Ronan Deazley and Victoria Stobo (eds)

Panel 3

Archives and Copyright: The view from the UK 


Robin Stout (Policy Advisor, IPO) – hereinafter (RS)
Nick Munn (Deputy Director for Copyright) – hereinafter (NM)
Tim Padfield (International Council on Archives) – hereinafter (TP)
Chair: Martin Kretschmer (Director, CREATe, University of Glasgow) – hereinafter (MK)

Questions and Answers

Susan Corrigall (Copyright Officer at the National Records of Scotland) – hereinafter (SC)
Ronan Deazley (Professor of Copyright Law, University of Glasgow) – hereinafter (RD)
Cathy Williams (Head of Collections Knowledge, TNA) – hereinafter (CW)
Ellie Robinson (Archivist, LSE) – hereinafter (ER)
Anna Vernon (Licensing and Copyright Assurance Manager, British Library) – hereinafter (AV)
Paul Gibbons (Information Compliance Manager, SOAS) – hereinafter (PG)
Pam Temple (Community Archivist) – hereinafter (PT)

(MK) Good afternoon, I’m Martin Kretschmer, I’m chairing the next session.  I’m the Director of CREATe, and I think today is an event of the kind CREATe will be very keen to advance over the next years. I think a key aspect of this is that normally policy makers hear about the issues in their field through secondary sources.  They will have somebody speaking on behalf.  There will be a trade association, there will be somebody who’s a paid lobbyist and they will get a filtered story which suits particular parties, and one of our aims as a centre is to break this. We want the voices of the primary users, right holders and creators to be part of the process, and we want to move that beyond the anecdotal. So, in some sense, what we have in the very first session this morning was a narrative about rights clearance in one particular setting, and that may be a story, may be something that feeds into policy making and may be used, but the key is to turn that into something which can count as evidence, and which can be put to the test of a process of scrutiny, and this event is part of this.  It’s a very important part of the way in which we methodologically want to advance this area.

So thanks very much in the first place to Ronan, whose idea that whole process was, and to Victoria, who condensed and systematised the anecdotal stories into something which can then be rolled out across the sector.

My second intervention is really a provocation. Under UK damage jurisprudence, which goes back centuries, common law principles, the damages you would be awarded will put you in as good a position, as if no wrong had occurred.  That’s what the claimant gets.  As if no wrong had occurred.  Therefore, I would submit that under UK law as it currently stands, the financial risk for UK materials is pretty much zero. If we see the process evidence this morning by Wellcome, there is little risk that the additional damages available under Section 97 of the Copyright, Design and Patents Act would come into play.  There’s clearly no flagrancy involved at all. It looks to me what we really need from the archive sector is a process, and a willingness, to be taking risks in the right manner, and we may not need intervention by the lawmakers.  Okay, so is that true or not?  It’s a thought which you might have.

So, I ask the first two speakers to introduce themselves. I know them both personally from my secondment, so it’s better if they introduce themselves.

(RS) My name’s Robin Stout and I’m a Policy Advisor at the Intellectual Property Office, working in our copyright team.  I have a long title, I was told not to give my long, complicated, civil service title, so that’s who I am today.  My job here today is to talk about the changes that we’re going to be making to copyright law, hopefully very soon, around copyright exceptions. What’s a copyright exception?  A Copyright exception, otherwise known as a permitted act in the law, is basically something you can do with a copyright work without having to ask someone first.  We’re going to be updating the ones that already exist, and we’re going to be introducing a few more, and I’m going to take you through some of the consequences of that.

To begin with, a bit of background. In 2010, the Prime Minister asked Professor Ian Hargreaves to have a look at the intellectual property framework and see if it was supporting innovation and economic growth. He did this and he made a number of recommendations on all sorts of areas of IP, including copyright and in particular in relation to exceptions. The conclusion he reached was that copyright’s very important and it’s important because it encourages creativity, and it rewards creativity and creators, and it helps to support the creative industries. But sometimes it gets in the way of people doing useful things and unnecessarily so, that the harm that’s done by those activities is very small, and the benefits could be considerable. His argument was that, as it says here, the UK should introduce copyright exceptions into its law, to the maximum extent that it can do in the European framework.  The government accepted that point and in typical government fashion, decided to go and consult for a year to work out what it should do, and it’s quite a huge process.  The Copyright Directive allows us to have up to twenty types of exception, we consulted on most of those types and asked people whether they thought it was a good idea or not, and the basic starting point was that people had to argue why we shouldn’t do it, they had to make that case.  After this process, we received about 450 consultation responses, we wrote 9 impact assessments and we published a document called Modernising Copyright, which said what we’re going to do. The upshot is that we’re going to make amendments to a whole lot of existing copyright exceptions, and we’re going to also introduce 3 new ones: one for private copying, one for parody and one for text and data mining.

