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Report of the Joint Working Party on Copyright: Notice

15 October 2001

Copyright has major implications for staff and students in universities. In view of the increasing complexity of copyright issues in relation to the work of the University, and new legislation and the development of electronic technology, the Council and the General Board set up a Joint Working Party on Copyright, chaired by Professor W. R. Cornish, Herschel Smith Professor of Intellectual Property Law, in the Michaelmas Term 1998.

The Working Party reported to the central bodies in July 1999 and made a number of recommendations, including a proposal for the appointment of a Copyright Officer to support institutions and co-ordinate the development of policy in this area. They also recommended that their report should be published.

Mr Ted Krawec (tel. 66842, email ted.krawec@rsd.cam.ac.uk) has been appointed to the new post of Copyright Officer in the Research Services Division, and is responsible for providing advice on copyright issues associated with research and licensing agreements, and maintaining the University's licences with the national copyright licensing agencies.

A revised version of the Joint Working Party's report, taking account of developments since the Working Party reported, is published below. Members of the University will find this helpful as a general introduction to copyright and the law, and also for the way it highlights the more specific implications for academic work. Further guidance, in the form of copyright information published on the University's web-site, will be made available in due course.

Report of the Joint Working Party on Copyright

EXECUTIVE SUMMARY

This report was initially presented to the General Board and the Council in July 1999 and it has since been under consideration by those bodies. The original version has been amended to take account of interim developments.

Copyright has long formed an important underpinning of university life. It is not just an assurance of economic value but also a practical guarantee of free expression, personal recognition, and the integrity of work. In the fast-moving conditions of digital information, copyright can only increase in significance.

At this threshold point, the report investigates the various copyrights which are generated across the University by academic staff and students and considers the legal necessity to secure licences or stay within permitted exceptions. It was not within the terms of reference of the Working Party to consider copyright material generated by administrative staff.

Part 1 outlines the present law: types of copyright, acts requiring licence, initial ownership and dealings, fair dealing, and other permitted uses. The present balance under UK law between rights and freedoms may well be affected by enacted and contemplated legislation.

Part 2 describes the use in the University of copyright material belonging to others, both at present and in future. Issues regarding reprography, digital learning, software, and language instruction are highlighted.

Part 3 considers practices for ensuring that staff and students respect copyright owners' rights and the limits to licences held by the University.

Part 4 deals with ownership and contractual terms concerning copyright works created by staff and students, including digital publishing, digital education, and software.

Part 5 proposes administrative arrangements which will enhance the University's ability to respond to copyright issues as they become increasingly complex and pressing.

The Working Party recommends that:

1. The recently appointed Copyright Officer of the University, located in the Research Services Division, should monitor copyright issues involving the University, both in order to ensure that legal rights are safeguarded and that legal responsibilities to copyright owners are fulfilled. The Officer should give timely advice on policy matters, such as changes in the law and the negotiation of major licence arrangements. Equally the Copyright Officer should be available to advise academic, research, and administrative staff on specific questions, including the drafting of agreements.
2. The Copyright Officer should report through the Director of Research Services Division to the Research Policy Committee, a sub-committee of the General Board, which has oversight of IPR issues. The Committee should formulate informed views on policy and general licensing questions as they arise. It should propose action to be taken in conjunction with others, at the national, European, and international levels.
3. The Officer should be responsible for continuing the University's practices of ensuring that licence arrangements with copyright owners are respected both by staff and by students, and that copying facilities are not used to exceed the permitted limits prescribed by the present and any future law. He or she should ensure that the copyright position affecting all academic activities is understood by those concerned. He or she should also be responsible for advising Faculties, Departments, and other institutions of the University which generate copyright and database material on practical measures of protection.
4. The long-established practice - an important guarantee of academic freedom - is that copyright in works created by an academic staff member belongs initially to the individual. This is true as much of teaching materials as of research writings, though there are exceptions, such as the preparation of examination papers. It is also true for the work of students. No change should be made to this basic rule. Since it is a matter of contractual obligation, for current staff it could in any case only be altered by explicit agreement.
5. Circumstances will arise, for instance, because of the funding arrangements for particular projects, or because of the complexity of the different interests involved in (say) a video or multi-media production, where special arrangements about copyright should be agreed by contract. This will certainly be necessary, as the University develops projects for distance learning on the Internet. The University could also persuade or require members of staff to contract with outside businesses or organizations on terms which do not prejudice the University financially or in other ways.
6. Since the University may become increasingly involved in outside activities with a commercial object, it should review its holdings of registered trade marks covering its name and shield in various countries. It should set up a system of central co-ordination, preferably maintained by the Copyright Officer.

1. Introduction

1.1 Membership

Professor W. R. Cornish (Chairman), Mr A. J. C. Bainton (Standing Conference of National and University Libraries), Professor P. J. Bayley (General Board), Mrs P. Carter (CUP), Mrs R. L. Cleary (Language Centre), Mr S. M. Dale (Scientific Periodicals Library), Dr F. J. Leeper (Chemistry), Professor M. Schofield (Council), and Mr R. Stibbs (Computing Service), with Dr P. Harland (Secretary).

1.2 Terms of reference

1.2.1 The terms of reference of the Working Party were:

To consider copyright and intellectual property issues insofar as they affect research and teaching in the University.

Specific terms of reference:

(1) To consider how and by whom licences (such as those offered by the Copyright Licensing Agency, Design and Artists Copyright Society, Newspaper Licensing Agency, Open University, BBC, etc.) should be assessed with a view to whether they represent value for money, and also whether their terms are reasonable.
  [The University is large enough and has sufficient specialist interests, to wish to scrutinize licences carefully. It may on occasion be worth challenging them or seeking to have them varied, as the recent reference of the CLA licence to the Copyright Tribunal by Universities UK (formerly the CVCP) has shown.]
(2) To consider how the University should ensure that it has in place appropriate measures in order to protect copyright material from misuse and how these measures should be enforced.
  [It may be impossible to eradicate misuse completely, but the University has a duty - and licences will require it - to use its best efforts to secure compliance with laws and agreements.]
(3) To consider the development of a University policy on copyright ownership, and on exploitation of personal/group copyrights by members of the University.
  [This could profitably be considered in parallel with the University's policies on patents and other intellectual property rights. The Copyright Act 1988 provides that copyright in works produced in the course of employment belong to the employer. This is a grey area in universities. The matter needs careful handling because members of the University may regard the University's interest as a threat. In fact, the University and its members have a common purpose in resisting any unreasonable demands of publishers, etc. A firm policy by the University could be very helpful in preventing the growth of unhealthy monopoly powers by publishers.]
(4) To consider how to maintain an awareness in the University of impending changes in copyright law so that appropriate representations can be made.
  [Recent examples: Legal deposit (UK), Database right (EC), Copyright harmonization (EC).]

1.2.2 In providing these suggested terms of reference, the University Librarian consulted Mr Stephen Dale, Under-Librarian at the Scientific Periodicals Library and the University's Copyright Licensing Co-ordinator, Dr Edith Esch, the then Director of the Language Centre, as it was in the context of the Language Centre where this issue first arose, and Mr Toby Bainton, Secretary of SCONUL, who has been active at both a national and European level in this area.

