9. Mitigation matters.
The GSU case shows us a couple of really important things if we are in any way involved advising colleagues in the use of copyrighted materials, or run services that have copyright implications. Firstly, Universities can get taken to court, and even without being found guilty, it clearly doesn’t necessarily make for good publicity.  Perhaps more significantly is the importance of mitigating circumstances.  There are a couple of very important things Institutions should have in place that can act as mitigating factors in cases such as the above:

  • A clearly visible “notice and take-down” policy - this gives those who feel they have been infringed a clear route in to the Institution to register their objection to the infringement. This should be backed up by the Institution undertaking to investigate fully and “take down” the offending material in the case of a genuine infringement.
  • Clearly visible guidance and support for staff and students regarding the use of copyrighted materials in teaching and research. Ideally there should be some generic information, and also information for relevant specific services on offer - the VLE, lecture recording system, video library etc.

At a large University this can be a difficult one to crack, as often there will be different  sections within that have responsibilities for different aspects of copyright compliance - the Library and IT services are obvious candidates but it can also include student registry services, HR departments, research support services and so on, because copyright in integral to so much of academic life. We’ve attempted to approach this here at Sheffield by recently producing a copyright “hub”. This is intended to be a single central resource, which provides an overview of our copyright policy, the notice and take down policy, and “service specific” policies containing detailed advice relevant to certain areas. It is a work in progress but illustrates what we are trying to do - provide a one-stop-shop which is both highly visible externally, and of genuine use internally.

What is your Institution doing about copyright guidance? If you take nothing else away from this article, do at least ask this question.

10. It’s not all gloom and doom.
We are in fact relatively lucky that as educators, the legislation does enable us to do certain things that would otherwise be infringing activities, and these are known as exceptions. Rather than list them all here, I’ve included some links below that give more detail and explanation. In summary they allow the use of copyrighted materials for examination purposes, criticism and review, support for disabilities, private study and a few others. But do be aware - they are quite tightly constrained, often don’t take digital copying techniques into account, and most certainly are not just a carte blanche for ignoring the rules.

We also benefit from various licensing agreements in education. A license basically makes it legal for you to do something that would otherwise be illegal, and in the case of copyright, these exist as contractual agreements between educational institutions and rights holders such as publishers and broadcasters. Two of the most used licenses (certainly in HE) are

  • The Copyright Licensing Agency (CLA) - this licenses the copying of printed material for use in HE, allowing the production of “course packs” and photocopying materials. It also allows the scanning.digitisation of images from books which can be used in lecture presentations or the VLE.
  • The Eduational Recording Agency (ERA) - this allows the use of recorded television and radio programmes to be used and copied within educational establishments.

Do please be aware that there are of course conditions governing their use and a few “gotchas” to watch out for - for example the ERA license doesn’t cover the use of Open University programmes, even though these are generally broadcast via the BBC, whose programmes are included in the license. Make sure you understand these terms and conditions if you intend to use these materials.


The Arbor Low henge and stone circle.
Copyright Graham McElearney 2012
11. Creative Commons does not mean copyright free. Nor does Royalty free.
The Creative Commons licensing scheme has caused a minor revolution over the last few years, as it allows an easy route for thousands of creative people to get their work circulated and distributed online, whilst still retaining some copyright protection. And that’s the point - it is still a copyright licensing scheme. It also makes it much easier for people to use this work and give it an audience it otherwise may not have had, but do please remember that at a very minimum, such work must be attributed - i.e the creator must be acknowledged in the manner which they specify.  There are a number of sources for locating Creative Commons and other royalty free images - Sarah Horrigan has recently written an excellent guide to these in a recent posting on this blog - 5 Great Sources of Creative Commons Images.


12. Individuals have rights too - and this includes students.
It’s not all about protecting the commercial concerns of big players who are feeling threatened by the fact that their somewhat  - let’s just say in a totally value judgement free way - “rewarding” business models are being eroded by new technologies. Despite our employers owning the copyright in any work that we do. we as individuals have some rights too. An example of these are Performers’ Rights. Performer's rights give performers the right to control the distribution of recordings made of them, and this is often interpreted to include the giving of lectures within educational Institutions. The consent of any performer also needs to be obtained before they are actually recorded, as well as being needed to host them online. This means if for example you are offering a lecture recording service, that you will need your lecturers' consent to record and re-distribute their lectures.

It is also important to remember that students have Intellectual Property in the work they create as part of their courses. This has implications for what terms and conditions our students sign up for when they register with us. It is now fairly broadly acknowledged that just getting them to sign everything over to their university or college is a rather outdated approach, and allegedly one that would not now stand up in court. I don’t know the full background to this but do know that a number of institutions, including ours here at Sheffield, have recently updated registration policies to reflect this.


