Copyright restrictions increased: the effect on education

This article was written in December 2004 and last updated in April 2005.

On 31st October 2003, UK copyright law was amended. A number of activities that were previously permitted under the Copyright, Designs and Patents Act 1988 are no longer many of the restrictions will impact on the practices of universities, schools and other educational establishments.

Overview

The following restrictions have been added to most permitted uses of copyright material:

• permitted activities must be for non-commercial purposes
• uses of copyright material require acknowledgement

Non-commercial purposes

Many permitted uses of copyright materials will now only apply to activities undertaken for non-commercial purposes. However, the amendments do not say what amounts to a 'non-commercial purpose' and ultimately the European Court of Justice will decide this. In the meantime, it is safe to assume that non-commercial does not mean non-profit or not-for-profit and that any activity that has income generation as a direct or indirect end purpose will be considered commercial.

For example, the following activities are likely to be considered commercial:

• courses given by a university or other educational establishment where attendees pay a course fee intended to generate income for the university, such as university summer schools
• university lecturers speaking at conferences or other events where they are paid a fee for speaking
• university research sponsored by a commercial enterprise

Educational establishments and their staff will need to look closely at any of their activities that make money and review their use of copyright materials in these areas.

It may be that some of these activities are covered by licences held with the Copyright Licensing Agency ( CLA ) or the Newspaper Licensing Agency ( NLA ). However, some copyright materials are not covered by these bodies. Unpublished materials are an obvious example where permission of the actual copyright owner will be required.

Acknowledgement

Permitted uses of copyright materials now require more frequent acknowledgement of the title and the author of a work from which copyright material is taken.Generally speaking, this is already standard academic practice. However, this may not always be the case, depending on the type of work or the use to which it is put.

Educational establishments will need to undertake more rigorous checks to ensure that all copyright material is sufficiently acknowledged where required.

The permitted acts

The amendments made to permitted acts which are most relevant to educational establishments are:

• research
• copying by librarians
• instruction
• examination

Research

The provisions permitting fair dealing of certain copyright works for the purposes of research have been narrowed.

Research must now be of a non-commercial purpose and the copyright work must be accompanied by a sufficient acknowledgement.

No acknowledgement is required where it would be impossible for reasons of practicality or otherwise.

Therefore, the use of copyright material in, for example, university research which is either commercially sponsored or conducted with a view to ultimate commercialisation of an invention is no longer permitted without the express permission of the copyright owner. It is the intended purpose of the research at the time of making use of the copyright material that is relevant. Use of copyright material in research that ultimately results in the commercialisation of an invention will only require permission if that was the intention at the time of copying the material.

Copying by librarians

Generally, where a person was permitted to use copyright material for the purposes of research, a librarian in a not-for-profit library was entitled to supply that person with a copy of that material provided that the librarian was satisfied that the copy was supplied for research purposes.

Librarians protected themselves from liability by requiring the person making the request to sign a declaration confirming the purpose of the copying. Now, the librarian must be satisfied that the research is for a non-commercial purpose and must consider any requested declaration accordingly.

Instruction

Previously, copying of copyright material in the course of, or preparation for, instruction was permitted in limited circumstances.

The copying had to be done by a person giving or receiving the instruction and could not be by means of a reprographic process. This was intended to permit the copying in manuscript by a teacher or a student of copyright material either in class or in preparation for it.

Now, the permitted use is subject to additional limitations. Either:

• the instruction must be for non-commercial purposes and the copyright material sufficiently acknowledged; or
• the copyright material must be sufficiently acknowledged and already available to the public and the use made of it must be fair.

As the permitted copying cannot be by reprographic means, this exception to copyright infringement has always been narrow in any case. It is difficult to imagine it generally applying other than in the schoolroom by oral use or use of the blackboard / whiteboard and subsequent copying in student notes. In this scenario, the further limitations may not be too onerous, although teachers and students will need to be mindful of the requirement for sufficient acknowledgement.

Examination

Previously, copyright was not infringed by anything done for the purposes of an examination by way of setting the questions, communicating the questions to candidates or answering questions. This is now subject to the further requirement that any question be accompanied by a sufficient acknowledgement unless this would be impossible for reasons of impracticality or otherwise.

Quotations from authors forming part of exam questions need to be acknowledged. This may be standard practice. However, exam questions themselves are usually copyright material. Do the original authors of exam questions need to be acknowledged when those questions are used subsequently (either in the same or an amended form)? Usually not.

Acknowledgement is not required where a copyright work has been published anonymously or, with an unpublished work, it is not possible for a person to ascertain the identity of the author after a reasonable enquiry. The author of exam questions is usually not published.However, there will conceivably be situations where this will not be the case and those setting exams ought to be aware of this new requirement. In the case of public examination papers, examination boards handle applications for permission to copy exam papers.

Action Checklist

• Audit activities to identify those which may be considered non-commercial and the use of copyright materials in those activities.
• Check existing licences and permissions from licensing bodies such as CLA , NLA and ERA to see whether the current use of copyright materials is already permitted.
• If in doubt, speak to the relevant licensing body – licences may need to be amended, or new licences entered.
• For copyright material not covered by licensing bodies (e.g. examination papers and unpublished works), consider whether permissions from individual copyright owners are needed.
• Inform staff about more rigorous acknowledgement requirements when using copyright materials.

For further information on this topic please contact: sarah.wood@pinsentmasons.com