Hargreaves Review of Intellectual Property

Written evidence submitted by the British Library

 

Executive Summary

· The British Library supports the recommendations with regard to modernisation of the copyright regime made by Professor Hargreaves in his report Digital Opportunity.

· Further to the government’s response and endorsement of the report, this submission by the British Library is set out in the form of a roadmap as to how the Hargreaves recommendations might be achieved and implemented and reaffirms why the inclusion of certain elements are vital for the research, education and library sectors.

· The following areas are considered in the British Library’s response:

o Evidence based policy making

o Digital copyright exchange

o Cross border licensing

o Orphan works

o Extended Collective Licensing and special licences

o Data Analytics

o Format neutral fair dealing

o Library archiving

o And most importantly, that copyright law itself should not be overridden by contract law

Introduction

1. The British Library was established by statute in 1972 as the national library of the United Kingdom. It is one of the world’s greatest research libraries - it benefits from legal deposit and is the main custodian of the nation’s written cultural heritage. The Library’s incomparable collections cover three millennia of recorded knowledge, represent every known written language, every aspect of human thought and a sizeable sound, music and recordings archive. The British Library plays a vital role in the life of the nation as a cultural heritage resource by:

o managing, preserving, and ensuring access in perpetuity to the UK’s national published archive and the national repository of sound;

o comprising an integral component of both the national research infrastructure and the UK Science Base;

o playing a correspondingly significant role in ensuring the research excellence of the UK.

2. The British Library contains a vast array of material and expertise that supports every sector from the creative industries to science, technology and medicine; small businesses to major pharmaceutical companies; school children to lifelong learners; academics to authors:

o Through our Business & Intellectual Property Centre, we support entrepreneurs and SMEs in developing, protecting and exploiting their ideas, and in growing their businesses.

o Through our learning programme we provide £1m worth of resources to 1.2 m teachers and school students who visit our learning website each year.

o We support the Government’s lifelong learning policies by providing resources to everyone who wants to research; 43 per cent of people using our newspaper collections are personal researchers doing genealogy or local history projects.

3. The British Library has a unique position as a legal deposit library, a purchaser or licensee of copyright content and materials, a licensor of its own intellectual property and a support service to users of intellectual property be that for academic research or business development which ultimately benefits the UK economy.

Evidence based policy making (Recommendation 1)

4. The British Library is reassured to see the government championing evidence-based policy making and fully supports its intention to ensure that policy making should consider the perspective of all stakeholders and not be ruled by "lobbynomics".

5. Copyright is a system of balances and it is vital that both the creator’s and the user’s requirements are taken into account, especially given that the economic value actually derives from the user and use of a copyright work.

Copyright Licensing (Recommendation 3)

6. As both a licensor and licensee, the Library supports the government’s aim to establish a Digital Copyright Exchange to facilitate licensing and to make the UK a leader in licensing best practice and endorses the necessity for an efficient system of copyright information and trading. The value in such an Exchange as a directory of rights information should not be underestimated – having a place to seek rights holders takes users a step closer to legal certainty over uses of works which currently does not exist in areas such as orphan works and is an important tool to promote respectful use of copyright works. The Library points the committee towards the ARROW project [1] , for which the British Library was coordinating partner in the UK, as an example of how such a system might be implemented.

7. The Library welcomes the proposed introduction of regulation and a code of conduct for collecting societies. As most UK collecting societies hold a de facto monopoly position it is essential that they are regulated as in most other European countries. Openness, transparency and fairness will increase trust and the representative nature of such bodies. This is particularly important if their remit is extended by any orphan works solution, or the introduction of extended collective licensing as they will be representing a large number of individuals who are not actually signed to collecting societies and therefore are not their members. This public interest function takes collecting societies beyond their existing role and therefore governmental oversight as well as oversight from creators, industry and their users is important to guarantee legitimacy for these bodies.

8. The Library advises the government to ensure any amendment to legislation on points 6 and 7 above should be worked on with the European Commission to facilitate cross border licensing and the free movement of digital "knowledge goods" throughout the member states of the EU. We believe given the demand for English language material abroad the UK has a particular interest in ensuring the existence of a well-functioning IPR single market.

Orphan works (Recommendation 4)

9. The nature of the British Library’s collections means that we hold a significant number of orphan works [2] , estimated at around 40% of the total collection and across a range of formats including printed works, manuscripts, photographs and sound recordings [3] .

