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Towards a blanket licensing scheme for the re-use of copyright material in computer courseware development

6-7th January 1994 The Scientfic Societies Lecture Theatre, New Burlington Place, London

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 problems of re-using copyright material

Decisions on copyright issues have attained an urgency following the rapid development in multimedia courseware in the higher education sector, particularly as a consequence of the HEFCE's Teaching and Learning Technology Programme (TLTP). Copyright infringement, whether through deliberation or ignorance is facilitated by the ease of manipulation of digital material available over networks (e.g. SuperJanet). Ten months after the first conference on the subject, representatives of courseware developers, rights societies and legal advisors met again to discuss the feasibility of a blanket licensing scheme. The ideal concordat should make life easier for academic courseware developers as well as fulfil the interests of members of collecting societies with regard to remuneration and moral rights of intellectual property rights (IPR) holders. And this is where the difficulties reside.

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.


SuperJANET and copyright Protection

Bob Cooper (SuperiANET development, Joint Network Team, Rutherford Appleton Laboratory) covered the concepts behind SuperJANET and illustrated the multimedia applications which high performance wide area networking enabled. In addition, access to electronic journals with high quality images, sound and video capabilities was shown to give extended use of this new medium. The issue of copyright raised its head with the ease of accessing, sending, modifying and re-sending, cutting and pasting and so on. Institutions currently running a JANET network will have no real problems setting up the SuperJANET network and a band width dependent on their requirements. By the end of 1994, it was anticipated that SuperJANET will be in almost every university in the UK.

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.


The power of an electronic service

The next speaker, Derek Law (Librarian, King's College London), recently appointed Director of Information Services and Systems Committee (lSSC, the old Computer Board), outlined, as a consumer, the responsibilities and services of ISSC, such as AGOCG (Advisory Group on Computer Graphics), CHEST, NISS, BIDS, WAIS, and Gopher. He was keen to take responsibility for copyright under a blanket scheme because of the advantage in having information 'free at the point of use'. The high growth curves in use of services such as the NISS Gateway (accesses from 4,000 in the third quarter of 1990 to 70,000 in the second quarter of 1993) were used to emphasise the point.

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.


Copyright laws for copying, modifying and disseminating intellectual property

Andrew Yates, Channel Four Programme Acquisitions, member of the board of educational Recording Agency (ERA), and himself a lawyer, spoke with insight and experience on the issue of copyright licensing laws. The ensueing abundance of questions from the participants brought to light the general ignorance about copyright clearance, suggesting the need for university copyright advisors or a central copyright advice body.

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.


The fate of educational multimedia

The next speaker, Peter Oliver of Beachcroft Stanleys Solicitors, who gave a paper entitled "lntellectual Property Guidelines for the TLTP" at the recent TLTP forum in Manchester (available from Roger Cannon, HEFCE, Bristol), has 30 years experience in the field of lPR. Mr Oliver gave a brief outline of the TLTP objectives, including that SuperJANET was not anticipated as the sole means of disseminating TLTP-produced courseware. Furthermore, he anticipated that many TLTP products will not make substantial use of copyrighted material, especially not video or audio material anyway.

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.


The Rights Societies and Publishers

Much of the same ground was covered by representatives of right societies [Chris Barlass of the Authors' Licensing and Collecting Society (ALCS); Mark Isherwood from the Mechanical Copyright Protection Society (MCPS); Prof. Donovan from the Association of Learned and Professional Society Publishers (ALPSP) J. Along the route, however, there was considerable growth in knowledge and appreciation of the interests of collecting societies to protect their members. The major concern was in remuneration for creative and intellectual work. The opinion was for a hard requirement for auditing of access of copyright material or material in which copyright materials exist, in order to distribute royalties which were the bread and butter of the IPR holders. It was pointed out that, ironically, academics were sympathising more and more with rights societies since they themselves were becoming IPR holders as courseware was developed.


Funding of copyright clearance for TLTP

Whether the HE sector is being realistic in terms of access to funding for any blanket scheme or a university appointed copyright expert (willing to work for a university salary) is another matter entirely. Certainly, the HEFCE did not appear to see time and money for copyright clearance as a problem, possibly in envisaging creation of new materials rather than re-use of existing ones. In the majority of cases, TLTP projects did not incorporate figures or staff for this purpose either, whether they anticipated using existing materials or not. But where did the responsibility lie then and where does it lie now?

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.


Realistic solutions from the OU

Richard McCracken from the Open University Copyright Department seemed to put the discussions back on track, if only briefly. The OU has now 25 years experience in accumulating wisdom regarding a workable approach to copyright clearance of various forms of media. There was a brief mention of the responsibility of the network user not to abuse copyright. With regard to multimedia, very little has changed in that the rights needed to be cleared in the components of a courseware pack are now simply combined onto a single CD or floppy disk. Mr McCracken saw the problems of the HE sector being related to its new entry into courseware development and lack of experience in clearing copyright, whereas the OU and TV broadcasters have been considering these issues for a long time.

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.


Copyright and the TLTP

The second day of the conference began with Roger Cannon, the TLTP National Coordinator who gave a brief overview of the TLTP objectives. He emphasised that TLTP was about production, deliverables and implementation. Within this structure, he saw the need for use and re-use of material to be primarily open and envisaged commercial possibilities only outside the UK. He stressed that dissemination of TLTP products within the UK was on a non-profit basis to be used as a community resource, but recognised concerns about the boundaries for distribution.

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.


Lessons from the past

In the discussion session prior to a workshop component of the conference, lessons from the CLA Scheme for photocopying authorisation were mentioned. Here, there are no unrestricted authorisations, but specified rules, such as copying specified proportions of books and periodicals for specified usage and no copying of musical manuscripts, which could legally be copied under a scheme for which libraries pay fees. In other words, a blanket licence would not infer unrestricted copyright but could be designed to cover specific rights. On the other hand, computer courseware and multimedia are totally different kettles of fish, having many contributors, including original materials, intact or modified copyrighted materials, and creating its own subsequent copyrights. The rights societies were thus needing to know what exactly the courseware developers wanted to use, where and how. They stressed that copyright could not be granted unless there were some kind of tagging and record keeping.


Holes in the Blanket

In conclusion, the impression was that a blanket licensing scheme subsuming all eventualities for use was at this time an unfeasible proposition from the point of view of the rights societies' requirement for record keeping. When the problems involved within the technology, electronic tagging and record keeping, had been properly addressed and answered, such a scheme would be open to negotiation. In the meantime, there appeared to be a need to review our present mechanisms for dealing with copyright which consequently infer a requirement for additional funding for certain projects and the provision of institutional copyright advisors.

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.


Future action

Attendees at the meeting had the opportunity of contributing to a list of pragmatic suggestions which were to be forwarded in a letter to the HEFCE and the CVCP. This is summarised in an article in the February 1994 (No. 20) issue of VIEWFINDER, the magazine of the BUFYC. The main points are:

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