- Membership of the Working Party
- Meetings
- Terms of Reference
- Terminology
- Qualifications
- Guidelines for Electronic Fair Dealing
-
0. Viewing On Screen
1. Printing onto Paper
2. Copying onto Disk - Part of an Electronic Publication
3. Copying onto Disk - All of an Electronic Publication
4. Transmission to Enable Printing - Part of an Electronic Publication
5. Transmission to Enable Printing - All of an Electronic Publication
6. Transmission for Permanent Storage - Part of a Publication
7. Transmission for Permanent Storage - All of a Publication
8. Posting on a Network
- Discussion of Issues Raised
-
Definition of an "Electronic Publication"
Management of Copyright by Technology
Licence Agreements vs Fair Dealing
Transient Copies
- General Conclusions
Professor C. Oppenheim, International Institute for Electronic
Library Research, De Montfort University (Chair)
Mr A. Charlesworth, Director, Information Law and Technology Unit,
University of Hull (Rapporteur)
- Ms C. Baldwin, Director, Information Design & Management
- Mr C. Clark, Publishers Association
- Mr F. Friend, Librarian, University College London
- Mr P. McKay, Thompson Science, International Thompson Publishing
- Mr B. Naylor, University Librarian, Hartley Library, University
of Southampton.
- Mr K. Nettle, Publishing Consultant, Publishers Association
- Ms L. Owen, Rights and Contracts Director, Addison Wesley
Longman
The Working Party met on the following dates:
- 26 September 1996 - OU Conference Centre, 344-354 Gray's Inn
Road, London.
- 19 November 1996 - HEFCE, 28th Floor, Centre Point,
103 New Oxford Street, London.
- 15 January 1997 - HEFCE, 28th Floor, Centre Point,
103 New Oxford Street, London.
- 19 February 1997 - HEFCE, 28th Floor, Centre Point,
103 New Oxford Street, London.
As the Working Party was provided with a somewhat open-ended brief
by its parent organisations, the members initially considered
the issues that could feasibly be discussed in reasonable depth
over its envisaged lifespan, and agreed on the following terms
of reference for the discussions:
- that the main aim of the Working Party at this stage was to
identify any possible areas of agreement between representatives
of JISC and the PA, on a practical definition of fair dealing
of materials in electronic form, and, if possible, the necessary
mechanisms that might be used to provide a workable monitoring
system.
- that the scope of the discussion would be the dealing in materials
in electronic form, by private individuals (staff and students)
and librarians, in the HE sector. Such dealing would include
both material that might be transferred from paper to digital
media, and material available solely on digital media. It would
not include photocopying, or forms of technology equivalent to
it (laser scanner-printers). It was also decided that to simplify
the discussions, that only text materials would be discussed.
Thus, digitised pictures, including pictures of documents obtained
by scanning, were excluded from the scope of the discussion.
- that the scope of the discussion would be fair dealing for
the purposes of research and private study. Fair dealing for
the purposes of criticism or review, or for reporting current
events, was not covered in the discussion.
- that protracted discussion of the potential for fair dealing
in abstracts was not a viable option at this stage, as the situation
with regard to the relevant sections of the CDPA 1988 remained
uncertain.
- that the issue of study packs had implications for fair dealing,
but would be better dealt with in detail by another of the JISC/PA
Working Parties.
In this document, the following working definitions have been
used:
"electronic format" Examples of
textual materials in "electronic format" would include
word processed documents (e.g. Word, WordPerfect, LaTex), the
output of databases and spreadsheets, HTML & SGML documents,
and documents stored in proprietary formats for use with proprietary
readers (e.g. .pdf files for use with Adobe Acrobat).
"electronic publication" This includes both publications
created specifically in electronic format, and publications originally
created in paper format and then later transferred to electronic
format under conditions of conformity with copyright law.
"part of an electronic publication" With regard to what
constitutes 'part of' an electronic publication, the Working Party
was of the opinion that the existing library privileges model
for determining 'part of' a paper publication, i.e. 1 article
from a journal issue, 1 chapter from a book, or 10% of other works,
should be used, with the proviso that this might require revision
if there were significant changes in existing publication practice,
e.g. where an issue of an e-journal comprised one article, or
where the 'journal' or 'book' format no longer applied.
Where the Working Party recommends that copying should be considered
fair dealing in the guidelines and scenarios below, the following
qualifications are made:
- Purpose: The purpose of the fair dealing is research
and private study of individuals. The purpose may not be for
commercial exploitation, whether direct or indirect.
- Quantity: Only single copies are permitted. Multiple
copying always requires permission.
