Research intelligence: Fair deal online? It's coming

A government strategy promises more access to digital material and more freedom to use it. Zoe Corbyn reports

November 19, 2009

The proliferation of online resources and the digitisation of source material have revolutionised many aspects of academics' working lives.

But researchers who work with online content have been frustrated by the UK's copyright laws, which have not kept up with the changing online environment.

The Government now has a new high-level strategy to update the legal framework and simplify the rules to allow researchers greater access to material and more freedom to use it.

The proposals are in a report, The Way Ahead: A Strategy for Copyright in the Digital Age, released late last month. They are made in acknowledgement of what the report says is "a mismatch between the expectations of users and what copyright currently allows".

The elements of the strategy that are of most relevance to academics relate to orphan works - material that is in copyright but for which the rights holder cannot be identified or found - and the way in which contract law and copyright law co-exist online.

The strategy was formulated by the Intellectual Property Office, which is part of the Department for Business, Innovation and Skills. Matt Cope, its head of digital technology, said he recognised that differences between copyright law and contract law were a problem online.

"We need to do some digging to see how big it is and what the solutions are," he said.

Most academics understand their position regarding printed matter. There are standard copyright exceptions for books and manuscripts. "Fair dealing" provisions allow individuals undertaking research or study to copy from a work that is in copyright without permission.

But in the digital world, contract law overrides copyright law.

The issue has the British Library particularly hot under the collar.

"There is not copyright law in the digital world - it is about private contract - and that is not good for research," explained Ben White, the library's copyright licence and compliance manager, adding that the strategy marked a shift in government thinking that suggested that copyright issues may be dealt with in a more holistic way in the future.

"One of the fundamental issues that faces us in intellectual property is what the interplay should be between copyright law and contract law to balance public and private interests. That the Government is going to look at it is of vital importance to researchers because (in the digital world) each contract comes with different terms and conditions, yet we all need clarity around what can and cannot be done."

Computer-based research techniques highlight the complications scholars face. Increasingly, scientists seek to "text or data mine" works by writing computer programs to search, analyse and extract information. Their right to do this is dictated not by copyright law, with its fair dealing provisions, but rather by publishers' contracts, which may allow such work, forbid it or make no reference to it, which in practice is the same as forbidding it.

The wild, wild web

The British Library recently analysed 100 publishers' contracts and found that 47 did not allow fair dealing, as would be standard under copyright law. It discovered that 33 either explicitly forbade permanent downloading of texts or made no mention of whether it was allowed. In 15 contracts, there was silence on whether printing was permitted, and one contract forbade it.

Dr White said: "You need simple laws or terms and conditions that make it absolutely clear how you can use and reuse information. Copyright law provides this - and that is what we need in the digital world."

Researchers, especially in the arts and humanities, will also welcome the strategy's consideration of orphan works.

The document reiterates the Government's promise - first made in its Digital Britain report published in June - that it will legislate to allow the establishment of orphan works schemes.

With a few exceptions, orphan works cannot be reproduced online, which puts valuable material out of scholars' reach. The British Library estimates that about 40 per cent of its print works fall into this category.

Dr Cope said the plan was to gain the power to change the rules on orphan works through a Digital Economy Bill now being drafted. A consultation on what should be done could then take place next summer.

What he envisages is researchers who wish to use orphan works approaching bodies such as museums or libraries to obtain a licence. Users of a work would pay a small fee to the operator of the licence scheme. The operator would bank the money in case the copyright holder is later found.

To view the strategy, visit:

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