DRM Impact on Lecturers, Students, and Researchers

(Photo credits: Thomas Favre-Bulle)

The CDPA 1988 provides instructions and students with a number of defences to copy films, sound records, and broadcasts for the purpose of making a film or a film soundtrack for the purpose of instruction. (Section 32 and 396Z).

According to Akester, around the UK universities, film lecturers use clips taken from films for a number of subject such as film analysis and film history for lectures and seminars. However, as most films are now sold on DVDs, no clips can be extracted from these movies without circumventing DRM. In her report, Akester found that many lectures use anti-circumvention programs to make the necessary clips, and those who don’t use their own personal collection of copied of terrestrial television broadcast or VHS and believe that their inability to use DVDs greatly limits their teaching practice.

A great number of film students indicated in Akester’s report that they are being affected by DRM, but they also said that in most situations non-digital versions of the works they are looking for can be found, but using then would be slow and does not contribute in helping the film industry in anyway. A great number of respondents admitted that they do circumvent DRM protection in order to use the protected work in the course of their education. Responses included states about not hesitating to break DRM, the fact that it will always be possible for people to copy DVD in spite of the legal protection, and that some would “continue to use DVD where appropriate and […] will continue to do so, even if illegally”.


DRM Impact on Permitted Uses – The Visually Impaired

The visually impaired are provided in the CDPA 1988 with a number of defeces against copyright infringement for the purpose of making “accessible copies” of copyright works.

Particia Akester examined how DRM affects the rights of blind people for accessing these works.

The paper explains that the computer is information access tool of choice for many persons who are blind as they can use text-to-speech synthesizers to read aloud textual content on the computer screen. Similar screen readers also allow the use of “dynamic brail displays” tot further allow another level of accessibility. It is not always possible to resort to non-digital versions of accessible works because of their size. (Brail editions of a book like Harry Potter could be made up of ten large volumes of text).

Most screen readers are external programs installed independetly of eBook reading programs. The paper says that most eBook reading programs try to restrict the access of third party programs to the text to prevent copying and consequently block screen readers as they are considered as a security threat. Most popular computer eBook readers (made by Adobe and Microsoft) have built-in screen reading functionalities – This means the capability to read the screen will not be blocked as a security threat because it is built in the software itself, but it also allows content providers to enable or disable the reading functionality for specific eBooks. Some of these DRM technologies associate TTS features with security, so that in the case of Microsoft DRM technology, if the highest level of security is selected (which is the mostly commonly used option) the TTS features will be disabled. For Adobe’s DRM technology, TSS is not linked with security, but many publishers still sometimes disable the feature “because they are not certain they have the rights to turn it on”.

The Royal National Institute of the Blind, one of the largest organisations serving hte need of hte blind and partially sighted people in the UK, stated that it does NOT receive many complaints from blind people about DRM restricting their access to content. One of the reasons predicted by the RNIB is that “the visually impaired may know, by now, that buying e-books may lead to very frustrating results”. However, RNIB said that in none of its reported cases were the complainants ever able to get a clean copy of an originally DRMed file, even though some complainants did get a refund. In some of the case studies discussed in the paper, the only option available to a visualy impaired to acquire an accessible copy of a work was by obtaining an illegal copy.


Sony v Ball [2004] – Case Example of DRM Provisions

Sony v Ball (PS2 DRM)(Photo credits: yum9me)

The case of Sony v Ball [2004] involved a number of defendants involved with the design, manufacture, sale, and installation of an mod chip called Messiah2 – which was used to circumvent to the DRM attached to PS2 disks to allow playing games from other regions, game backups, 3rd party games made by unlicensed developers, and pirated games.

The court held this to be no offense under Section 296(1)(a) of the CDPA(2) could be established at the summary stage of the proceedings. This section grants the owner the right to issue copies to the public the same rights against a person who deals with anti-circumvention devices knowing that it will be used to make infringing copies. The court said that the defendant knew that it MIGHT be used to infringe copyright, but he did not know that for a fact, and without further inspection into specific cases in which pirated games were loaded into the system, the offense cannot be be established.

However, an offense was established under Section 296(2)(b) for publishing information relating to enable or assist persons to circumvent the copy-protection system. The defendant in this case published information relating to the installation of the chips on internet websites.

