Disclaimer
Copyright is a complex legal issue and as such, there are often no clear cut answers to what is and is not, acceptable use of copyright material. As with much legislation, copyright legislation is based on its interpretation and caution must be applied when deciding what is reasonable use of copyright material and what is not. This Toolkit aims to provide some introductory advice and links to further information but should not be interpreted literally. It is not a legal defence to argue a position based on one person’s interpretation of advice (such as provided by this Toolkit) and ultimate responsibility lies with the individual to seek clarification before risking copyright infringement.
What is copyright
Copyright is the legal protection given to people who create materials in a wide range of formats, including literary, music, art, sound recordings and films. Copyright enables people to protect their work from unwarranted publishing, copying or changes which might otherwise alter the original work and to object to distortion or mutilation of it, without the author’s permission. Material does not have to be registered in any way to be protected by copyright, it simply has to be recorded in any medium e.g. on paper or on CD. The purpose of copyright is to give authors recognition and/or economic reward for their work.
The Copyright Licensing Agency Ltd (CLA)
The CLA is a company owned by organisations representing authors and publishers to protect copyright and to ensure authors receive fair payments for use of their copyrighted material. The CLA grants fee-based licences to Higher Education Institutions to allow staff and students to copy extracts from books, journals and magazines (but not newspapers) protected by copyright and published in the UK and 17 other countries. The licence allows for only single copies to be made for private research or study. Staff however, are permitted to make additional copies for each of their students, plus one extra copy for themselves. Under CLA terms, the definition of a student is quite clear so copying for certain types of student is not permitted, such as those on short term modules or courses.
Since the CLA licence primarily covers paper to paper copying, this mostly concerns photocopying. Under general terms of a licence, as stated by CLA:
The basic permission to photocopy extends to the copying (from paper on to paper) of:
· Up to 5% or one whole chapter (whichever is the greater) from a book
· Up to 5% or one whole article (whichever is the greater) from a single issue of a journal
· Up to 5% or one paper (whichever is the greater) from a set of conference proceedings
· Up to 5% of an anthology of short stories or poems or one short story or one poem of not more than 10 pages (whichever is the greater)
· Up to 5% or one single case (whichever is the greater) from a published report of judicial proceedings
However, this is by no means definitive since it depends on how the copyright holder considers this 5% to be crucial to the importance of the publication, defined as a ‘qualitatively significant part of a work’. For example, the number of pages being photocopied from a book may fall within the 5% limits but the actual content may be considered central to the value of the overall book and it may be argued that this falls outside of acceptable permission for copying.
Fair Dealing
The issue of fair dealing relates to any copying activity that is permitted under copyright law which does not require payment of fees. A caveat to this however, is that it is more of a defence in law, rather than a right. Fair dealing allows individuals to make single copy extracts from various media, including digital format, for research of private study. The volume of material that can be copied is still the same as the amount defined under the CLA licence. Exactly what material may be copied is dependent on permissions by individual copyright holders and cannot automatically be assumed without verification.
New legislation introduced on 31st October 2003 further states that fair dealing is only permissible for ‘non-commercial’ research or private study. For example, if research is funded and the outcomes will be used for commercial gain then this is not considered fair dealing. Since there is a lot of commercial sponsorship of research for staff and for students during their courses you should be more careful about what constitutes fair dealing under the new legislation. The British Library link below is a good source of information about what is considered fair dealing under the new regulations.
Course packs
A course pack is defined as:
“a compilation (whether bound or looseleaf) of four or more photocopied extracts of Licensed Material from one or more sources which compilation:
(a) exceeds twenty five pages of such Licensed Material, and
(b) is intended to provide the students registered on a Course of Study with a compilation of materials designed to support the teaching of that Course of Study; and
(c) is prepared and distributed in advance of and/or during a Course of Study and either piecemeal or in one batch.”
After a change in the licensing agreement in 2001, the CLA licence now allows photocopying for course packs, although the same 5% extracts permissions would still apply as normal. So it is now acceptable under the terms of the CLA licence to produce course packs for students. Course packs are still governed under the CLA licence so an academic may only make enough copies for each student plus one extra copy for themselves.
This only applies to paper based course packs and not to materials produced in digital format for distribution. If you wish to produce electronic course packs for students you must gain separate clearance under the CLARCS licence or through the HERON service. As yet, there is no official definition of what constitutes an electronic course pack.
