Library and archive premises across the UK have been closed for months, significantly restricting user access to physical collection materials and onsite services. Even as the country comes out of the Covid-19 lockdown, access limitations are likely to remain for some time. For example, it is likely that library and archive spaces will have capacity for far fewer users when onsite services resume.
Remote access to works, for example through digitisation of library holdings, is inhibited by the UK’s copyright laws. This reality makes it exceptionally challenging, at times impossible, for library and archive services to provide adequate access to in-copyright materials in the current climate. Even access to electronic works, such as ebooks, is often inhibited, for example in cases where licensing terms only permit access on library premises or when ebooks are not even available for libraries to license.
Together with several other organisations, LACA highlighted these access concerns to Government at the start of the lockdown in March.
Remote access and the exceptions to copyright
There are ways in which in-copyright works can be made remotely accessible, for example to support teaching and learning.
Certain ‘exceptions to copyright’ – defences in law that allow the use of copyright works without the copyright holder’s permission – can help to enable remote access to in-copyright works.
These exceptions include:
- Copying and use of extracts of works by educational establishments
- Illustration for instruction
- Criticism and review
- Research and private study
- Copying for users by librarians from published and unpublished works
There are further exceptions that improve access to in-copyright works on-site at libraries, archives, and educational establishments. However, these are of little assistance while premises are closed or under strict access controls. An exception that enables the making available of collection materials via dedicated onsite terminals (for example, when the original may be fragile or stored in another location) and an exception that allows the showing of in-copyright works (such as films) ‘at’ an educational establishment are in general beneficial to organisations and information users, but are of little help when premises are closed.
Teaching and education
Responding to LACA et al’s March letter, the Minister for Science, Research and Innovation clarified the Government’s understanding of how certain ‘exceptions to copyright’ may apply. In relation to the exception for ‘illustration for instruction’, the Minister wrote (emphasis added):
Many materials used in presentations by teachers, including those which are streamed remotely to students, are likely to fall within this provision.Amanda Solloway MP, Minister for Science, Research and Innovation, 23 April 2020
This understanding can be useful for educators who find themselves unable to make use of the separate exception that, in times of onsite teaching, allows the showing of in-copyright works at educational premises.
Interpretation and consideration of context
Many exceptions intentionally provide scope for interpretation, based largely on the context of the intended reproduction and use of the material. It’s vital to consider these, keeping the current situation at the forefront of your assessment. For example:
- The quotation exception requires that the ‘extent of the quotation is no more than is required by the specific purpose for which it is used’. The exception is not limited to necessarily using only part of a work. It could be that re-use of the whole of certain works may be necessary to achieve the purposes of quotation in a manner that complies with the principles of ‘fair dealing’.
- The illustration for instruction exception simply requires that, to be valid, re-use must be for a non-commercial purpose, by a person giving or receiving instruction, and accompanied by a sufficient acknowledgement (unless this would be impossible).
Libraries, archives, and educational and research establishments need to consider risks that may arise through their activities with in-copyright works, particularly as institutions work to increase remote and flexible access to collections while premises are closed or restricted. For example, a higher education library may need to provide guidance on making films or other works available to students who are now attending classes remotely.
Exceptions to copyright are defences for the use of in-copyright material without the permission of the copyright owner(s), which means their application necessarily involves interpretation, which must be specific to the particular situation, and possibly a degree of risk-taking as a result.
Any risks taken in relation to copyright should always be:
- calculated and assessed using your organisation’s own risk assessment procedures; and
- made at an effective organisational or policy-making level suitable to your institution, for example your management board or legal department.
Front line staff should be provided with the resources and guidelines to offer structured and robust support to users without being placed in the potentially damaging position of being forced to weigh risks on their own.
A need for change
There is a need for a radical rethink of the relationship between copyright, education and research, and access to works held in library, archive, and education collections. Greater consideration needs to be given, perhaps now so more than ever before, to the optimum balance of interest between creators, rights owners, and users, and the benefits to society of a well educated, entrepreneurial and innovative population with equal access to education and resources, even when library, archive and education premises are closed.
The current closure of premises and the challenges in making copyright-protected works available highlights deficiencies in the UK’s current copyright framework – increased provision for onsite access to works has not been mirrored by robust provisions for remote access, which will be increasingly essential in a post-Covid-19 world. This will not be the last pandemic, nor the last time that access to collections, premises, or services will be limited or suspended.
Seeking and reviewing copyright guidance from a range of sources can help to inform institutional nous around rights and access to works. In particular, Copyright Literacy are running weekly webinars on copyright and online learning during the Covid-19 pandemic.