The defendant argued that for the offense to be established, the anti-circumvention must be the “sole intended purpose” and that is not the case because the chip could be used to play backups and imported games. The court said that both of these actions must be legitimate uses for the defence to succeed and that was not the case as Sony did not authorize any of these. For imported games, the license was clearly for a specific region, and for the backup defence, the court said that the defence is only for ‘necessary’ backup and it is not ‘necessary’ to backup CDs as they are robust and cannot be wiped clean – unlike programs distributed on floppy disks or other unreliable formats.

The court also held that an offense was made under Section 296ZA for actually anti-circumventing DRM which the defendant has done when he installed the chip for customers.  Another offense was made under 296ZD for dealing in the course of a business with circumvention devices or services. The court said that 296ZD is a tort of strict liability and knowledge was irrelevant.

(Note: Actions under 296 are only for circumventing the DRM relating to computer programs, while 296ZA-ZE relate to all other works. Videos games computer programs and other works, so both categories of offenses apply).

Link to case.


Computer Programs Copyright Exceptions

Computer Programs Copyright Exceptions (Photo credits: Bombardier)

The CDPA 1988 in the UK provides a number of copyright exceptions related to the use of computer programs. These exceptions allow a person to copy whole or part of computer programs without infringing copyright. All these exceptions other than the adaptation exception cannot be limited or excluded by contract.

Section 50A(1) permits a “lawful user” to copying a computer program to make a single backup copy of it which is necessary for them to have for the purpose of their lawful use. Bently says that this defence provides a form of insurance for end users in case the computer program fails or gets damaged. Case law suggests that this exception will only be accepted when the backup is ‘necessary’. In the case of Sony Computer Entertainment Inc v Owen, the court held that creating a backup copy is not necessary when a person buys a game on a disk.

Section 50B permits a lawful user of a copy of a computer program expressed in a low level language to decompile it into a higher level language OR to incidentally copy it in the course of converting the program, subject to the following conditions:

  • The decompilation is necessary to obtain information necessary to create an independent program which can be operated with the program decompiled, or with another program.
  • The information obtained is not used for any other purpose.

Bently says that this defence is necessary to be ensuring compatibility between software would require decompilation, and the process of decompilation would require at some stage intermediary copying of a program (and that would prima facie by an infringement without this defence).

Section 50BA permits a lawful user to observe, study, or test the functionality of a computer program without infringing copyright by carrying out an act of loading, displaying, running, etc, the program for the purpose of determining the ideas or principles which underlie any element of the program.

Section 50C(1) permits a lawful user of a computer program to copy or adapt that computer program if that is “necessary for the lawful use” of the program. This exception only applies in the absence of contractual terms to the contrary. Bently says that it is meant to allow end users to fix program errors without infringing copyright.

In addition to computer program exception, the CDPA 1988 has an exception in Section 56 that allows purchasers of works in electronic form to make further copies or adaptations o the work.

A final exception related to computer programs is the one for temporary technology-dictated copies. Under this exception an action would be barred from copyright infringement if it merely creates a temporary copy that is integral to the technology process and is made to enable either (a) the transmission between a 3rd party and an intermediary or (b) lawful use of the work, on the condition that this temporary copy has no economic significance.


Libraries and Archives Copyright Exceptions

Libraries and Archives Copyright Exceptions(Photo credits: Here’s Kate)

The CDPA 1988 includes a number of defences for libraries and archives. The demands made for public libraries for copying documents in their possession will not usually be covered by the fair dealing provisions and may not protect the librarian. Other defences are available for the preservation of cultural documents that require disposition in appropriate archives.

All the relevant defences under this heading apply only to prescribed non-profit libraries.

