Report by Jay Dempster, Computing Services, Warwick University (formerly CTl Centre for Biology)
This report first appeared in the July 1994 issue of the newsletter of the CTI Centre for Biology.
The Chairman of both conferences, Keith Yeomans (Consultant for Communications Research and Media Strategy), pointed out that where previously the issue of copyright was only of concern to a narrow group, it was now centre stage for higher education which has had to become aware of the general lack of understanding of copyright affairs and the poor framework in which to cope with the problems encountered. From the March meeting, it was clear that academic courseware developers and rights societies were two disparate communities not yet linked with respect to understanding the needs and interests of each other. A copyright licensing scheme to encompass new methods of using and disseminating teaching materials, evolved via technological advance, challenges the ability of the rights societies to control its operations. In this respect, the actual Copyright Act of 1988 proves somewhat inadequate and hazy on specific uses of electronic information and there is additional misunderstanding of the laws of fair trade. Scepticism about the ability of a blanket scheme to enable a fair IPR remuneration was reinforced by the notion that technology should solve its self-created problems and enable some form of auditing to be built into the system. There was clear worry that time was passing by with technology developing and no real conclusion or concordat recognised by all the relevant bodies.
Discussions following Bob Cooper's presentation focused on where the responsibility lay for solving the problem of copyright protection. Rights societies criticised SuperJANET developers for their failure to encompass a form of data tagging or auditing system within the technology. Historically, of course, this has never been the case. Technology-users rather than technology itself have ultimately been forced to be responsible in the light of the ability of technological innovation to impinge upon copyright laws. With respect to SuperJANET, only a policy of "acceptable use" is defined.
On JANET, 80% of the quarter million accesses per month are from public domain (i.e. non-commercial) services, excluding electronic mail. Derek Law was concerned that if blanket schemes as existed within US and some European establishments are delayed in the UK, users will be forced to go to the commercial and overseas market places for their material, destroying the HE market in the process. In the question session which ensued, rights societies were concerned that with the new electronic methods of information dissemination, access by commercial and non-commercial sectors was difficult to police, especially with the possibility of end products of HE's TLTP going to both communities. There was general agreement, however, of the need to avoid duplication of the huge mass of existing material. But this was seen as a risk by courseware developers finding it easier in terms of time and money to acquisition new materials than to deal with copyright clearance for the re-use of existing materials. From a knowledge of present services, it was felt that a core service funded by top-slicing of university funding, rather than transaction-based charging, was a recognised benefit.
Andrew Yates outlined the functions of ERA and his perceptions of the bed which a blanket licence must cover. In his eyes the scheme must be more of a patchwork quilt if it is to satisfy rights holders and users needs. The uncertainty about statutory definitions of what is an educational establishment and what is educational use (when users may well end up using a piece of courseware at home as part of a distance learning experience) were discussed. ERA is limited in power by having to work within the government's definition of terms. Problems also emerge from differences in copyright laws between the UK, other European countries and further afield where UK-produced courseware incorporating copyrighted material may end up.
Copyright problems exist in terms of both adaptation and moral rights, the latter referring to derogatory treatment of the original intellectual property. Individual lPR holders may object to an ERA scheme which waived moral rights and then the whole system of central organisation would disappear. The Open University avoids adopting a fixed approach, seeing the need for academic freedom in the use of materials. As long as the material is not "distorted" in any derogatory way, the OU Scheme allows such freedom in terms of adaptation rights. On the other hand, labelling an original work or marking a copy "corrupt", and indicating changes and author of the changes, would avoid any moral rights issues and make a modified version clear to the user. The probability of this happening at least in the near future was low and gave little comfort to the worries of the collecting societies and their members for a solution for the present dilemmas. In conclusion, Andrew Yates suggested that with the advent of new technology, the communities need to look carefully at what has gone on before and review new approaches and revise agreements. From the discussions, it was becoming clear that courseware developers and rights societies had much common ground, but that a general blanket scheme in light of the present arrangements for electronic tagging on the network, copyright legal definitions and international considerations was not realistic.
On the subject of educational multimedia, he presented some very interesting options based on the rights of courseware developers as users of IPR with much emphasis on five Acts dealing with Fair Trade. He also pointed out to rights holders that if courseware developers found it easier to reinvent the wheel, much of the copyright material would retain only historical value. A first step would be for publishers to make clear the contact for copyright clearance of a particular intellectual property. A number of possible licence schemes was proposed. A once and for all (with no expiry date which could be damaging to the continuity of courses), academic freedom (along the same lines as a software licence), freedom of choice, equal treatment (no discrimination of courses heavily dependent on third party materials), all HE involved (giving immediate benefit to all HE institutions), freedom to develop derivatives, and future exploitation. Some light was shed on a place for electronic material within the Copyright Act 1988; within section 32 under Copying, electronic information is specified under Translation of copyrighted material.
Janet Ibbotson of the Design and Artists' Copyright Society (DACS) was very critical of the HEFCE in not anticipating copyright fees in the budget of TLTP bids or the project holders themselves. A blanket licence scheme would also require funding. If there are to be no additional funds for copyright clearance, then clearly re-use of existing material in many projects will be limited and may result in the failure of that project to produce deliverables. Rather late in the day to realise this, but it is the reality which came to light in the discussions throughout the conference.
Copyright becomes a problem with multimedia due to collaboration between funding bodies, an international community and commercial companies. Mr McCracken stressed in no uncertain terms that if you don't have a good reason for using now 25 years third party material, then don't use it'. He underlined the difficulty in pinpointing the body responsible for the investment in clearing copyright, but talked about the need to alleviate mechanisms of the process by the use of collecting societies, incorporation of copyright advisors or the establishment of an HE Copyright Department. He was most keen on communication between the interested parties to spread costs and negotiate common deals, but indicated that a poorly- specified blanket scheme would never happen. Finally, Mr McCracken concluded by saying that if a blanket scheme is to be feasible, then we have to start lobbying for a change in the legislation, a change in the Copyright Act 1988, to allow more to be done within the education sector.
A bombardment of questions or remarks ensued especially with respect to the funding of the copyright clearance problem so far unrecognised by the HEFCE as a major issue. The question of funding for the costs of distribution, updating and assessment continuing after the TLTP 3 year grant was also raised and led to the conclusion that a charge would have to be made for courseware due to these later overheads. Roger Cannon spoke of the need for agreement within the community due to HEFCE procrastination until a clearer picture emerged. Since TLTP projects were not originally funded to incur significant copyright clearance costs or time, the consensus appeared to be that the responsibility to sort out the problem lay with the funding councils. However, a pattern was emerging from the discussions indicating that a blanket licence would be incongruous to the different ways in which projects were dealing with copyright issues.
There was much deliberation on the need for some form of audit to evaluate the copyright requirements of the individual projects, or of institutions themselves, in order to assess needs of the community on an individual and national level. But consequently there was concern that projects showing large requirements for copyright clearance funding would have to sink or swim if additional funding was not forthcoming. It was clear that the collecting societies were never approached by either the funding councils or the SuperJANET developers. Janet Ibbotson (DACS) commented that she was amazed that a government programme involving such large sums of money had given no regard to copyright issues.
The consensus was that any scheme would more likely resemble a patchwork quilt than a whole blanket due to the range of materials and uses required. In the absence of hard identifiable output to the meeting, courseware developers and copyright holder representatives appeared to walk away at least with a more positive attitude than from the March 1993 meeting. This time, there was definite hope that the issues discussed would soon be addressed with the production of a sensible working model for the re-use of copyright materials in courseware development.