COPYRIGHT AND RESEARCH IN THE HUMANITIES AND SOCIAL SCIENCES
A British Academy Policy Review
Executive Summary and Recommendations
Introduction
The British Academy is the national academy for humanities and social
sciences. Through its series of
research-related reviews, it seeks to examine issues related to the
condition and health of the sector.
The Academy is concerned that recent developments in technology,
legislation and practice have
meant that the various copyright exemptions, which enable creative
and scholarly work to advance,
are not always achieving the intended purpose. This document
summarises the results of a Review of
the issue by a working group established by the Academy.
Why the Review was established
All creative activity builds on the creative activity that has gone
before. ‘If I have seen further, it is
because I have stood on the shoulders of giants’. This observation,
attributed to Newton, describes the
nature of all advance in knowledge and understanding. A regime which
is unduly protective of the
interest of existing rights holders may therefore inhibit, or even
stifle, the development of original
material.
The intellectual property regime is crucial for the development of,
and access to, knowledge.
Copyright seeks to protect the rights of authorship while securing
the dissemination of knowledge. It
protects the form of expression of ideas, but not the ideas,
information or concepts expressed and
applies to all original literary works (including computer programs
and databases).
The approach taken
The Review has been narrowly focused, not considering issues
concerning the scope and purposes of
copyright more generally, except to the extent necessary to meet the
Review’s objectives, nor with the
use of copyright material in teaching. Its work has been carried out
by a working group of eight
members, appointed by the British Academy and drawn from a range of
subjects in the humanities
and social sciences, including those with known concerns about
copyright. Under the chairmanship
of Professor John Kay, the working group met on a regular basis
between November 2005 and June
2006 to oversee the direction of the Review.
In addition to consulting key bodies concerned with the issues under
consideration, the working
group canvassed Academy Fellows for examples of restrictive
interpretations of copyright which they
thought deserved its attention. Fellows were also asked whether they
had any experience of cases in
which exemptions to copyright provided for scholarly purposes
appeared too wide, or to have been
interpreted too expansively, or where inappropriate use appeared to
have been made of fair dealing
or criticism and review exemptions. In the event, all comments by
Fellows concerned the problems
they had encountered in using the copyright material of others rather
than abuse by others of their
own copyright.
The Academy also commissioned the AHRC Centre for the Study of
Intellectual and Technology
Property Law at the University of Edinburgh to support the work of
the Review. The Centre has also
been instrumental in helping the group to draw up guidelines whose
aim is to set out what can and
cannot be done under current copyright law.
The guidelines are available from http://www.britac.ac.uk/reports/
copyright/
The questions addressed
The working group focused its attention on the questions shown below.
Q1: Are researchers in the humanities and social sciences
experiencing serious or insurmountable
problems caused directly by copyright law?
Q2: If so, what is the nature of these problems and are they confined
to particular subject
disciplines?
Q3: Are there problems because the legal exemptions are insufficient?
Q4: Or, is it because the scope of the provisions is being narrowly
interpreted, and there is
uncertainty about the law?
Q5: If so, can more be done to clarify the various exceptions?
Q6: Will developments in information technology present difficulties
in the future?
The findings of the Review
• Copyright law generally provides exemptions for fair dealing for
private study and non-
commercial research, and for purposes of criticism and review. These
exemptions should
normally be sufficient for academic and scholarly use.
• The problems lie in narrow interpretation, both by rights holders
and by publishers of new
works which refer to existing copyright material. These problems are
acute in some subjects,
particularly music, and history and film studies.
• Copyright holders have become more sensitive in defence of their
rights, as a result of the
development of new media, and are more aggressive in seeking to
maximise revenue from the
rights, even if the legal basis of their claims is weak.
• Risk averse publishers, who are often themselves rights holders,
demand that unnecessary
permissions be obtained, and such permissions are often refused or
granted on unreasonable
terms
• There is an absence of case law, because the financial stakes
involved in each individual case are
small relative to the costs of litigation.
• Publishers and authors are very uncertain as to the true position
and misapprehensions are
widespread.
• There are well-founded concerns that new database rights and the
development of digital rights
management systems (DRMs) may enable rights holders to circumvent the
effects of the
copyright exemptions designed to facilitate research and scholarship.
Recommendations
In drawing up our recommendations, we have been guided by two basic
principles. The first is that
we regard non-commercial research as research whose principal
objective is public benefit rather than
private profit, i.e. where the primary purpose is to put new
knowledge or synthesis in the public
domain rather than to recover the costs of the underlying research
(as distinct from the costs of
publication of the research) from users. The second is that fair
dealing, in relation to copyright
exemptions, is activity which does not prejudice the normal
commercial exploitation of the economic
interests of the rights holders, in line with the provisions of the
Berne Convention. This means that
private study and non-commercial research, and criticism and review,
are not in themselves
anticipated sources of revenue for the rights holder, but that use
for these purposes should not
significantly interfere with the anticipated sources of revenue for
the rights holder – generally, fees for
the sale or reproduction of the original work. The question relevant
for scholars would therefore
frequently be whether the scholarly use competes with the primary
use. Criteria such as the
proportion of the copyright work reproduced might be a practical
guide to this issue, but would never
be definitive, and other considerations, such as the intended
audience and the price at which the
scholarly work was available would also be relevant. These principles
are incorporated in the
guidelines we have prepared, which are designed to maintain a fair
balance between the needs of
scholarship and creative activity and the legitimate economic
interest of rights holders.
These findings lead us to the ten recommendations which are shown
below. To help address the
current uncertainties and confusions about the scope of copyright
exemptions, the working group has
produced a new set of guidelines based on the general principles
outlined in this report, which, while
they do not represent a statement of the law, will aim to clarify the
current situation and it is hoped
will have considerable moral force in the event of dispute.
