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.

Network Operators in Oman Oppose Sim Locking

Oman Sim Lock

In May 2009, the TRA issued a issued a public consultation on the regulatory position on mobile sim locking. The current position in Oman is that sim locking practices are not allowed. The TRA issued a paper asking the public’s opinion on the matter. The TRA’s initial opinion seems to support allowing sim locking as that could improve the mobile market. It feared that this might lock customers into specific networks, but suggests that the solution could avoided through the following:

  1. Creating an obligation on operators to continue to provide connection packages without handsets for those who do not want a bundled connection.
  2. Creating an obligation on operators to inform customers of the contract details.
  3. Create a maximum cap on the lock period that does not exceed one year.
  4. Create an obligation on operators to provide early termination terms.

Surprisingly, all operators who responded to this consultation paper opposed allowing sim locking.

Renna, Oman’s first MVNO, opposes the practice of sim locking because (1) they believe that handsets locks could be easily broken and (2) that smaller players (like Renna) won’t be able to match the prices offered by bigger companies through subsidy.

Nawras opposes sim locking on the grounds that it shift the focus from competing on service price and quality into a competition on handsets. Nawars claims that handset subsidies are usually used in immature markets as a “catalyst to improve the uptake” of mobile services (which is obviously not true because it is the normal practice in mature markets like USA and UK), that it will increase customer acquisition cost, it will make the market less transparent, and that customer choice will “ultimately be restricted by virtue of” the contract commitment period.

Oman Mobile also opposes sim locking, though not as absolutely as Renna and Nawras saying that “Sim Locking implementation in Oman at this stage will not necessarily achieve the main objective of ensuring” customers choice. Oman Mobile is of the opinion that this might delay the introduction of new handsets as that will be in the hands of operators instead of consumers.

On the other hand, all non-corporate respondents seems, including the Oman Association for Consumer Protection, seem to support the initiative and think that it will be in the interest of consumers.

I personally think that introducing sim locking would be in the benefit of consumers. Currently, mobile handsets are very expensive in Oman and the iPhone has not been released in Oman, probably because no mobile operators from Oman approached Apple.

Whether or not the sim lock could be broken is not buy itself a huge problem, the benefit of the lock to the operator is usually in ‘locking the customer’ into the network for the contract period, whether or not the phone gets unlocked the customer will still be under an obligation to pay up his monthly charge. Fear of defaulting customers could be minimized by introducing qualification requirements in a way comparable to the way a bank loan is granted – (even Oman Mobile made that comparison in its response). This could be further minimized by requiring a deposit from new customers that is claimed back within six months.

There is no doubt that the introduction of sim locking will not be in the interest of smaller players like Renna as they will not be able to easily compete against bigger player like Oman Mobile as they will subsidize the prices through mass purchases, but it can also be using as a great marketing technique by acquiring exclusive mobile phone deals (e.g, the iPhone on AT&T).

There is a risk that the market can become way too dependent on phone subsidies in the sense that mobile phone manufacturers could eventually find it hard to sell mobile phones if no network operators wishes to sell that phone, but that can only act as a market force that pushes manufactures to make phones good enough for operators to pick, instead of saturating the market with crappy devices.

You can read all the responses here.

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}.

Copyright Exceptions in Oman

Official Gazette

The exceptions to copyright vary from one country to another. In Oman, the permitted uses of copyright works are expressed in Chapter 5 of Royal Decree 65/2008.

First of all, unlike the USA, and more like the UK, there is no general exception of fair use in Oman. The list of copyright exceptions is an exhaustive list found in Article 20 of the Decree.

All of the exceptions of copyright in Oman require acknowledging the author and that the use does not impact on the normal use of the works or unreasonably harms the interests of the author.

There are seven exception in Article 20:

  1. Copying segments of a work available to the public for purposes of review, illustration, or criticism.
  2. Using the work in the family domain or for students inside an educational institute for purposes of education. The use must not be directly or indirectly paid-for.
  3. Creating a single copy of the work for archiving purposes by the designated authorities, OR by educational institutes as long as (a) copying is made for a published article or a short work for fulfilling the needs of an individual researcher, OR (b) copying is made for the purpose of protecting the original copy of the work or replacing a defective copy.
  4. Copying or broadcasting segments from articles published in daily newspapers or periodical about current events as long as original publisher has no exclusive right over the time of publishing, and the copying was made by the press.
  5. Copyright program related exceptions: (1) copying for the necessary operation of the program, (2) creating a single backup copy in case the original is damaged or lost, (3) creating a copy for the purposes of porting the program to another system or language as long as the ported copy is used by the owner of the original copy.
  6. The public performance of a dramatic or musical work in religious events or face to face teaching inside educational institutes. (Both cases must no be made for direct or indirect gain).
  7. Creating a temporary copying by broadcasting agencies for use in their programs as long as they have the right to broadcast and as long as the temporary copy is destroyed after a period of 6 months.

