Shiny New Copyright Laws

Posted on: 6 January 2015

In October the latest batch of revisions to British Copyright law flowing from the Hargreaves review finally came into effect. Jason Miles-Campbell, formerly Jisc Legal Manager, looks ahead and asks, ‘What’s in it for the world of the audiovisual?’

About the Author: Jason joined Jisc Legal in 2004 as the Service Manager. Jisc Legal’s role is to ensure that legal issues do not become a barrier to the development and adoption of new information and communication technologies in the UK further and higher education sectors. Jason’s job is to efficiently allocate the Service’s resources to the many demands on its expertise, to lead in terms of the Service’s front line work, and to contribute to the development of its strategy. Jason studied English Law and French Law at University College London in the dark and distant past. In 1994 he became a lecturer in law, specialising in European law, consumer law, and then IT law, and his ten years’ experience in higher education included a stint as head of department. In 2004, he moved on to join Jisc Legal, and has been assisting the further and higher education sectors in his current role since. In 2008, he added an LL.M. in IT and Telecoms Law from Strathclyde University to his qualifications, and in 2012, he became a certified PRINCE2 project management practitioner.

Fair Dealing
The concept remains the same, but its role becomes more important with the new education exception and the inclusion of video in the private study and non-commercial research exception. My experience with Jisc Legal shows that it is easy to jump to a risk averse, restrictive judgement of what is fair, and perhaps miss opportunities for use. It is not a reckless free-for-all either but sensible, reasoned decisions need to be taken. For many colleges and universities, for example, I recommend that a particular designated person, one who can identify the institution’s risk appetite, ensure consistency, and work from a position of knowledge and experience, takes fair dealing decisions.

So how to decide what’s fair? Although the judgement will need to be taken in respect to the circumstances of each proposed use, the following factors are likely to help in the justification of fairness: using as small an excerpt as possible for the purpose being pursued; restricting the audience and availability of the output as far as practicable; and considering the overall effect on the rights holders involved – avoiding use detrimental to economic exploitation of the work, and trying to leave the rights holders with as much control over further dissemination as possible. Of course, it is always worth considering whether the fair dealing judgement can be avoided altogether, by use of openly licensed material, for example. But users should not be afraid of using the fair dealing provisions – that is what they are there for.

Private Study and Research
Prior to these changes, the fair dealing exception for private study and research only applied to literary, dramatic, musical and artistic works, and not video and broadcasts. The Regulations have removed that restriction, meaning an individual can make a personal copy of a video for the purposes of study or for non-commercial research, provided that doing so is fair. What’s more, you know those ‘For domestic use only’ statements found on DVDs that cast doubt on our ability to make use of the fair dealing rights? An amendment makes clear that contract terms purporting to prevent or restrict the permitted uses are unenforceable. It might be nice, if you are involved in dissemination of audiovisual materials, to add to your terms and conditions ‘Nothing contained in this agreement prevents or restricts fair dealing with this work under the terms of the Copyright, Designs and Patents Act 1988.