13. Students need to be educated about copyright.
I believe that it’s really important that we teach our students about the importance of understanding and respecting copyright. There’s an emergent body of literature about the importance of teaching students about information and digital literacy, and copyright should really be a component of this. My colleague Pete Mella has also recently written about this and has a rather splendid presentation that he uses, in his recent article Presentation: copyrightsafe media production.  I like to think of it in terms of responsible digital citizenship - an attribute which will be increasingly important for reasons of employability if nothing else.. In a world where the avoidance of plagiarism and the importance of correct citation and referencing academic works is so important, why should a similar respect for digital artefacts be any different?

14. Copyright implications of using third-party services.
It is worth remembering too that if you use third-party web services, signing up to using these may well have copyright implications. It doesn’t mean don’t ever use them, or that the implications of these conditions are terribly horrific, but do be aware of them. In some cases they may be a legal formality which is essential for the services to actually function, which is the conclusion that many commentators reached whilst critiquing the much  discussed changes in Google’s terms and conditions - so for example - you basically have to give Google or Dropbox the right to copy your data around, otherwise how would a document you stared in one place magically appear in another? In other cases such as Facebook, you may wish to be a bit more cautious,as when you use this service you are granting them a (non-exclusive) license to your materials - important if those materials happen to be copyrighted to your employers. So don’t panic when you  see these conditions but be aware of them.

15. It can get even more complicated.
None of the above is helped in anyway whatsoever when we get into technologies such as lecture recording. There’s a bit of a double whammy here, because what may be legal to do in a face to face classroom situation, may not be legal to record and redistribute. So for a final hypothetical but very possible scenario: Imagine I’m giving a lecture about the significance of the marvelous Arbor Low stone circle in the Peak District as part of an undergraduate archaeology module here in Sheffield, based on ideas I formulated when doing my PhD. So I’ve got some pictures that I took in my own time, and put them into a PowerPoint using a University computer in work time. I also use an excerpt from a BBC documentary about Stonehenge for comparison which was recorded under the ERA license. I have the lecture recorded using myEcho (our lecture recording service) and want to make it available via MOLE, our campus based VLE. Let’s just throw one more spanner into the hypothetical works - I’ve just got a new job somewhere else, based on my research on stone circles, and that’s what they want me to teach next semester.........

Anybody care to sort this one out and post the answer into the comments box.......?

16. And finally....there are changes on the horizon.
Most of the UK copyright law is enshrined in the 1988 Copyright Designs and Patents Act. We had our first Internet browsers here at Sheffield in 1993, and had our first installation of a VLE in about 1997. So guess what - current  regulations are no longer work in our current digital age. We have a real problem in that we’re told to embrace the knowledge economy by teaching increasing numbers of students using new technologies, but are doing it with hands that ere tied by outmoded constraints.  The problem has been acknowledged, and hopefully outcomes of initiatives such as the Hargreaves Report may help us to harness these amazing new technologies that enables a truly enriching experience for our future students.  

Acknowledgements and further information

The road to copyright enlightenment is not an easy one, and I know I still have a way to travel. Much of what I’ve gleaned over the last few years has been greatly assited by a number of colleagues, most importantly Claire Scott from the University of Sheffield’s Library, and Jacquie Kelly form JISCLegal. Any mistakes or omissions are all mine not theirs.


Further information about copyright law

The Copyright Designs and Patents Act 1988 in its raw form (see sections 32 to 36A for information about exemptions that may apply in education) :
http://www.ipo.gov.uk/cdpact1988.pdf

Some more easily digestible explanations about copyright law from the UK Copyright Service
Copyright law - http://www.copyrightservice.co.uk/copyright/p01_uk_copyright_law
Using the work of others - http://www.copyrightservice.co.uk/copyright/p27_work_of_others
Top Ten Copyright Myths - http://www.copyrightservice.co.uk/copyright/copyright_myths

Information about Educational Licenses

The University of Sheffield Library’s information about licenses:
http://www.shef.ac.uk/library/services/copylicences


Further Information about the Georgia State University case:

From the IPKat:
http://ipkitten.blogspot.co.uk/2012/06/getting-dizzy-over-fair-use-in-higher.html
From the Duke University Libraries blog:
http://blogs.library.duke.edu/scholcomm/2012/05/12/the-gsu-decision-not-an-easy-road-for-anyone/



Copyright guidelines for lecture recording:

From the University of Sheffield’s myEcho service:
http://www.shef.ac.uk/cics/myecho/copyrightguidelines

Downloadable consent form and copyright guidance (Creative Commons licensed to The University of Sheffield)
http://repository.alt.ac.uk/819/

Graham


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