Written evidence submitted by Copyright for Knowledge

Copyright for Knowledge is an alliance of organisations representing education, learning and research in the UK. A number of our members are amongst the UK’s most significant investors in research and innovation, such as the Wellcome Trust and the Research Councils. We are writing to express our strong support of the Government in its acceptance of the Hargreaves recommendations, as well as individual submissions made to the Committee by JISC, Wellcome Trust, RLUK and the British Library. Although Professor Hargreaves proposals are many, we believe that particularly important are his recommendations that accept that the UK needs appropriate copyright laws not just for the entertainment industries, but also for the research sector which as a country faces increasing competition from China and India, and in which we invested over £ 9 billion a year in in 2009.

We recognise and support the importance of a strong and healthy copyright regime, and believe that to encourage digital innovation this requires effective exclusive rights as well as strong limitations and exceptions to facilitate access to knowledge and scientific learning. To this end we believe swift implementation of the recommendations outlined below is required as a matter of urgency. This will achieve two goals – one to give the UK real competitive research advantage, the other to bring the UK’s outdated copyright regime in line with other forward looking digital economies.

1. Data Analytics.1

Copyright law exists to protect artistic expression and not facts. For example a protein name and the name of a disease are not subject to intellectual property laws. Copyright law also does not seek to create absolute control over information and knowledge. Rather, by recognising the importance of sharing knowledge it aims to encourage future innovation and creativity by achieving an appropriate balance between the interests of society with the interests of the rightsholders.

The process of text mining is simply a substitute for reading a large volume of material and extracting facts from it, and the action of reading in itself is not restricted by copyright law. Indeed if the process were to be performed manually there would be no question of copyright implications as no copies would be made. Computers by definition need to make a copy of the data in order to process it but it is the facts within that data, not the copy that is the object of text mining. Professor Hargreaves stresses the dichotomy between facts and artistic expression, and explains the unintended consequences of copyright law in this area by stating the fact that "these new uses happen to fall within the scope of copyright regulation is essentially a side effect of how copyright has been defined, rather than being directly relevant to what copyright is supposed to protect."

In order not to stifle digital innovation, we believe the UK should follow the example of Japan, a country globally known for its cutting-edge technological innovation, and introduce a limitation and exception for data analytics. It is interesting to note the Japanese government2, as part of its pre 2009 impact assessment process made similar points to the Hargreaves Review regarding the fundamental legal difference between (artistic) expression and facts, saying "Research developments using data analytics do not use the expression contained in a copyright work itself, as it is no more than the extraction of information, and that while in the process of data analytics a copyright work is used, its actual essence is not." The Japanese Copyright Subcommittee of the Department of Culture report also recognised that data analytics is central to a successful and modern information society by stating "In an advanced information society amidst vast volumes of information, data analytics technology allowing the extraction of information as well as the advanced processing of such knowledge is a necessity for users, as well as a fundamental of a digitally networked society."

We would also strongly agree with the Hargreaves submission made by AstraZeneca3 that given that data analytics is to be performed on material that an organisation has legal access to (which in the case of scientific publications will be purchased material), revenue will not be harmed. On the contrary it encourages greater usage of journal and book content, and in a period of economic difficulty, helps justify the very large investment made in published information by UK universities, research institutes, and bodies like the National Health Service.

We believe that in order to give the UK’s R&D sector international competitive advantage, prior to an amendment at EU level to allow commercial data analytics, the CDPA should be amended as follows4:

1. The extraction of facts and information from all works subject to copyright and related rights that the user has lawful access to is not an infringement. (S. 29 – Fair Dealing for Research and Private Study)

2. The making of copies specifically for the process of data analytics is not an infringement provided that the computer generated copy created for the purposes of data analytics is not communicated to the public. (S. 29 – Fair Dealing for Research and Private Study)

3. This, and any other exception cannot be overridden by contract law. (Chapter III – Acts Permitted in relation to Copyright Works)

2. Research Exceptions

i) Preservation

This country has some of the world’s greatest museums, libraries and film institutes. One of their core aims is to preserve their collections, and therefore the intellectual and cultural heritage of the United Kingdom. Digital preservation is a very complex, expensive and yet to be proved science. While the main challenges are financial and technological we believe that the legal framework for preservation must also be fit-for-purpose and brought into line with many other European countries.

