Business, Innovation and Skills CommitteeWritten evidence submitted by the Joint Information Systems Committee (JISC)

“In the UK, exceptions have failed to keep up with technological and social change, leading to widespread consequences. Technology has expanded the potential for communication, research, learning and access to resources, but out of date rules mean this potential is not fully realised. The UK’s world class universities—a sector of strategic importance to future growth, both as source of skilled people and knowledge—find this on a daily basis.”

Professor Ian Hargreaves—Digital Opportunity: A Review of Intellectual Property and Growth

Executive Summary

1. The Joint Information Systems Committee1 (JISC), the United Kingdom agency that supports UK colleges and universities in the innovative use of information communication technologies (ICT) in administration, education and research, very much welcomes the opportunity to respond to this Inquiry.

2. The JISC provides the UK with unique and competitive advantages in the innovative use of ICT across colleges and universities by supporting the development of shared digital infrastructures, services and innovation investment programmes. As the provider of the world-class education infrastructure JANET2 network, provider of commercial digital content through JISC Collections,3 investor in a range of innovation activities including mass digitisation, open educational resources and digital infrastructure, provider of advice and guidance through JISC Advance,4 such as JISC Legal,5 and Innovation centres, such as the National Text Mining Centre6 and Digital Curation Centre,7 we have significant knowledge and experience of the emergent Internet Economy and the importance of Intellectual Property towards fostering innovation and growth.

3. JISC sees the contribution of UK colleges and universities towards innovation and economic growth as part of a wider, rapidly evolving and complex eco-system which includes a spectrum of new and emergent business relationships and models. Recent studies by Nesta in its “Annual innovation Report,8“ have valued Universities’ knowledge exchange income (mainly patents) at £3 Billion (2008–09) and the Universities UK report on “The impact of Universities on the UK Economy9 “stated that they contributed £59 Billion to the UK economy in 2009. Although UK colleges and universities are significant net contributors to UK GDP, at the same time, they face increased overseas competition. In a digital age, students, researchers and others are attracted to either study and/or undertake research in economies which offer academic and scholarly freedom. Countries like United States, South Korea and Taiwan have encouraged their colleges and universities’ innovation by adopting flexible exceptions to copyright. This permits, for example, researchers in the United States to invest heavily in data and text mining, particularly in the bio-medical sciences.

4. We believe that the emergent internet business models, the creation of open education resources, co-production of new digital assets, extensive open source software, data and text mining, mobile devices, APIs, linked data, shared services through cloud computing and other forms of “mash-up” collaborations, which extend across national geo—political boundaries provide UK innovation, education and research with unprecedented opportunities to compete internationally. However, these economic, social and technological innovations are endangered by the limitations of the UK intellectual property regime, which to a large extent inhibits rather than incentivises innovation and growth. Indeed, the unimplemented recommendations arising from the Gowers Review of IP represents a lost opportunity leading to continued legislative restrictions on the innovative with a consequent reduction in the economic benefits arising from the uses of copyright materials within higher and further education.

“Copyright law was never intended to be an instrument for regulating the development of consumer technology. But when it can block or permit developments or applications of technology that is precisely what it becomes”.10

5. Indeed, studies have shown that a flexible exceptions regime as found in the United States stimulates growth, creativity and innovation, in particular in the technology field. In particular, fair-use dependent industries combined grew faster than the economy as a whole between 2002 and 2007, rising 31% during this period and accounting for around 18% of the US economic growth. From 2002–2007, revenues grew from $3.5 Trillion to $4.5 Trillion.

6. Ultimately, the UK needs a modern copyright system that puts economic growth, competitive markets and commercial and social innovation at its heart. It should ensure creators, innovators, researchers and consumers can all capture the full range of benefits offered by the Internet and digital technologies. UK copyright law needs to be modernised and simplified to enable British researchers, entrepreneurs and creators to make the most of the opportunities provided by the digital age.

7. JISC is therefore delighted that Her Majesty’s Government has decided to endorse all the recommendations made by Professor Ian Hargreaves outlined within his independent evidence-led review of Intellectual Property (IP) and Growth.11 JISC was amongst other organizations from across the public sector which submitted responses to the Hargreaves Review of IP consultation12.

8. JISC believes that the implementation of all the recommendations outlined in the Review will further easy, widespread access to information and resources, which will ensure that technology and information management are placed at the heart of research and education. In particular, JISC supports the following recommendations made by Professor Hargreaves:

Enshrining the copyright exceptions in law, so that they can neither be undermined by contracts or technological measures. This will facilitate the uninhibited creation and subsequent use of research.

