The UK Supreme Court said the other day that it was only making video available online for a year citing some storage, copyright and cost reasons that didn’t seem right to me. With my Crime and Justice Sector Transparency Panel hat on I wrote about it, with some helpful comments from Andrew Stott and made enquiries which elicited the response below, which is slightly baffling.
As far as I can make out the videos have to disappear for five years before they can surface, nuclear submarine-like for public use using a copyright and liability opt-out created for public records in the national archives. Like kimchi or a cheese or whisky the videos have to be deprived of sunlight for a spell in an underground archive before they can take their permanent place in the world. I grant Facebook a licence to my photos when I sign up there, why can’t barristers who appear in the Supreme Court? Just hand out slips of paper to sign at the door. This and my other surreal internet experiences with the Crime and Justice Sector Transparency Panel shows we need to rethink court procedures for the internet age – perhaps Mr Gove will be interested?
I am short of time this week, but something doesn’t seem right even though they are moving in the right direction so will leave this email to me from the Supreme Court here for comment:
I hope our press release was not misleading – but the fact the footage of hearings will only be available for one year is not for copyright reasons. I am afraid it is simply a question of resources: the whole archive of over five years of proceedings runs into many terabytes of data, which as you will appreciate, would not be cheap to host and make available as a reliable download. We are keen to review usage and feedback next spring to see whether there is demand/merit in extending the archive back beyond a year, though in fairness many other ‘on demand’ systems have time limits for similar reasons.
The reason the footage is not available for download and re-editing, however, is for copyright reasons, and I am afraid your post rather underestimates the legal complexities! As you will appreciate, a range of people are involved in creating and featuring in the material who are not Crown servants, e.g. the counsel involved in hearings. Historically, no process has ever been undertaken to seek that participants in proceedings assign all their intellectual property rights to the Crown when taking part in proceedings: there has never been any need to do so. It is certainly not as simple as ensuring that our broadcast services contract assigns all rights to the Crown – the AV engineers do not own the rights to assign in the first place. You will understand that we are keen that users do not inadvertently edit or republish the material in a way could attract liability for breach of others’ copyright. It is clearly impractical for us to seek to determine what material may include others’ rights, and therefore to seek to distinguish Crown copyright material from that over which others have an interest. There are also particular exemptions for court proceedings that allow those taking part in them to avoid any liability for defamation: this would not carry through to any who decided to re-edit and re-publish such claims outside of the context of the courtroom.
While it resides with the Supreme Court, footage is therefore being made available solely for the purpose of furthering the fair and accurate reporting of the judicial proceedings of the UKSC and JCPC, which enables us to offer it freely online in a way that provides a defence to the Court (and therefore to taxpayers) against claims by those who claim their rights are somehow infringed by publication. This is made clear in our updated terms and conditions at https://www.supremecourt.uk/terms-and-conditions.html
However, I hope you will be reassured to learn that once footage reaches The National Archives (which it will when it is five years old) as the public record of the proceedings of the Court, different considerations will apply. Section 47 (2) of the Copyright, Designs and Patents Act (as amended) provides that ‘where material is open to public inspection pursuant to a statutory requirement’, which documents available in TNA are, whereas our footage here is not, there is a statutory protection against actions for copyright infringement if it is re-used for quite a wide range of purposes. We are therefore liaising with Carol Tullo’s team [at National Archives] over a version of the OGL with more relaxed licencing terms that will apply once our footage is made available there: we anticipate this process will begin this autumn, when the first batch of footage from the 2009/10 legal year will – we expect – be made available (with no time limit!).
I hope this reassures you that, with respect, we are trying to understand the internet and the way it works, but doing so in a responsible manner that does not expose the public to legal liabilities, nor place a new burden on public resources when the appetite for this footage is untested. We are also putting in place a system that will allow for even greater public access and use at the point which the records are transferred to TNA.
I should also state for the record that the Supreme Court of the United Kingdom does not come within HMCTS for England and Wales’ umbrella, and they have no role in this project.
William Perrin
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