It will be clear from the above that the question of copyright and intellectual property goes far beyond specific library issues. Academic services such as the Language Centre and the Computing Service are clearly involved, along with Mr Dale, who took over responsibility for the administration of off-air recording licences since the demise of the Audio-Visual Aids Unit. There are also teaching and research issues, such as Film Studies (MML) where students are required to edit films which are in copyright, or research projects involving consortia.

1.2.3 It was not within the terms of reference of the Working Party to consider copyright material generated by administrative staff.

1.3 Procedure

The Working Party met on 30 November 1998, 11 February 1999, 13 May 1999, and 11 June 1999. The Chairman, Secretary, and Mrs Carter visited the University of Cambridge Local Examinations Syndicate on 27 January 1999. The Chairman and Secretary went to the Board of Continuing Education on 4 May 1999, the Fitzwilliam Museum on 5 May, to see Mrs Lonsdale, Chairman of the Steering Group on the Virtual University on 6 May, and to visit Dr F. Penz at the Cambridge University Moving Image Studio on 3 June 1999. The Secretary visited the Language Centre on 3 May 1999. The Working Party initially presented its Report to the General Board and the Council in July 1999 and it has since been under consideration by those bodies.

The Research Policy Committee set up a working group in June 2001, consisting of Professor Bayley, Professor Cornish, Mr Ted Krawec (Copyright Officer), and Dr David Secher (Director of Research Services Division), to update the Working Party's report, to reflect recent changes in copyright legislation and in licensing arrangements in the areas of software and reprography. This version of the Report now incorporates updates in these areas.

1.4 Form of the Report

Our terms of reference (1)-(3) raise relatively specific questions about the University's rights and obligations in copyright matters. These we address in the sections which follow:

2. Use of copyright material in the University by staff and students [TR.1];
3. Measures aimed at preventing copyright infringement by staff and students [TR.2];
4. Exploitation of copyright material created by staff and students [TR.3].

In each of these sections, some issues are of general policy, and deserve to be addressed not just at a senior level in the University, but also nationally and internationally. Other issues go to the details of present and future practice and administration in the University.

Our final term of reference [TR.4] concerns copyright awareness in the University and the need to contribute to the on-going debate on changes in copyright law. In Section 5 we propose to address this by drawing together our preceding recommendations both on policy and on administration. This will allow us to reach a conclusion on an appropriate structure for handling copyright and associated issues in the University in future.

The increasing complexity of copyright issues will become apparent in the course of the report. There is much detail to be spelled out. The Working Party accordingly stresses from the outset that two conclusions underlie its thinking on all else:

(i) The University's recently appointed Copyright Officer, located in the Research Services Division, should report through the Director of the Division to the Research Policy Committee, a sub-committee of the General Board which has oversight of IPR issues. This person should give advice on copyright to staff and students, and assist with the negotiation of licences.

(ii) The present practice, which places copyright in works created by academic staff and students in their own hands, rather than the University's, must remain the normal rule, since copyright is a fundamental guarantee of the individual's autonomy over the expression of ideas. To this, particular exceptions will arise, but there must be no gainsaying of the general principle.

1.5 Nature of copyright

1.5.1 Types of copyright

(a) What copyright covers

Copyright is a collection of exclusive rights in literary, musical, artistic, and similar works. Copyright exists in the expression of ideas, not in the ideas themselves. It can be used to stop unlicensed copiers: (a) from making and dealing in reproductions of literary and artistic material; and (b) from using that material in various temporary ways - in public performances, broadcasts, multicasts, cable-casts, etc. To publish or perform his or her own material an independent author does not need copyright. He or she becomes concerned only with the copyright of others, for instance, where quotations are to be incorporated into the author's own works. Always the subject of controversy, copyright has come to be accepted as a necessary incentive to the creation and commercial production of cultural works which, taken in the round, have a very considerable range of social and economic values.

(b) Lack of formal grant

Copyright arises upon creation of the material, provided there is a sufficiently substantial record of it, whether on paper or in an electronic form, analogue or digital. In contrast with the patent system, which protects inventions, no application has to be made to any government office for grant of the right.

(c) Varieties of copyright and their duration

The current British law is the Copyright, Designs and Patents Act 1988, as considerably amended by virtue of EC Directives. Under it there is copyright in:

Literary, dramatic, musical, and artistic works: the copyright in these is conferred initially upon the author(s) or, in some circumstances, the author's employer. The duration of these copyrights has recently become the author(s)'s life plus 70 years.1 Computer programs are 'literary works' - a recent extension of copyright, which has been of major importance, not least to computer scientists and other academics.
Films and other audio-visual works: copyright was previously given to the producer (i.e., the financier); for post-1995 films, however, the producer shares the copyright initially with the principal director. Film copyright now lasts for the lives of the director and three other named persons, plus 70 years.
Sound recordings: this copyright is distinct from any copyright in a work recorded and is given to the recording company. It normally lasts for 50 years from its first exploitation.
Broadcasts and cable-casts: copyright in these (again distinct from that in any material broadcast) is given to the organization responsible and lasts for 50 years from first broadcasting or cabling.
Lay-out of a published edition: a right against reprographic copying is given to the publisher for twenty-five years from publication.

(d) Quasi copyrights

Three additional rights exist, none of which is classed as 'copyright' under Part I of the 1988 Act. They are:

(i) Rights in performances: given to performers of copyright works and, separately, to enterprises with exclusive recording contracts; the duration of both types is normally fifty years from first exploitation.
(ii) Sui generis' right in setting up a database: if the compilation of a database has involved sufficient intellectual creativity, its author will have copyright in it. Whether or not this is so, the investor who arranges the setting up of a database has a separate right in it. While the term is initially fifteen years, subsequent substantial investment in its development will start time running afresh. The right applies to non-digital as well as digital databases, but its most widespread impact will be in the latter sphere.
(iii) Publication right: When a literary or similar work has passed out of copyright before being published, a subsequent publisher who first brings it out, has a right against imitators for twenty-five years.

(e) Cumulation and joint interests

All these rights are cumulative. For instance, in a film, there may be rights arising from: literary/dramatic authorship of the screenplay, the script, or the adapted book or play; composition of music, its performance, and any separate sound recording; visual design elements; direction of the film; and production (i.e., financing) of the film.

In addition, each of the rights may be held jointly by more than one person. This may happen because two or more people were creators of the particular work and became entitled as joint authors; or a previous owner may have assigned the whole copyright or a share of it so that two or more owners hold it. A copyright owner may have died, leaving the rights to more than one beneficiary. None of them may themselves exploit the right, or license others to do so, without the assent of the other joint owners. This can pose serious practical difficulties in procuring all necessary licences.