The exceptions in Omani law are very badly drafted and are not very clear. The 4th exception on reporting of current events does not make sense because it indicates that you can only copy as long as the person you are copying from has no right to publish. The exception is also only available for ‘the press’, which is not defined, but is very unlikely to extent to bloggers or those who contribute on online discussion boards. The exceptions also do not talk about copying photographs or videos for the purposes of reporting current events and only talks about ‘segments of articles’ – which in Arabic means ‘text’ and does not necessarily include non-textual content.

Copyright Exceptions

Copyright Exceptions

Just the same way the grant of copyright is justified as a form of reward, incentive, and a natural right of those who create original works. The public has the right for a number of different copyright exceptions which allow a person to copy protected works without acquiring the owner of the copyright work without infringing copyright.

The scope and extent of these exceptions vary. Bently and Sherman state that this is a reflection of the variety of purposes which these exceptions serve.

Some exceptions to copyright are meant to promote and encourage the creation of new original works, especially where copying is not identical and is transformative.

Other exceptions are established to solve possible market failures that could arise in situations where the use is too nominal leading the cost of any transaction to establish an agreement between the copyright owner and the person wishing to use the work uneconomical. This can be seen in the exceptions related to subtitling (s74 CDPA) and recording of broadcast by educational institutions (s35 CDPA).

Copyright exceptions are also needed to protect other non-copyright public interests such as privacy (e.g. private study (s29)) and freedom of expression (e.g. criticism and review).

They are also used to prevent monopolies of intellectual works from being abused. (e.g. decompilation of computer programs s50B and retransmission of cable programs s73).

These exceptions are necessary for preserving material of cultural value (e.g. exceptions relating to folksongs s61 and archiving exceptions s75).

Finally, some exceptions encourages collecting licenses. (e.g. compulsory licensing of lending of works s66).

What is DRM?

(Photo credits: Darwin Bell)

DRM (Digital Rights Management) is wide term used to indetinfy a number of technologies used by copyright content owners to restrict the way their works are accessed and copied by consumers. This allows content owner to control how people can install a computer program, view an online video, or listen to digital audio file.

There are various forms of DRM, but all of them involve some sort of digital padlock that requires use of an authentical system to allow the end user to access the file.

Early devices that allowed consumers to copy analogue media led to a gradual degradation in quality and had to be physically transferred between consumers. However,  digitalization of media made it possible to create perfect copies with ease.  The increase of bandwidth and speed at which data can be transferred over the internet also contributed in making it very easy to exchange digital media between end users in violation of copyright. DRM was introduced to enforce copyright terms by using technology to restrict unauthorized access.

DRM can be used to simply prevent the actual act of copying, for example DVDs, or will prevent the playback of a digital file, even if copied, if the user attempting to play the file is not authorized to play it as the case is in most digitally downloaded media files.

The first widely used DRM system was the Content Scrambling System used to prevent the copying of DVD. The DVD consortium developed the technology and only authorized hardware manufacturers to use the technology as long as they do not include features that facilitate copying.

Other widely used DRM technologies include Apple’s FairPlay which is used to control the playback of videos and applications sold on the iTunes Store; the Adobe’s eBook Reader used to control the accessability of eBooks; and Microsoft’s Windows Media DRM for music, films, and books.

Most jurisdictions now grant a legal protection to DRM prohibiting its circumventions. This protection is meant to support the copyright legislation, but it is not about the protection of the copyright work, but the protection of the technologies that are used by copyright holder.

In the EU, DRM is protected by Article 6 of the Information Society Directive (Directive 2001/29/EC). Article 6(1) of the directive requires member states to provide adequate legal protection against the cirumvention of technological protection measures. It also requires providing adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services for the circumvention of these technical protecition measures.

The emphasis on actions that enable circumvention (e.g. manufacture and import) as opposed to actual circumvention suggests that the provisions are meant to be used against those in the business of enabling circumventions instead of actual consumers.