Creating exceptions for format shifting, preservation and parody, implementing the proposed extensions to Copyright Exceptions outlined in the Gowers Review of IP, plus implementing all remaining optional exceptions permitted under EU Directives. This will help researchers legitimately access materials generated by third parties.

Developing an exception for Text and Data Mining, which will assist researchers in exploring, making connections between, and publishing analysed mined content.

Work towards solutions for Orphan Works. This will reduce the impossible overheads experienced across the UK’s education sector in managing works where the rights holders are unknown or cannot be traced.

Regulating Collecting Societies to ensure that they operate transparent, fair and equitable schemes to enable greater use and publication of repertoires of creators that they represent.

9. JISC supports the swift implementation of all these recommendations to help create a robust IP framework which can optimise the impact of UK research and enable our world class universities to fully contribute towards the UK’s innovation and growth.

Removing the Barriers to Innovative Research: An Exception for Data and Text Mining

10. Although derived data can greatly assist research, researchers are frustrated and hampered by the limited ways in which they can access and use data and information. This is because the complex and often ambiguous IPR issues associated with both the original text and data required for data/text mining, as well as the terms of agreements with publishers can restrict this either contractually and/or by supplying the text in formats such as PDF which negate the opportunity to text and/or data mine. As a result, As Professor Hargreaves has stated, “Text mining is one current example of a new technology which copyright should not inhibit, but does”. And “…copyright in its current form represents a barrier to innovation and economic opportunity”13

11. The immense economic benefits of text mining are measurable and indisputable, despite comments by the Publishers Association to the contrary14. In 2001, Dow Chemicals merged with Union Carbide Corporation (UCC), requiring a massive integration of over 35,000 of UCC’s reports into Dow’s document management system. Dow chose ClearForest, a leading developer of text-driven business solutions, to help integrate the document collection. Using technology it had developed, ClearForest indexed the documents and identified chemical substances, products, companies, and people. This allowed Dow to add more than 80 years’ worth of UCC’s research to their information management system and approximately 100,000 new chemical substances to their registry. When the project was complete, it was estimated that Dow spent almost $3 Million less than what they would have if they had used their own existing methods for indexing documents. Dow also reduced the time spent sorting documents by 50% and reduced data errors by 10–15%.15

12. JISC welcomes the creation of a new exception for data and text mining outlined by Professor Hargreaves, which will greatly assist the UK research and education to maximise the value of mining for scientific and academic progress and offers the prospect of competitive advantage for the UK based research sector. JISC therefore recommends that Fair dealing with a work for the purposes of data analytics should not be an infringement of copyright or database right when extracting and reusing the expression of facts and figures held within a copyright work. Any making of entire copies of work, or copies substitutable for the original work necessary for the process of data analytics does not infringe any copyright or database rights in the work provided that it is not made available to the public or used for any purpose other than non-commercial research or private study.

13. JISC also supports the extension of section 29 of the CDPA (fair dealing for non-commercial research and private study) to include films, sound recordings and broadcasts. Given that a wealth of research material is now held in digital or analogue media rather than in print, researchers (particularly in the arts and humanities) are currently unable to make copies of audiovisual material from libraries and archives for the purposes of their own non-commercial research and study. In most cases, researchers have no other access to these materials other than by seeking out specialist archives containing rare footage or collections of sound recordings. The ability to copy and use them at their place of work would enrich their research and greatly reduce the costs to the public purse by eliminating the need to make several trips to listen to sound recordings and/or view films.

The Significance of Contract Law over Copyright Law

14. Technological protection measures and contracts often prevent legitimate researchers from accessing the materials they require. This is supported by evidence prepared by the British Library in analysing 100 contracts supplied by publishers to the BL, which revealed that 90% were shown to undermine the Copyright Exceptions16. It is deeply concerning when outputs of publically- funded research are commercialised and often thereby become inaccessible to the organisations who have either funded it or facilitated its development. The British Library is not alone in paying more for rights it should be entitled to under the law, as well as resulting in unnecessary restrictions on researchers, students, lifelong learners and the public at large to digitised content.

15. These restrictions have been reported to arise in specific situations and result in the following limitations:

The inability to access information resources relevant to one’s research but that are not available in an institutional library. According to Outsell, (“How researchers secure access to licensed content not immediately available to them”) and to a second report, “Information access for members of research pools in Scotland”, prepared by Key Perspectives, over 40% of researchers said they were unable readily to access licensed content at least weekly and 2/3 at least monthly as the library had not been granted a license for the content in question (usually the main reason being the cost of licensing arrangements or restrictions imposed upon licensees).

The unavailability of content has an impact (in terms of (i) delay in research and delay in the submission of papers, and (ii) hindrance of collaborative working) on the research in 80% of the cases and in almost 20% of those cases, that impact is significant.