As I said, that process began with the review starting in 2010. It’s now 2013 and where are we now? We are currently preparing the legislation and we’re hoping that that will come into force next year on the 6th April.  We’re currently going through what we’re calling our technical review process, where we’ve published the regulations, we’re asking people for their views on them and to make sure we’ve got it right.  We’ve had some public meetings and not quite the same number of responses as our policy consultation but certainly, just in relation to the first set of 4 exceptions, we had over 100 responses. This is people commenting on quite technical law, so it’s an area where there’s a surprising amount of interest.

The goal of the legislation is to implement the changes set out in the document we published last year, and the basic starting point for it is that the legislation should deliver that. Our consultation, our technical review of it, is to make sure it does that effectively. All sorts of people write in to us and complain and say, “You should have done this, you should be doing that, you shouldn’t be doing this,” but we just want to get it implemented and get it implemented well.

One thing we want to do, the overriding purpose of this, is to bring it all up to date and make sure copyright doesn’t stand in the way of uses that don’t really cause any harm or undermine copyright, but could provide a lot of benefits to people.  But also, going back to Martin’s point, one of these is to do with format shifting, CDs and other material.  Copying a CD to an MP3 player in the UK is still technically illegal, and so we’ll be introducing an exception to say that, if you’ve bought the CD and you’re just copying it to your own device, then that would be allowed. The idea is that that will apply to other materials as well, so the same would go for an ebook or other material. People say to us, “We’re all doing this anyway and no one’s ever complained,” but I think there’s an important point; the law should be sensible and people shouldn’t have to break it to do reasonable things. Very often, behind the scenes, there are things that people don’t see are going on, so there are often hidden charges in different places, licencing charges.  People might not go after an individual but they might go after an organisation that that individual works for, and so there are a range of reasons why these are justified.

So, when we go about preparing this legislation, one thing that we’re keen to do is to simplify some of the law. If any of you are ever bored enough to want to read the Copyright Designs and Patents Act 1988 as amended, then you’ll see that it’s fabulously complicated and very difficult, even for people working in the field to understand. One thing we’re trying to do, when we bring in these amendments, as well as implementing the policy, is to try to simplify it a bit along the way.  One way we’ll be doing this, in particular relation to libraries and archives, is to get rid of some of the supporting legislation, and in particular the Copyright (Librarians and Archivists) (Copying of Copyright Material) Regulations, which is an extraordinary piece of work.  You have a lot of specific provisions in the Copyright Act saying that libraries and archives can do this and that, and I’ll tell you in a moment how we’re going to update those, don’t worry, I’ll get there.  But underneath these, you have all of these provisions, you read them and you think, “I can do this,” and then you realise a lot of it is defined in these other regulations, which includes a definition of what a library is. Then you think, “I need to look at the Act and then I need these regulations to find out what a library is, am I actually a library?” Then you go to the Schedule in the Regulations which sets out 6 classes of library, and the final class is more or less ‘Any Other Library’. An archive is defined as an Archive, and an Archivist is someone who works in an archive. So, we’re going to get rid of that in part of our tidy-up exercise.  As well as all the specific policy changes, some of the changes to the legislation will deal with the fact that we’ve got rid of this, and some of the provisions which are hidden underneath the Act at the moment will be there for everyone to see.

It’s a huge job which we enjoy considerably and are slowly getting through at the moment.  So, what are the measures that we’re amending?  First of all, Section 42 is one that already exists, it’s an exception for archiving and replacing copies. We want to update it to become what we think it should be, which is essentially a preservation exception, so that a library or archive can make copies of material in order to preserve it.  At the moment this doesn’t relate to all types of material, it’s just literary, dramatic and musical works, according to my slide. We’re going to apply it to all types of work, sound recordings and what have you, and we’re also going to extend it to apply to other organisations like museums and galleries.  We want to change some of the language so that it fits with the modern process of preservation.  However, the exception will remain limited to situations where it’s not practicable to purchase a replacement copy, and Tim might have something to say about that.

Another to do with archives are these interesting provisions which let you record a folk song or a broadcast, and we’re more or less keeping those as they are, but they have a very strange structure. At the moment, you can do this if you’re a not-for-profit archive, but you have to write to the Secretary of State and ask him to be added to a list. The Secretary of State has to do this is by drawing up a statutory instrument, which is legislation that needs to go through Parliament, and it takes a long time to do. Everybody on both sides of that equation finds it quite frustrating, so we’re going to get rid of that process.

We are updating the provisions that allow people to make copies for the purpose of research and private study. The first one of these is something which we can all use, it allows an individual to copy material for the purpose of non-commercial research and private study, as long as it’s to an extent that’s fair.  There’s an equivalent type of provision which applies to libraries and archives, we’re updating Section 37, and again, this is in line with our general theme of making things work with different types of media and technology. This is going to be amended to cover all types of published work, whatever that material is, whether it is a film or a sound recording or artistic work, it’ll be covered.  You’ll only be able to take a reasonable amount, which is currently how the Act phrases that.

We’re also going to try to simplify some of the provisions around declarations that people need to make, where they promise that they won’t do any bad things with the material they get hold of.  Again, the general theme continues with the other provisions. We already have many of these, but we’re going to update them so they cover all types of material.

