The e-mail shown below was posted on the Archives-NRA discussion list last 
Friday by Tim Padfield. As you will see there are quite a few proposed changes 
to copyright of sound recordings which maybe of interest to members of this 
list who have not already seen it. Regards, Jonathan

Colleagues

You might like advance notice of some proposed changes to copyright law that 
will, on the assumption that they are approved by Parliament, be very 
significant for archivists. A nice pre-Christmas present. 

Draft regulations are now out for consultation, with a closing date of the end 
of March. I expect that the SoA will be commenting, as will the Libraries and 
Archives Copyright Alliance and The National Archives. The plan is for new 
regulations to come into force next October. If you are interested in the 
details or in commenting yourself you will find the consultation document at:

http://www.ipo.gov.uk/consult-gowers2.pdf

There are other parts to the consultation, dealing with format shifting (copying 
from CD to MP3 will continue to infringe), education (provision for remote users 
of networks) and parody (no exception to be introduced) but the bits of direct 
interest to archivists can be summarised as follows:

Fair dealing for the purposes of private study and non-commercial research 

·         fair dealing for these purposes will be extended to apply not only to 
literary, dramatic, musical and artistic works but also to films, sound recordings 
and broadcasts; but

·         non-commercial research and private study will be more narrowly 
defined for the purpose of copying these additional works to mean research at 
an educational establishment for a particular course of study only; and

·         exceptions to performers’ rights are to be amended in line so that 
those rights are not infringed by copying a sound recording, film or broadcast.

Library and archive ‘privilege’ copying

·         Libraries (and archives, which are sometimes mentioned but are more 
often grouped with libraries) are recognised as ‘trusted intermediaries’;

·         there is to be a new copyright exception which will permit libraries to 
make and supply copies of published films and sound recordings for purposes of 
private study and non-commercial research, which will be narrowly defined as 
for fair dealing with these works. Libraries will still not be permitted to make 
and supply copies of published artistic works. There will be a new declaration 
form, which will require the user to declare the educational institution and the 
course of study or research. The definition of ‘publication’ will be amended to 
cover published films and sound recordings;

·         the current archive copying exception is to be amended to allow 
libraries and archives to make and supply copies of unpublished artistic works, 
including photographs, maps and plans. This is something I have been working 
for for years and is a major advance, in my view;

·         a new exception will permit libraries and archives to make and supply 
copies of unpublished films and sound recordings. As with library copying of 
published works of this sort there will be the same restriction on research and 
private study and a new declaration form for the purpose;

·         broadcasts are not included in these exceptions because no library or 
archive holds a broadcast. What they hold are recordings of broadcasts. 
These are not themselves ‘broadcasts’ but are in fact either sound recordings 
or films (or both), so copying of recordings of broadcasts will be permitted;

·         the procedure for making a complaint to the Secretary of State when a 
Digital Rights Management System (DRMS, for instance on a DVD) prevents 
copying is to be made to apply to the new copying exceptions. It is recognised 
that this procedure is complex (it has never actually been used) though the 
IPO is wedded to it, so guidance on it is to be published;

·         exceptions to performers’ rights are to be amended in line so that 
those rights are not infringed by copying a sound recording or film;

·         there are some detailed questions about the definition of a library, 
about what the ‘permanent collection’ of a library or archive is and about the 
distinction between the item copied and the copyright work it embodies.

Preservation copying

·         there is broad consensus that works need to be preserved;

·         the preservation copying exception is to be extended to apply to 
museums and galleries;

·         the preservation copying exception is to apply to artistic works, films 
and sound recordings (and thus also to recordings of broadcasts). Again, this 
is a major advance that I have been seeking for years;

·         format shifting when making preservation copies is to be allowed, and 
as many copies as are required will be permitted so long as the result is not an 
increase in the number of copies available to the public nor on-line availability 
outside the institution itself; and

·         exceptions to performers’ rights will be amended accordingly.

There will be regulations to amend the Copyright Designs and Patents Act and 
a new set of Library and Archive (and now Museum and Gallery) copying 
regulations, containing the details and the declaration forms.

Regards

Tim

-------------------------

Tim Padfield

Copyright Officer and Information Policy Consultant

The National Archives

Kew

Richmond

Surrey TW9 4DU

 

+44 (0)20 8392 5381

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www.nationalarchives.gov.uk

www.opsi.gov.uk