(f) Moral rights

As well as the all-important economic rights conferred by copyright, the main types of author also enjoy certain 'moral rights'. Authors may continue to assert their moral rights, even when the economic rights have been assigned to others: these include the right to have authorship acknowledged, to object to derogatory treatment of the work, and to object to false attribution of the work to others. In UK law, authors do not have significant moral rights over works made 'in the course of their employment'. Equally, moral rights can be waived in advance and they do not give any positive guarantee of economic rights. Thus in many cases authors have no power to insist that the assignee of their copyright actually publishes their work, unless the contract says so expressly.

(g) Legal deposit

Six libraries of national importance in the UK and Ireland are each entitled to the deposit of a copy of material printed in the UK. The Oxford and Cambridge University Libraries are among them, and it is of prime significance to the financing of our Library that the system should continue. Publishers dislike this obligation which is not part of the copyright system, but it needs to be seen in relation to the immense benefits which copyright confers on the publishing industry. Accordingly, both the present University Librarian and his predecessor have been actively engaged in defending the current entitlement. In addition, there is now the question of a national archive of digitized material, which is likely to be organized on the basis of a single deposit. It will be subject to strict limitations on access in order that it does not become a regular substitute for acquiring the material through commercial channels.

1.5.2 Digital copyright

The expansion of digital technology over the last decade, and particularly its spread into telecommunications, opens the prospects for organizing and transmitting information on an utterly new scale. Digitization allows different kinds of material - literary, artistic, musical, film, and so on - to be admixed in all sorts of new ways, which may include its shattering into particles and its more or less complete reforming. Its transmission over the Internet and the information superhighways of the future increases the choices open to recipients, allowing them not only rapid, interconnected access, but also opportunities for interaction and transformation.

The Internet has opened up communication in an extraordinarily liberating way, and the ready exchange of ideas has been a core element in its attractiveness. Nonetheless, it is coming also to be used for many commercial purposes and this means the development not just of circumscribed intranets, but also of blocking and tracking devices (passwords, encryption, watermarks, termination of access after time, or attempt at further copying, etc.) which will enable the Web and other Internet services to deliver material only on commercial conditions.

E-commerce will inevitably include the exploitation of the informational, educational, and entertainment material which has long been the stuff of the 'copyright industries'. Its success is likely to turn primarily on the effectiveness of technical devices which limit access and downloading. Nonetheless copyright is sure to be deployed as the major legal buttress in exploiting this material. Those with large copyright interests - publishers, record makers, film, audio-visual, and multi-media producers - are lobbying hard at the national, European, and international levels for adaptations of copyright laws which will enhance their effectiveness within global communication systems. Some of the current arguments will be mentioned in our discussion of the need to keep the University abreast of the proposals (see below, 5.2.1). Copyright will increasingly become a part of Internet practice - an annoying, time-consuming limitation for many, a major new opportunity for some.

1.5.3 The position internationally

Copyright arises country by country. While the exact rights and their scope will vary between countries, there are numerous ground rules agreed internationally (thanks, e.g., to the Berne Convention, and the Trade-Related IPs Agreement of the World Trade Organization - 'TRIPs'). Accordingly, copyright works produced in the UK are protected here and in most other countries round the world. This allows copyright coverage to be contemplated even on the Internet, with its immense capacity for global communication. But associated with this are many new legal problems which are not going to receive straightforward or rapid answers.

1.5.4 Ownership, assignment, licensing

Copyright is a form of property and may therefore be assigned to others throughout its duration. It may even be assigned in advance of creation, so that from the outset, ownership passes from the person denominated by the law to the assignee. Assignments can be in any form of words ('I assign', 'I grant', 'I transfer') which make the intention plain, but to be fully effective they have to be in writing and signed by the parties; nonetheless, some effect may be given even to informal and implied assignments.

A copyright owner may retain ownership but license exploitation of the rights to a licensee. A licence permits an activity within the scope of the copyright which otherwise would be an infringement of the right. Licences do not have to be in any particular form (though they are much easier to prove if clearly recorded); they are often implied from circumstances - a factor of great importance for academic staff (see below, 4.1.2).

Copyright is often assigned or licensed as part of a contract. In English law a contract will be binding if each party to it promises to confer some benefit or to assume some obligation. There does not have to be a payment of money by one side. Contracts, like assignments and licences, are best expressed in the form of a written agreement which gives the greatest certainty. However, courts also hold that they arise then by conduct and settled patterns of behaviour.

1.5.5 Creators' copyright and employment

The 1988 Act, section 11, lays down the presumption that the creator of a literary, dramatic, musical, or artistic work becomes its first owner, save where the work is made 'in the course of employment', when it belongs to the employer. This presumption is, however, subject to express or implied agreements to the contrary. The effect of this in academic employment is discussed in Section 4. For the employment rule to apply, the job does not have to be full-time, but it has to involve the usual indicators of employment (PAYE tax, employer National Insurance contributions, salary, etc). While teachers and researchers of the University will be employed, they may well undertake other work which is for separate services and therefore does not involve employment.

Since students are not normally employees, they are entitled to copyright in the work they create. The contrary would apply only if an educational institution placed a condition expressly in its regulations or other statement of agreed terms for study. This too is discussed further in Section 4.

1.5.6 Exceptions to copyright

The European Commission has adopted two Directives, i.e., the Directive on Electronic Commerce and the Directive on Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society (The Copyright Directive), which will adapt copyright to the digital environment and at the same time bring copyright throughout the Union increasingly under its aegis, rather than that of national legislatures. Since national copyright laws in Europe (as elsewhere) have differing provisions limiting the extent of copyright, the EC drive towards standardization of this aspect is proving one of the most controversial elements in the package.

The EC Copyright Directive places EU member states under an obligation to implement the Directive at the national level. UK law requires exceptions to be set out in the 1988 Act; otherwise any unauthorized copying of a substantial part of a copyright work will infringe. In the negotiations leading to the enactment of the Copyright Directive some of the most important of these exceptions, particularly from a university perspective, stood either to be eliminated from the law, or else reduced to a form of statutory licence for which fair compensation would have to be paid. The effect of this would have been to overturn what were considered by the British Parliament to be fair balances only a decade ago. Only through intense lobbying by organizations such as Universities UK, our Vice-Chancellor, and other leading figures, were the exceptions retained.

At this juncture, the more significant of the present exceptions for universities need to be outlined:

(i) fair dealing for purposes of research or private study;2 and coupled with this an exception allowing libraries to supply copies for these purposes. The law does not define specifically what amount of copying is fair, much depending on the quality, rather than the quantity, of what is taken, and whether the recipient would otherwise buy a copy. It is not fair dealing to make multiple, rather than individual, copies, e.g., for course use. It is this exception which currently limits the scope of licences needed in universities for reprography. There are further limitations regarding multiple photocopying which in effect oblige the owners to offer licences of literary and musical material: hence the activities of the Copyright Licensing Agency, described below.
(ii) making copies for the purpose of instruction, or during its course, provided that reprography is not used; this is accordingly a very limited exception.3
(iii) performances in educational establishments, provided that the audience contains no outsiders.4
(iv) fair dealing for purpose of criticism or review: a broad exception, provided that the intention is genuine and not a pretext.
(v) fair dealing for the purpose of reporting current events.

