Changes to copyright exceptions for libraries and archives Robin Stout Copyright Policy Intellectual Property Office

Modernising copyright The Hargreaves Review of Intellectual Property and Growth (2011) recommended that the Government: “deliver copyright exceptions at national level to realise all the opportunities within the EU framework, including format shifting, parody, non-commercial research and archiving”. The Government agreed that copyright exceptions should be updated to ensure copyright does not unduly restrict the reasonable use of materials, while preserving incentives to creators and producers of new content. After lengthy consultation, “Modernising Copyright” proposed specific changes to the law: o Amendments to existing exceptions for research and private study, libraries and archives, quotation, education, disability and public administration. o New exceptions for private copying, parody, text and data mining.

Technical review of regulations The Government recently published draft regulations for technical review and invited interested parties to comment. The legislation was published in three tranches, 6 week period for comments and public meetings on each set of regulations. The review process closed on 11 September 2013, and the Government is now considering all responses received. The legislation is intended to come into force on 6 April 2014.

Goals of the legislation Main aim of legislation is to implement the policy changes set out in “Modernising Copyright”. These aim to bring copyright exceptions up to date, and suited to modern technology and user expectations. Government also intends to simplify the operation of copyright exceptions, in line with “better regulation” principles. Provisions will be simplified, supporting legislation revoked. For instance, the Copyright (Librarians and Archivists) (Copying of Copyright Material) Regulations 1989 will be revoked. This is not a simple job: CDPA “Permitted Acts”: 76 Sections Various supporting legislation and related provisions All changes in context of EU Directives and international obligations

Archiving and preservation Section 42 - Archiving and preservation Section 42 of the CDPA will be amended: o to apply to any type of copyright work, not just literary, dramatic and musical works o to apply to museums, galleries and their curators as well as libraries and archives o to be suited to modern preservation techniques. The exception will remain limited to situations where it is not reasonably practicable to purchase a replacement copy Section 61, 75 – Recording of folksongs, broadcasts Requirement for organisations to be designated by the Secretary of State will be removed. Instead, the exceptions will simply apply to any archive not established or conducted for profit.

Research and private study Section 29 – Research and Private Study Will be amended to permit the use of any type of copyright work for the purposes of non-commercial research and private study. To safeguard the rights of copyright owners the exception will continue to permit only “fair dealing” with the work. Section 37 - Copying from published works by librarians for non- commercial research and private study Will be amended to cover all types of published work Provisions will be simplified/ consolidated Requirement for written declaration retained, but form not specified so easier for declarations to be made in a digital format.

Unpublished works, supply to other libraries, making available on terminals Section 41 - Copying by librarians: supply of copies to other libraries Will be amended to cover all types of copyright work Section 43 - Copying by librarians or archivists: unpublished works Will be amended to cover all types of unpublished work Requirement for written declaration retained, but form not specified so easier for declarations to be made in a digital format. Section 43A New section allowing cultural institutions to make works available for research or private study via dedicated terminals. Conditions are: o the works must have been legitimately acquired by the institution o the works should be used only for the purposes of non-commercial research or private study o the terminals must be located on the premises of the institution. o no purchase or licensing terms to the contrary

Other relevant exceptions: Data mining, education, quotation Text and data mining: A new exception will mean it is not an infringement for a person who has lawful access to a work (whether under a licence or otherwise) to copy it as part of a technological process in order to analyse its contents, for the purpose of non-commercial research. Education: Current permitted acts for education will be amended to apply to all types of copyright work and include distance learning. New non-commercial fair dealing exception for teaching Quotation: Amend criticism and review exception to become a more general quotation exception, in line with the Infosoc Directive/Berne Convention.