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Published online by Cambridge University Press: 27 January 2016
Copyright legislation in the UK changed significantly in 2014, and this article provides an overview to some of the most relevant changes to the exceptions1 in copyright law that can be used by archivists and librarians. Subscribers to ALJ will have read Tim Padfield's excellent introduction to UK copyright law for art librarians in 2012, much of which is still relevant and will not be repeated here. Given the varied nature of art library and archive collections in the UK, and the complex nature of the law in this area, it is intended that the following general guidance to the 2014 legislative changes will highlight areas for further study: such basic guidance should not be used to inform internal policy or decision-making. The article also includes a list of sources for more detailed information on the law, in the references section.
1. These exceptions allow individuals or particular types of institutions to copy works without infringing the law, so long as the copying meets a set of defined criteria.
2. Copyright, Designs and Patents Act 1988 s.29.
3. Many of the fair dealing exceptions now include contract override, a positive result of the lobbying which took place during the consultation on the changes to the CDPA 1988, and which makes the process of applying the exceptions much simpler.
4. Berne 3-step test: see 1886 Berne Convention for the Protection of Literary and Artistic Works Paris Act 1971 and the Directive 2001/29/EC of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society (aka the InfoSoc Directive).
5. Hyde Park Residence v Yelland [2000] EMLR 363.
6. CDPA 1988 s.42A & 43, also see Padfield (2015) for examples of declaration forms.
7. CDPA 1988 s.42.
8. CDPA 1988 s.40B.
9. University of Darmstadt v Eugen Ulmer [2014] ECDR 449.
10. CDPA 1988 s.41.
11. CDPA 1988 s.32.
12. Emily Stannard. “Brave New World or Tangled Web?: Educational exceptions in 2015.” Presentation, Copyright Executive Briefing from CILIP, London, April 1, 2015. Available at: http://www.cilip.org.uk/cilip/events/cilip-copyright-executive-briefing-2015
13. CDPA 1988 s.36.
14. CDPA 1988 s.31A.
15. CDPA 1988 s.31B.
16. Authorized bodies must keep records of accessible copies made under s.31B, intermediate copies it makes under s.31BA and the persons who are supplied with copies. Records must be made available for inspection at reasonable notice. Within reasonable time of making an accessible copy, an authorized body must notify rights owners or their representatives that a copy has been made, unless identifying and contacting individual rights owners is not reasonably possible.
17. An authorized body may make intermediate copies of work as part of the process of creating accessible copies of works, and they may share these intermediate copies with other authorized bodies in order to facilitate the creation of accessible copies.
18. CDPA 1988 s.30.
19. A work has been made available if copies have been issued to the public; if the work has been made available by means of an electronic retrieval system; if copies of the work have been rented or lent to the public; if the work has been shown, played, exhibited or performed in public; or if the work has been communicated to the public. The circulation of infringing copies does not count as making the work available to the public. See CDPA 1988 s.30 1A.
20. This exception is really useful for PhD students unsure about the quotations they've used in their theses, and useful for research staff in their own publications.
21. The memorandum states: ‘In ECJ case C-145/10 Painer, the Advocate General concluded that a “quotation” could be a “full quotation” of the work, so could apply to photographs: “… it would seem possible that a full quotation can also be a quotation within the meaning of that provision. In the case of this type of work, a complete reproduction may be necessary in order to create the necessary material reference back to the work. If only parts of photos could be published under Article 5(3)(d) of the directive, this would significantly restrict the application of that provision to photos. This is consistent with the interpretation by the WIPO Guide to the Berne Convention (above) and the general academic opinion on this provision.’ Paragraphs 3.5.5 & 3.5.6.”
22. Intellectual Property Office. “Explanatory memorandum to The Copyright and Rights in Performances (Personal copies for private use) Regulations 2014, 2014 No. 2361 and The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014, 2014 No. 2356.” HM Government. Paragraph 3.5.7. Available at: http://www.legislation.gov.uk/uksi/2014/2361/pdfs/uksiem_20142361_en.pdf
23. The Copyright and Rights in Performances (Certain Permitted Uses of Orphan Works) Regulations 2014 No. 2861.
24. The process of searching for rights owners can be complex: there are often multiple rights owners in a single work, or you may have to trace multiple heirs where the known rights owners are deceased. The complexity often means that diligent search is time-consuming and resource-intensive.
25. See https://oami.europa.eu/ohimportal/en/web/observatory/orphan-works-database for more information.
26. The Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014 No. 2863.
27. This is another significant limitation: when we make things available on the Internet, we generally want everyone to be able to see them, regardless of location.
28. See https:// www.orphanworkslicensing.service.gov.uk/view-register for more details.
29. See the guidance at https:// www.gov.uk/government/publications/orphan-works-diligent-search-guidance-for-applicants
30. If you're interested, you can explore the orphan works application process here: https://www.orphanworkslicensing.service.gov.uk/apply/work/title.
31. CDPA 1988 s.61&75
32. CDPA 1988 s.29A
33. CDPA 1988 s.30A