1.5.7 Copyright and other forms of IPR

Certain distinctions from other forms of intellectual property need to be borne in mind.

(i) Patents are granted by patent offices to protect technical inventions from being carried out or marketed by others. The protection extends to the inventive concept and is not confined to the particular expression which is so evident a feature of copyright. At present, all non-copied computer software is copyright and that gives protection against copiers who take the whole of a program or a substantial part of its detailed content (including details of structure). To a varying degree, patents are becoming available to protect inventive elements in programming, and, where they exist, the range of protection is frequently more extensive. This characteristic means that the protection of software calls for separate treatment in some respects.
(ii) Trade mark protection exists for those crucial symbols in the process of building up goodwill which identify the goods or services with the particular trade source from which they come. The protection may result from an actual reputation established in the market-place or from registration of the mark with trade mark registries in the various countries (including for the EC, the Community Trade Mark Office). Trade mark rights are in essence unlimited in duration, though registrations have to be renewed and may be lost because of non-use. Now that the University is contemplating the setting up of new commercial arms, over and above the CUP, Fitzwilliam Museum, and latterly, the Development Office, the separate issue of trade-marking has a new importance. The situation has been complicated on the Internet by the sudden trade value which has come to attach to domain names. The right to these is not well-co-ordinated with the entitlement to trade marks and the two aspects have to be considered side by side.

2. Uses of copyright material in the University by staff and students

2.1 General

2.1.1 Our terms of reference indicate that the University already pays for licences to cover the copying (and sometimes other uses) of material. The right to license this material is often held by collecting societies, but in the future single owners of very large academic databases are to be reckoned with, just as is the case already with licences of computer programs.

2.1.2 Current practice can be summarized as follows:

The University is currently paying over £80,000 (including VAT) per annum in licence fees for copying and recording literary works and broadcasts; and a further seven times that amount for computer software.

The most recent figures for licensing costs are:

(a) Copyright Licensing Agency (for multiple photocopying of general printed works other than course packs)

(i) Per capita fee

2000-01: £39,000 + VAT

CLA per capita invoices are worked out on the basis of student numbers provided by the Higher Education Statistics Agency, which vary from invoice to invoice, so the actual annual figure will probably be different. The future cost of this licence is uncertain, due to the whole licence arrangement being referred to the Copyright Tribunal by Universities UK.

(ii) CLARCS clearance fees paid by Departments (for course packs)

2000-01: £21,750 + VAT

(b) Newspaper Licensing Agency (for photocopying of newspapers)

2000-01: £2,000 + VAT

(c) Educational Recording Agency (for recording of broadcasts)

2000-01: £21,750 + VAT

The Educational Recording Agency licence allows the institution to record any broadcast programmes, apart from Open University programmes, for later use for educational purposes within the establishment. There is a back-up service operated by the British Universities Film and Video Council; if a recording of a programme has been missed due to equipment failure or disruption to transmission times, a copy can be obtained from the BUFVC (London) under an enhanced membership scheme. Since April 1998 the Language Centre has co-ordinated requests from Departments. (This service used to be operated by the Audio Visual Aids Unit). The back-up service is currently in analogue, but will move to digital for recording and delivery in the future (including encryption and authority control). Back-dated copies of broadcasts from June 1998 onwards can now be obtained under this subscription.

(d) Software licensing

1999-2000: £552,234 (expenditures channelled through the Computing Service only)

This is mainly administered by the Computing Service and paid by cost-recovery from Departments and end-users. Some licences, however, are obtained in respect of particular research grants. The possibility of savings by obtaining top-sliced site licences for the University generally needs to be further explored.

(e) Open University licensed off-air scheme

At present the Departments and Faculties are responsible for administering their own OU licences if they make recordings and use Open University broadcasts. It is impossible to estimate the extent of use of OU material across the University, but the School of Education has had its own licence for about ten years and the Language Centre has also made use under licence of some OU and OU/BBC language learning series, English literature, and film education programmes.

The Design and Artists Copyright Society (DACS) has recently and with great insistence claimed a licence fee for slide libraries at the University. Insofar as this claim proves to be justified, the University will need to comply, though comparatively speaking this will not be a major burden.

The University's largest commitments at present are thus for the CLA licences and for computer program uses; we comment on these in the next paragraphs. The Working Party noted the increasing complexity in copyright licensing administration in some Departments, when combined with other copyright agreements. This appears to be the case especially in Departments and Faculties where teaching, learning and research rely on interactive use of resources and materials.

2.2 Reprography on paper: the CLA licences

2.2.1 In education at all levels, photocopying is now an absolutely standard technique, much of it being of teachers' and students' own materials, but a considerable amount being of others' copyright material. In UK law, copyright owners are entitled to charge for (i) multiple photocopying, including that which attempts to disguise the multiple as individual; and for (ii) individual photocopying, even for research or private study, but only if it is more extensive than what amounts to 'fair dealing'.

2.2.2 British publishers and literary authors organize their licences through a joint collecting society, the Copyright Licensing Agency (CLA). The CLA charges the higher education sector a per capita tariff for general multiple photocopying of works within its own portfolio and those which it represents from abroad of £3.35 a year per student, i.e., at 5 pence a page, for an average of 65 pages per student. The national cost of the CLA licence scheme for higher education is in the region of £5m representing the copying of 100m pages. This has resulted in Cambridge paying about £39,000 + VAT for 2000-01. Mr Stephen Dale, Under-Librarian in the Scientific Periodicals Library, currently co-ordinates the administration of this and other licences, including giving advice on these schemes. A transition of these responsibilities to the Research Services Division is being worked out.

2.2.3 For course packs, separate rates are negotiated through CLARCS (CLA's Rapid Clearance Scheme). There is a default rate of 5 pence per page, but some items are more expensive. Nationally, in 2000 the higher education system paid course pack fees of some £500,000. Cambridge University Departments paid £13,411.22 in CLARCS clearance fees in the financial year 1997-98 and over £20,000 in 2000-01. The three Departments who make almost all of the CLARCS applications, namely the Judge Institute of Management Studies, the School of Education, and the Institute of Criminology, do not pass the fees on directly to students by charging for the study packs, but the costs are covered by the fee structure of the courses (which are all taught postgraduate courses).

2.2.4 The current general CLA package was in operation from 1 April 1998 to 31 January 2001. It was negotiated by the CVCP (now Universities UK) and CLA and accepted by all universities in consequence. CLA have offered two extensions to the licence, one covering artistic works in conjunction with DACS which has been the cause of considerable controversy and precipitated the reference of the whole licence to the Copyright Tribunal, and one covering digitization. The University has not taken up either of them. Even before the reference to the Copyright Tribunal there has been a longstanding feeling of unease at two levels: first, over the value for money of the general (non-CLARCS) licence, and secondly, over the precise scope of the two licences.