The number of researchers using libraries other than their own institutional ones has decreased from 2001; there is evidence that this is due to the high costs involved in visits to other libraries. It is reported that amongst the barriers for access to e-resources, “licensing restrictions” is the most common one.

Recommendation:

16. As Professor Hargreaves has outlined: The Government should change the law to make it clear no exception to copyright can be overridden by contract.17 Specifically, UK law should be amended so that it achieves the same objectives as the Irish Copyright Act 2000 Clause 2(10) which ensures that no contract can over-ride an exception to copyright. Belgium and Portugal have similar clauses in their copyright acts18, and having such a clause in UK law would be compatible with the UK’s international obligations and treaties the UK has signed up to. Without such regulatory measures (and similar measures that prevent the use of technological protection measures to prevent bona fide access to digital materials), access to publically funded content of benefit to teaching, learning and research will continue to be locked down to the detriment of innovation. There is already precedent for such clauses in UK copyright law, ie, sections 296A and 296B of the CDPA.

Removing the Barriers to Teaching

17. The estimated total cost of digitising the collections of Europe’s museums, archives and libraries, including the audiovisual material they hold is approximately €100 Billion, or €10 Billion per annum for the next 10 years, factoring in a cumulative efficiency gain of 0.5% per annum. The cost of preserving and providing access to this material over a 10-year period after Digitisation would be in the order of €10 Billion to €25 Billion, provided that centralised repository infrastructure is made available for the purpose.19 This, compounded by the problems of academic staff in the UK who will often experience difficulties and expense in seeking and clearing permissions to use material, means that the much time, money and effort will be spent in the UK particularly in the arts and humanities, in trying to obtain copyright permissions to use creative content.

18. This is likely to include the time spent in trying to trace rights holders associated with Orphan Works. Orphan Works (works for which the rights holders are unknown or cannot be traced) represent a significant barrier to research and innovation, using up disproportionate amounts of precious public sector resources at a time of austerity. A 2009 report commissioned by JISC and the Collections Trust, “In From the Cold”20 came to the following conclusions:

The average proportion of Orphan Works in collections across the UK’s public sector was measured at 5% to 10%, whilst in certain sectors (archives) this proportion was higher.

Individual estimates suggest that there are single organisations in the survey sample that hold in excess of 7.5 Million Orphan Works. It appears likely that this sample of 503 organisations could represent volumes of Orphan Works well in excess of 50 Million across the UK’s public sector.

Organisations spent on average less than half of one day tracing rights for each Orphan Work. Therefore it would take in the region of 6 Million days effort to trace the rights holders for the 13 Million works represented in the survey, equivalent to 16,000 days. In certain high profile projects, some organisations had spent large resources of time on chasing rights holders.

At least 35% of organisations across all sectors, regardless of the size of their collections, do not have any specific resources in place to help deal with Orphan Works.

Recommendations:

19. JISC supports the implementation of the outstanding education exceptions from the Gowers Review as well as the expansion of the defences in UK copyright law to include all exceptions and limitations as provided for in Article 5 of the EU Information Society Directive 2001/29. In particular, these exceptions must be medium and technology neutral, consistent with the use of ICT across teaching, learning and research and compatible with the implementation of such measures across other EU member states. Without such provisions, (for instance, the UK, unlike Germany, has no provision in law to legitimately facilitate format shifting), UK innovation and research is presented with barriers not faced by our economic competitors and therefore placed at an economic disadvantage.

20. JISC also support the development of solutions to deal with the problems of all categories of orphan works and in particular: the “…two distinct situations to consider: mass licensing of collections which include some orphans, and use of individual orphan works.”21

21. Any mass digitisation of in-copyright commercially produced material needs to be supported by the ability of organizations to negotiate licences with collecting societies for the use of any Orphan Works which might form part of the repertoire of digitised materials. JISC supports the legal extension of the role of collecting societies in this important activity, whilst also recommending that collecting societies are regulated to ensure transparency and accountability.

22. The majority of works that sit in the nation’s university special collections, libraries, museum and archives were not produced for commercial purposes but are unique unpublished records, documents, sound recordings and videos.22 Subsequently, these organisations should be provided either direct licence from government or an exception to use individual orphan works. Without such a provision, much of the nation’s historic collections are unlikely to be made available digitally.

