Restricted and Permitted Acts

Richard McCracken

Head of Intellectual Property

The Open University

Two types of activity

• Restricted Acts (What we can do with permission)

• Permitted Acts (What we can do without permission)

Restricted Acts

• Copying

• Making available to the public (publishing)

• Broadcasting

• Adapting

• Dealing in infringing copies

• Providing means of making infringing copies

Restricted acts continued

• Storing in an electronic medium

• Extracting (database right)

• Communicating to the public (digital networks)

• Authorising infringement

• Recording performances

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

Permitted acts & licensing schemes

• Photocopying text (CLA)

• Off-air recording of broadcasts (ERA and OU schemes)

Insubstantiality

• A qualitative test

• Varies according to context and ‘work’– e.g. literary prose/poetry, musical, film.

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

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

Explicit licences

Licensing statement

Implicit licences

• Context-driven

• Letter to newspaper

• Interpretation of intent

Rights ownership

• Staff – terms and conditions

• Students – terms and conditions

• Commissioned – contractual

• Existing - licensing

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