2.2.5 The general licence has to be obtained only for multiple photo-copying and is granted for up to one chapter or five per cent of a book or up to one whole article in a journal. The Committee is not in possession of evidence which allows it to make any detailed assessment of this deal. The University should itself make efforts to provide evidence about usage; it should liaise with other leading universities in amassing the data; and it should play an active part on the Universities UK team which does the negotiation. That team should be headed by a prominent Vice-Chancellor who is able to call on the support of the DfEE and other government departments concerned. The team should insist that negotiations be started in time for universities to give the matter adequate consideration.

2.2.6 It should be noted that, since the CLA is a copyright collecting society in a monopolistic position, the universities do not have to accept the terms proffered by the CLA. As evidenced by the recent reference, the reasonableness of the terms can be referred to the Copyright Tribunal which has power to override them.

2.2.7 As for difficulties of interpretation, the greatest problem has arisen over the line between 'ordinary' multiple copying of copyright material, which falls within the general licence, and course packs, which require extra payment. The definition of a course pack is not related only to amount, though at least three items amounting to twenty-five pages or more must be included. In addition, the intention of the provider must be to use items in teaching a 'course of study'. It should be a major objective, if possible, to clarify this distinction and to iron out other problems. It would be helpful, for instance, if the basic licence explicitly allowed a teacher to deposit multiple copies in a short loan collection for all the courses he or she teaches. That is often the sensible thing to do.

2.2.8 It is likely that, even after the ruling of the Copyright Tribunal, within the University there will continue to be questions about the interpretation of CLA (and, indeed, other) licences. The Copyright Officer should be the one to whom University members can turn for ready advice on issues as they arise. Otherwise the danger continues that teaching will be inadequately supported by written materials and Departments will risk criticism in the Quality Assurance Agency's subject reviews. More generally, it must be recognized that copyright issues now arise at many levels across Departments, services, and libraries. Much time will continue to be wasted if clear advice is not available.

2.2.9 The CLA itself is said to be considering the formation of a user group. This could be useful to universities but the development needs thought. Naturally the publishers and authors represented in the CLA seek to advance their own cause and are likely to take a self-interested stance on interpretation questions. The user group may also prove to be a rather diffuse institution since it would deal with a considerable range of users. There must be a case for a CLA-Universities UK Monitoring Group with an independent chair. Universities UK should be urged to consider the merits of such a body.

2.2.10 At present, since a licence is not needed for individual copying which amounts only to fair dealing for research or private study, the Colleges in Cambridge are in less need of CLA licences. The first CLA licence (1989) covered the College premises as well as the University, but the latest is not specific (1998). But they, as well as the University, should be kept aware of present EU Directives which amend copyright law across Europe. In the latest negotiations leading to the enactment of the EU Copyright Directive, the European Parliament initially proposed that any photocopying within the frame of copyright must be subject to 'fair compensation' from the person who makes the copying equipment available for a charge. This would have imposed much greater costs on both the University and Colleges. It is vital therefore that Universities UK, the learned Societies, and leading universities should keep up pressure on the British government to insist that these types of proposals are unacceptable.

2.3 Scanning and Intranet licences: the CLA initiative

As teachers move towards the provision of course materials for students by Internet access, the CLA is seeking to develop a scheme for licensing its copyright works, when they are scanned onto a site and then held for limited access by students. It has announced a first version of this scheme which will be available in higher education. Most British publishers appear to be joining it as rightholders. Through CLARCS, permission can be quickly obtained for the scanning, but the fee will be set by the individual publisher. It is thus a complex and evolving project, which will need monitoring and explaining within the University, and watching by the tertiary sector as a whole.

2.4 Software Licences

2.4.1 With the arrival of mass computing, software producers worked hard to secure themselves copyright in programs and to use it to reduce large-scale piracy and individual copying. Publishers were much slower in reacting to photocopying in government, business and education and have now to overcome entrenched beliefs that reprography is copyright-free. The difference is reflected in practices within the University. While reprography licensing is still surrounded by uncertainties and the question of administrative arrangements hangs over us, the Computing Service has taken over the complex business of licensing the software needed for computing in the University, Colleges and related institutions (NIAB, MRC, etc.) and has the day-to-day business very much in hand.

2.4.2 The Computing Service makes software available on advantageous terms, which at the same time makes plain that licences are necessary for the use of programs and that copying of the accompanying documentation would be a copyright infringement.

As noted in 2.1.2. (d) above, expenditure on software licences is much greater than any other category and is increasing rapidly: 1998-99 £515,966; 1999-2000 £552,234. Some 750 separate items are involved, each needing to be categorized by scope and duration, rental or one-off, institutional or individual, work or home, perpetual or time-limited, etc. These conditions may well change over time.

2.4.3 The licences may initially be brokered by CHEST (Combined Higher Education Software Team). The Computing Service still has then to administer its specific agreements, but at least the higher education sector uses its joint buying power as some counterweight against the largest software producers. The escalating costs of licences, and the potential for monopolistic behaviour as an element in that growth, must be a matter of high concern at the national level. It relates both to competition policy and to the re-writing of copyright laws in ways which could drastically reduce the present exceptions affecting software copyright (notably those in the Software Directive 1991). Accordingly, there is a need for the University to monitor these large questions as a contribution towards a reasonable control over costs.

2.5 Licences for the Language Centre

2.5.1 Language teaching makes use of diverse resources, including in particular written materials from publishers and the press, audio and video cassettes, computer software and databases, and live and recorded broadcasts - a significant part coming from countries around the world. Much of the material comes from outside the University and so may need a copyright licence; some is generated within the Centre and may itself produce copyright returns. The University's Language Centre makes very considerable efforts indeed to ensure that it obtains all necessary licences (both for use in self-instructional language learning and for Faculty/Departmental teaching), and only allows teachers and students to operate within the particular licence terms. However, it faces a baffling situation in which it has to deal with (a) individual publishers and other producers, and (b) copyright collecting societies, such as CLA, NLA, and ERA. Individual publishers differ markedly in their approaches; collecting societies may have little feeling for language learning and teaching needs and practices. With multi-media products, different copyright owners may be involved and may be competing for larger shares of the royalty cake.

2.5.2 Bearing in mind the diverse nature of rights clearance relating to the various media components and their use, the Language Centre's sense of frustration about copyright questions is readily understandable. With regular advice from the Copyright Officer and the Research Services Division it should be possible to draw up proper copyright guidance for staff engaged in language teaching, and, when necessary, to give them training. This could also extend to the protection of their own material and their contributions to larger projects. Recurrent problems, such as the lending of recordings of broadcasts to students, the position of visiting students from other universities, and the power to make material available to Colleges, could become the subject of settled policy.

2.5.3 At the same time, language teaching in higher education needs a focal group (equivalent to CHEST) which can put the case to publishers, broadcasters, and other material producers for standardized terms and procedures so that licensing of material can be dealt with more simply and straightforwardly, and with a sense that the licences represent value for money, rather than an inflexible insistence on an inappropriate price. The importance of setting up such an organization to work along with the BUFVC (the British Universities Film and Video Council) and the AULC (Association of University Language Centres) will only grow as complex multi-media products increase, digital broadcasting grows, and language services through the Internet expand.