  1. Sections 38 and 39 permit libraries to copy literary, dramatic, musical, or artistic works upon the request of individuals for their research or private study. Section 38 regulates the request for copying articles from a periodical, while Section 39 regulates the request for copying whole or part of a published edition.
  2. Section 40A permits libraries to lend works to the public without infringing copyright as long as the book is eligible within the public lending right scheme. Section 40A(2) permits libraries to lend works to another non-profit library without infringing copyright (regardless of public licensing scheme).
  3. Section 41 permits libraries to make a copy of a periodical article, or whole or part of a published edition of a literary, musical, dramatic, or artistic work in order to supply another prescribed library.
  4. Section 42 permits libraries to make copies to preserve or replace material in libraries main collection. (Provided that purchase of a replacement is not reasonably practical).
  5. Section 43 permits libraries and archives to copy certain unpublished works. (In many cases unpublished works of historical or literary interest have been deposited with libraries or other institutions, and it may be in the general public interest that they should eventually be published – {Copinger})
  6. Section 44 permits a designated body to copy an article of cultural or historical importance in situations where deposit of such work as a condition for export.

Public Administration Copyright Exception

Public Administration Copyright Exceptions(Photo credits: vgm8383)

The CDPA 1988 contains the following copyright exceptions to facilitate a number of activities which might be carried in relation to copyright works by the public authority in normal course of public administrative:

  • Section 45 deems anything done for the purpose of parliamentary or judicial proceedings not to be an infringement of copyright. The reporting of such proceedings is also deemed not to be an infringement of copyright.
  • Section 46 deems anything done in pursuance of a Royal Commission or a statutory inquiry not to be an infringement of copyright. The reporting of such inquiry is also deemed not to an infringement of copyright.
  • Section 47 establishes a number of defences to enable copying material open to public inspection or are on a public register such as a patent register.
  • Section 48 deems anything communicated to the Crown in the course of public proceedings not to be an infringement of copyright.
  • Section 49 deems copying works found in public records not to an infringement of copyright.
  • Section 50 deems any act authorised by an act of parliament not to be an infringement of copyright.

Copyright Exceptions for the Visually or Aurally Impaired

Copyright Exceptions for the Visually Impaired
The CDPA 1988 provides a number of exceptions against copyright infringement in the UK to facilitate the availability of accessible works to persons who are visually or aurally impaired.

Section 31A allows a visually impaired person to make an accessible copy of a literary, dramatic, musical, or artistic work or a published edition.

An ‘accessible copy’ is a copy that gives the visually impaired person an improved access to the work. For example, a digital copy that could be read on a computer using screen reading technology.

A visually impaired person is widely defined in the CDPA to include persons who are physically disabled and cannot flip the pages of a book.

This exception does not apply if there are accessible copies which are commercially available.

Section 31B enables an educational establishment, or a not for profit body, to make and supply accessible copies of literary, dramatic, musical, or artistic work or published editions for visually impaired persons. Again, this exception does not apply if there accessible copies are commercially available.

In relation to those with hearing problems, Section 74 allows a designated body to copies of broadcast to provide subtitled or modified copies of it to people who are deaf or hard of hearing, or physically or mentally handicapped in another way. The designated body can also issue and lend these copies without infringing copyright.


Educational Exceptions for Copyright Infringement

Education Exceptions to Copyright(Photo credits: Thomas Favre-Bulle)

There are a number of exceptions for copyright in the UK under the CDPA 1988, these defences vary in scope and have different requirements.

  • Copying for the purpose of instruction and examination

Section 32(1) provides a defence against copyright infringement for copying literary, dramatic, musical, or artistic works, carried out for educational purposes if it was carried in the course of, or in preparation for, instruction. There are four conditions for this defence to stand:

  1. Copying must be done by a person either giving or receiving the instruction.
  2. The instruction must be for a non-commercial purpose.
  3. Copying must not be done by means of a reprographic process.
  4. Copying must be accompanied by sufficient acknowledgment.

This defence can be used for published or unpublished works.

Section 32A has a similar defence which can be used for non-commercial or commercial purposes, as long as the following conditions are satisfied:

  1. The work copied is already available to the public.
  2. Copying must be done by a person either giving or receiving the instruction.
  3. The copying is fair dealing.
  4. Copying must not be done by means of a reprographic process.
  5. Copying must be accompanied by sufficient acknowledgment.

Both of these defences have a very limited effect due to the requirement for the copying to be made through non-reprographic means (Bently). The definition of ‘reprographic’ is found in CDPA Section 30 (1A) and it includes digital copying. The exception is meant to primarily allow handwritten copying to be done and not much else.