Electronic distribution and use of material (CLARCS)
It is not acceptable to digitise paper based publications for electronic storage, distribution and use under terms of the existing CLA licence. The licence also does not cover copying of materials produced in digital format, such as web pages or CD/DVD content, for use in teaching and learning, though it is acceptable for research or private study under existing terms of fair dealing.
If you wish to digitise and distribute material, for example to deliver electronic copies to students via a Virtual Learning Environment (such as Blackboard or WebCT), you must seek clearance via the CLA Rapid Clearance Service (CLARCS). The CLARCS scheme permits licensees to digitise (scan and store on a computer) extracts from certain books, journals and periodicals; and then to use them by making them available to students and staff over a secure network. CLARCS does not cover material already produced in digital format such as electronic publications or the digitisation of illustrations and clearance must be cleared with the copyright holder. Fees for a CLARCS licence are based on two models, either a flat rate or per student basis, but CLA set guidelines at 5p per page per student, though this fee will vary dependent on publisher negotiations and may be higher.
Any material cleared for online use can still be made available to other students and staff for the independent and non-directed pursuit of their studies. But you will be in breach of the licence terms if any member of teaching or admin staff directly or indirectly, formally or informally, orally or in writing, recommends the material to a student on any teaching module other than one in respect of which the fee has been paid.
HERON
HERON is a national service to the UK academic community for copyright clearance, digitisation and delivery of book extracts and journal articles. Institutions must subscribe to HERON but this enables subscribers to seek copyright clearance far more easily. Since HERON deal regularly with copyright holders and can store requested works, they can often provide quick clearance and access to regularly requested material. HERON differs in its remit to CLARCS in that it acts as a one stop shop for digitisation and clearance or material, some of which is not covered by CLARCS, such as the digitisation of illustrations (diagrams, photos etc.).
The HERON service states that it has several unique features:
Digital images
Digital images (and other material) downloaded from the Internet or other digital format (e.g. from a CD) would fall under the usual fair dealing constraints for non-commercial research or private study. Under the CLA licence images can be photocopied but cannot be scanned, which means that digital images cannot be created and stored through reprographic methods, even for research or private study. Legislation and licences says that educational exceptions to copyright law allow for images and other material (except sheet music) to be used for examination purposes. However under fair dealing of use for non-commercial research or private study it is unclear whether this relates to student coursework and so caution must be used if students wish to include images from the web for work such as essays or reports.
If the source of the material (website, CD etc.) states that the material should not be used then students should seek formal permission before including it in their work. As with other references, students should also make sure they fully reference any digital images used, with full acknowledgements. The CLA licence does not permit staff or students to scan images, even for private study. So it unacceptable to scan images, for example from books, for inclusion in lectures or coursework, although photocopies are allowed under the CLA licence. The distinction here is the process of reproduction. The CLA licence allows for photocopying but not digitising (scanning) material.
If you are unsure about using copyright material, then you must seek permission from the copyright holder. Unfortunately this can prove difficult and time consuming, especially if you receive no response to your correspondence. However, simply seeking permission is not acceptable to claim permission to use material as permission must explicitly be given. Services such as HERON can help make seeking copyright clearance much easier. HERON also deal with the digitisation of material.
The World Wide Web
With the rapid development of technology, copyright legislation is struggling to keep up with developments but copyright law still equally applies to digitally produced material, including web pages and multimedia resources. Many people feel that there is an implicit acceptance by authors who make material available via the World Wide Web that their material is free to copy because, by definition, simply reading it on screen means that the viewer has automatically made an electronic copy (the information is stored on the user’s computer in a cache). Therefore there is an argument that web material can be copied for use in education. This is what is called an implied licence, where the author might allow you to use the material in-house in your institution or even via an Intranet (a secure network), if the web site does not stipulate otherwise. However, this is a matter of interpretation and an implied licence cannot be argued if the material on the Web was placed there illegally in the first place.
There are also legal implications when linking to other people’s sites and how you might do this without requiring permission. If you link to a specific page within someone else’s web site, called deep linking, it may appear to the reader that this material has actually been produced by you. There have been legal cases against this so it is more acceptable to link to the main page of a web site produced by someone else. Although simply linking to the main page of another site does not necessarily require permission it is often better to seek permission from the author.
Useful Links
http://www.cla.co.uk/
http://www.heron.ac.uk/
http://www.intellectual-property.gov.uk/std/resources/copyright/index.htm
http://www.patent.gov.uk/copy/index.htm
http://www.bl.uk/services/information/copyrightfaq.html
http://www.ukoln.ac.uk/services/elib/papers/pa/fair/intro.html