ࡱ> Y[XU@ +Gbjbj .X7>  $$$88Th,8E $;!R#$aaa$$a$$a6#$$&  ,%"< 0E $$&88$$$$&6$$\,D88X88Advice from Eversheds, ɫӰs solicitors, 18 February 2003 1. Email: *** Before acting on this email or opening any attachment you are advised to read the Eversheds' disclaimer at the end of this email *** ** Proprietary ** Dear Mick You may remember we spoke last year in relation to copyright clearance issues for your web-based linguistics course. I noticed from our file that I was holding back on a note of advice in order to look over some other materials and copyright permissions which you have asked for/received during your experiment. I hope you don't mind, but in order to draw a conclusion to this file, I attach the note of advice which I had prepared. I do not expect the other materials would have materially altered this advice, it was more for the purpose of gaining familiarity with your work. Picking up on the matter has, however, come at a convenient point as UK copyright law is due to change in some respects in March this year. The European Union passed the Copyright Directive in Summer 2001 in an attempt to harmonise the laws of copyright amongst Member States and to bring the laws up to date to account for the realities of electronic information in general, and the internet in particular. This Directive has to be implemented by all Member States and is due to be implemented in the UK in March this year. There has not been a great deal of change in relation to the fair dealing exception for the purposes of criticism and review. The provision essentially remains the same apart from that the copyright work in question must have been made available to the public before the fair dealing exception can be permitted. "Made available to the public" means: issuing copies to the public; performance of the work in public; or communication to the public. As the majority of the abstracts you use are either from publications/websites or similar, I do not think it is likely that this will have impact upon the advice as set out in the attached document. I hope the note will be of assistance but please do not hesitate to give me a call if you have any further enquiries. Kind regards Michelle Osborne Solicitor Eversheds Tel. 0161 831 8127 Fax. 0161 832 5337 *** Eversheds' Email Disclaimer *** Confidentiality: This email and its attachments are intended for the above named only and may be confidential. If they have come to you in error you must take no action based on them, nor must you copy or show them to anyone; please reply to this email and highlight the error. Security Warning: Please note that this email has been created in the knowledge that Internet email is not a 100% secure communications medium. We advise that you understand and observe this lack of security when emailing us. Viruses: Although we have taken steps to ensure that this email and attachments are free from any virus, we advise that in keeping with good computing practice the recipient should ensure they are actually virus free. A list of partners' names is available for inspection at any Eversheds' office. *** [HYPERLINK http://www.eversheds.com http://www.eversheds.com] *** 2. Attachment Dear Mick I have commented specifically on the questions you have raised in relation to the use of copyright materials for the purposes of criticism and review, the use of a copyright disclaimer notice and the use of copyright work from the US, as follows: The Use of Copyright Materials for the Purposes of Criticism and Review - Overview Under the Copyright Design and Patents Act 1988 (the Act) there are certain circumstances in which a piece of copyright work can be used, where if it was not for the existence of those circumstances, such use would infringe the rights of the copyright owner. These circumstances include the use of work if: it is used for the purpose of criticism and review, of that work or another work; it is accompanied by a sufficient acknowledgement; and it is used in a manner which is considered as fair. If the above three criteria are satisfied then the use of a piece of copyright work will not infringe the copyright held by the author or, where applicable, the publication rights held by the publisher of the work. It would not therefore be necessary to obtain the consent of a copyright owner or publisher before using the piece of copyright work. This is an example of a defence which could be used if challenged with copyright infringement. It is a stand alone defence and can be used regardless of whether the work has been used for educational purposes. In order to consider whether each of the three criteria may apply it is worth looking at each test in more detail. Unfortunately there are no hard and fast rules to consider when deciding whether each criteria may be satisfied, however, recent caselaw can be used to offer some guidance: Is the work used for the purpose of criticism and review? Criticism may be defined as the act or art of analysing and judging the quality of literary or artistic work or the act of passing judgement on the quality of a particular work. Review may be defined as the resulting critical article or report. Criticism of a single aspect of a work is capable of constituting fair dealing, is does not need to be confined to the literary style or merit of the work and may extend to the thoughts or philosophy underlying it . Is there sufficient acknowledgement? This may be defined as an acknowledgement identifying the author unless (a) in the case of a published work, it