Rights deal on digitised data

March 13, 1998

Publishers and higher education representatives have acted to remove the legal uncertainties which surround the use of digitised books and journals in teaching and research.

The Publishers Association and the higher education funding bodies' Joint Information Systems Committee have announced an agreement which includes a model licence to enable higher education institutions to distribute digital versions of publications, a charging formula for digitised materials, and guidelines on "fair dealing" in a digital environment.

This agreement, covering digital media such as CD-Roms and the World Wide Web, is based on the deliberations of three working parties. Most of the proposals build on concepts familiar in the world of paper. "We have found that you do not need to rethink the rules from the ground up. You just need to adjust them slightly," said Sally Morris, director of copyright and licensing at the publisher John Wiley and a working party member.

The agreement is intended to clear up areas that have been left foggy by the law. The government has decided not to change the law of copyright, though last year's Dearing report on higher education recommended that it should consider changes "to facilitate greater ease of use of copyright materials in digital form by teachers and researchers". While the JISC/PA agreement does not alter the law, courts are likely to favour those who show they acted according to agreed guidelines. Licence agreements are one way of specifying matters on which the law leaves a choice. Librarians have complained about the seemingly capricious differences between publishers' licences for CD-Roms. The working party did not attempt to write a standard licence agreement to suit all publishers in all circumstances. Instead, it got a lawyer to draft a "model licence" which can be mined for standard paragraphs.

Librarians often want to digitise books and journals which they have bought. The practice is not covered by the existing licence from the Copyright Licensing Agency. The discussions established that publishers are most worried about lost textbook sales and that they could be compensated by a charging formula based on the number of students taking a course. The group rejected alternatives such as a flat fee for digitisation, or a charge for each use of material.

Librarians or lecturers seeking clearance for electronic copying now have an agreed charging formula and only have to negotiate the price. There is still no "one stop shop" for digital copyright clearance, but discussions could lead to the Copyright Licensing Agency taking on this role. "There is a will to make it work," said Dominic Knight, managing director of Macmillan Press and chair of the Council of Academic and Professional Publishers.

Price has been a sticking point in negotiations between the Committee of Vice-Chancellors and Principals and the Copyright Licensing Agency over photocopied or conventionally printed "course packs".

The concept of fair dealing or fair use has existed for many years in the copyright laws of the United Kingdom and other countries, and after vigorous debate it was preserved in the World Intellectual Property Organisation treaties of 1996 and the European Union's 1997 proposal for a directive on copyright and related rights in the information society. However, the law does not say whether caching a web site or copying a CD from a library constitutes fair dealing.

"Although it looked a very contentious issue there was a large measure of agreement," said Fred Friend, director of scholarly communication at University College London. The group took a pragmatic approach and discussed practical scenarios. They agreed that printing a page from a CD-Rom for personal use is fair dealing, while bulk copying of material for a student course pack is not. The group was unable to agree on some issues such as inter-library loan where the digital version is radically different from its paper equivalent.

The JISC/PA working group papers are at www.ukoln.ac.uk/ services/elib/pa/pers/pa.

US libraries join campaign, page 8. Opinion, page 13

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