- Further Copying: Where the making of one original copy
(paper or electronic) is considered fair dealing, the making of
subsequent copies (paper or electronic) from that original is
not.
- Any incidental copying to disk involved in the viewing of
part or all of an electronic publication should be considered
fair dealing.
The operation of some computer software, for example Web browsers,
may result in the copying of electronic documents to the user's
hard disk. Where this is necessary for the efficient operation
of the software, and where there is no intent to store the copy
permanently, this incidental copying should be considered fair
dealing. This would apply for viewing part of an electronic publication
or the whole of an electronic publication.
Scenarios
Copying by an Individual:
- Joe accesses an electronic journal available on a Web site
using the PC in his office. The browser automatically copies
the article to his hard disk when he views the article. This
is fair dealing.
- Joe views all of the articles of an electronic journal available
on the Web using his browser. The browser automatically copies
all the articles to his hard disk cache as he views them. This
is fair dealing.
- Joe logs into his university/library network and accesses
an electronic journal. The browser automatically copies all the
articles he views to the network cache. This is fair dealing.
Copying by a Librarian:
- The librarian is preparing to print out an article for Joe
that he has requested from an electronic journal. To check that
it's the right article, the librarian views it on screen. The
article is in PDF format and Acrobat copies the article to the
library network cache. This is fair dealing.
- It should be considered fair dealing for an individual to
print onto paper one copy of part of an electronic publication.
- It should be considered fair dealing for a librarian to print
onto paper one copy of part of an electronic publication at the
request of an individual.
Scenarios
Copying by an Individual:
- Joe accesses an electronic journal available at a Web site
using the PC in his office. He can print out a hardcopy of an
article for research or private study.
- Joe visits his library and accesses an electronic journal
available at a Web site using an open access PC. He can print
out a hardcopy of an article for research or private study.
- Joe logs into his library/university network and accesses
an electronic journal available at a Web site. He can print out
a hard copy of an article for research or private study.
- Joe visits his library and accesses an electronic journal
to which the library has a paid subscription, using an open access
PC. He can print out a hardcopy of the article for research or
private study, assuming is allowed by the licence agreement.
- Joe logs into his library/university network and accesses
an electronic journal for which the library has a paid subscription.
He can print out a hardcopy of the article for research or private
study, assuming this is allowed by the licence agreement.
Joe knows of an electronic article, but doesn't have a PC (or
can't be bothered to use it). He can ask Frank to print out a
copy for him. Frank can thus make a copy for someone else's research
or private study. However, if Frank knows, or has reason to believe,
that Joe intends to then make multiple copies of that copy for
distribution to his friends, then Frank's actions are not fair
dealing[1].
- Joe knows of an electronic article on the Web, but doesn't
have a PC (or can't be bothered to use it). He can request the
library to print out a copy for him for research or private study.
- Joe knows of an electronic article in a publication to which
the library has a paid subscription, but doesn't have a PC (or
can't be bothered to use it). He can request the library to print
out a copy for him for research or private study, assuming this
is allowed by the licence agreement.
It should be considered fair dealing for an individual to copy
onto disk part of an electronic publication for permanent local
electronic storage, where the disk is either a portable medium[2],
or a fixed medium[3] accessible
to only one user at a time[4].
It should be considered fair dealing for a librarian to copy
onto disk part of an electronic publication for an individual
at their request for permanent local electronic storage by the
individual, where the disk is a portable medium[5].
Commentary
The Working Party feels it should be considered fair dealing for
an individual to make a permanent electronic copy for the same
purposes as making a paper copy: to refer to later as part of
research or private study. A librarian should also be able to
make an electronic copy for the individual to take away. Making
a printed copy and an electronic copy are considered analogous,
the difference being that the electronic copy may afford the user
with a higher degree of convenience.
Scenarios
Copying by an Individual:
- Joe accesses an electronic journal available at a Web site
using the PC in his office. He can save a copy of an article
on his hard disk or a floppy disk for research or private study.
- Joe visits his library and accesses an electronic journal
available at a Web site using an open access PC. He can save
an article to floppy disk and take it away with him for research
or private study.
- Joe logs into his library/university network and accesses
an electronic journal available at a Web site. He can save an
article to his local hard disk for research or private study.
- Joe visits his library and accesses an electronic journal
to which the library has a paid subscription, using an open access
PC. He can save a copy of the article to floppy disk and take
it away with him for research or private study, assuming this
is allowed by the licence agreement.
- Joe logs into his library/university network and accesses
an electronic journal for which the library has a paid subscription,
and for which he is an authorised user. He can save an article
to his local hard disk for research or private study, assuming
this is allowed by the licence agreement between the publisher
and the library, or other licensor(s).