is published anonymously or (b) in the case of an unpublished work, it is not possible to ascertain the identification of the author by reasonable enquiry. The acknowledgement must be sufficient to allow a reasonably alert member of the relevant audience to understand who the author is. The prudent approach is to overplay the requirement rather than assume an acknowledgement is apparent to the audience of the work. It is important to emphasise that the acknowledgement must identify the author of the work, not the copyright owner who may be, for example, the publisher. Has the work been used in a manner which is fair Even if any use of a copyright work is genuinely for the purpose of criticism and review and the copyright work is sufficiently acknowledged, there is still the overriding requirement that the use must be fair for there to be a valid defence. Unhelpfully, there is no statutory definition of fairness: what it means depends on the circumstances of each case. However, there are three factors which are usually taken into account when assessing fairness, namely: the number and extent of the quotations and extracts from the copyright work; the use made of the quotations and extracts from the copyright work; and/or the proportion of the work consisting of quotations and extracts as compared to the proportion of the work consisting of comment and analysis. One judge has described fair as: the extent of the dealing must be tied to the criticism or review being undertaken. Whether the amount taken was fair would depend therefore on the circumstances; the critic is entitled to take sufficient material to make or support his criticism. The test is objective. It is of course not the criticism which is tested for fairness, but the extent of copying, in all the circumstances, so as to illustrate or support the criticisms being made. Applying the above principles to your use of copyright materials for inclusion in the web based linguistics course I have looked through the materials which are presently on your web site. I have not received any details of the consents that have already been requested although I am able to offer guidance as to how to approach future requests for permission. The first question to consider, when using a particular piece of material, is whether the material is in fact protected by copyright. Copyright in literary, dramatic, artistic and musical works lasts for the life of the author plus 70 years from the end of the calendar year in which the author dies. For published editions copyright last for 25 years from the end of the calendar year in which it was made. There are other time limits in respect of other types of copyright material. The second question to consider is whether, if the piece of work to be used is in copyright, it is necessary to obtain permission for use. The important point to bear in mind is that should any third party prosecute the university for using copyright materials without first obtaining clearance, it is the court which would ultimately consider whether the defence of fair dealing for the purposes of criticism and review would apply. The final decision would be made by a judge, based on the particular circumstances involved. For this reason, whilst we can offer guidance as to the factors a judge would be likely to consider, based on the provisions of the Act and decisions made in previous cases, we can not predict with absolute certainty what stance a judge would take. We can, however, help you to analyse the risk of the defence failing should action be ever taken to court. This will help you judge whether requesting consent is absolutely necessary in all circumstances. If consent from a copyright owner would be easy to obtain and at no or little expense it would clearly be better to obtain the owners consent to be on the safe side. If consent is likely to problematic but the circumstances in which you intend to use the material fall within the defence of fair dealing for the purposes of criticism and review, you may choose not to obtain consent. In relation to the materials I have seen on your website I am confident that your commentary on the linguistic style of particular extracts is criticism and review for the purposes of the first test for the defence. When considering whether the use of a particular abstract could be considered as being for the purposes of criticism and review it is often helpful to put yourself in the position of the copyright owner and predict the arguments they may use to suggest the defence would not be applicable. I did consider the possibility that an argument could be raised to suggest your review and criticism is of the use and style of the English language as opposed to the actual piece of work itself, for example the poem or extract. This point has been addressed in a number of cases. In one particular case it was shown that the defence can be used for the criticism and review of anything which is inseparable from the copyright work. In this regard I think it is unlikely that comments on the linguistic style of a piece of work could be separated from the work itself, however, it should always be a consideration when using pieces of future work. I am also confident that you have clearly acknowledged any abstracts which have been used. However, I did notice that in certain instances you have included a hyperlink to biography pages from other web sites. As web pages are themselves literary works and attract copyright, I would advise you, if you have not