8 August 2019

Books; Reading and Posting Online: Caring, Sharing and Copyright

By Naomi Korn

Sharing is caring, as we are taught, from childhood. It’s socially and culturally acceptable and often encouraged for a myriad of reasons and important societal benefits. However, copyright law does not work on the same premise. Sharing without permission, (which would include copying, publishing, renting, reproducing online etc) is more than just not caring, it is often illegal. The Statue of Anne, transposed into UK law over 300 years ago, uniformly established the principle that book publishing is an expensive business and publishers, (and later authors and illustrators), have the exclusive rights to control the sharing of their work, and to get money for it if they want. Together with the moral rights to be named as the author, for example, collectively these rights aim to protect and remunerate all the stakeholders involved in new content creation.

Copyright law in the UK (and often mirrored across the world) establishes that whilst there are certain acts, such as personal use; copying for preservation; certain educational uses etc, which will enable certain types of sharing without permission, these are set within the context of creators/rights holders’ exclusive ability to control how their works are reproduced and made available. This makes sense. All the stakeholders involved in book creation: authors, illustrators, publishers, booksellers, need to get a piece of the pie, somewhere along the way, to provide financial benefit to enable the book to have been written, illustrated, published and marketed in the first place. This thus creates a cycle of economic benefit to encourage investment in new titles, ad infinitum, whether this is at the point of creation (open access – through funding, for example) and/or access (consumer). Of course, there are more complex models than this, including hybrid academic publishing models, which combine traditional publishing models with open access.

Regardless of the restrictions in copyright law, the Public Lending Right (PLR) (1) enables libraries to lend books to users. It’s a crucial carving out of clear blue waters to remunerate authors, illustrators and other contributors, every time their book, e-book etc is borrowed from a library. The PLR acknowledges the publishing value chain, respects copyright law, facilitates reading, supports the vital role of libraries, and ultimately can provide authors and illustrators with regular income. A win-win for everyone.

So, what does this mean for reading and digital story-telling online via social media platforms, like YouTube? Commentary has already been written about digital story telling from a US perspective (2). However, there are some key issues which need to be flagged in order to provide a more comprehensive view than has been suggested. Copyright laws across the world will be based on the same key principles outlined in the Berne Convention (3); however they will include variations and country specific nuances. This means for example, that what may be ok in one country is not ok in another. The US has a relatively generous Fair Use doctrine built into copyright laws, whilst the EU, including the UK, has more prescriptive and effectively less permissive Fair Dealing defenses. So, what may be ok for a user to do in one country without permission may not be ok for a user to do in another country. Geo-blocking, which is used by some rights holders, like the BBC, can create silos of legally accessible content directed towards certain users who have legitimate access, but unless the state itself has restricted access and/or the user has restricted access themselves (through parental controls, for example) the majority of online content will be in theory accessible to most people.

In general terms, the exceptions to copyright will at the same time, provide a balanced legislative framework, enabling certain important activities that support cultural activities, education and personal use to continue, whilst recognising that rights holders should and need to be empowered to control access to their content. Most activities therefore that take place in schools will be facilitated by a combination of licences and exceptions to copyright. Use (access, downloading and uploading) of online publishing platforms for digital story telling, like YouTube and Facebook, is regulated by their terms and conditions. These broadly place the onus of responsibility for lawful content being posted on these platforms, onto the up-loader of the content. Subsequent lawful use of this content is also regulated by the terms and conditions of the platform provider. Together with a generous licence back to the platform provider every time that content is uploaded, the person uploading content has both contract law responsibilities, as well as copyright law responsibilities (see above) to ensure that the content is lawful. It is worth noting that new laws recently passed across the EU – encapsulated within the new EU Copyright Directive (4) – will increase the responsibility of the online publishing platforms to ensure that they filter out potentially unlawful content before it is posted, and to work more collaboratively with rights holders to achieve more compliance. The recent implementation of GDPR (General Data Protection Regulation) is a good example of how laws generated from the EU, can have successful global impact. It is highly likely that the new Copyright Directive will be as successful globally in regulating the posting of illegal content via online publishing platforms as GDPR has been in restricting the commoditization of personal data. Far from not being fit for the digital age, copyright laws are changing fast to enforce rights across all types of media and medium.

So, to make a long story short, some key take-homes about access to books, story telling and digital storytelling….

Borrowing books from a library is lawful, to be encouraged and everyone benefits.
Reading books borrowed from a library and/or purchased, to one-self or aloud to someone else or a small group of people in a private or domestic setting, is a lawful and beautiful activity.
Reading aloud to small groups, like classroom children, is enabled by certain exceptions to copyright.
Licences facilitate photocopying of multiple copies of small sections of books and/or organisational access to compendiums of e-content.
Including small quotes of a published book for the purposes of making a point illustrating a point – is lawful in most jurisdictions.

However, publishing stories which are still in copyright, which would include republishing a print version and/or online publishing via an online platform such as YouTube and/or Facebook is not enabled by the exceptions to copyright and moreover, is governed by the terms and conditions of the online publishing site that is used. Moral rights and ethics aside, a judgment call will neither protect a librarian or provide them with a firm legal basis to justify digital story telling of an in copyright work – because they ultimately carry all the risk and responsibility for uploading lawful content.

Without any consideration for the rights of authors/illustrators/publishers, the reading of a popular current book online will harm the interests of all stakeholders in book production, access and use, which is ultimately sharing and not caring.

This blog was originally written for the School Library Association https://www.sla.org.uk/.

1 https://www.bl.uk/plr/about-us

2 https://www.slj.com/?detailStory=tackling-copyright-concerns-when-taking-storytime-online

3 https://en.wikipedia.org/wiki/Berne_Convention#Copyright_term

4 https://ec.europa.eu/digital-single-market/en/modernisation-eu-copyright-rules

What to find out more? We regularly run copyright training and also offer rights clearance and consultancy services. Get in touch with us via info@naomikorn.com for more information.

Disclaimer: The material in this blog post is for general information only and is not legal advice. Always consult a qualified lawyer about a specific legal problem.