There’s a new one here, which is rather unusual and describes a slightly strange concept, which is making works available on dedicated terminals on the premises of the institution, and the language for this one comes from the EU Copyright Directive. We’re implementing it more or less as it is in that Directive, so it’s a bit of an experiment and we will see how that works in practice.  All of these exceptions are always construed narrowly and are designed to be relatively narrow, so they don’t cause harm to creators. Again, this has quite a strict list of conditions on use.

There are other exceptions which we are amending or introducing which aren’t specifically listed as being for libraries, archives or similar institutions, but are going to be available for people to use and will be of benefit to people working for those bodies.  One is for text and data mining, if you have lawful access to some material, research journals, you can make copies of those in order to carry out data mining. The technology will have to make copies in order to do that, so we’re going to permit it.  It clearly won’t let you have access to material that you haven’t already got access to, so you won’t be able to get access for free or circumvent access restrictions.

On education we’re going to amend the current provisions so they apply to all types of material.  Again, we’re going to have a new ‘fair dealing’ exception for teaching purposes that people will be able to use in classrooms and lecture theatres. This is one of our classic examples of how the law has been left behind by changes in technology, because we already have a fair dealing exception which allows you to copy an extract using chalk and write it on a blackboard, without that quote infringing copyright. If I were to do the same thing in a presentation here then I would be at risk of infringing copyright, because it doesn’t apply to anything which uses technology.  We’re going to turn that into a more general purpose, fair dealing exception.  Fair dealing works to the extent that, if that activity would harm creators, then it wouldn’t be permitted, so it’s all minimal, reasonable uses.

Finally, another important one here is an exception for quotation. We already have an exception for criticism and review purposes, and again it’s fair dealing, so you can only take a reasonable amount of a work. We’re going to slightly expand this so that it takes advantage of the full scope of the European law, which allows an exception for purposes such as criticism and review, and many minor uses. You have to stretch the boundaries of criticism and review at the moment to use a quote, even if the use is extremely reasonable and small, so we’re hoping that that will now be captured in this new provision.

We’re doing a lot of other things as well.  Maybe some of you will be interested in those, and you can ask me questions later. But those are the ones that I think are most relevant to your work, and I hope that you contribute to our review process and help it all come into place as it should.  Thanks.

(MK) The next speaker is Nick Munn and again, I think you will introduce yourself.

(NM) Thank you very much for your continued attention. I know after lunch is not the best time to be speaking or listening, so thank you very much for bearing with Robin and for bearing with me as well.  I’m Nick Munn, I am Deputy Director for Copyright at the Intellectual Property Office and perhaps of most interest to you will be my role in making sure that the UK rolls out orphan works schemes, both our own, the European Directive and an extended collective licencing scheme. I’ll come on to the significance of those for archives in a minute if I may, for those of you for whom it’s already not only obvious but have a long list of questions, which please do ask later.

But before I dig into the substance, I would very much like to say thank you on my own behalf, Robin’s and the Office’s for the invitation to come today.  It’s been a really fascinating event to be present at.  I’ve certainly learnt some useful things that I’ve squirrelled away, some of which I may repeat now and a few that may surface later.  I’d particularly like to endorse Martin’s urging of hearing directly from people with an interest in things, and not just from representatives of a particular interest. I’m particularly grateful to Lesley for what I think has to be the most polite lobbying I have seen in 4 ½ years at the Intellectual Property Office, for asking in a wonderful Scottish accent as well, “Can we please change copyright?”  Well, the good news, as Robin has been telling us, is that we will be changing copyright in some respects, and I’ll talk about some of the other copyright changes that we’re going to be making.

But I thought I’d better start with the elephant in the room, which is the other statement of Lesley’s which Ronan opened with, about copyright making the job of archives impossible.  Well, it clearly doesn’t make your job impossible, which is good news. You’ve managed to do it and there’s a whole bunch of you here today which is brilliant, but it may not make it any easier and it may make it a lot harder.  I think we are all agreed that that is not a desirable situation. Responsible archivists, acting in the public interest and without harm to other people’s interests, are restrained from doing that in undesirable ways, or have to jump through too many hoops that are too big.  Robin’s explained, in the context of copyright exceptions, about taking some of those activities out of the realm of requiring explicit permission in the interests of making them happen more freely.  Now that’s not something we do lightly because copyright’s there for a reason, it’s there to protect the interests of creators of things, and it’s not necessarily just there to protect the interests of creators who are deliberately creating something at the time from which they’ll derive value.  But that is a lot of the original intention. We are caught between the need to protect copyright as a thing which protects people who do creative things, of which the ultimate beneficiaries in many cases are archives and their users, but also to make sure that sensible things done by sensible people, and the Codebreakers Project and others that we’ve heard about today are very much in that category, can still happen with the minimum of fuss.