S.42 of the CDPA should be amended to allow:

1. All types of copyright works to be preserved – currently film, sound, stand alone artistic works and broadcast material is excluded from preservation.

2. The creation of multiple format-shifted preservation copies to be created, irrespective of the existence of a technical protection measure.

3. To minimise the cost to the public purse, avoid duplication of effort and maximise the chance of preserving British historical content digitally the creation of preservation technology networks between designated not-for-profit public institutions.

ii) Fair Dealing for Sound and Film and its facilitation by Libraries

Fair dealing, first introduced into UK copyright law in 1911, reflects the analogue world of a hundred years ago in that it only allows fair copying of works that are "written" or "drawn"5. In the modern world private study and research can and does take place equally with a text based work as a film, sound recording or illustration. We believe that in order to modernise this central research exception, as well as ensure that users truly feel copyright law to be fair as a tool to minimise damaging copyright infringement, that fair dealing must be extended to cover sound, film, and broadcast material. Similarly the facilitation of this exception, to allow librarians to copy material in their collection is extremely important.

It makes little sense that a researcher can make a fair copy of a musical score or the lyrics of song, but not make or receive from a trusted intermediary like a librarian a fair copy of the sound recording itself. This amendment will remove barriers to research, reduce the burden on the public purse6, and increase respect for copyright law. We are particularly concerned that the format shifting recommendation for private copying for consumers should be complemented by this recommendation for researchers otherwise consumers will benefit from an update to copyright law but the research and development sector does not. This would be palpably unfair and act as a further barrier to research and innovation in the UK.

We recommend that S.29, S.38 and S.39 of the CDPA are expanded to allow fair dealing of all copyright works, and the facilitation where appropriate of research copying by librarians.

More broadly we would recommend that previous Gowers recommendations that facilitate distance learning, as well as best practice teaching and learning exceptions from other European countries are explored as part of the government’s commitment to adopt all the exceptions allowed under the EU Copyright Directive.

3. Increasing Digital Access to Knowledge

In June 2011 the third most downloaded ipad application in the UK was an app of 1000 digitised copies of historical books from the British Library. The same app was in the top 10 most downloaded apps in the US. This demonstrates clear consumer demand at home and abroad for historical material from the great libraries, museums and archives of the UK. The digitisation of our great cultural institutions also will speed up and enhance research, learning and scientific innovation. This is why the Wellcome Trust is currently investing in the digitisation of a part of its 20th century scientific collection.

i) Orphan Works

As part of the EU funded ARROW7 project to create a "digital copyright exchange" infrastructure for books, the British Library undertook a study of rights clearance of 140 books, ten per decade from 1870 to 2010. The study entitled "Seeking New Landscapes" found that 43% of randomly selected in-copyright books across this period were orphan works. This clearly acts as a substantial and unacceptable barrier to mass digitisation of copyright works. Similarly researchers also in wanting to make copies of individual whole items, published and unpublished, text as well as audio and audiovisual material hit up against the problem of orphan works as they cannot get the appropriate permissions from rightsholders who cannot be found.

As the ethical and moral issues as well as economics of orphan works in the context of an individual item or mass digitisation are vastly different we believe that there is no one solution to be recommended. We therefore recommend that the following three solutions are implemented simultaneously to allow commercial as well as non-commercial uses of orphan works:

1. A limitation and exception where communication to the public is not required.

2. A governmental licence for material never produced commercially, or material not associated with collecting societies. e.g. Unpublished photos or sound recordings such as oral histories through to grey literature.8

3. A governmental licence, that is governmentally regulated but operated through a collecting society for the type of material that collecting societies traditionally represent. e.g. Popular music, commercially produced books etc.

We strongly support the Hargreaves recommendation that the costs for using an orphan work should be nominal as this will encourage mass digitisation and recognise the very fact that this material has become accessible is because of public investment in its collection and preservation. It is also important to stress that any monies paid for using an orphan work should essentially remain in escrow and after an agreed period of time be used for public interest purposes such as investment in public libraries, or scholarships for students.

ii) Extended Collective Licensing

Orphan works by definition will not be digitised in isolation. In order to facilitate mass digitisation – a process where each and every rightsholder cannot and will not be contacted individually – extend collective licences as exist in Scandinavian law is a prerequisite to putting more 20th century material online. The Seeking New Landscapes study9 study makes clear that at an average of 4 hours to clear a single book it would take one researcher over 1,000 years to clear the rights of just 500,000 books – a drop in the ocean when compared to the rich collections of UK’s cultural institutions.