done so already, to check the copyright notice on the web page you have linked to. This way you can check whether you may be prevented from hyperlinking to that particular page. If this is not covered in the pages own copyright notice then you should obtain specific permission. This can most easily be done by sending an e-mail to the webmaster of the page concerned. The third question to consider is whether the use of particular abstracts on the website may be considered as fair. This question is a little more difficult to answer. Having looked through the materials on your website I have applied the three stage test as set out in paragraph 1.2.3 of this letter. This is something you will need to do for when including any future abstracts as you develop the website. In certain instances the section of the web page containing the criticism and review are small and occupy a relatively small section of the web page compared to the abstract itself. In other instances the abstract is larger in comparison. It has been suggested in some cases that if it is necessary to quote the whole or substantial part of a work, particularly if it is a short one, for the purposes of criticism and review, then this may constitute fair use. It would appear from your website that the size of the abstracts is never greater than necessary for the purposes of the criticism and review of the particular abstract concerned. I think that the most important factor to consider is whether the alleged fair dealing is in fact commercially competing with the copyright owners work. For example - is your use of the copyright work preventing the purchase of authorised copies or other proper exploitation by the owner? It is likely that a court would always look at the purpose in the minds of the person using the copyright work at the time when the decision to copy the materials was taken. I think it would be difficult for any argument to be made to suggest the purpose for using the copyright work was for anything but the inclusion in the web based teaching course in a fair and honest manner with no intent to gain any commercial advantage over the owner. By way of summary when considering whether or not it is necessary to obtain copyright clearance consider the following: Is the work protected by copyright; Have you used the work for the purposes of criticism and review; Is the use of the work fair; and Has there been sufficient acknowledgement. As pointed out above we can only provide an opinion, on the basis of statutory and case law guidance, on whether, if the university did not obtain clearance and was subsequently challenged for copyright infringement, whether the defence of fair dealing for criticism and review would succeed. Although I think it is likely a defence may succeed, this is by no means conclusive and any decision would depend on the relevant circumstances and the view taken by any judge on that day. The existence of the fair dealing defence should not be a substitute for exercising caution when reproducing parts of copyright work. Copyright Disclaimer Notice The copyright disclaimer notice which is contained on the web site is useful to highlight the manner in which you work and the processes which are undertaken to obtain copyright clearance. However, it is not possible, through any form of notice, to prevent a copyright owner initiating proceedings for copyright infringement. The inclusion of a copyright disclaimer notice will not alter the process you will have to follow or consider in respect of copyright clearance as outlined above. Use of copyright material from the US Both the UK and the USA are signatories to the 1996 WIPO Copyright Treaty, the WIPO Performers and Ponograms Treaty and two further major international treaties: the Berne Convention; and the Universal Copyright Convention. Under these treaties each signatory state must accord the same level of protection to the work of other nationals as that afforded to copyright of its own nationals. In practice this means that although the material originates in the US, if you are actually using it in the UK then the work will be protected in the same manner as work of a UK national is protected. For this reason it will still be necessary to follow the same procedures and consider the same questions as highlighted in section 1 and 2 of this letter. Consent should be obtained from the US owner unless the fair dealing defence for the purposes of criticism and review (or any other defence) is likely to apply. I hope this information will be useful but should you have any queries or wish to discuss any of the issues in more detail please do not hesitate to give me a call. Kind regards, Yours sincerely MICHELLE OSBORNE  Time Warner Entertainments Co v Channel 4 Television Corporation Plc  Pro Sieben Media AV v Carlton Television Limited 1999; Hubbard v Vosper  PCR Limited v Dow Jones [1998]  Express Newspapers Plc v News UK Limited [1990]     JKLVW'(KLMefvz3G&_,-0T   8 %% <<<??ݳ˟뀏y hxp0J5jhxp0JU hxp>* hxp6 hxp0J hxp5&hxp>*B*CJOJQJ^JaJph/jhE)hxpCJOJQJU^JaJ#jhxpCJOJQJU^JaJhxpCJOJQJ^JaJhxphxph5hxphxp5,KLVW u v ; < H I X Y Z[hiz 7$8$H$gdxp7FG*Gvwxyzggdxpgdxpgdxpgdxp 7$8$H$gdxp&`V0Ubj 9 "X""3#%%&l(*-U25  & FS^SgdxpgdxpgdxpgdxpgdxpgdxpgdxpS^Sgdxp56'9< <<<< =4=?????AA\E]EFFFF"F#F$F & Fgdxpgdxp^gdxpgdxpgdxpgdxp?AAAA6F7F8F9F}F~FFFFFFFFFFFGGGG G!G#G$G&G'G*G+Gjh~%zUh~%zhxp6CJOJQJ hxp6jhxp0JUhxphxp5 hxp0Jhxp hxp0J5 $F%F6F7F~FFFGGGG G"G#G%G&G(G)G*G+G^gdxpgdxpgdxp,1h. 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