UK Web Focus (Brian Kelly)

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Archive for Nov 4th, 2014

Subverting Copyright (and Other Flawed Legislation)

Posted by Brian Kelly on 4 Nov 2014

Be Informed: Recent Changes to Copyright Law

JISCLegal slide on copyrightLast week Jason Miles-Campbell, manager of the JISCLegal service, gave a talk entitled “Be Informed: Recent Changes to Copyright Law” at the CILIPS Autumn Gathering.

Jason summarised changes to copyright legislation which were approved by Parliament in July 2014 and came into force on 1 October 2014.

The slide (illustrated) Jason used which caught my eye described how:

the fact that our system of communication, teaching and entertainment does not grind to a standstill is in large part due to the fact that in most cases infringement of copyright has, historically, been ignored.

This quotation comes from a post published in 2008. Since the blog asked for its content not to be attributed I will not provide a link (but note that I used Google to find the source of this quotation!)

The quotation came from Sir Hugh Laddie, a British High Court judge, lawyer, professor, and a specialist in intellectual property law who died in 2008. The blog post suggested that:

In the field of copyright, two of Sir Hugh’s articles should be laminated and placed on your desk so they may be re-read often. The first is his 1995 Stephen Stewart lecture, “Copyright: Over-strength, Over-regulated, Over-rated”, published in 18 European Intellectual Property Review 253 (1996).

and went on to describe how Sir Hugh:

criticized the insane criminalization of the economic tort of copyright infringement: “We have … reached the stage where taxpayers’ money is being used to enforce private rights which many might think are more than adequately protected by civil remedies. I should also mention that it appears that in most cases it is not the poor and weak who are using these criminal provisions but the rich and well organised.”

In light of the recent changes to copyright legislation Sir Hugh Laddie’s comment, made that many years ago, that “the fact that our system of communication, teaching and entertainment does not grind to a standstill is in large part due to the fact that in most cases infringement of copyright has, historically, been ignored” could be regarded as demonstrating that flawed legislation will eventually be repealed. However I think this ignores the value of the actions taken not only by those who have pro-actively sought to change the legislation but also the actions taken by those who have ignored legislation which is clearly flawed, in which no or minimal harm is done to others by such action.

A Risk Management Approach to Copyright  Legislation

web2rights risk calculatorSeveral years ago Professor Charles Oppenheim gave a seminar about copyright and institutional repositories at the University of Bath – and terrified the audience when we realised that most of our  work in developing an institutional repository would like infringe copyright.

However in response to a question I posed as to whether copyright concerns would inhibit the development of the repository, Charles said this needn’t be the case: rather there is a need to understand the legal issues but to make an informed decision on actions based on an assessment of the risks and a decision as to whether the organisation was prepared to take the risks.

Charles and I subsequently co-authored a paper on “Empowering Users and Institutions: A Risks and Opportunities Framework for Exploiting the Social Web” in which we documented a framework for making an informed decision in addressing copyright and other issues.

Charles and Naomi Korn subsequently developed a Risk Management Calculator as part of the Web2Rights OER Support Project. As illustrated if you wish to make use of a textual document which wasn’t published with a commercial intent, doesn’t contain clinical content or images of identifiable individuals or children but the provenance and licence of the resource is unknown, there will be risks in reusing the resource, but the risks will be low. In this situation the toolkit concludes “[The] Indicative Risk Value indicates that there is some risk associated with the content that you wish to use. If your organisation is risk adverse and seeking permission or using alternative material then you will need to consider seeking permission or using alternative material.

What Else Have We Subverted?

Beyond copyright there are other examples of supposed legal requirements which can be seen to be flawed, so that ignoring them can be done for those who are willing to take a small amount of risk.

Cookie legislation is one example; since the requirement that users must ‘opt-in’ to use of cookie has been shown to be technically flawed, a pattern of use in which web site owners simply inform visitors that they make use of cookies and document the cookies used and their purpose is now widely accepted as an acceptable practice.

Another example is email disclaimers. A few days ago I received an email message which contained a request for information which could be easily addressed by forwarding the message. However the message contained a legal disclaimer:

Legal disclaimer
The information transmitted is the property of the University of xxxx  and is intended only for the person or entity  to which it is addressed and may contain confidential and/or privileged material. Statements and opinions expressed in this e-mail may not represent those of the company. Any review, retransmission, dissemination and other use of, or taking of any action in reliance upon, this information by persons or entities other than the intended recipient is prohibited. If you received this in error, please contact the sender immediately and delete the material from any computer.

Although I am entitled to forward the message it would appear that subsequent forwarding to other who may have to process the request for information is prohibited. But does anyone care about such legal niceties?

Beyond the infringements which many computer users may be guilty of in the early days of the Web creators of HTML pages will have created pages containing links to other Web sites almost certainly without getting permission to create such links. But even back in 2008 there were still discussions as to whether you need permission to link to someone’s content.

Conclusions

Just over  year ago I asked “Do We Want Radical Law-Breaking Librarians?” The background to the post was a BBC News article which described how “UK’s top prosecutor defends journalists who break law in public interest“. The story was about the role of journalists in making information publicly available. Keir Starmer, the director of public prosecutions insisted that it “would be very unhealthy if you had a situation where a journalist felt that they needed to go to their lawyer before they pursued any lead or asked any question“.

The article went on to suggest that library rules which seek to ban use of mobile phones which can be used to make copies of copyrighted resources or take photos of people without their permissions may be counter-productive. I would argue that the welcome changes in copyright legislation have come about not just from the advocacy of organisations such as Jisc and CILIP but also by the risks-takers. Blessed are the risk-takers for they set the path for others to follow!


Note: A few hours after this post was published Andrew Cormack alerted me to an article published less than a week ago which described how the CJEU rules on whether ‘framing’ amounts to copyright infringement:

On 21 October 2014 the CJEU had to decide in the case of Bestwater whether embedding content in a website via “framing” constitutes “communication to the public” within the meaning of Article 3 of the InfoSoc Directive [1] and therefore infringes the copyright of the creator of the content.

The article goes on to explain:

The CJEU has now made it clear that linking does not constitute a “making available to the public” (or any other form of communication to the public), irrespective of which linking technique is used as long as the link leads to a website that is available to the public as a whole.

This decision drew on a previous ruling:

where it had already decided that hyperlinks do not constitute a “making available to the public” provided the link is to content that is freely and lawfully available online.

Or, in brief, you can link to Web resources and embed Web content in frames provided that the content itself is freely and lawfully available online. You can now, it would seem, create links from your Web pages to such resources without having to worry too much about the legal ramifications. Of course, you may have been doing this already, before the legal ruling was made!


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