Section 32(2) provides a defence for film-making instruction by allowing copying sound recording, film, broadcast when making a film or a film soundtrack in the course of, or in preparation, for instruction in the field of making film or film sound tracks.

There are three conditions for this defence to stand:

  1. The copying must be carried out by a person either giving o receiving the instruction.
  2. Copying is accompanied by sufficient acknowledgment.
  3. The instruction is carried out for a non-commercial purpose.

Finally, Section 32(3) provides a defence for examinations, in that anything done by way of setting the questions, communicating the questions to the candidates or answering the questions, will not infringe copyright.

  • Copying for Creating Anthologies And Collections

Section 33 provides a defence for copying short passages from published literary or dramatic works if included in a collection that is intended for use in an educational establishment.

There are three conditions for this defence to stand:

  1. The collection consists mainly of material in which no copyright subsists.
  2. The inclusion is accompanied by sufficient acknowledgment.
  3. The inclusion does not involve more than 2 excerpts from copyright works of the same author in collections published by the same publisher over any period of five years.

There is no clear definition of what short is, but if it was insubstantial then it won’t be considered as an infringement for a defence to be even necessary (Bainbridge). The requirement for cap on the number of excerpts and the period of publication is also a very restrictive requirement (Bently).

  • Performing, Playing, or Showing Works in an Educational Institute

Section 34(1) provides a defence for performing, playing, or showing literary, dramatic, or musical works by deeming the act not a public performance as long as it satisfies the following conditions:

  1. The performance is made before an audience of teachers and students at an educational institute.
  2. The performance is carried out by a teacher, pupil, or any other person for the purpose of instruction.

This means that performance by anyone before students in a drama class would benefit from the defence, but not before an audience of parents as parents are not connected to the activities of an educational establishment.

Section 34(2) provides a defence for displaying a film before students for the purpose of instruction. This defence cannot be used though by film student societies as the display would be made for fun and not education (Bently).

  • Recording of Broadcasts by an Educational Institute

Section 35 provides a defence against copyright infringement for educational establishments to make a recording of a broadcast, or copy such a recording, for educational purposes of that establishment as long as the following conditions are satisfied:

  • There is no appropriate licensing scheme.
  • Copying is accompanied by sufficient acknowledgment.
  • The educational purposes are are non-commercial.

Bently states that this defence is of no significant effect as most educational establishments  have entered into a number of relevant certified licensing schemes.

  • Reprographic Copying

Section 36 provides a defence against copyright infringement for the reprographic copying of literary, dramatic, or musical works by educational institutes as long as the following conditions are satisfied:

  • Copying does not exceed 1% of the work per quarter of year.
  • Copying is made for non-commercial instruction purposes.
  • Sufficient acknowledgment is made as long as it is not practically impossible.
  • There are no licensing schemes available.

Bently states that this defence has a limited effect due to the existence of licensing agreements. Bainbridge finds the defence pointless as he doesn’t consider copying less than 1% to be a substantial part of the work and therefore that action would not be considered as copyright infringement anyway. Bainbridge cites Hawkes & Son (London) Ltd v Paramount Film Services Ltd [1934] as a case indicating the difference between a substantial and insubstantial part of a copyright work.

  • Lending of Copies

Section 36A provides a defence allowing educational institutes to lend copies of copyright works.


Incidental Inclusion of Copyright Works

Incidental Inclusion
Section 31(1) of CPDA in the UK provides an exception for copyright infringement when a copyright work is incidentally included in the work of another. This exception is necessary for photographers, film makers, painters, and the like, when creating works that would incidentally show other copyright works. Without this exception it would be very difficult to, for example, prepare a film as it would necessary to avoid the chance for the inclusion of copyright works.

The meaning of “incidental” was explored in a number of cases such as IPC Magazine Ltd v MGN Ltd [1998] where a commercial for a new tabloid attachment showed a cover of another magazine. The court said that “incidental” means “casual, inessential, subordinate, or merely background”, which was not the case here, leading the inclusion not to be considered incidental and therefore infringing.

The court also held that the term “incidental” does not include the situation where the work is integral to the work. In the case of Football Association Premier League Ltd v Panini UK [2004] the defendant distributed cards with images of football players showing their club strips and badges of their football clubs. The court in this case rejected the defence of incidental inclusion stating that it was artificial to test the “incidentality” of the inclusion by artistic consideration where the purpose of the inclusion was commercial as the cards would not have been of the same commercial value had the players not been pictured in their club strips.