2.6 Other licences

2.6.1 Across the University there are services and organizations at many levels which currently secure copyright licences: for instance, the Fitzwilliam Museum and the University Library for the photographing of collection items still in copyright, UCLES for the quotation of material in examination papers which it publishes, the ADC Theatre and the Music Faculty for performances of copyright plays and music. In these instances the administrators concerned are aware of the issues and do their best to ensure that all necessary permissions are secured. What licensing needs are being neglected elsewhere, it is difficult to say; but the diversity of these instances suggests that there may be such cases. For instance, the recent demand from DACS (mentioned above in 2.1.2) requires rapid investigation in order to assess the scope of the problem, take account of Departmental reactions and co-ordinate university sector responses. As each instance emerges, a satisfactory solution can only be anticipated if sound advice is available from the Copyright Officer. This is in no way to detract from the very considerable efforts which are made by the Library, Computing Service, Language Centre, and other institutions of the University to ensure that copyright obligations are properly met. Each institution of the University has its own particular set of needs and requirements and with central advice availiable to them should be well-placed to meet these obligations.

3. Prevention of copyright infringement by staff and students

3.1 Copyright enforcement

3.1.1 Liability for copyright infringement can amount to a criminal offence for which individuals and their institutions could be punished. In practice, criminal prosecution is reserved for copyright pirates or large institutions who cannot be deterred by other means. This includes business and educational organizations which deliberately make mass copies for internal use. For the most part, it is left to copyright owners (or the enforcement associations and collecting societies who may represent them) to bring proceedings in the civil courts for injunctions to stop future infringing and/or damages for injuries in the past. Unless the proprietors are prepared to pay for investigations, and if necessary litigation, their rights largely go unheeded. Until quite recently that was the position over photocopying, and likewise for the home copying of sound and audio-visual material. Once a system for licensing and for suing those who will not submit to it is put in place, it has to be accepted. That is one reason why universities now obtain CLA and other licences to cover uses of copyright material which occur in their teaching, research, and other activities.

3.1.2 In such a large and diffuse institution as Cambridge University it is difficult to ensure that every act of copying and public performance has the necessary licence. In principle, if the person who infringes copyright is a member of staff, the University is itself liable vicariously in civil proceedings for the wrongful act; whereas if the infringer is a student or a visitor of any kind (including an employee of someone else), the University is liable only if it authorizes the particular infringement by arranging the activity in which it occurs without requiring that a licence be obtained.

3.2 Photocopying notices

3.2.1 Where the University provides photocopying equipment, there is of course the possibility of users engaging in wrongful copying. But the machine is likely to be used for much photocopying which does not infringe, particularly given that, even in libraries, there is the 'fair dealing' exception in the Copyright Act for individual copying for purposes of research or private study (an exception which applies equally to activities of the library itself). Accordingly, it is accepted practice (which rightowners do not challenge) that machines should have beside them clear notices of what would constitute copyright infringement, accompanied by an instruction not to engage in that activity. This is taken to relieve the institution of liability for authorising the infringing acts of students and others who are not its employees.

3.2.2 The practice in the University's libraries is to provide such a notice. Departments and institutions should equally ensure that the notice is displayed on or by their photocopiers. Provided that this system is in operation, the University has done what reasonably can be expected of it. Demands have recently been made that the CLA be supplied with a list of all machines operating on University premises. Arguably that is an unreasonable condition for a licence and it would be disallowed if challenged before the Copyright Tribunal. The Tribunal recently refused to order a supplier of newspaper cuttings to hand over a list of its customers so that the Newspaper Licensing Agency could go on a licence hunt. All that the cuttings service could be required to do was to take action once it learned of actual infringing activities.

3.3 Advice to staff and students

The University must consider giving staff and students wider-ranging advice about the need to observe copyright in situations other than that of photocopying. The Internet provides the obvious example, since it is expanding the opportunities for individuals to receive pirated material, and to put legitimate material to unauthorized further use after downloading it. Access will often be through computers supplied by the University.

4. Exploitation of copyright material created by staff and students

4.1 Ownership of copyright by staff: General

4.1.1 The University employs both teaching and research staff, many of whom produce significant copyright material. As already noted, in British copyright law in general, there is a presumption that copyright in works made in the course of employment belongs initially to the employer. This is appropriate where what is created contributes to the employer's enterprise. Academic work in a university is based on very different assumptions. At their root lies the freedom to pursue lines of inquiry and to express opinions without fear or favour. In consequence it has been accepted by the Court of Appeal as 'both just and commonsense' that university staff should own copyright in their works.5 If it were otherwise, the university would have the right to suppress the publication of anything of which it did not approve. It could moreover require alteration or truncation of academic work, and the staff members' moral right to object would be reduced to a power to insist that his or her name be dissociated from the revamped work. It would also have the power to supplement or modify the content of works; and if the works were regarded as made in the course of employment, the author would have no moral right. In this connection it is as well to remember that freedom of expression is guaranteed under the European Human Rights Convention and could now be enforced in certain circumstances through British courts under the Human Rights Act 1998. There can be little doubt that other European systems would take a more protective view of the author's right and would insist upon the personal relationship between the creator and the work created.

4.1.2 The rule in the Copyright, Designs and Patents Act 1988 about the copyright in works created in course of employment only applies in the absence of a contract to the contrary. As already pointed out above (para. 1.5.5), contractual arrangements may be implied from practice, as much as from express statement. It has been the practice across our university system that universities make no general claim as employers to the copyright in works written, composed or drafted by their staff. On the contrary, in all major universities, staff members will be constantly making arrangements for the publishing and other exploitation of their work on the basis that the copyright is theirs to deal with. If universities were to take over copyright ownership, they would be duty bound to set up administrative branches to handle the exploitation of the right, and these could only become alarmingly large bureaucracies. It is the current long-standing practice, rather than any legal definition of the 'course' of academic employment,6 which settles the matter: in academic employment, the member of staff acquires copyright initially in his or her creative work.

4.1.3 Certain types of work, however, are exceptional. It is likely that the setting of examination papers and the writing of reports on policy and administration directly for the University give rise to copyright in the University, because the fair expectation is that they are the University's to use, or not to use, as it decides. The existence of these special cases serves to emphasize two things. First, academic employment contracts contain an implied term reserving copyright in general to the individual employee. This term is not one which the University could alter unilaterally: it can do so only by agreement. In the Working Party's view, there are fundamental reasons why the University should not attempt to alter the present contractual understanding. Indeed that understanding should be made explicit. Secondly, it is perfectly possible - indeed, it is likely - that copyright will, by express arrangement or possibly by implication from regular academic practice, belong to the University in exceptional circumstances which are essentially novel. This is becoming an important matter, now that the University is contemplating partnerships in the exploitation of Internet and other distance learning schemes, in which the use of its name will be an essential ingredient in success (see further below, para. 4.3.8).

