Report of the Joint Information Systems Committee & Publishers Association Working Party
On Fair Dealing in an Electronic Environment.


[If you wish to comment on these guidelines, please email Martin Metcalfe, m.metcalfe@hefce.ac.uk]

Contents

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

Membership of the Working Party

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)

Meetings

The Working Party met on the following dates:

Terms of Reference

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:

Terminology

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.

Qualifications

Where the Working Party recommends that copying should be considered fair dealing in the guidelines and scenarios below, the following qualifications are made:


Guidelines for Electronic Fair Dealing

0. Viewing on Screen

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:

Copying by a Librarian:

1. Printing onto Paper

Scenarios

Copying by an Individual:

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].

Copying by a Librarian:

2. Copying onto Disk - Part of an Electronic Publication

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 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:

3. Copying onto Disk - All of an Electronic Publication

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:

Copying by a Librarian:

4. Transmission to Enable Printing - Part of an Electronic Publication

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:

5. Transmission to Enable Printing - All of an Electronic Publication

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:

Copying by a Librarian


6. Transmission for Permanent Storage - Part of a Publication

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


7. Transmission for Permanent Storage - All of a Publication

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:

Copying by a Librarian

8. Posting on a Network

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

Discussion of Issues Raised

Definition of an "Electronic Publication"

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.

Management of Copyright by Technology

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.

Licence Agreements vs Fair Dealing

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.

Transient Copies

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.

General Conclusions

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 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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