Restricted and Permitted Acts

1. Restricted and Permitted Acts Richard McCracken Head of Intellectual Property The Open University

2. Two types of activity • Restricted Acts (What we can do with permission) • Permitted Acts (What we can do without permission)

3. Restricted Acts • Copying • Making available to the public (publishing) • Broadcasting • Adapting • Dealing in infringing copies • Providing means of making infringing copies

4. Restricted acts continued • Storing in an electronic medium • Extracting (database right) • Communicating to the public (digital networks) • Authorising infringement • Recording performances

5. Permitted Acts • Using an insubstantial part • Fair dealing for the purposes of criticism or review • Fair dealing for the purposes of reporting a current event • Fair dealing in setting, communicating or answering a bona fide examination question

6. Permitted acts & licensing schemes • Photocopying text (CLA) • Off-air recording of broadcasts (ERA and OU schemes)

7. Insubstantiality • A qualitative test • Varies according to context and ‘work’ • e.g. literary prose/poetry, musical, film.

8. Off-air recordings • 1988 CDPA – “educational purposes of the institution” • 2003 incorporation of EC Directive “premises of the institution” • e.g. campus facilities, halls of residence, study centres • Access from other premises denied

9. Web content Restricted Acts apply: • Storing in an electronic medium • Authorising infringement • Provision of premises and equipment for infringement • Communicating to the public • Database rights

10. Explicit licences Licensing statement

11. Implicit licences • Context-driven • Letter to newspaper • Interpretation of intent

12. Rights ownership • Staff – terms and conditions • Students – terms and conditions • Commissioned – contractual • Existing - licensing

13. Do I need to clear? • Is it a work? No – use it/Yes - proceed to next question • Is it protected? No – use it/Yes – proceed to next question • Am I performing a restricted act? No- use it/Yes – proceed to next question • Do I have a defence? Yes – use it/No – clear it