There are no general exceptions that allow circumventions by consumers to allow them to use permitted copyright exceptions, such as fair dealing, and instead the Directive introduces in Article 6(4) a system by which rightholders are encouraged to use voluntary measures to make available to beneficiaries of certain exceptions the means to benefit from that exceptions. In the case of failure by content providers to make available the means necessary for these exceptions, the member states should take appropriate measures to ensure that they do.

Article 6(4) is not available for all permitted copyright exception, it can only be used with specifically only for reporgraphic copying, copying by libraries, educational establishments or museums, ephemeral recording, broadcast by non-commercial social institutes, copying for illustration for teaching or scientific research, copying for disabled people, copying for public security, parliamentory or judicial proceeding.

In the UK the provisions for protecting DRM are in the Copyright, Design and Patent Act 1998.

Introduction to Copyright

(Image credits: PungoM)

Copyright is a right granted by the state for creators of original qualifying works to prevent others from carrying out certain activities in relation to these works. Copyright does not protect the idea behind created works, but the expression of that idea in the work.

In the United Kingdom Copyright is regulated by the Copyright, Designs and Patents Act 1988. In Oman, copyright is regulated by the Copyright Law 65/2008. The UK and Oman are both members of the Berne Convention, which grants requires members to grant copyright protection automatically upon the creation of the work without requiring the author to fulfill any formalities such as registration or deposit. Almost all countries in the world are members of the Berne Convention. Any work created in any of these members or by a national of any of these members will have his work protected in all other member states.

This means that ANY thing you create, like writing a blog post or taking a photograph using your mobile phone is protected by copyright. The period for copyright protection for most works extends for the life of the author plus 70 years after his death.

Copyright is NOT grant the author an absolute monopoly over the use of copyright work. It only regulates a number of activities related to the work, in the UK, these include copying (whether in whole or in substantial amount), issuing copies, performing in public, broadcasting, making adaptations (including translation), and renting out certain works such as computer programs, films, and sound recordings. Carrying out any of the activities cannot be legitimately done without acquiring the conset of the copyright owner. Though originally meant to be an exhaustive list of activities, as we consume today most of our media electornically, any use of digital works requires creating a copy of the work temporary or permenantly on the computer to process and consume that work. However, the law provides an exception for using digital media to allow users to copy works on their computer as long as they do it to be able to carry out the intended use of the copyright work.

A further limitation to the control of the author of his work is imposed through a number of limitations for permitted uses provided for in the law. In the UK these include fair dealing for purposes of research and private study; and fair dealing for the purposes of criticism, review, and news reporting (provided that sufficient acknowledgement of the work is made); incidental inclusion of the work in others; activities done for instruction or examination; the creation of anthologies for educational use; playing, showing or performing in an educational establishment; recording of broadcasts by educational establishments; reprographic copying that does not exceed 1% of the work; copying by libraries and archives for purposes of preservation;  copying for purposes of public administration (e.g. by courts); and a number of lawful uses of computer programs and databases.

The existence of copyright law is justified on a number of ethical and economic grounds. Many believe that ethically an author of any work has a natural right or a human right over the product of his labour. Economically, it is a believed that the grant of this protection operates an incentive which is capable of driving people to create more. It is also essential to have copyright to protect the investment made in the creation of works that couldn’t be funded if it wasn’t for the ability to have these works exclusively exhausted through the protection of copyright (competitors easily copy-market failure?). It is also believed that it is fair to reward authors for the effort they expended in creating a work and then giving it to the public.

The Economist Global Innovation Ranking: No Innovation from Oman

The Economist released a global innovation index sponsored by Cisco that ranks countries on the basis of the number of patents acquired by nationals of these countries at the US Patent and Trademark Office, European Patent Office, and the Japanese Patent Office.

All AGCC Countries, except Oman, made the list: Kuwait (Rank 37),  UAE (Rank 40), Saudi (Rank 42), Qatar (Rank 51),and Bahrain (60).

The list includes 82 countries and Oman is not on it. This means that no Omani individuals or companies acquired any patents at all from the US, the EU or Japan in the last three years.

This could be attributed to the general lack of innovation in the country due to education, professional training, or maybe even the work environment, it could also be caused by the lack of awareness of the patent system and the benefits of patent registration.

While nobody expects Oman to lead the list, it really sucks not to even be on it.

You can download the report PDF from this link. More info at the Economist.

[via IPKat]