For the music and spoken or sung words, the inclusion will not be incidental it was deliberate. However, the same requirement for the inclusion not to be deliberate does not exist for other works.

This exception has a small scope, but is necessary in order to allow others to create without fear of copyright infringement of all works around us.


Fair Dealing Exceptions in UK Copyright Law

Fair Dealing - UK - Copyright Law(Photo credits: PunkJr)

Fair dealing is one of the permitted uses in UK Copyright Law that allow a person to carry out certain acts that would have otherwise been considered as an infringement if it wasn’t for the exceptions of fair dealing. The fair dealing exceptions are found in Sections 29 and 30 of the CDPA 1998.

In the UK, there are three fair dealing exceptions provided by the CDPA:

  1. Fair dealing for the purpose of research or private study. (Section 29(1))
  2. Fair dealing for the purpose of criticism or review. (Section 30(1))
  3. Fair dealing for the purpose of reporting current events. (Section 30(2))

It must be noted that the fair dealing exceptions in the UK are very specific exceptions that relate only to the fair use of copyright works ONLY for the specific purposes explicitly mentioned in the CDPA. Unlike the US, where the fair use exception is general exception which the court can hold as a defence for the use of the copyright for ANY purpose as long as the use is fair. The same concept does not exist in UK law as fair dealing only applies to the specific purposes mentioned (Bently). There are obviously other exceptions for other purposes that do not involve the fair dealing concept. These will be discussed in future posts.

The purposes mentioned earlier can operate as a defence for copyright infringement only in circumstances where the copying was fair. The court has established that this is a question of degree and impression. A number of factors may be taken into consideration depending on the facts of the case and the work in question. Such factors include whether or not the work is published or unpublished, how the work was obtained, the amount copied, the use made of the work, the movies for this copying, the consequences to the copying, whether or not the same purpose could be achieved through other methods, and whether or not the original author was acknowledged.

In the case of Hubbard v Vospar [1972] 2 QB 84, Lord Denning said:

“It is impossible to define what is fair dealing. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright. The tribunal of fact must decide.”

There are also additional requirements for each purpose. For fair dealing for the purpose of research or private study, the purpose must be non-commercial research or private study.  The term ‘private study’ is defined in Section 178 and it doesn’t include studying that involves a direct or indirect commercial purpose. The defence only applies when the work in question is literary, dramatic, musical, or artistic. It also applies to typographical formats of published works. The exception does not apply to broadcasts, sound recordings or film. The defence will also only apply where there is sufficient acknowledgment.

Fair dealing for the purpose of criticism or review can only be used as a successful exception is the copying was made in relation to a work that is published in the sense that it was previously made available to the public. The section of the work copied must be directly relevant to the review. The case of Time Warner Entertainment Ltd v Channel 4 Television Corporation Plc illustrated that this test is not very onerous. The case involved the use of extracts from a film amounting to 12 minutes or 8% of the film in a 30 minute show. The court held that there is no required format for the program to be held as one relating to a review, that it can extent to ideas in the work, and its social and moral consequences. (Another case is Pro Sieban Media A.G. v Carlton U.K. Television Ltd).

The defence recognizes the value of criticism in society and acknowledges the fact that a person needs to copy some of the work to critique it. This defence also prevents authors from using copyright to control the reviews of their work and what parts of the work may or may not be used in the review. (Bently)

The final fair dealing defence is fair dealing for the purpose of reporting current events. This defence can be used with any work,  except photographs, as long as sufficient acknowledgment is made. No acknowledgment is required for sound recording, film, or broadcast when this would be impossible or impractical. In the case of Newspaper Licensing Agency Ltd v Marks & Spencer plc (1999), Lightman J stated that the this defence aims to achieve a balance between the protection of the rights of authors and the wider public interest which includes free speech, he consequently took the view that reporting of current events was a wide exception of indefinite scope that should be interpreted liberally (Murdie, Intellectual Property Law, page 67). {However, in this actual case, the redistribution of photocopied snippets of newspapers went beyond the exception}.