I hear very much the statement that preservation without access is pointless.  It’s a start.  You can’t access it until you’ve preserved it, but the end goal, not only for you as archivists but also for the government, is that people can access knowledge. I’m speaking now not just with a copyright hat on, but this is what the government and indeed successive governments have been all about.  Stuff that you cannot access, you cannot use productively; whether that’s productively in the sense of things that are for society, good for research, good for the economy, or whatever else.

Ronan gave us some very interesting questions at the start of this morning, which I think are the right questions.  I’m not sure I can necessarily answer them for you, but I’m going to give at least one of them back to you, because the first thing he said was how can we help archivists do their job and I think that’s the right question, and I’m going to try and answer that.  I’m working from the slight disadvantage that whereas Robin, I’m sure, is the person in the room who knows the most about what the government is doing on copyright exceptions, I could very well be the person in this room who knows least about archives.  So, you have me at an advantage, but I’m going to do my best to try and answer this from your point of view, and not just from ours.

The other thing I want to highlight from what Ronan said was his appeal for facts about copyright budgets, how often fees get paid and to whom and for what reasons.  This is really important information, without which we are going to struggle to do the right thing on a number of points.  I particularly want to make that play in the context of what we’re doing and planning on orphan works. Now as you’ll be aware, there is an Orphan Works Directive that the European Union has approved and is going to have to come into force by the 29th of October next year.  That will be another copyright exception, which for certain types of works for cultural uses – which on the whole is what archives are going to be doing, though not exclusively as we heard from the Churchill Archive – will allow digitisation on the basis of a diligent search. We had a great discussion on diligent search this morning and I’ve taken some very useful points away from that. In particular, one that struck home with me is the point about the diligent search depending on having knowledge of the subject, of the field, being a person who knows what diligence looks like.  That’s actually a really important point that we must make sure we don’t lose, when we come to talk about it.

I said earlier that the government was somewhat torn in terms of protecting the rights of copyright owners, and making sure that sensible things done by archives and other people can happen. You will see that reflected in what we are doing and will continue to do on orphan works, where we are trying to balance the wish of some rights holders, particularly photographers but across a range of sectors, to make sure that their work isn’t exploited unfairly, against creating a framework to allow archives and others who are responsible and, frankly, are going to do nobody any harm. I absolutely accept that’s the intention of everyone in this room, to go about that with the minimum of trouble. I hope soon the government’s going to be able to consult on precise rules for how we’re going to implement the Orphan Works Directive and how we’re going to implement the UK’s own Orphan Works Scheme, which will allow for some commercial uses, and for some other types of work such as photographs to be used non-commercially as well.  In the spirit of learning from people, we are going to be looking to develop some guidance around that use of orphan works in the UK, which draws on expertise in different subjects and of different types of work.  Not to come up with a prescriptive set of rules, because one of the things I heard, particularly from Christie this morning, was this idea of there being no fixed rules. You couldn’t just write a formula that says, this is how you do diligence, this is how you find people.  You have to know what you’re looking for and then go where the information takes you, and at some point you’re going to have make a judgement; this isn’t happening, it’s just not reasonable to try and look any further. The ends are all dead ends.  All of that made perfect sense.

We’re looking very much to root what diligent search looks like not so much in rules, but in the judgement of people who know what they’re doing.  Having said which, there is a real risk that that will not provide anyone with the certainty they’re looking for. Again, there’s a trade off between providing people with certainty, definite-ness, and for people who are a little less expert than you in this room, some help on knowing where to start, without just prescribing something which in some cases will require you to do things that will never turn up an author, and in other cases will be the wrong things to do, but you’d find him easily in another way, so giving wrong permissions in either case.

So, to respond again to Lesley’s call, can we please change copyright? Yes, we are changing copyright.  Now, what we’ve heard from a variety of people is, “Yes, but A, you haven’t done it yet and B, you’re not changing it enough or in the right ways.”  Okay.  Well, because we haven’t done it yet, it’s very hard to tell how far what we are doing will go.  I have a feeling that we will probably not get to the future of not having to worry too much about copyright for archives in one go.  What I am hoping, though, is that between the copyright exceptions changes, the Orphan Works Scheme and the possibility – although I think it’s not an immediate possibility – of some form of collective licencing around archive uses, which would require a lot of negotiation, but is starting to be put on the table by what the government is doing and providing for, I’m hoping that’s going to start to move the balance towards archives being able to do more easily more things that are in their mission to do, without moving too many owners of copyright into the position of being in any way deprived or upset or harmed in their reputations – we heard about reputation earlier – in what happens.

