UUK scores victory in copyright battle

December 21, 2001

The Copyright Tribunal has ruled in favour of universities in the battle over photocopying royalties. Caroline Davis looks at the tribunal's decisions.

After three months' deliberation, the tribunal decided to increase the blanket fee that the Copyright Licensing Agency collects from universities for copying books and journals, from £3.25 to £4 per full-time student. But it ruled that a separate system used for course-pack material (Clarcs) should be abolished and that the blanket fee should cover all artistic works.

The tribunal ruled: "If education is burdened too heavily with copyright restrictions, teaching is in-hibited and scholarship is discouraged to the disadvantage of the public interest in general and the publishing industry in particular."

Universities UK took the CLA to the tribunal last year after negotiations to agree a new licensing agreement, to begin in August 2001, failed. It complained that the fee proposed by the CLA (£10.25) was too high and that course-pack material should not have to be cleared separately. Meanwhile, the CLA wanted a separate fee to be charged for artistic works to go to the Design and Artists Copyright Society (Dacs).

Baroness Warwick, chief executive of UUK, said: "We are delighted with the outcome. The decision rids universities of unjustified bureaucracy and means that money that was being eaten up by administration costs will now go direct to copyright owners." She hoped UUK and the CLA could move forward in a spirit of cooperation.

Sol Picciotto, professor of law at Lancaster University and a member of the UUK negotiating team, described the tribunal's ruling as "very fair". He said: "We always said we were willing to pay a reasonable sum for a comprehensive licence."

Peter Shepherd, chief executive of the CLA, said that the decision had dismayed sectors of the academic publishing community. "This is mixed news for authors, artists and publishers. The increased royalty fee will certainly be welcome. But we fear that there will be an explosion of course-pack copying of copyright materials. If so, there is great concern that certain areas of academic publishing will be put at significant risk."

He said that the CLA was consulting with its owners, the Authors' Licensing and Collecting Society and the Publishers Licensing Society, on whether to challenge the ruling on points of law.

The Publishers Association has said the ruling could threaten academic textbook publishing. Its director of educational and professional publishing, Graham Taylor, said: "Not everyone has thought this through. There may be implications nobody wants and it will be harder to resolve this after the decision."

He said that if Clarcs were discontinued, academics wanting to copy more than the amount allowed under fair dealing might have to negotiate direct with the publishers. Mr Taylor feared authors and publishers who were already working on a marginal profits basis might feel no incentive to produce more textbooks if there were an explosion in course packs or "parallel publishing".

But Professor Picciotto denied that the decision would be detrimental. "It wasn't our aim to damage academic publishing, but those representing the publishers took a short-term, restrictive view that was damaging education."

The tribunal ruling means further increases to the licence fee at the end of the five-year period could come about only with a significant increase in copying.

In 1977, the Whitford committee on copyright considered the scope of fair dealing in education - copying that does not require permission or incur copyright fees. The CLA set up a comprehensive licence in 1989.

In the early 1990s, authors and publishers said they had identified systematic copying of materials by academics for distribution to students as course packs. In 1993, the CLA increased the fee for the licence and excluded course packs, which were to be cleared in advance and were subject to extra fees.

The CLA insisted that a tribunal was unnecessary and that the differences could be settled through negotiation. Negotiations continued during the tribunal hearing, which cost £2 million.

The CLA calculated that each side stood to lose £4.5 million annually if the tribunal ruled against them - universities in increased licence fees, the CLA in lost revenue.

The CLA announced it would rebate course-pack royalties paid after August 1 2001 in the new year.

The CLA has to produce a draft licence agreement based on the tribunal recommendations by January 15 2002. UUK and Dacs have until January 30 to respond. A date for a final order hearing will then be set, at which applications for costs can be made.

When it comes to negotiating the next licence in five years' time, Professor Picciotto said negotiations would have moved from photocopying to issues of electronic access, currently being negotiated by the National Electronic Site Licence Initiative. Paper copying is expected to decline over the next few years.

Meanwhile, the International Coalition of Library Consortia has issued a statement to publishers laying out the electronic publishing needs of the library community worldwide in terms of licensing and evaluation of usage statistics.

Summary of tribunal decisions

* Course-pack copying will be included in the blanket licence fee

* Royalties for artistic works will be included in the blanket licence fee

* The blanket fee should be per full-time student but not based on any notional number of pages or price per page

* From August 1 the blanket fee will be £4 per full-time student

* The new licence will run for five years.

Calculation of the new blanket fee

* The £2.75 basic fee (reduced from £3.25), plus £1.20 fee for course-pack copying, plus a five pence fee for separate artistic works. Total: £4.00

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