Joe knows of an electronic article, but doesn't have a PC (or
can't be bothered to use it). He can ask Frank to save a copy
to disk for him. Frank can thus save an article for someone else's
research or private study. However, if Frank knows, or has reason
to believe, that Joe intends to then make multiple copies of the
electronic copy for distribution to his friends, then Frank's
actions are not fair dealing[6].
Copying by a Librarian:
- Joe knows of an electronic article on the Web, but doesn't
have a PC (or can't be bothered to use it). He can request the
library to give him an electronic copy on floppy disk (instead
of a printed copy) for research or private study.
- Joe knows of an electronic article in a publication to which
the library has a paid subscription, but doesn't have a PC (or
can't be bothered to use it). He can request the library to give
him an electronic copy on floppy disk (instead of a printed copy)
for research or private study, assuming this is allowed by the
licence agreement.
- Joe is going to a conference and wants something to read on
the airplane. He asks the librarian to print out the whole of
an electronic book. The librarian refuses, but offers to print
out one chapter.
- It should not be considered fair dealing for an individual
to copy onto disk all of an electronic publication for permanent
local electronic storage.
- It should not be considered fair dealing for a librarian to
copy onto disk all of an electronic publication for an individual
at their request for permanent local electronic storage by the
individual.
The purposeful copying to disk of entire electronic publications
should not be considered fair dealing. Permission is required,
and licensing may be appropriate. However, the incidental copying
to disk involved in viewing as in (0) above should be considered
fair dealing.
Scenarios
Copying by an Individual:
- Joe wants to download an entire Web site to his PC. This
is not fair dealing, and he should contact the owner of the Web
site for permission.
- Joe wants to download an entire electronic journal to his
PC. This is not fair dealing, and he should contact the copyright
owner for permission.
- Joe wants to download an issue of an electronic journal to
his PC. This is a rather grey area and would seem to depend on
whether an "issue" is meaningful in the context of the
publication, and the substantiality in relation to the whole.
It might or might not be fair dealing.
Copying by a Librarian:
- Joe found an interesting conference proceedings on the Web.
He asks the librarian to download a copy and put it on a disk
so he can have a personal copy. The librarian refuses, as this
is not fair dealing.
- It should be considered fair dealing for a librarian to transmit
by computer network part of an electronic publication for the
purpose of printing a single copy with only such interim electronic
storage as is required to facilitate that printing.
Transmitting an electronic document for the sole purpose of printing
out a single paper copy is, in principle, fair dealing, as it
has the same effect as (1) above, even though the technical process
is different. The Working Party recommends the above guideline,
subject to the proper technical constraints being in place to
ensure that any permanent electronic copies are deleted following
successful transmission and printing. In addition, the transient
copying on network equipment used to transfer the electronic document
should be considered to be an integral part of this category of
fair dealing.
Until technology ensures that permanent copies are deleted automatically,
publishers will doubtless require considerable reassurance that
systems and procedures are implemented to ensure compliance.
Librarians are likely to be in a position to make the guarantees
that satisfy their concerns, so the guideline above applies to
transmission in the controlled environment of a library setting.
Individuals are unlikely to be in a position to make the guarantees
necessary to satisfy publishers' concerns. The Working Party
has therefore not given a guideline or scenarios for individuals.
However, we do not rule out the possibility that with further
advances in technology individuals might be included at a later
date.
Scenarios
Copying by a Librarian:
- Joe's university has a multi-site campus. He is at one site
and the library is at another. He can request a copy of an article
from the library for research and private study, and the library
can send him the article by fax.
- The library is next door, but Joe is too lazy to walk there
to get a copy of an article. The library can send him the article
by fax.
- Joe requests an article that his library doesn't have. His
library contacts another, and they send the article by fax.
- Joe requests an article that his library doesn't have. His
library contacts another, and they send the article using Ariel
or other PC-to-PC transmission software. This is fair dealing
as long as both libraries delete the article after successful
transmission and printing.
- Joe asks the library to print a copy of an article from an
electronic journal. The library prints out copies using a central
university printer. The librarian transmits the article to the
printer using the university network. The printing facility is
set up so that print requests are logged in, the copies are checked
for quality, and the printer automatically deletes the file when
the print is logged out.
- It should not be considered fair dealing to transmit by computer
network of the whole of an electronic publication for the purpose
of printing a single copy, with only such interim electronic storage
as is required to facilitate that printing.
As with (3) above, permission would be required to transmit all
of an electronic publication, either specific permission or a
licence agreement, whether an individual does the printing or
a librarian is does the printing for the individual.