10. Recent British Library research [4] has shown the difficulty of clearing permissions on a one-by-one basis for a small digitisation project of 140 books – after more than 500 hours, rights holders had not been identified for 43% of the in-copyright sample and no response had been received for 69% of the rights holders contacted. In the context of a mass digitisation project, scaling these figures up to 1000 times that number becomes utterly impractical. The Library is therefore heartened that the Government proposes to tackle this problem with solutions to facilitate the reuse of orphan works.

11. Just as there are different licensing solutions and collecting societies across works of known authorship depending on the type of work and the intended use, it must be recognised that a one-size-fits-all approach will not resolve the orphan works issue and the Library strongly recommends that a variety of solutions are implemented which should recognise:

o uses of orphan works may be for non-commercial as well as commercial purposes;

o many works were not created for commercial purposes and/or have not been published (e.g. oral histories, grey literature, personal collections of photographs);

o usage of a digitised orphan work will not always mean communicating it to the public. (Please refer to Appendix F of the British Library’s Hargreaves submission which sets out a case study of a request for digital access to orphan works in our collections);

o aside from copyright, ethical considerations such as reuse of forms of traditional cultural expression [5] also exist and should be part of any solution.

12. The table below illustrates a variety of possible scenarios based on the Library’s experience of requests for digitised material and proposes solutions. These solutions are set out in more detail in the subsequent paragraphs:

Proposed usage of digitised orphan work(s)	Quantity of works	To be [1] published	Purpose for which work was produced	Proposed solution
1) An academic requests that a library supplies digitised copies of multiple copyright works to enable remote research and teaching.	Item by item clearance / diligent search possible	N	Non Commercial (e.g. unpublished plays)	Copyright Exception
			Commercial (e.g. fanzines)	Copyright Exception
2) Local history society wishes to use maps and pamphlets as information resource on their website.	Item by item clearance / diligent search possible	Y	Non Commercial (e.g. unpublished sketches by local resident)	Special Governmental Licence [1]
			Commercial (e.g. published book from 1930s on local landmarks)	Extended Collective Licence [1]
3) Digitisation of audio recordings for education resource: a) 120 hours of 1930s unpublished recordings of Cornish folk music. b) 120 hours of 1950s recordings of jazz concerts.	Multiple works - Item by item clearance not possible	Y	a) Non Commercial (e.g. ethnomusicologists recordings)	Special Governmental Licence
			b) Commercial (e.g. performers are subject to record company contracts)	Extended Collective Licence
Mass digitisation of out of commerce 20th century novels.	Multiple works - Item by item clearance not possible	Y	Commercial	Extended Collective Licence
Mass digitisation by library/archive of works in different formats (magazines, letters, pamphlets, photos) relating to WW1 for educational resource.	Multiple works - Item by item clearance not possible	Y	Non Commercial (e.g. letters, drawings, brigade newsletters)	Special Governmental Licence
			Commercial (e.g. magazines)	Extended Collective Licence
Mass digitisation by library/archive of conference proceedings (so called "grey literature") for research resource.	Multiple works - Item by item clearance not possible	Y	Non Commercial (e.g. research reports issued by charity / research institution)	Special Governmental Licence
Publisher wishes to commercially publish rare early 20th century novel which has been out of print for 60 years.	Item by item clearance / diligent search possible	Y	Commercial	Extended Collective Licence
Digitisation of historic newspapers by a commercial publisher for a pay per view service.	Multiple works - Item by item clearance not possible	Y	Commercial	Extended Collective Licence
Commercial use of an illustration.	Item by item clearance / diligent search possible	Y	Non Commercial (e.g. 1950s documentary photograph taken by unknown member of the public)	Special Governmental Licence
			Commercial (e.g. modern professional photograph)	Extended Collective Licence

Special Governmental Licence

13. It is important to remember that large numbers of works held in library and archive collections were not produced for commercial reasons and are therefore unlikely to be managed by nor be in the mandate of a collecting society.

14. The Library recommends special licensing arrangements to be granted at ministerial level or by an equivalent appropriate cultural body where the request is for a project for the cultural benefit of the UK and where material is drawn from sources of unpublished material or where the material is not of the type generally represented by collecting societies.

15. The British Library is currently scoping its contribution to a Europe-wide digital project as part of the Europeana portal [6] which will bring together materials relating to World War 1 to be made available for the 100th anniversary of the outbreak of war. Such a historically and culturally important portal will be all the less rich if large numbers of works such as photographs, postcards, correspondence and privately produced brigade / military journals are excluded from inclusion because rights holders cannot be traced.

