Growing Resource of Copyright Articles – Clare’s articles published by Jinfo (information services specialists). These are subscription articles: contact Clare directly for details.
I’m hastening to let you all know about our news, which has gone out in a Press Release today.
I’m delighted and privileged to say that, from the beginning of April, the Attwooll Associates digital licensing agency is transferring across to become part of my own company.
I had worked with David Attwooll for 22 years, so this is a big moment for me and my colleague Mary Hammond. There is certainly sadness following the loss of David after an illness last year, but also optimism as we look forwards to the future of the agency he founded.
You can download the Press Release below.
This post was first published in Clare Painter’s digital rights newsletter on 7 February 2017
Problematic “Most Favoured Nation” clauses are far from unique to Amazon – and often contradictory
It might sound obscure to focus on a single clause in a digital licensing agreement, but this particular one is of huge importance to publishers and authors alike.
‘”Most Favoured Nation” (MFN) clauses have been with us for many years. It’s by no means only Amazon who has been known to put them in their publisher contracts, although it was Amazon who hit the headlines in January after an investigation by the European Commission concluded that their ebook contracts “may” have violated anti-trust rules in the EU and abused its strong position in the ebook market – by putting these clauses in their agreements with publishers.
In reality, ebook vendors have been using MFN clauses for years, not only in consumer channels but for institutional sales as well. In our role as digital licensing agents, David Attwooll and I found that MFN clauses became a frequent and repetitive theme of our contract negotiations with ebook vendors of many hues. And it still continues.
MFN clauses are not all born equal: they can vary a great deal. Broadly, these are clauses which require the publisher to offer the vendor the very best terms they have available anywhere.
But it isn’t as straightforward as it sounds. Offering consumers the lowest possible price is by no means the only measure you might find in such clauses.
Some talk about discount terms, or attempt to compare widely disparate business models. MFN clauses might oblige publishers to reveal innovations introduced by competitors (thus breaching confidentiality clauses?!), even if innovations occur long after signature of the contract.
Publishers who attempt to follow all this can find themselves tied in knots, trying to compare online apples and digital pears. It’s long been clear that a legal challenge was a distinct possibility, either in the EU or elsewhere.
Amazon has offered not to enforce MFN clauses, but this is limited in scope: it’s only for 5 years and, since this originates with the European Commission, it’s unclear whether British publishers will continue to benefit after leaving the EU. Nevertheless I’m pleased things are beginning to move. These difficult clauses can be both burdensome and impractical.
Copyright Issues for Case Studies – Clare’s new article has been published in The Case Centre’s newsletter, Connect (New Year 2017 issue)
This post was first published in Clare Painter’s digital rights newsletter on 26 September 2016
New Online Tool for EU Copyright Exceptions
Copyright exceptions are changing
There’s a great deal going on in the world of copyright reform, and I thought you might like to know about a handy new tool available online. It’s also free of charge.
There are currently multiple changes being implemented to the list of copyright exceptions in the countries of the European Union: exceptions are special provisions which allow you to use copyright material without needing formal permission from the rights holder, in specific circumstances.
It can be confusing when, inevitably, some countries legislate more swiftly than others, so to assist with this problem a new website has been set up. This shows you details of all the new exceptions, and the status of each one in every EU country: CopyrightExceptions.EU
Personally I find the map view particularly useful for an ‘at a glance’ view of particular exceptions across different countries. You will see there’s still some way to go in new legislation!
This post was first published in Clare Painter’s digital rights newsletter on 11 May 2016
When Can Use Be ‘Fair’?
|Copyright rules vary across the world
Whenever you draw on someone else’s content, you need to know whether you’re likely to be breaching copyright or not. In the US, for example, ‘fair use’ was set up partly so as to allow certain reasonable uses without the (perhaps, perceived?) barrier of needing to seek permission.
But it doesn’t apply everywhere, and knowing when and how you can rely on it, can be quite nuanced.
New digital models sometimes push at the edges of what’s acceptable, and we saw this in action a week or so ago with the judgement of in favour of Google’s mass digitisation project.