Scenarios
Copying by an Individual:
- Joe is reading an interesting conference proceedings which
is on a networked CD-ROM that the library purchased. He makes
a print request to have all the articles printed out on the central
university printer so he can read them at home. Then he gets
a message that a print order for the entire publication cannot
be accepted, as this is not fair dealing.
Copying by a Librarian
- Joe's university has a multi-site campus. He is at one site
and the library is at another. He wants a book urgently and asks
the library to fax it. The library says no, as this would not
be fair dealing, and suggest that he pay them a visit.
- It should be considered fair dealing for a librarian to transmit
by computer network to an individual at their request part of
an electronic publication for permanent local electronic storage,
but not retransmission.
Guideline (2) above would allow the librarian to give the individual
an electronic document on disk. Guideline (6) would allow the
librarian to transmit it to them using a network instead. The
effect is the same: the individual has the document to store locally
and use. However, the individual may not retransmit it to anyone
else.
The issues of site licences and coursepacks were raised in relation
to this guideline. Publishers may be concerned that this guideline
might result in the de facto introduction of electronic coursepacks.
It is not the intention of the Working Party that distribution
of coursepacks should be considered fair dealing, as this would
involve systematic copying. Site licences are recommended for
distribution of coursepacks.
Scenarios
Copying by a Librarian
- Joe requests a copy of an electronic article from his library
for research or private study. The library transmits it to him
by email. He can retain the copy on his PC.
- Joe requests a copy of an article from his library for research
or private study. It doesn't exist in electronic form. The library
needs permission to scan the article into electronic form. The
permission granted would cover whether the library could retain
a copy permanently.
It should not be considered fair dealing to transmit by computer
network of the whole of an electronic publication for the purpose
of permanent local electronic storage, reading on screen, and
printing on individual request, but not retransmission.
As with (3) and (5) above,
this will not be an issue of fair dealing,
but rather a question of licensing.
Scenarios
Copying by an Individual:
- Joe is reading an interesting conference proceedings which
is on a networked CD-ROM that the library purchased. He makes
a download request to have all the articles transferred to a re-writeable
CD-ROM disk in a CD-ROM drive attached to his computer so he can
keep and read them at home. Then he gets a message that a download
order for the entire publication cannot be accepted, as this is
not fair dealing.
Copying by a Librarian
- Joe's university has five years missing from its holding of
an important electronic journal, as the set was cancelled due
to its cost. The journal is published on CD-ROM three times per
year, and each publication contains a variety of articles, reviews
and notes. Joe asks his subject librarian to obtain the missing
parts from another university. The subject librarian requests
that the holding library have all the articles transferred to
a re-writeable CD-ROM disk in a CD-ROM drive attached to his computer
so he can keep a permanent copy for future enquirers. The holding
library says no, as this would not be fair dealing, and suggest
that Joe and any future enquirers pay them a visit.
- It should not be considered fair dealing to post part or all
of an electronic publication on a network or WWW site open to
the public.
It is clear that posting part or all of an electronic publication
on a network, or WWW site open to the public, has a much wider
purpose than the creation of a single copy for the purpose of
individual research or private study. It therefore clearly falls
outside the scope of fair dealing.
Scenarios
- Joe wants to put one of his published articles up on his personal
Web site. He may do so if he retains the copyright in that work.
If he has assigned his rights, or granted an exclusive licence
in that work he can only do so if the copyright transfer form,
or licence, he has signed allows him to retain this right, or
if he contacts the publisher and asks permission.
- Joe wants to put an interesting group of journal articles
up on the Department Web site for his colleagues to read. He
must get permission of the copyright owners first.
- Joe wants to cut-and-paste portions of other Web sites into
his own. He should check the copyright notice of these sites
and see if it's allowed, and if necessary ask for permission.
As noted above, the lack of any formally recognised definition
of what constituted an "Electronic Publication" caused
the Working Group some problems, and led to the adoption of the
definitions listed above for the purpose of the Working Group's
discussion. The Working Group suggested that this was an issue
which would need to be kept under review as publication practices
involving works on digital media were likely to diverge from existing
print medium models. For example, the traditional practice in
academic journals produced in the print medium, of publishing
two or three discrete parts of such journals each year, might
well be replaced in the digital medium by publication of material
(articles, reviews etc.) as and when it became available. This
would rapidly erode the viability of applying even the existing
library privileges model for determining 'part of' a paper publication,
i.e. that 1 article from a journal issue, 1 chapter from a book,
or 10% of other works, can be used.