4.2 Digital publishing and academic authors

4.2.1 The fact that the University does not own copyright in academic work does not mean that it can have no legitimate concern over the way in which copyright is exploited. It provides the conditions of employment which enable the staff member to produce work, and to varying degrees these will include equipment or secretarial assistance. Therefore, in our view, it can quite properly object when outside organizations seek to impose on it charges or other liabilities which relate to the very work whose creation it has sustained. At present there is widespread con-cern about the practices of some database holders, particularly via the Internet. Following traditional publishing practice, these digital publishers insist that authors assign them exclusive rights of exploitation. They allow no exception for use of material in the teaching or other activities in British HEIs in general or even in authors' own institutions. The latter in particular seems wholly unacceptable and the essential question concerns the University's power to object to it.

4.2.2 We do not see this problem as sufficiently grave to warrant an alteration of the general rule which leaves copyright ownership with staff members, since, as we have said, that has to do with a fundamental aspect of academic freedom. We do consider that the University would be justified in insisting in future contracts that staff members should not enter into exclusive arrangements for traditional or electronic publication which do not allow the author's own institution free access and use of the material. The University should notify staff of the desirability of avoiding such conditions. It should also seek a general solution: Universities UK and the British government should negotiate with publishers and their associations to ensure that employing institutions have a free licence to use material created by their employees for all purposes of teaching and research in their own institutions. If these steps do not produce sufficient results, the University would have to consider altering its employment contracts so as to require staff to enter publishing and similar contracts only on terms that the University should have such a licence. It may not prove practicable to move immediately to this approach, but its desirability should continue to be pressed. There is a case also for widening this exemption to cover the whole of the British tertiary sector. To a very substantial degree, the government funds the writing of the work through its grants to universities. If universities must have licences for digital usage, they are in a sense being made to pay twice.

Universities need to consider whether they should tackle the threat of excessive profiteering by identifying and notifying the names of those publishers which adopt reasonable attitudes, and by encouraging learned societies and other academic organizations to become Internet publishers themselves.

4.3 Digitized education

4.3.1 The Internet presents a host of novel prospects for publishing work - some of it in completed form, some in draft; some from a single source, some inviting collaboration or at least comment; some concerned primarily with research and some with instruction. The early Internet was much about open exchanges of ideas and that continues to be a major attraction for many academics and students. It is easy to imagine that some digital conversations could create an unpickable knot of intertwined copyright interests. It should be realized, however, that much material put on the Net is being released to others with an implied licence to use it in ways that would be considered normal - such as passing it on to others with similar interests. Copyright is likely to rear up only in those circumstances where there is real commercial value in the material, and, in the eyes of reasonable people in the particular field, it is being misappropriated.

4.3.2 If, for instance, teaching material is placed on a Local Area Network or even on the Web, it must be taken to be available for use as part of study, but not as material to be turned by someone else into a book or transferred to a competing Web-site. In reality, it is extremely difficult to prevent improper downloading, however much it may involve copyright infringement. Academics who make their lectures available in this way therefore need to think hard about what might happen in consequence. If the academic does not like what others are doing with his or her material, recourse to a publisher for help would not be available, as would be the case if a hard-copy text-book was being pirated. The University should warn its staff of the pitfalls.

4.3.3 Explicit limitations can be attached to material on the Internet, which seek to limit the scope of any further use of material to be accessed. 'Click-on' licences are already standard practice for anyone seeking a commercial return on such material. The new medium seems to present immense possibilities for new forms of distance learning. Around the world universities are becoming involved in experiments - technical, educational, and commercial - that will lead to virtual tertiary education. These schemes will normally be offered on a paying basis and it will be necessary therefore to limit access and use by a mixture of contractual and technical devices.

4.3.4 In relation to large-scale exploitation, and the copyrights which will form the basis of commercial arrangements, it is useful even at this early stage to distinguish two types of development. On the one hand, individuals will become involved in the preparation of courses - some essentially by themselves, some in collaboration within their own institution, some with other institutions, academic, public service, and commercial. On the other hand, there will be cases where the University itself will take an organizational role, setting up a project (perhaps with other institutions or investors), and employing some and commissioning others to turn it into a reality.

4.3.5 It has been suggested within the University that, while staff should keep their copyright in texts and other research writings, the University should take the copyright from the outset in all 'course materials'. The incentive behind this proposal appears to be the prospect of large-scale financial returns from the running of a 'Virtual University'. We protest in the strongest terms against this proposal, fundamentally for its assumption that teaching is an essentially mundane activity into which little that is personal or truly creative is put; there is accordingly no real interest in retaining a connection with material for a course whether by way of being named or in order to say when or where it should or should not be used, in original or altered form. That is simply not our conception of what goes into teaching in a senior university. Nor was it that of Lord Evershed in his judicial remark quoted above (4.1.1). We consider moreover that no workable distinction can be drawn between 'course materials', lecture outlines, and notes on the one hand and texts on the other. Often they represent a continuum of development. Sometimes the essential originality is most transparent at the very outset. No such dramatic alteration of copyright expectations should ever be contemplated. Particular projects are a different matter, which we address in the next paragraph.

4.3.6 The first set of situations will vary considerably, just as is the case where academics become involved in producing research and educational materials in traditional forms. The Working Party sees no case at present for insisting that copyright in Internet exploitations of academic work should be held by the University, and therefore administered by it. Developments on that side should be left to the same kind of free decision by individuals which has such an incentive effect in the non-digital world.

4.3.7 As already noted, the production of films and videos is a sphere where copyright complexity is bound to arise. The recent experience of the Cambridge University Moving Image Studio illustrates the problems which face any production unit on entering this sphere. Digital technology spreads the prospects for this kind of work and so multiplies the difficulties. As already pointed out, this too is a sphere in which reasonable adjustment of interests can only be organized by detailed contracts which leave the organizers with a significant measure of control. They must necessarily be dealt with case by case, rather than under general terms of employment.

4.3.8 Where the University takes charge of a project it will assume responsibilities for good management of its investment and in this the copyright situation will need special handling. Even at the stage of experimentation, i.e., before arrangements have been made to pay anybody, those involved ought to sign written agreements which clarify the position over future copyright and other intellectual property. At least in any project where there will be several contributors of material, no one of them should be left free to withdraw a contribution or demand additional returns for it, for that would prejudice the position of the other contributors as well as the University itself. Rather there need to be explicit arrangements over the further development and revision of material in the future. If appropriate, the original contributor should have an option to undertake that later work, but subject to a time limit after which the University should be free to find someone else to do it. At the same time, there should be agreement on how far the contributor waives the moral rights to be named as author and to object to prejudicial modifications of the work. In British law these rights may be given up in advance (though this is not true in most continental countries).

4.3.9 This is a sphere, however, in which the University should also give greater attention to the use of its name - and this not only in relation to rights in it, but also in relation to liabilities (for misrepresentations, injuries, defamation, etc.). While a member of the academic or research staff of the University must remain free to describe the position which he holds, he or she should not use any form of communication - on a Web Page or anywhere else - which would imply that a University-backed enterprise is on offer when it is not. Indeed, because such misrepresentations may also be made by outsiders, the University needs to review its holdings of registered trade marks in its name and shield in countries around the world. Likewise, since domain names have become such important identifiers in the Internet world, the range of registrations held by the University should be considered against potentially injurious registrations by outsiders.