Not only will extended collective licensing (ECL) enable mass digitisation of 20th copyright works for education and research purposes, thus avoiding the so-called "black hole of the 20th century" it will facilitate the business of broadcasters, technology companies, creators as well as publishers. Given the demand for English language material abroad, and the keen interest amongst consumers in historical material as demonstrated by the success of the British Library’s ipad app, we believe that UK industry has much to benefit from the adoption of well-regulated extended collective licensing. One particularly interesting statistic from the British Library10 is that 71% of POD publishers of 140 historical books were based in the US. This in part may be due to the fact that books of this age are in the public domain in the US but in the EU may not be and therefore require a diligent search for rightsholders – many of whom are not there to be found for material more than 10 to 20 years old unless commercially active. This acts as a disincentive for these sorts of businesses to operate in the UK. Simplified rights clearance mechanisms like extended collective licensing will facilitate the rights clearance of historical material simply and cost effectively and thus incentivise commercial companies, or technology companies as represented by COADEC, to offer more products and services online and offline

As ECL will increase the de facto monopolies of collecting societies, the UK should follow the rest of mainland Europe and regulate the activities of collecting societies to ensure that:

1. Their activities and financial operations are open, transparent and they adhere to minimum standards of practice;

2. Royalties collected are fair and proportionate, and distributed fairly to creators (or other groups in the case of orphan works –see above.)

3. In addition to governmental regulation they should be overseen by a board or committee that represents industry, creators, and licensees of content (such as universities / schools / businesses etc).

4. Copyright Law Undermined by Contract Law

The importance of copyright law is to create a balance that rewards innovation but at the same time guarantees access to knowledge and information through exceptions, thus in turn stimulating further creativity. However this carefully drawn balance in the interests of stimulating innovation is being systematically replaced by contract law which create de facto monopolies11. Trade monopolies are regulated in the interests of free trade and competition and we believe that contractual monopolies must also be regulated to ensure that copyright law and the innovation it represents cannot be undermined by contracts.

We believe that the recommendation, accepted by government, that limitations and exceptions in copyright law should not be undermined by private contract is the most important Hargreaves recommendation. Without this copyright law becomes irrelevant in a digital world where access to knowledge is controlled absolutely by rightsholders. This will ultimately undermine innovation and also make any policy setting around limitations and exceptions by the UK government meaningless as it will be simply overridden by contract.

We would point out to the committee that the UK already does not allow limitations and exceptions that pertain to database rights to be overridden by contract. We believe that we should follow the lead of other countries and introduce the following section (taken from the Irish Copyright Act) into Chapter III of the CDPA:

Where an act which would otherwise infringe any of the rights conferred by this Act is permitted under this Act it is irrelevant whether or not there exists any term or condition in an agreement which purports to prohibit or restrict that act.

5. Evidence Based Policy

We strongly support the Hargreaves recommendation that policy should not be the result of "lobbynomics" and who can lobby hardest but be based on facts and evidence. We would also go one step further and say that currently there is no clear and defined aim or goal of UK policy formation in the field of IPR. It appears too often about who can lobby hardest. We therefore have no way to measure success or importantly to counter the pressure of lobbying. We believe that the aim of copyright and should be to maximise economic and social well-being – namely the public interest as equally important as the private interest, and this goal or "mission statement" should be publicly stated by government

6. Digital Copyright Exchange

Universities, and other public institutions are significant licensors and licensees of content we therefore welcome any steps to simplify the making available of and clearing of rights. A digital copyright exchange will also support the Orphan Works and ECL recommendations, and facilitate online and offline business. Given the importance of the recommendation, as was the case with EU funding of ARROW, we believe that appropriate governmental incentives will help turn this important recommendation into a reality.

Paul Ayris

Chair

Copyright for Knowledge

5 September 2011