The Working Group felt that the future viability of fair dealing
in the electronic medium would be enhanced if administrative and
technical methods for ensuring that copyright was not breached
were both promoted and used. Various methods were suggested for
ensuring that material copied under the pretext of "fair
dealing" was not then used in an unfair manner.
- Where the librarian makes a copy on behalf of an individual,
it may be reasonable to preserve the practice of having the individual
sign a form indicating the copy is for research or private study.
Such a form might be paper-based, or electronic, depending upon
the verification techniques available.
- The use of electronic watermarking might be used to help prevent
further copying of a copy made under the fair dealing provisions.
Recent developments in watermarking technology suggest that this
might now be a viable option in combating breach of copyright.
- It was accepted that transient and disk cache copies of copyright
material were likely to be produced as a result of permissible
electronic transmission of that material, particularly where the
WWW and web browsers were involved. The Working Group concluded
that transient and disk cache copies of copyright material, being
an inevitable result of the technology, could not rationally be
considered as a breach of copyright. However, it was noted that
this should not be permitted as an excuse to hold additional copies
of material obtained under fair dealing. It was suggested that
one way of tackling that problem was to implement in the software,
and in institutional policies, the automatic clearing out of caches
after certain time-limits.
- It was accepted that where libraries scanned and transmitted
copyright materials to each other under the fair dealing provisions,
more than one copy of the material would be in existence at some
stages of that process. The Working Group accepted that this,
being an inevitable result of the technology, could not rationally
be considered as a breach of copyright. However, for the process
to fall within fair dealing there ought to be auto-deletion of
all electronic copies, except the one to be used by the individual
for personal research and study, at the end of the PC-to-PC transmission
process.
The issue of licence agreements caused the Working Group some
difficulty, primarily in discussion of circumstances where a licence
agreement for an electronic publication states that copies of
any part of the publication may only be made by, or for, members
of the institution to which the publication is licensed. This
would appear to strike at the heart of the Inter-Library Loan
(ILL) system which is widely used in Higher Education. Certainly,
the terms of such a licence would appear to clash with the principle
of fair dealing. The Working Group did reach a general conclusion
regarding the transmission by a librarian of part of an electronic
publication by computer network to an individual at their request
for permanent local electronic storage, but not retransmission
(See Guideline 6 above) suggesting that this should be considered
fair dealing. This suggests that the apparent licence agreement/fair
dealing clash needs reconsideration by publishers.
As noted above, the Working Group was of the opinion that transient,
or disk cache, copies of parts of, or all of, an electronic publication,
where such copies occur automatically as a result of a permissible
electronic transaction, should not be considered a breach of copyright.
This was subject to the proviso that deletion of transient, or
disk cache, copies should take place as soon as possible after
they were no longer required for the purposes of that permissible
electronic transaction. The use of transient, or disk cache, copies
to make further copies after the permitted electronic transaction
would not be fair dealing and would be a breach of copyright.
As can be seen from the above guidelines, the Working Party was
able to identify areas of agreement between representatives of
JISC and the PA, notably on a practical definition of fair dealing
of materials in electronic form. It should be clear, however,
from the discussion of issues raised, that certain areas are likely
to remain highly contentious, notably:
- the potential useage of electronic study packs
- the increasing use of licences by publishers which purport
to limit the usage that educational institutions and users can
make of collections of electronic materials, especially with regard
to inter-library loans.
- the future use of abstracts.
The Working Party did not reach any major conclusions with regard
to the necessary mechanisms that might be used to provide a workable
monitoring system for fair dealing of materials in electronic
form, despite receiving both written and oral information on current
developments. As the area is presently the subject of much industry
and academic debate, and there are many commercial initiatives,
some using open standards, while others involve proprietary standards,
the Working Party resolved to advise that JISC & the PA should
continue to keep the area under scrutiny, whilst awaiting the
emergence of a widely accepted solution.
[1] s29(3)(b) CDPA 1988.
[2] Such as a 3.5" floppy disk, an optical disk, tape cassette or WORM CD-ROM. This definition should not be seen as either definitive or exhaustive.
[3] Such as the hard disk drive of a computer. This definition should not be seen as either definitive or exhaustive.
[4]For fair dealing to exist in this category the storage medium should not be network accessible, i.e. the computer in which the hard disk on which the publication is stored may have a network connection, but the computer's own hard disk should not be accessible to that network.
[5] Such as a 3.5" floppy disk, an optical disk, tape cassette or WORM CD-ROM. This definition should not be seen as either definitive or exhaustive.
[6] See n.1
Respond to these Guidelines
If you wish to comment on these guidelines, please email Martin Metcalfe,
m.metcalfe@hefce.ac.uk
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