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Where copying without permission has just become legal

A little known new law has amended the general principle to obtaining permission first before copying under the Copyright, Designs and Patents Act 1988, reports legal and brand guru Ardi Kolah.

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Copyright law has few exceptions to the general principle that no one can make a legit copy without the authority of the copyright owner (see 'Essential Law for Marketers'). Now there's another exception to this general rule which has just come on to the statute books.

Position up to 31 October 2003

Under the Copyright, Designs and Patents Act 1988 rights holders (authors, creatives, musicians, performers, photographers, etc) had to give their permission before their work could be published, copied, translated, performed or otherwise exploited.

In essence, rights holders enjoyed the right to prevent a work being copied without consent. Copyright can also protect against a work being issued to the public, performed, shown or played in public, broadcast or adapted.

The exceptions under the 1988 Act were closely defined:

  • Certain uses of design documents and models;

  • Use of typeface in ordinary course of printing;

  • Certain works in electronic form;

  • Private study;

  • Miscellaneous.

    Notably, these exceptions didn't extend to those who wished to make a complete copy of a work in larger type or to transfer the work from one medium (say print) into audio because the user suffered some form of visual impairment or blindness.

    According to the RNIB, which has campaigned for a change in the law over many years, this state of affairs had widespread ramifications for those with sight loss or visual impairment in seeking equal access to information and enforcement of their legal rights.

    There are 2m people in the UK with sight problems, with 359,000 people registered as blind or partially sighted.

    The RNIB estimates that a further 750,000 people are eligible but haven't registered. Every day another 100 people will start to lose their sight. And given the nature of the marketing and creative industries, these statistics will include a large number of our own colleagues too.

    Position from 1st November 2003

    The law on this area has now changed as a result of the Copyright (Visually Impaired Persons) Act 2002, which came into force on 31st October 2003.

    The new 2002 Act introduces exceptions to copyright law which in general terms removes the need for anyone to obtain permission from the rights holder to produce an "accessible copy" of a work. It does, however, place restrictions and requirements on those using it.

    Accessible copy

    This is defined as "a version which provides for a visually impaired person improved access to the work...(and) may include facilities for navigating around the version of the copyright work...". The term can cover hard and soft copies of the copied works.

    A visually impaired person

    This is defined as a person:

    (a) who is blind;

    (b) who has an impairment of visual function which can't be improved, by the use of corrective lenses, to a level that would normally be acceptable for reading without a special level or kind of light;

    (c) who is unable, through physical disability, to hold or manipulate a book, or;

    (d) who is unable, through physical disability, to focus or move his/her eyes to the extent that would normally be acceptable for reading.

    It goes beyond "blind and partially sighted" people, as commonly understood, but doesn't encompass people with perceptual or cognitive disabilities, such as dyslexia, or those with hearing impairments.

    The new rules over copying

    If you're a person with sight problems you can make or ask anyone to make for you a single accessible copy of anything that you've got "lawful possession" or "lawful use" of.

  • This can cover anything that you've bought, been given or lent, or that is held in a library that you're eligible to use;

  • It covers material published commercially but also other material made public, such as dissertations lodged in a library.

    Once you've got your accessible copy, you can pass it onto other people who qualify as "visually impaired", as long as you pass on the original with it.

    Equally, you can pass original and accessible versions back to a librarian or lecturer who could later issue them to another eligible person.

    Two parts to the 2002 Act

    The Copyright (Visually Impaired Persons) Act 2002 defines copying in two distinct ways:

  • One-for-one copies;

  • Multiple copies;

  • One-for-one copying;

  • The important caveat here is that the right doesn't apply if an equivalent accessible copy is already available commercially;

  • The accessible copy must carry "sufficient acknowledgement" of its source, such as title, author and edition;

  • It must carry wording to indicate that it has been created under the terms of Section 31A of the Copyright, Designs and Patents Act 1988 as amended by the Copyright (Visually Impaired Persons) Act 2002.

    You may also wish to refer to the Joint Industry Guidelines, adopted on a voluntary basis by the major rights holder organisations in 2001. These are in certain respects slightly more "generous" than the 2002 Act in relation to single copies.

    Making multiple copies

    This exception to the general principles of copying under the Copyright, Design and Patents Act 1988 applies to any not-for-profit body and any educational establishment. The 2002 Act refers to these as "approved bodies", but no approval process is required.

    The right covers any "commercially published" item of which the approved body has "lawful possession" and they may have bought or borrowed the original.

    Generally, files for producing accessible copies, known as intermediate copies, can be transferred between one approved body and another. However, Educational establishments can under the 2002 Act make copies available only to their own students.

    Licensing schemes (see below) overcome this limitation.

    1) The right doesn't apply if an equivalent accessible copy is already available commercially;

    2) The accessible copy must carry "sufficient acknowledgement" of its source, such as title, author, and edition;

    3) It must carry wording to indicate that it's been created under the terms of Section 31B of the Copyright, Designs and Patents Act, 1988, as amended by the Copyright (Visually Impaired Persons) Act 2002. The rights holder must still be notified retrospectively that the accessible copies have been produced and distributed;

    4) Records must be kept of titles and formats produced, and of the approved body's users/customers.

    Licensing Schemes

    The 2002 Act allows for licensing schemes to operate for the production of multiple copies. Generally speaking, these schemes extend or simplify the exceptions in the 2002 Act.

    If a licensing scheme exists covering the type of material or the formats a body is seeking to make copies of, then its terms must be complied with.

    Any organisation wishing to embark on the production of multiple accessible copies will be obliged to take out a licence under the relevant scheme (or possibly both).

    Schemes, once notified to the Secretary of State, are in force until or unless deemed in the courts to be "unreasonable".

    There are two licensing schemes in force: Copyright Licensing Agency and the Music Publishers Association

    What isn't covered by the 2002 Act?

  • It doesn't oblige publishers or authors to provide positive assistance.

  • It doesn't itself address the problem of barriers thrown up by digital forms of copy protection.

    Ardi Kolah appears on the Chartered Institute of Marketing's global top 50 list of leading marketing thinkers. He is author of 'Essential Law for Marketers' (Butterworth Heinemann, £25.00). Read the review of the book on Brand Republic and order your copy online here.

    If you have an opinion on this or any other issue raised on Brand Republic, join the debate in the Forum here.

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