The guidelines are available from http://www.britac.ac.uk/reports/
copyright/
Recommendation 1
Copyright policy and authors themselves must recognise that the
interests of academic authors do not
always coincide with those of the publishers who undertake to exploit
their works. Authors of initial
works may well wish to allow extensive quotation from them in
subsequent work, whereas their
publishers may see their own advantage to lie in charging high prices
for permission to incorporate
earlier material into subsequent analyses and criticisms. Authors
should not accept the decision of
their producer without question on these issues, and should retain
some power to require their own
preference to be respected. Equally the authors of the derivative
works should have reasonable
opportunities to make reference to the first work.
Recommendation 2
Copyright must therefore provide reasonably broad and practically
effective exemptions for research
and private study and for criticism or review. Both these types of
activity are particularly beneficial to
the public interest in the lively development of new cultural
material, which is a root objective of
copyright protection.
Recommendation 3
The exception for research and private study under the 1988 Copyright
Act has recently been
narrowed in compliance with the EU Information Society Directive. By
way of counterbalance, the
new text should be given full effect, particularly in relation to the
following:
(i) under its wording, ‘research’ is to be treated as distinct from
‘private study’. ‘Research’ for these
purposes should not only encompass the initial stages of an academic
project when material is
being collected but also subsequent stages which involve the analysis
and publication of the
results.
(ii) ‘research’ in this context should be regarded as ‘non-
commercial’ in any circumstances where
the taking of copyright material is fair and the presentation of the
results will be without
charge to the recipients or will be at a charge which can only be
expected to cover the
reasonable costs of production and distribution, including the
reasonable profits of a
commercial publisher.
(iii) research which is financed by a research council or charitable
foundation is presumptively non-
commercial
(iv) charges which are not covered by the exemptions, because the
research to which they relate is
commercial, should be reasonable and competition authorities and the
copyright tribunal
should be able to restrain abuse.
Recommendation 4
The exemption for non-commercial research and private study should
apply equally to sound
recordings, films and broadcasts. There are no reasons for
differentiation on this point between these
media and other published work.
Recommendation 5
The exception for criticism and review should apply with reasonable
breadth, as has been laid down
in recent UK court decisions. There should be no assumption that,
just because this exception limits a
right of property, it should be read narrowly. As with research and
private study, the British Academy
should publish its own guidelines on how to assess whether a taking
for criticism or review is fair.
Recommendation 6
Where material has previously been published or made available to the
public (even on a fee-paying
basis), fair dealing for purposes of research and of criticism or
review should apply to that material,
even where the author or other rightholder seeks to prevent any
quotation of it, either in general or in
a particular case. Any protection of such material from publication
should arise only from obligations
of confidence between particular persons, and then only where it is
made plain in advance that the
material is not to be made public.
Recommendation 7
Where a so-called ‘orphan work’ has no author or publisher who can be
identified by reasonable
search, others should be free to produce derivative works from that
work. This will greatly aid the
presentation of historical research, in its incorporation both of
primary and of secondary material that
is otherwise still in copyright. As to what should constitute a
reasonable search for the owner of
copyright, the British Academy should furnish guidelines that will
aim to keep a check on expenditure
that can be disproportionately wasteful or lead to unjustified
abandonment of projects.
Recommendation 8
Rights holders should not generally be able to circumvent the
objectives of the exemptions to the
copyright act by contract or through the use of technology. The
current UK law which seeks to allow
access that will enable its use for research or for criticism or
review through a DRM system too readily
favours the upholding of the access terms prescribed by the operator
of that system. The result can
only be side-stepped by complaint to a Minister and consequent action
to modify the system. This
serious impediment to the freedom of researchers to discover material
and make appropriate use of it,
needs to be reviewed wherever in consequence undue constraints on
scholarship and the
development of new creative material arise.
Recommendation 9
Databases are a resource of immense importance to scholarship, not
least in the practical benefits that
can flow from working on database information. The sui generis right
accorded to the financial
organiser of a database by virtue of the EU Directive of 1996 on the
legal protection of databases has
been limited in scope by important decisions of the European Court of
Justice. The Academy approves
strongly of the tendency of these decisions, though it recognises
that in various respects the scope of
the law remains unclear. The Directive in its final version failed to
impose any limitations on the right
even where the database accumulated data from single-access sources
or where the cost of amassing
the data create what is virtually a ‘natural’ monopoly. Both public
authorities and academic
communities should monitor carefully the assertion of database rights
and the charges made for
access to database contents in order to ensure that this right does
not become a growing impediment
to scholarship.
Recommendation 10
The Academy’s concerns over the effects of copyright, particularly in
a digital age, are twofold. A first
danger is that academic work is being impeded because scholars are
excluded from using copyright
material in cases where the balance is clearly in favour of allowing
them to do so and even where a
court would probably find they enjoyed the right to do so. The second
danger is that the opportunities
for copyright holders to engage in monopoly pricing or blanket
restriction have increased through the
new media of delivery. This will be so where particular holders,
including collecting societies, are in a
position to prevent access to material or are able to enjoin any use
of it in reproduction or public
communication. The UK government should consider extending the power
of the Copyright Tribunal
to require the grant of licences, and to impose reasonable terms in
them, where licences are required
for academic publication and presentation. These powers should extend
to requiring access to
digitised copyright material and databases in appropriate
circumstances. There may also be questions
of abuse of dominant position or restrictive practices, notably in
relation to the practices of copyright
collecting societies. The competition authorities should be alert to
consider the impact of such
practices on the conduct and utilisation of academic research.
Additional information
The detailed report of the Review and the guidelines are available at:
http://www.britac.ac.uk/copyright
A British Academy Review © The British Academy 2006
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