16. The British Library’s experience of such use has been overwhelmingly positive where we have engaged not with the individuals who cannot be found, but with their representative communities. For example, as part of the Archival Sound Project [7] of 2000 days of sound recordings, the project team canvassed opinion amongst the UK traditional and folk music community before publishing a large number of unpublished sound recordings. Not only was feedback supportive but in fact the community also wanted to see the material made accessible to any interested listener worldwide – the Library was proposing UK universities only – and the community would give backing on the basis of the widest possible distribution. If forced by any future legislation to approach a commercial body like a collecting society for such non-mainstream collections, whether their territory based commercially rights driven thinking would have been so broad in its permission is an interesting question to consider.

Clearance procedure for individual works

17. It is essential that a straightforward solution is made available for individuals or companies wishing to use individual or very small numbers of orphan works where that usage exceeds the boundaries set by the fair dealing provision and therefore normal copyright clearance should be sought. The Library advocates an exception in such circumstances for non-commercial use where the rights holder cannot be traced after a diligent search.

Extended Collective Licensing and Mass Digitisation

18. This form of licence has been used successfully in Scandinavia [8] for 50 years and laws have recently been updated to include a digital mandate. Extended collective licensing does not replace 1 to 1 business transactions around which there has been much misunderstanding in the UK. It seeks to deal with situations of "market failure" where each individual rights holder cannot be negotiated with given the volume of what is being used and is therefore limited to areas such as broadcast, mass digitisation etc.

19. There are clear societal, cultural and economic benefits from facilitating digitisation of digital content. For example the British Library is working across Europe with other libraries and archives to digitise part of their First World War collections much of which will still be in copyright – this will certainly allow European citizens access to much of their own history that has never been visible before. Technology companies and consumers will also benefit from streamlined rights clearance mechanisms and demand for pre-21st century material is certainly high. The third most downloaded iPad app in June 2011 in the UK was a collection of historical books from the British Library. The same app was in the top ten in the United States.

20. Example of successful use of this kind of licence include:

o Kunstindeks Danmark (Art Index Denmark) [9] a resource giving details of all Danish artworks in public held collections for which in-copyright images have been made available through a licence with the Billedkunst collecting society;

o Danish sheet music index [10] - a Danish Royal Library project facilitated by the Copydan Writing collecting society and music publishers to provide a central portal for display and ordering of Danish digitised sheet music.

21. Orphan status could be established through Digital Copyright Exchange or the existing ARROW project. The Library would point the committee to the results of our recent study of a diligent search compared with the ARROW system where 92% of the books had the same copyright status result [11] .

22. We believe that any solution for Orphan Works should:

o Cover all media, commercial and non-commercial uses, commercially and non-commercially produced material as well as published and unpublished works.

o Recognise that one size does not fit all – an exception, governmental licence and collecting society based licence should exist simultaneously.

o Use of an orphan work should be nominally costed as recommended by Professor Hargreaves to facilitate mass digitisation, and recognise that much of the material would never be available if it had not been collected and preserved at the expense of the public purse.

Limits to Copyright (Recommendation 4)

Format neutral fair dealing

23. Fair dealing, the copying of a book chapter or an article, currently only applies to written or printed works. Audio / audio-visual materials are widely used by students and researchers but they can’t get even "fair" copies of material without permission from rights holders. This means it can be very costly to access certain classes of research materials.

24. In their essays in the British Library publication "Driving UK Research [12] " Profs Lionel Bentley and Nick Cook set out the impossibilities and impracticalities of trying to use music for teaching purposes because fair dealing and teaching exceptions do not extend in any pragmatic sense to this medium. For example a lecturer can play a sound recording to a student, but they cannot copy in order to make a compilation so have to carry all the music with them. Similarly university researchers [13] have to apply for sizable grants to the Research Councils to travel to London to listen to or watch commercially unavailable audio / audiovisual material as copies cannot lawfully be sent to them.

25. We believe also that with the recommendation for format shifting for private copying for consumers having been accepted, it is important that fair copying by individuals and librarians is also extended beyond text based works.