I’d like to conclude just by saying we had a provocation from Martin about the current state of the law, and the fact that the financial sanctions, in his view, on infringing copyright for an archive project were just not that big.  It’s funny, I think Martin thinks he’s telling me, “You know what? You shouldn’t bother with all this.”  There is part of me however, that’s writing down, should we make a criminal offence? I’ve had to have this conversation with the team who are working on orphan works, and I have to say, the conversation I had with them was, “I really do not want there to be a new criminal offence for so many reasons, which starts to criminalise the activity,” – that’s not the way this is meant to be going. Not because we are, in any sense, wanting to condone criminal behaviour.  In fact a lot of what we are doing is because the government, for reasons you will understand, just can’t put itself in the place where it is going to wink at, or condone breaking the law, even if it’s not breaking the criminal law.  If you think about that for a second, you will realise that however inconvenient and annoying and difficult that is for archives, you do not want, as a general principle, to have a government that’s got a bit of a, “Oh well,” attitude to the law.  You do not want to have that.  And if you’ve ever visited a country where that is the attitude of government, you will know about it and you may indeed have stories to tell about it.

We’re in the position of trying to provide legal answers.  We are not able and not necessarily rushing, however, to close down the risk-managed approach.  We know why you take it, we know that you’re interested in doing that for your own laudable objectives, and that will continue to be an option as far as I can see, into the future.  Certainly, it’s not one that we’re looking to close down.  I would say that by creating legal alternatives, you may find that the courts are a little bit less sympathetic about not using them where they are appropriate, but equally, those options will remain open to you, and while you will understand that I cannot in any way urge you or even recommend you to use them, nor can I tell you that they’re going to vanish like fairy gold.

So your position, I hope, as a result of what the government is doing, is better.  You have more options.  You have more options to do things legally.  You have no fewer options to do things unlawfully, if you feel you must.  And on that note, let me just return to the conditions of the legal scheme.  People have been very keen to make sure that what the government does is as simple and easy to use as possible, so they can stay within the law and stay within what the government does, as opposed to breaking the law.  What I’d like to say is that the evidence that’s being collected, for instance around the Codebreakers project, is the kind of thing that will really help set appropriate conditions for licensing of orphan works through the UK Scheme. Keep collecting that, keep giving us information from your own experiences as archivists, and particularly from these projects where you’ve got some systematic data.  That will help us condition what we are doing and get the answers, if not completely right from your point of view, at least a lot closer to right than we would have done otherwise.  Today’s been wonderful for that, I’d like to thank CREATe and Wellcome in particular for letting us be here.  I’m going to hand over to Tim Padfield for some thoughts on my thoughts, and things said so far, and then Martin will attempt to give us a severe grilling and let you get a few questions in as well.  Thanks very much.

(TP) Hello everyone.  I don’t represent anyone any more.  I’m in the sad position of being retired, but I’m down here as representing the International Council on Archives, which I do every six months or so. I’m here to talk about the impact of copyright on archives, and to respond to what you’ve heard from the IPO and some of what you haven’t heard from the IPO, actually.

I think archivists are scared by copyright, which is sad but not surprising.  It’s largely because it’s unfamiliar to them.  If you go on an archives course at one of the universities, you’re likely to have a talk from me on copyright which will take 2 hours, and that’s the only information you’ll get about copyright at all in your professional training.  Also, archivists are scared because in my view, in many respects, Copyright’s rather absurd.  My biggest feeling of absurdity about copyright is duration, so I’m going to say something about duration even though Robin and Nick haven’t said anything about it all.

We’ve been told, and we keep being told, that the purpose of copyright is to encourage innovation, to encourage creativity, and yet we have a duration of copyright the standard of which is 70 years from the death of the creator.  Why you are giving benefits to the grandchildren and the great grandchildren of the creator, in order to encourage innovation, I really don’t understand. It makes the 2039 date for the termination of copyright in unpublished literary works and some other works even more absurd, which means that 15th century works are protected by copyright, even though they weren’t when copyright was created in 1709.  I find it really bizarre.

However, I hope you are aware that the Enterprise and Regulatory Reform Bill has given the government power to remove at least some of the 2039 terms, and when that happens, on the assumption that it does happen in a year or so, huge volumes of copyright material in archives will cease to be protected by copyright altogether. Most 19th century material and all pre 19th century material will cease to be protected by copyright, and I think that will be a wonderful thing.

We don’t know yet how it’s going to happen, or precisely when it’s going to happen but I am assured that it will happen, so it’s something to look forward to and keep your eyes open for. It will definitely remove at least part of the absurdity of the duration of copyright.

I don’t want to spend too long, because we need to give you time to ask questions so I’ll just say a few things about the other changes to copyright.  Preservation copying, and indeed copying by librarians and archivists for users, applying to all types of work, is a huge improvement.  Preservation copying of things like artistic works, sound recordings and films has almost certainly been happening anyway, in archives across the country.  I’d be amazed if it hasn’t.  It’ll just be nice that it will, in future, be legitimate.

You need to be aware, though, that the purpose of the preservation copying exception is preservation, the purpose is not to make the material available online. Even though you’re making a digital copy, the purpose of the preservation copy is preservation.  You need another exception to make that digital copy available remotely, or you need permission.

Copying of unpublished works in archives for users, once again applying to all types of work will be hugely beneficial, in fact a vital change.  Once again, I’m absolutely sure that archives all across the country have been copying photographs for example, for users, and maps and so on, quite regardless of the fact that they’re not allowed to. I think even some of them have been getting declaration forms for these types of copying.  But once again, it’ll be jolly nice if it can be done legitimately.