However, ‘fair use’ as such only exists in a handful of countries. Most have their own legal variations, and these can vary widely. In the UK for example we have ‘fair dealing’: although it sounds similar, it is very different and a much weaker provision.
So, what does this mean in your own publishing?
It’s wise to handle copyright exceptions and exemptions very carefully, and understand that some small level of risk may still be present when you rely on ‘fair dealing’ or equivalent legislation – unless you actually get the opportunity to prove your case in court. That’s not a business model I’d recommend!
This post was first published in Clare Painter’s digital rights newsletter on 19 January 2016
The Risk of Getting it Wrong
|Rights and permissions don’t always go smoothly
Licences and permissions are undoubtedly more complex than they used to be. Most publishing is online (or print and online together) and therefore global.
That affects the licences you need to have in place, whether you’re authorising publication of your own material, or acquiring a licence to use or re-use someone else’s content.
However you might think that established book publishers would be on safe ground with printed books.
Perhaps not. Bill Bryson’s publisher, Transworld, recently hit the publishing industry press for what appeared to be copyright infringement on a book cover.
As part of the cover design, they had used a particular ‘jolly fisherman’ figure which was used quite widely in connection with the town of Skegness, which features in the book.
Only after publication did it emerge that the figure is still under copyright, and owned by the local town council. Apologies followed and, I believe, a retrospective licence was put in place.
It doesn’t always remain so amicable. In 2014, Flickr (which is owned by Yahoo) found themselves in a storm of controversy when they announced plans to sell photos from their site for a variety of uses.
These images had been uploaded to the site by individual users under the broad Creative Commons “CC-BY” licence. This allows wide reuse without payment, as long as the source is acknowledged.
But it turned out that some of those users thought that, under this licence, their photos would only be used by small-scale publications and businesses. They didn’t like the thought that an internet giant such as Yahoo could sell their content and potentially pocket the profits.
This post was first published in Clare Painter’s digital rights newsletter on 29 September 2015
|Copyright is stretching out to affect more of us than ever before
There’s certainly change in the air as far as digital rights go. Here are just a few examples that have caught my eye lately. Perhaps they’re not as diverse as they seem.
Chinese publishing visits Oxford
There’s an increase in the number and frequency of Chinese publishing groups coming over to the UK to find out about publishing, and particularly about licensing.
They seem especially drawn to Oxford, which is understandable. I always enjoy using Oxford colleges as a training venue!
In a completely different field, it’s becoming clear that sometimes individual users don’t always fully understand the open licences they are using online.
There have been a couple of cases (perhaps more) where a user uploaded their own photograph using a Creative Commons licence, but were dismayed when they found that their image had been used for commercial use without their knowledge.
There are several types of Creative Commons licence, and the users in these cases could have chosen to use a more restrictive one which specifically excluded commercial use. But they didn’t. Perhaps it never crossed their mind that online content might be picked up by any organisation, for whatever purpose they like.
Does this mean you should avoid using CC material uploaded online by a private individual? Probably not. After all, a recent US case found that the publisher had not infringed copyright.
The difficulty perhaps arises when the individual assumes that their ‘open’ image will only be used privately or for social purposes, not as part of a product in pursuit of profit.
A third, and very different, field is that of online courses.
Some online courses are open to any online user, just requiring registration with an email address, while others are only available on payment and are firmly protected behind a paywall. Either way, copyright issues need to be carefully considered for the materials used.
And it isn’t only the universities and business schools which need to think about this. Membership organisations have to ask themselves similar questions, and so does any large organisation which is offering online training modules to members or to staff. And all this applies whether you are charging for the course or not.
So, what do these apparently unconnected examples have in common?
I’d say they are all part of the way that copyright, and the need for compliance, is becoming part of everyday life for a much wider range of people. It’s not only authors, publishers, photographers etc. but also organisations, trainers and online creators of many kinds.
It’s more important than ever to make sure that the licences you rely on are robust, and that people right across your organisation know where to turn for guidance when they need it.
Take a look at Clare’s blog post for information services specialist Jinfo: Copyright Risk – Why It Matters and What To Look Out For