4.4 Copyright of students

Students are not employees, and in Cambridge neither the University nor the Colleges attempt to take over the copyright in any material produced by students through provisions in statutes or regulations. This is true equally of undergraduates and postgraduates. Nor should they do so, since students also have a justifiable claim to autonomy over the expression of their ideas. Outside sponsors may insist upon the assignment of copyright to themselves, precisely so that they can annex the commercial value of the research. That is something which doubtless has to be accepted as a condition of external grants, though individuals should be ready to question the sponsor on whether the requirement is really necessary. The Board of Graduate Studies at least ensures that copyright in theses remains with students. This provides some protection against the demands of sponsors for confidentiality and copyright in the content. Departments may need to consider whether similar terms should be prescribed for undergraduate dissertations.

Students may make use of substantial resources of the University in order to create copyright material, as for instance where they produce a video or a CD ROM, and are given considerable technical help in the process. Such a project justifies the agreeing of particular terms, notably in relation to any subsequent commercial use of the material. These terms need to be spelled out in written form and signed at the outset.

4.5 Software copyright

Although computer programs and their attendant literature have been accorded copyright as literary works, their prime function is to make computers operate in particular ways and they retain a technical character far removed from the normal conception of a copyright work. Where software is created by university academics, it falls mid-way between ordinary research writing in the traditional sphere of copyright and technical developments made by natural scientists, engineers, and medical researchers, where patents are granted for many significant advances and much fur-ther knowledge is secreted as confidential know-how (together we may characterize this as 'Technical IPR').

It is likely that significant developments in computing will come more and more to be protected by patents, rather than by copyright. The US patent system has recently been opened to inventive programming techniques of virtually all kinds, and the European Patent Office is now striving, despite limitations in the current legislation, to reach the same end. This suggests that, within the University, it would be sensible to treat the intellectual property in computer programs in the same way as other Technical IPR.

However, copyright in books, articles, and similar analytical or descriptive material about the software, as distinct from the software itself, should be treated as other academic writings: in accordance with current contractual practice, the copyright should belong to the writer, not the University, unless an explicit agreement to the contrary has been made with an individual or with those engaged on particular projects. Current University policy on the ownership of intellectual property rights generated by externally funded research is consistent with this practice.7

5 Implications for Policy reviews and administration

5.1 Securing copyright licences and related matters

As this Report has stressed, copyright is already an important factor in many University activities and is likely to become ever more significant as tertiary education embraces the digital future. The University has no desire to flout its legal obligations, not least because its own academic community creates important copyright works which deserve protection. Accord-ingly, the University's institutions which are most regularly concerned with copyright issues have taken them seriously. Each of them, however, is having to face increasingly difficult questions which are time-consuming for them to answer.

When the Working Party first reported, it recommended the appointment of a Copyright Officer and the University acted in a timely fashion. The Working Party remains convinced that the Copyright Officer's main duties should include administration of the various copyrights, but should also include advising on University policies in relation to new licences, such as those for reprography and digital scanning. At the early stages of negotiations with bodies such as CLA, this may be primarily concerned with ensuring that the British University system has an adequately informed panel to present its case.

5.2 Law reform and other policy changes

5.2.1 At the same time there will also be issues of more fundamental import, as illustrated recently by the EC enactment of the Copyright Directive and other proposed legislative changes to copyright law and practice. These call for a similar response to those concerning particular licences - a response which appreciates what is at stake, yet occurs within the often-truncated time-limits set for consultation. It should be for the Copyright Officer to sound the alert and to set the stages of action.

5.2.2 The University's special interest in continuing the requirement of legal deposit at the Library and its extension to non-print media will continue to rank high and will remain primarily a matter for the Librarian and the Library Syndicate. Nonetheless there may well be scope for seeking the assistance of the Copyright Officer in the processes monitoring its operation.

5.3 Copyright of the University's staff and students

5.3.1 The Working Party emphasizes the fundamental importance for the freedom of academic expression that, in general, copyright in the writings and other copyright productions of academics and students should remain with them personally. It recognizes that, in limited instances, including the terms agreed for particular projects and the carrying out of particular work, such as examination paper writing, the University has a legitimate claim to ownership. However, it would regard any reversal of the current contractual arrangement, aimed at giving the University control over the bulk of academic copyright, as an extremely dangerous advance in powers of control which should be resisted by the University community with the utmost vigour.

It is accordingly no part of the Working Party's recommendation that the recently appointed Copyright Officer should superintend the great range of copyright transactions in which academic staff become involved, as authors, editors, contributors, and so forth. The Copyright Officer should provide staff with initial answers to copyright queries. Where projects are identified as University initiatives which have significant copyright or database dimensions, such as new media productions, the Copyright Officer should be involved in negotiating terms which relate to copyright and cognate contractual obligations.

There is a need to co-ordinate the University's acquisition of trade marks, and indeed the steps which it may have to take to defend its marks against outside users. Since this is often linked with copyright questions, the Copyright Officer should be in charge of both.

5.4 Dissemination of this report

The Working Party recommend that the report be published in the Reporter.

1 An EU expansion from 'life-plus-50'. It applies equally to existing and future works.

2 This pertains to literary, dramatic, musical, and artistic works and published editions.

3 Applying only to literary, dramatic, musical, and artistic works. For broadcasts and cable-casts, because there is a licensing scheme in existence (through the Educational Recording Agency), there is no exception; a licence has to be taken out. Special provisions apply to examinations.

4 Applying to literary, dramatic, and musical works.

5 In Stephenson Jordan v. Macdonald & Evans (1952) 69 R.P.C. 10 at p. 18, Lord Evershed, Master of the Rolls, said:

Prima facie I should have thought that a man, engaged on terms which include that he is called upon to compose and deliver public lectures or lectures to some specified class of persons, would in the absence of clear terms in the contract of employment to the contrary, be entitled to the copyright in those lectures. That seems to me to be both just and commonsense. The obvious case by which reference by way of illustration was made in the course of argument is the case of the academic professions. Lectures delivered, for example, by Professor Maitland to students have since become classical in the law. It is inconceivable that because Professor Maitland was in the service at the time of the University of Cambridge that anybody but himself, one would have thought, could have claimed the copyright in those lectures.

6 It has been suggested that, because government has introduced the Research Assessment Exercises and Teaching Quality Assessments, this may somehow alter the estab-lished practice concerning copyright entitlement in academic employment contracts. The Working Party does not accept that schemes for monitoring quality which are not organized by the employer can in any way affect existing employment relationships.

7 On 31 March 2001 the Regent House approved by Grace the Report of the General Board on the ownership of intellectual property rights generated by externally funded research (Reporter, 31 January 2001, pp. 429-30).


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Cambridge University Reporter, 17 October 2001
Copyright © 2011 The Chancellor, Masters and Scholars of the University of Cambridge.