Stevan: F.Y.I. - I thought you might be interested in this "post" to the "copyrights" list yesterday. Interesting debates on Forum 98....
Cheers Alan Story Dear "Copyrights" List Members: In the most significant development in HE (and FE) copyright licensing for the last 10 years, the Committee of Vice Chancellors and Principals (CVCP) has just informed the Copyright Licensing Agency (CLA) that it will ask the Copyright Tribunal (CT) to determine the terms, costs, and conditions of the future licence and HECA agreement. Under the terms of the Copyright Designs and Patents Act 1988, the Tribunal has the statutory power to vary or to confirm the terms of a copyright licensing scheme such as that operated by the CLA. If the CT decides to hear the CVCP's reference, the rate structures and provisions of the existing license, set to expire in January 2001, will continue until the Tribunal makes its decision. The CT's decision will be binding on both parties, although either side can ask for judicial review on points of law. The existing three-year licence, agreed in 1998, is more restrictive towards users than any previous agreements. The stakes are high for the CLA. The CLA's various licences with the educational sector provide it with 90 per cent of its revenues and are the largest copyright licensing schemes in the UK, excepting music copyright schemes. Last year, the CLA's revenues from HE increased by 27 per cent over the previous year. Only 10 per cent of the CLA's revenues from the photocopying of copyright-protected materials is derived from government and business The CVCP will shortly submit its formal Statement of Claim in the case and will ask that a wide number of issues -- costs, per page charges, access, exemptions, course pack provision, the DACS protocol and other issues --- be reviewed by the Tribunal. This reference is distinctly different from most other cases heard by the CT in that the authors of much of the copyright-protected and licensed material --- principally academics, including UK academics --- are also the main users, as teachers, of this material. Copyright tribunals operate in numerous countries because of concerns about the potential abuse of copyright, due to the monopoly powers of collecting and licensing agencies, and because of the recognition that proper access and use of knowledge and information is a matter of critical public interest. In this sense, then, the UK Tribunal plays the same role as other government agencies that regulate the provision of water, electricity, television, and railways. The CVCP's decision to refer the terms of the licence to the CT represents a serious setback for the CLA and provides an indication of the widespread dissatisfaction with the licence across the whole of Higher Education community ---- from cash-strapped students who cannot afford the high copyright royalties charged for course packs to lectures who are being prevented from teaching the best possible courses to universities administrators who have been questioning the costs and benefits of the current arrangements. Copyright royalties fees, most of which go to publishers, often account for 70 per cent of the total cost of a course pack. Ten days ago, Peter Shepherd, chief executive of the CLA, said in a widely-distributed statement that he expected there would be "a smooth and painless rollover" from the existing licence to the next licence. But,in fact, dissatisfaction about the overall philosophy, the day-to-day operation, and the costs of the current scheme has been building in the HE community over the past few years. The disagreement has been exacerbated by the CLA's restrictive attitude towards what photocopying is permitted as "fair dealing", and by the CLA's unilateral modification of the licence by purporting to exclude illustrations, published in licensed publications, for which an additional licence and payment to the CLA would be necessary (the DACS protocol). Earlier this month the CLA changed course by offering to postpone introduction of this additional DACS licence until the main licence is renewed in January 2001. However, this offer was subject to conditions that the CVCP accept renewal of the main Licence with no substantial changes, and with an `uplift' (additional payment) for artistic works. Observers viewed it as merely an attempt to lock universities into an agreement which they had already clearly told CLA required fundamental renegotiation. The CVCP's decision to refer the terms of the licence to the Tribunal was therefore the only possible riposte in the face of the CLA's continuing intransigence. A CVCP spokesperson was recently quoted in the Times Higher as saying that the current scheme requires a "root-and-branch review." The decision of the CT on the CVCP's reference will also likely have important ramifications for the FE sector as its own licence is closely modeled on the HE license. The CVCP is being represented by Baker McKenzie, a major City (and international) firm of solicitors. Henry Carr,QC, an intellectual property specialist, has drafted the Statement of Claim and will represent the CVCP before the Tribunal. To read further on the powers and procedures of the Copyright Tribunal, consult sections 116-152 of the CDPA 1988. "Copyrights" will attempt to provide list members with all relevant documents related to this reference and welcomes reactions, comments, and analyses from list members. Regards Alan Story For The Copyright in Higher Education Workgroup (CHEW) http://www.law.warwick.ac.uk/ncle/copyright/ http://www.mailbase.ac.uk/lists/copyrights/ Note: No copyright is claimed in this "post" and you are welcome to distribute it to whomever you wish. ---------------------- Alan Story Kent Law School Eliot College University of Kent Canterbury Kent UK CT2 7NS +44 (0)1227 823316 [email protected]
