Rights issue on CD-Rom

November 10, 1995

As TLTP products begin to move into the marketplace, Michael Smith and Nigel Sternberg warn of the need for licences.

The work done under the first stage of the Higher Education Funding Council for England's Teaching and Learning Technology Programme is now leading to the distribution of multimedia products throughout higher education. The TLTP catalogue reveals a wide range of titles, in a variety of formats. Universities and colleges are also developing multimedia outside the programme.

As well as being exposed to new technological and educational issues, many academics involved in the creation of multimedia packages will have rapidly become acquainted with the arguably archaic legal framework which governs the new technology, the law of copyright.

This has understandably dominated the legal agenda, and the way in which copyright can inhibit the development of multimedia is well documented. One of multimedia's key strengths is its facility for drawing together large amounts of information and material in a way which permits flexible access by the user. Unfortunately, the very existence in one product of a variety of source materials may mean that obtaining the necessary copyright clearances from all the authors, publishers and collection societies involved is an exhausting and frustrating experience. If just one necessary clearance is missing, the whole product may be flawed. Even if all are obtained, the copyright strength of the package will only be as good as the least favourable. Those for whom this has been a new experience may quite naturally have found it a distraction from the educational and technological opportunities. Inevitably, they will be nervous about copyright clearances. However, as products are distributed, it is critically important that disenchantment with the legal structures - what might be termed "copyright clearance fatigue" - should not obscure what may be an even more important legal issue. That is the need to distribute products under the terms of a licence.

There are a number of reasons to do this. A licence puts producer and user in a direct relationship, and allows the producer to dictate the terms. Those terms can ensure that important rights are retained. And a properly drafted licence may give the producer some protection against liability, either towards those who use the product, or even (in some circumstances) towards those who own the copyright in the source materials. The need to minimise risks of actions against the multimedia producer is obvious, the need to reserve rights to the producer perhaps less so. However, multimedia producers should be aware that they may have rights even in works which are no more than a collage of existing materials. There are at least three reasons why they should seek to retain those rights, even where commercial exploitation plays little, if any, part in the development of the project.

First, although some of the first multimedia packages, including TLTP products, being produced in universities are of a fairly elementary nature, they may nevertheless contain valuable ideas capable of further development. The original producers should ensure that the rights to capitalise on the base ideas is retained. A licence can do this.

Second, the release of any package into the university sector creates the potential for an immediate redistribution beyond those institutions who actually take first delivery of the products. Further and higher education is a complex web of academic arrangements between institutions, including franchises, validation agreements, consultancies, and university college and associated college schemes. In some cases these will involve overseas connections, and will be commercially driven. It is thus conceivable that a university might receive a multimedia package for little or no charge, and then derive income from it by making it available to other institutions, unless prevented from doing so by a licence.

Finally, some thought should be given to the regular press reports of initiatives for the creation of new universities, or university colleges. These are at various stages of development, but a noticeably common feature is the high priority given to flexible and distance learning, based on new technology. These initiatives will require existing universities to act as hosts, or as academic partners.

It can be imagined, therefore, that a university might wish to supply to a new project the entire teaching materials for a course, a department, or even for the whole institution itself, in multimedia form. The ability to do so will be restricted if rights in materials produced earlier have been lost through unlicensed distribution. How then should a licence be structured? The document should first define precisely what the user may do with the package, with particular care being taken to ensure that the user is restricted to those acts for which the producer has obtained copyright clearance.

Use might be limited to teaching or research. It might be permitted only by the students and staff of a particular department. The downloading and copying of materials may be controlled. And, downloading whatever the rationale behind the product, the user should be prevented from selling it, or distributing it to other institutions.

A licence can also delimit the duration of the rights which the user will enjoy. This may involve both an outer time limit (say, one or two years), and crucially also the reservation of early termination rights. Where these are supported by a requirement for the user to return or destroy the materials when the licence has been terminated, the licensor may obtain some indirect protection against actions for copyright infringement. If it transpires that there is a defect in the copyright clearances obtained by the producer, an ability to recall the product may be useful. This cannot cure defects in copyright, but may improve the position of the producer.

This protection may be extended further by the use of contractual indemnities, constituting, for example, a promise by the user to be responsible for any damages awarded against the producer as a result of unlicensed actions by the user, such as copying. The licence should also protect the producer against potential claims from users, by restricting the level of any warranties which may apply to the product. A licence need not be a long or unduly complex document, but it does need to be geared to the precise circumstances of the academic world. Particularly in a situation where an institution is distributing multimedia products at little or no commercial benefit to itself, but is at the same time being exposed to the risk of copyright infringement and other actions, it is only reasonable for it to do all that it can to protect itself, first of all by putting a licence in place, and then by insisting that the key terms of that licence are favourable to the producer, and restrictive of the user.

The use of licences may impose some relatively formal requirements on the distribution of multimedia products. However, the potential benefits are considerable, and the discipline involved may be no bad thing. Universities are uniquely placed in the development of multimedia, and so should also pay attention to the development of multimedia licensing. This is particularly an issue with those institutions who have declared an intention to make products available by file transfer protocol on the Internet. This obviously has technological advantages, but may make more difficult the process of legal regulation. Any institution considering distribution by these means should do so only after a full consideration of all the issues.

Michael Smith and Nigel Sternberg are solicitors with Eversheds, Nottingham, who have specialist knowledge of education and IT issues.

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