It’s worth understanding the implications of the removal of the regulations, the wonderfully named Copyright (Librarians and Archivists) (Copying of Popular Material) Regulations 1989, with two sets of brackets, I think it’s a splendid name.  Anyway, they’re going to be abolished, but that means that the declaration form that we all know and love is also going to be abolished.  There will no longer be a statutory declaration form.  The declaration will simply be something that is in writing, so you can receive a declaration in a letter, or an email from someone.  You don’t have to receive a particular form.  That will make life a great deal easier.

We’ve been told about the copying of published works.  At the moment, you might not be aware, that there is no exception which allows you to copy the manuscript of a published work.  If you have in your archive a manuscript of a work which has been published, it’s a published work itself.  The trouble is, it’s not covered by either of the copying exceptions, because the librarians’ exception applies to published editions of works, and the archivists’ exception applies to unpublished works. There is no exception which allows the copying of a manuscript of a published work. There will be in the future, I think it’s terribly important and I hope the IPO has taken this on board already, because I’ve told them before.  It’s terribly important that the exception for published works applies to archivists as well as librarians, because archivists have responsibility for a great many published works. There are lots of maps, lots of photographs and lots of manuscripts of published works in archives, so it’s terribly important that you have access to this exception.

You’ve heard about the new exception for online access to material on the premises.  The current draft of the regulations published for consultation is actually a little bit strange, because Robin said that it’s based on the Information Society Directive and yet it interpolates or adds in a little bit, which is that the use must be for non-commercial research or private study, which is not in the Directive. I personally say that archivists would find it extremely difficult to police any use of an access system on their premises which was limited to non-commercial research or private study.  Fair enough, supplying copies for those purposes, but controlling access simply to read material would be virtually impossible.

Then we were told a little bit about folk songs and funny things like that.  This is another one of those absurdities, in my view, about copyright, that you can have a copyright in a folk song, when you have no idea who created the work or how long ago it was created.  It’s a bit difficult to say that there is a rights owner in a folk song, and folk material has been the source of huge creativity. If you think of someone like Vaughn Williams or the Brothers Grimm, they produced new works based on folk material and if they couldn’t have done that then we wouldn’t have a lot of wonderful modern works.

I shall say just a few words about orphan works.  We have two wonderful new schemes for orphan works, one from the European Union and one from the UK government.  Frankly, neither of them will be a great deal of use to archivists. They will be extremely valuable to individual researchers who want to get permission for, or have licence or an exception, to use a relatively small number of works. But if you’re talking about 1000 works, 10,000 works or 100,000 works, the regulations will require you to do a diligent search for the rights owner of every single one. I don’t see how the orphan works exceptions will be very useful to archivists.  I personally expect risk management to become more and more important, which makes this conference all the more useful.  I’m looking forward to hearing, again, Peter’s talk later about management of risk, because I’ve heard him talk about it before.

And finally, one or two words about the international scheme since I’m here as representing the IPO.  I represent the IPO in Geneva, meeting with the World Intellectual Property Organisation, which is contemplating a treaty, an international treaty on exceptions to copyright in favour of libraries and archives.  It’s not impossible that we’ll get a treaty, and it would be extraordinary and wonderful if we did. The purpose of such a thing, primarily, is to improve international dealings in copyright material so that, for example, an exception in one country applies in another country, so you can transfer a copy to another country.  But it’ll be a long time before we get that treaty. Thank you.

(MK) We’re almost at two o’clock, but we’ve got quite a bit of slack in the day, and the wonderful coffee breaks and the plenary at the end, which may allow us to take up some of those issues.  From my perspective, the debate shapes up. I think there’s less controversy around Robin Stout’s portfolio of making lawful, activities which are happening anyway, and removing some of the garbage.  It’s unlikely that there are many objections to improve in this step-by-step manner, even though there are some specific issues, and I think they legitimately could come up in this context as well.  But if we look at what the purpose of the day is, and assess how archives can make their material available online, then I think the orphans debate is the more dramatic intervention, and it looks like in the future we’ll have essentially 3 routes.  We’ll have the route through the European Directive, which is an exception and then you have to comply with the diligent search of these countless databases, in the country where the work was published, or for audio visuals in the land where the headquarters of the firm is.  There’s a huge list there. If you want to avail yourself of that exception, you have to go through that process and the resources within the archive sector are probably not easily available.  The second route, if you want to go for images, or for commercial use in the future, you will have the option to apply for a licence through the IPO or an authority which will be created; we don’t know how that scheme will work.  Possibly, there’s a light at the end of the tunnel. If it’s just a removal of liability from archives, it’s possible to have just a peppercorn licence fee and the diligent search requirements would be more flexible, then it may well be a slight improvement of the situation. We still have the third route, which basically says, “What are the damages? What’s the harm?” There, the risk is that courts may take a dimmer view than they have in the past, because these other schemes are available. That’s the situation and the question is, is there an improvement here or not?  I think the IPO would have to think extremely carefully how they structure the diligent search requirement, and also whether they can create a removal of liability scheme against a peppercorn payment. That, I think, is a hope. That’s the only hope I see in this.

