Methods for Dealing with Copyright Issues

Alastair DunningAlastair DunningArts and Humanities Data ServiceArts and Humanities Data Service

Outline of Presentation

• Previous presentation introduced how to discover if Previous presentation introduced how to discover if something was in copyright or notsomething was in copyright or not

• This presentation thinks about what to do nextThis presentation thinks about what to do next

• Later presentation on license developmentLater presentation on license development

• Common problems cited before workshopCommon problems cited before workshop• Collections with many different copyright holdersCollections with many different copyright holders

• Inability to trace copyright holderInability to trace copyright holder

• Also mention copyright in digital objects themselvesAlso mention copyright in digital objects themselves

You’ve Identified Copyright Subsists. Now What?

• Rights holder(s) might already be knownRights holder(s) might already be known

• Direct contact? Or contact via agency?Direct contact? Or contact via agency?• Obtain rights by negotiating and then developing Obtain rights by negotiating and then developing

new license form or updating existing onesnew license form or updating existing ones

• Performing Rights SocietyPerforming Rights Society

• Copyright Licensing AgencyCopyright Licensing Agency

• Newspaper Licensing AgencyNewspaper Licensing Agency

Sheer Scale of Copyright Holders

• Large number of disparate objects and Large number of disparate objects and therefore large number of copyright holderstherefore large number of copyright holders

• Seemingly insignificant rights for each objectSeemingly insignificant rights for each object

• Example of a slide library, or random bequestsExample of a slide library, or random bequests

• Copyright remains regardless of quantity or Copyright remains regardless of quantity or qualityquality

• Digital slide library must still clear relevant Digital slide library must still clear relevant rightsrights

Pragmatic solutions (1)

• If obtaining rights is too expensive or time-consumingIf obtaining rights is too expensive or time-consuming

• Select specific material onlySelect specific material only

• Focus on certain parts of collectionFocus on certain parts of collection

• Leave certain images out on grounds of qualityLeave certain images out on grounds of quality

• Provide a catalogue onlyProvide a catalogue only

• Search for non-copyrighted materialSearch for non-copyrighted material

• Or … insert copyright clearance into project structureOr … insert copyright clearance into project structure

• This helps clarify the purpose of your digitisation projectThis helps clarify the purpose of your digitisation project

Pragmatic solutions (2)

• Type of usage (include relevant statements)Type of usage (include relevant statements)• General public, educational, charityGeneral public, educational, charity

• Access to the materialAccess to the material• Thumbnails, restricted resolution, watermarking, Thumbnails, restricted resolution, watermarking,

password protectionpassword protection

• These will all be thrashed out in development These will all be thrashed out in development of a licenseof a license

Tracing Copyright Holders

• Often occurs with anonymous or unpublished Often occurs with anonymous or unpublished materialmaterial

• Either Artist / Director / Composer / Author is First Either Artist / Director / Composer / Author is First Owner ….Owner ….

• … … Or full-time employer is First OwnerOr full-time employer is First Owner

• Rights can be sold or bequeathedRights can be sold or bequeathed

• Copyright need not be tied to ownershipCopyright need not be tied to ownership

• Ideally, a legacy of documents provides this Ideally, a legacy of documents provides this information …information …

Not Tracing Copyright Holders

• … … but this legacy often does not exist or but this legacy often does not exist or requires much work to uncoverrequires much work to uncover

• E.g. letters, photos, drawingsE.g. letters, photos, drawings

• Does the Law therefore exempt the digitiser?Does the Law therefore exempt the digitiser?

• No*No*

• Archives, museums, researchers would be Archives, museums, researchers would be expected to have expertise in this matter.expected to have expertise in this matter.

Not Tracing Copyright Holders

““The publisher must balance the risks of infringement The publisher must balance the risks of infringement against the benefits of going ahead … The Act gives against the benefits of going ahead … The Act gives

absolute rights to the copyright owner … there is absolute rights to the copyright owner … there is nothing about a publisher having to take only nothing about a publisher having to take only

reasonable stepsreasonable steps””

Tim Padfield, Copyright for Archivists, p.101Tim Padfield, Copyright for Archivists, p.101

(Projects must be prepare to protect themselves against (Projects must be prepare to protect themselves against legal action if proceeding with digital publication)legal action if proceeding with digital publication)