26. The British Library proposes the following legislative solution [14] :

o S.29 Research and Private Study

Fair Dealing with a copyright work for the purposes of research for a non-commercial purpose does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement.

o S. 38 & 39 Copying by librarians: copyright works

  (1) The librarian or archivist of a prescribed library or archive may, if the prescribed conditions are complied with, make and supply a copy of part of a copyright work without infringing any copyright in the work. In regards to an item in the permanent collection that is no longer commercially available, if the prescribed conditions are complied with a librarian may, upon determining as a result of a reasonable investigation that a copy of work is no longer commercially available, make and supply a complete copy from the library or archive. [15]

 

(2) The prescribed conditions shall include the following –

(a) that copies are supplied only to persons satisfying the librarian that they

require them for the purposes of –

(i) research for a non-commercial purpose, or

(ii) private study,

and will not use them for any other purpose;

(b) that no person is furnished with more than one copy of the same material or

with a copy of more than a reasonable proportion of any work; and

(c) that persons to whom copies are supplied are required to pay for them a sum

not less than the cost (including a contribution to the general expenses of the

library ) attributable to their production.

Data Analytics / Data Mining

27. Data or text mining enables computer analysis of large amounts of information which cannot be processed by humans in order to extract facts. These new techniques are vital for research, medical advances and common practice in an advanced information society like the UK, and yet copyright law is not keeping up with it. Both Schedule A of the British Library’s submission and Hargreaves’s report itself, as well as Hargreaves submissions from pharmaceutical companies (e.g. AstraZeneca) and technology companies (e.g. IBM) contain plenty of examples of the importance and power of these techniques so we focus here instead on the legal barriers to text mining and on a potential solution.

28. For the scientist intending to data mine to accelerate his research, the key issues requiring legal clarity are that:

o to assemble a dataset, copies of material need to be made and format shifted;

o the material itself has already been lawfully purchased/licensed by the user;

o the material to be analysed is frequently from a very wide variety of sources;

o the analytics tool searches individual terms or facts which are not in themselves subject to copyright;

29. We support the proposed legislative wording as recommended by JISC, and support the need for a text and data mining solution at both a UK and EU level to allow commercial as well as non-commercial data analytics.

Library Archiving / Format Shifting

30. It is vital that libraries are able to transfer materials to new formats to ensure protection and preservation of all their holdings particularly given the increase in both digitised and born-digital holdings. Such rights exist within an analogue context but not in the digital sphere where the issues are more complex particularly concerning electronic media such as discs and recordings where not only is the content format likely to become obsolete, but also the supporting operating software and hardware is an issue, and technical protection measures may exist.

31. The British Library proposes the following legislative solution:

(1) The librarian or archivist of a prescribed library or archive may, if the prescribed conditions are complied with, make a copy, including a format shifted copy, from any item in the permanent collec tion of the library or archive -

(a) in order to preserve or replace that item by placing the copy in its permanent collection in addition to or in place of it, or

(b) in order to replace in the permanent collection of another prescribed library or archive an item which has been lost, destroyed or damaged,

without infringing the copyright in any work, in any illustrations accompanying such a work or, in the case of a published edition, in the typographical arrangement.

(2) The prescribed conditions shall include provision for restricting the making of copies to cases where it is not reasonably practicable to purchase a copy of the item in question to fulfill that purpose.

Contracts should not override copyright exceptions

32. It is vital to reiterate that where the licence of digital data is governed by a contract, the licensor’s terms and conditions may undermine all and any of the copyright exceptions permitted by law. Without legislation similar to that in Ireland, Belgium and Portugal to ensure such exceptions cannot be overridden, any legislative changes achieved by the Hargreaves review will be worthless.

33. It is important for government to recognise that limitations and exceptions in copyright law have an essential role to play as they facilitate access to knowledge, as well as nurture innovation and creativity.

Other Gowers recommendations

34. The extension of educational copyright exceptions to distance learning and whiteboards was recommended by the Gowers review but was not mentioned in Hargreaves’ report. The Library requests that this is revisited.

Conclusion

35. The British Library is encouraged by recommendations outlined above and also the positive steps suggested by the Hargreaves review to bring copyright legislation in step with digital developments since 1988 and ensure flexibility in the copyright regime so that it can react to future developments. We would however reiterate the importance of ensuring that contracts cannot override copyright law, whose very role is to nurture innovation and creativity. If we continue to allow legal access and reuse of content by innovators and creators to be overridden by private contract law, we will undermine innovation in the digital economy itself. It is of the uppermost importance that this key issue is dealt with before all other recommendations are addressed, otherwise the statutory amendments will simply be negated by subsequent contractual override.

36. We look forward to working with government in the implementation of the Hargreaves recommendations to the benefit of the UK’s citizens and economy.

6 September 2011