Okay, questions.

(AV) Hi, I have a question for the IPO.  Anna Vernon from the British Library.  My reading of the Orphan Works Directive is that it includes embedded works, so how much scope do you have, given that you’ve got to implement this Directive, to change that and make it less onerous for archives and libraries to implement, and do a diligent search for each individual item?

(NM) That’s an easy one to answer, though you won’t like the answer, which is essentially none, whatsoever.  European Directives are fought out rather extensively and what they say we have to do, so to the extent the requirement is in the Directive, and I’m afraid the requirement to search for embedded works is very firmly in the Directive, we have no choice other than to do that. At this stage, I don’t think there’s enough trust between rights holders and the potential users of the Orphan Works Scheme, whether the Directive or the UK’s, for there to be mutual comfort around any solutions that don’t involve clearing individual rights. That might change in the future, when people have had a chance to get used to these new schemes.  They’re not the first in the world, but they are relatively new. Sorry, Anna.

(ER) Ellie Robinson from London School of Economics. I have a question about the Section 42 amendment for preservation copying. You mentioned that it would be more suited to modern preservation techniques, and I just wondered if you could clarify that a bit more?

(RS) Okay, I’ll try to.  I think some of this, as I said, Tim may disagree that it is suited to modern preservation techniques. There are questions around how we draft it, and we’ve put our legislation out to ask people whether it achieves what we’re trying to do.  But for instance, one of the issues is that it’s not entirely clear from the language in the current provision, whether or not you can take multiple copies of a work.  It seems on one reading you may only be able to take a single copy. Also, it’s drafted around replacing copies and doesn’t use the language of preservation, and it’s something that we’re working on, people have given us feedback and we’re just trying to make sure that the language in the legislation matches what goes on. If you read what’s currently there, it describes quite a restrictive process which people tell us isn’t really what they do.  Does that make sense?  More widely, it’ll apply to different materials, so it’ll apply to films and photos and broadcasts and all these things, so from that sense as well, it’s better tailored to modern media.

(PG) Paul Gibbons, School of Oriental and African Studies.  It’s a question for Robin.  I just wondered about the education exception and the definition of non-commercial fair dealing.  Universities increasingly are commercial, so would lectures count as non-commercial in that context or not?

(RS) This is the type of question where it’s dangerous for me to try to give a definitive answer.  It’s fair dealing, so one part of the equation is a judgement on the fairness of the activity, and we often give the use of materials in presentations as one of our examples, the use of an interactive whiteboard in a classroom. We often use that one because it seems pretty much like fair dealing to us, although even on that you can never quite say until it’s tested.  But I think that on a non-commercial side, it’s the purpose of the activity which needs to be non commercial, so it’s not with reference to the institution. In fact, the fair dealing provision doesn’t apply to particular institutions at all, so it’s all about whether you are teaching, or we use the word instruction for some reason in our legislation, but essentially it has to be teaching for a non-commercial purpose, and to the extent that it’s fair to do that. It’s not about the type of body.  Whether or not the purpose is non-commercial, I think is a separate judgement and something that we can’t –

(PG) That’s more what I was wondering, does it count as non-commercial because it’s what the individual is doing, but if the individual is a lecturer working for an organisation, does that make it commercial or not?  Or can’t you comment?

(RS) They’re similar questions, aren’t they, in relation to the research fair dealing which Nick’s involved with, and the term non-commercial comes from the copyright directive, so in respect of this one we have to have it.  The Directive says you can have this type of exception, but you can’t go further than this boundary and one of the restrictions on this type is it must be non-commercial. As a legislator in an EU member state, it’s very dangerous to start writing into your law, “Non-commercial means this,” because in a few years’ time there will be a case before the European Court where the European Court says, “Non-commercial means this.” Very often where there are terms like this, we simply go with how they’re written down and people just have to place the normal meaning on those words to the extent that that is possible.

(NM) If I can just add ever so slightly to that answer. The Copyright Directive from which Robin is rightly answering, does contain a recital which is basically a preamble to the law that says what it’s meant to do. That does suggest – I think it’s number 42 but I always get that wrong – that you shouldn’t be going too deep into wondering about fundamentals about does someone ultimately make a financial benefit from this, in terms of defining non-commercial.  It is the activity itself, as Robin said, a non-commercial aim or a commercial aim.  What you might do, for instance, in your academic institution, is photocopy the interesting bits of your Charter that say what your institution is there for if anyone starts asking questions about the commercial-ness or otherwise of your activity.  But ultimately Robin is being cagey, not because he wishes to be unhelpful, but because it’s a question of fact which ultimately would be up to the courts. Although that’s a horrible answer to have to give, I’m afraid the whole of copyright ultimately comes down to the interpretation of something which, as Robin says, is a trifle complicated, both to read and also to apply.