Darwin Correspondence Project

• DCP is creating electronic and print versions DCP is creating electronic and print versions of all letters to and from Charles Darwinof all letters to and from Charles Darwin

• Why are 19Why are 19thth-century letters in copyright?-century letters in copyright?• They are unpublished literary works, due out They are unpublished literary works, due out

of subsistence in 2039of subsistence in 2039• Agreement signed for letters sent by Darwin Agreement signed for letters sent by Darwin

with descendent involved in projectwith descendent involved in project

Letters to Darwin

• Identifying owners of rights is very trickyIdentifying owners of rights is very tricky• Just short of 2,000 correspondents Just short of 2,000 correspondents

throughout Europethroughout Europe• DCP proceeded with publication despite DCP proceeded with publication despite

not clearing all rightsnot clearing all rights• Project has continued working in this area as Project has continued working in this area as

a defence against possible legal actiona defence against possible legal action• ““Problem is there might be a problem”Problem is there might be a problem”

Continuing Copyright Investigation

• Continue reasonable attempts to find holdersContinue reasonable attempts to find holders• Appeal for rights-holders to come forwardAppeal for rights-holders to come forward

• Relevant adverts in press and journalsRelevant adverts in press and journals• Soon to be placed on websiteSoon to be placed on website

• Continuing investigation on particular letter-Continuing investigation on particular letter-writerswriters• Following leads with new informationFollowing leads with new information• Finding some letters publishedFinding some letters published

• No financial gain being made, or could be made No financial gain being made, or could be made in most casesin most cases

Other Defenses (1)

• Maintaining records of correspondence etc.Maintaining records of correspondence etc.• Smoothes process + shows good Smoothes process + shows good

intentionsintentions• Obtaining legal adviceObtaining legal advice• Exploiting possible leads and linksExploiting possible leads and links

• WATCH (Writers, Artists and their Copyright Holders)WATCH (Writers, Artists and their Copyright Holders)• Contacting relevant estates, publishers, archivists, librariesContacting relevant estates, publishers, archivists, libraries• Wills located at Wills located at First Vaneue HouseFirst Vaneue House or Scottish Records or Scottish Records

OfficeOffice• Web searching, genealogy searchesWeb searching, genealogy searches• Exploiting your own subject communityExploiting your own subject community

Other Defenses (2)

• Acknowledge copyright policy / add Acknowledge copyright policy / add disclaimerdisclaimer

• What type of access is there for the digitised What type of access is there for the digitised material?material?

• Is any financial gain being made?Is any financial gain being made?• All costs need to be added into project All costs need to be added into project

budgetbudget

Digital Biscuit Tins

• Reading Museum digitising Huntley and Reading Museum digitising Huntley and Palmer collection via NOF fundingPalmer collection via NOF funding

• Confused copyright historyConfused copyright history• Time was wasted seeking supposed ownersTime was wasted seeking supposed owners• Legal costs need to be added into project Legal costs need to be added into project

budgetbudget• Importance of seeking legal adviceImportance of seeking legal advice

Copyright in Digital Objects

• Digital objects may well have their own copyrightDigital objects may well have their own copyright• Images are literary works Images are literary works • Digital reproduction takes skill Digital reproduction takes skill copyright copyright• Editing photo can damage artist’s original moral Editing photo can damage artist’s original moral

rightsrights• Contracts with outsourced digitisation agencies Contracts with outsourced digitisation agencies

should ensure rights return to commissioning bodyshould ensure rights return to commissioning body• Beware of volunteers, studentsBeware of volunteers, students

Database Rights

• Largely untested in legal practiceLargely untested in legal practice• Database right protects the work of entering, Database right protects the work of entering,

verifying and presenting dataverifying and presenting data• Additional copyright can protect the designAdditional copyright can protect the design• This is independent of contentThis is independent of content• Dependent on author’s intellectual inputDependent on author’s intellectual input• Digital rights could be exploited in long-termDigital rights could be exploited in long-term

In Summary

• Resolving copyright is often not clear cutResolving copyright is often not clear cut• Importance of being seen to be make efforts Importance of being seen to be make efforts

to trace copyrightto trace copyright• Need to make pragmatic solutions when Need to make pragmatic solutions when

faced with ‘an excess of copyright’faced with ‘an excess of copyright’• Digital work develops its own copyrightDigital work develops its own copyright