23. Another possibility could be the expansion of the current provision in the CDPA for orphan works created before 1989; Schedule 1 paragraph 16 of the CDPA permits the making of a copy of an unpublished literary, dramatic or musical work (together with any illustrations) that is available to the public in a library, museum or other institution (such as an archive), that is at least 100 years old and whose author has been dead for at least 50 years, for the purposes of research or private study or with a view to publication. It also permits a single publication of the work so long as the identity of the copyright owner is not known to the publisher and the subsequent broadcasting, performance or recording of the work. This provision should be amended so as to apply to:

(a) artistic works, films and sound recordings;

(b)unpublished works earlier than 100 years after creation (70 years, in line with duration periods);

(c)to published works that have not been commercially available for 20 years;

(d)online publication;

(e)and to permit second and subsequent publications, so that a work may be published online by, for instance, a library or archive and then be re-used by a user.

24. To prevent orphan works from arising so easily, for unpublished works in copyright until 2039: apply the standard terms universally; this has been done in other European countries, including Ireland where (until recently) unpublished literary works had perpetual protection as they did in the UK until 1989. Similarly, the requirement that one must assert the paternity right should be removed; it should be automatic, as it is in all other countries that have adopted moral rights.

The Case for an Exception for Digital Preservation23

25. The UK currently has no nationwide preservation strategy. Much digital preservation research and development activity in the UK higher and further education sector has been supported by JISC. A number of JISC-funded activities have focused on rights issues in digital preservation. For example, a study on archiving electronic journals was funded under this programme. This study included eliciting views on the archiving clauses of the JISC/NESLi model licence for journals. The study found that concern about continued archival access was one of the two most cited barriers for libraries to move to electronic only access to journals with any degree of confidence. The Digital Images Archiving Study concluded that “all images within a preservation system must have complete permission clearance, for any current or possible future use, in perpetuity; or, there must be a built in facility or process that enables permissions to be revisited in response to user needs”. In some cases, preservation institutions may want to make microform copies of digital material some types of which are machine re-readable. Librarians and archivists will want to preserve all sorts of digital content, including recorded sound and moving images.

26. The practical effect of current copyright and related laws is that collecting digital content that is in copyright for preservation purposes through Web archiving, copying digital content to storage media and reformatting it will require the permission of right holders. Since there is not yet statutory deposit for digital publications in the UK, copying carried out on voluntary deposited material will also require permission from right holders. The preservation exception does not seem to be adequate for digital material and recorded sound and moving images cannot be digitised for preservation purposes under this exception. Since digital preservation cannot be carried out effectively under current UK copyright law exceptions, it is necessary to obtain licences from right holders. There is no blanket licensing scheme for digital copying for preservation purposes, which is time consuming, expensive and often futile. Ideally, the preservation process for items has to start on receipt by the library or archive not when deterioration has set in. As time goes on without an exception for preservation, as recommended in the Gowers Review of IP, the risk of losing parts of our digital heritage are increased.

Recommendation:

27. JISC supports the implementation of an exception for preservation for all material irrespective of medium to ensure that important digital content is not lost forever, in accordance with Article 5.2(c) of the Information Society Directive 2001/29.

Conclusions and Recommendations

Copyright law risks becoming a law that is ignored, or viewed with contempt by users in the near future if policy measures and legal reform are not put in place to reflect education’s and research’s bona fide use of digital media and technologies. Ultimately, copyright law needs to be re-cast in order to reset the balance between the public and private sector, creators, educators, researchers, the creative industries and end-users.

Ultimately, we need a modern copyright system that puts economic growth, competitive markets, educational, commercial and social innovation at its heart. It should ensure creators, innovators, researchers and consumers can all capture the full range of benefits offered by the Internet and digital technologies. UK copyright law needs to be modernised and simplified to recognise and enable British entrepreneurs and creators to make the most of the opportunities provided by the digital age.

Other countries within the European Union have a more permissive attitude towards exceptions to copyright and/or orphan works, in particular Belgium, Republic of Ireland , Hungary and Portugal. Outside the EU, Canada, the USA and New Zealand also have a more permissive approach. We risk being left behind by these countries by the UK’s more regressive approach to the detriment of the UK’s education sector’s contribution to innovation and growth.

In this submission, we have identified a number of areas where the law as it currently stands presents unnecessary barriers to the use of copyright works for the benefit of society.

Key Principles

1.We need a simpler, quicker and more transparent way to obtain licences to use copyrighted material in the UK and across Europe. This might be achieved through the proposed Digital Copyright Exchange.

2.Copyright laws must stimulate education and research, innovation and long term business growth.

3.Copyright laws must be technology neutral to cope with the future.

4.Contracts should not create barriers to the use of copyrighted works, and in particular, must preserve all exceptions to copyright enshrined in the law.

We look forward to hearing the results of the committee’s deliberations on this vitally important issue for UK competiveness in the digital age.

1 September 2011