(MK) Tim, would you like to comment on any of the issues that came up, just because the questions came the IPO’s way?  Is there still a question in the room? There’s still two.

(CW) Cathy Williams, National Archives.  Just to pick up, Robin you joked about the definition of archives, but how are you going to define the collecting institutions to whom these exceptions etc apply? Especially, since through the current legislation and what you’re proposing, you scatter terms like library, archive, museum, creator, and associate them with different exceptions, where actually, aren’t we talking about the nature of a collection, how it’s been formed and how it’s going to be used, rather than the institution?

(RS) In terms of the types of institution that we’re referring to, again the Copyright Directive sets some limits. It says that libraries, archives, museums and educational establishments are the type that we can apply certain exceptions to, and in this area we’re trying to, in some ways, use the maximum scope that those provisions provide for us. That’s why we’re extending the types of organisation it applies to.  In terms of the organisation, an archive, as I said, is already defined as an archive in the law and you just have to apply the normal meaning of that word. In many areas, part of the problem with the current copyright legislation is that it bends over backwards to try to define every last eventuality, and minutely define every last definition, and sometimes that ends up not being helpful. People constantly say, “Can you define this further, can you define that further?” The law ought to just make sense. You give words their normal meaning, the courts will give it their normal meaning, and hopefully we don’t have to try to tell people what these things are.

(NM) I think that’s right.  Your choices here are, you can either try to persuade someone that you’re really an archive, or you can have parliament decide whether you’re an archive or not.  I think you have a better chance of defending your own existence as an archive, and the best way of doing that is to leave ‘archive’ to have its natural meaning, and to let you justify your activities as well. “We’re an archive, we do archive-y things, this is what an archive is, this is what we do, look, we fit.”  As opposed to leaving it up to people like Robin and me, to try and write down from our understanding of archives, yes we’ll talk to you about it, a formulation which may not in 20 years reflect what archives are like.  We think you’re better off with this approach, frankly, but if you disagree you’d better tell us.

(PT) My name’s Pam Temple.  I’m from UCL, but I also represent a community archive.  My question is quite simple.  Can you say when the flexibility around 2039 restrictions on unpublished works is going to be lifted; can you give us a timeframe for that?

(NM) What do you think?  The honest answer is, no, I can’t give you a date right now but I don’t see any particular reason why we would hang about doing it, so watch this space. We’re not thinking this is going to be a 5 year project. I would hope, but don’t hold me to this please, next 12 months.  If you leave me a card or some details, I’ll get back to you with any sort of update.

(PT) Thank you.

(SC) Susan Corrigall, National Records of Scotland.  I have a quick question about the Orphan Works Licencing Scheme.  Do you have any idea yet of the composition of the panel who will define the bounds of a diligent search?

(NM) One, I’m not sure we would use a panel as such. Two, partly as a result of the discussion we had this morning, I’m not sure that defining the bounds is quite how we’re going to want to do that. The sense that there is no one rigid rule for, “It is a diligent search if you do it this way, and it is not a diligent search if you do it that way,” would mean that we want to leave some of those boundaries to sense and judgement, and to pick up a word that Robin used several times, fairness.  The basic rules for the Orphan Works Scheme will be consulted on in the next little while, so I’d hope, but again don’t hold me to this, it just depends on what ministers really want to do, I might hope that you’d have a chance to see that before Christmas at the very latest.  So firstly, everyone gets a voice, and it’s not just going to be some panel that’s making this up.  Secondly, if there’s anyone who thinks they have a burning amount to contribute on what diligent search looks like, or doesn’t look like, and we’re quite keen not to over-engineer as well as make sure it’s adequate, so what’s a minimum standard of diligence, rather than what is everything you could possibly think of to do, then I’m happy to take people’s details as someone who thinks they might have something to add. We might be coming round to ask, “How does it work for you, what does it look like, who knows about this, who can we ask?” We are very keen to get that working right when the scheme is introduced, and not in the light of bitter experience of no one using it, because they don’t think it’ll work.

(MK) Will you be here for the final plenary, will people have a chance to catch you again?

(NM) I’m afraid I’m going to have to shoot off, but I will certainly be here for the coffee break, or what remains of it.  I’m very happy to take immediate questions now, otherwise you can contact us, usual government email addresses, via panel members or Googling will probably work.

(MK) It’s exemplary that the IPO is willing to engage with us in this way. They’re not always easy conversations, but as you earlier said, generally we are quite friendly, apart from myself.  Ronan, shall we close?

(RD) Yes, I think so.  There’s two different timelines.  You’ve got one timeline on the back of your card and a different timeline up here and we’ve exactly split the difference between the two.  If we wind up here, and restart at quarter to three for the final panel, and then we’ll go on to the plenary.

(MK) Thank you.

Source: https://www.create.ac.uk/archivesandcopyright/developing-an-agenda-for-reform/part-2-edited-transcript-of-panel-discussions/panel-3-archives-and-copyright-the-view-from-the-uk/