Rights Issues in Digitisation Alastair Dunning Arts and Humanities Data Service, King’s College London i am not a lawyer do not take any legal responsibility small print i am not a lawyer do not take any legal responsibility small print i am not a lawyer do not take any legal responsprint small print am not a lawyer do not take any legal responsibility small print i am any legal responsibility small print i am not a lawyer do not take any legal responsibility small print i am not a lawyer do not take any legal responsibility small print i am not a lawyer do not take any legal responsibility small print i am not a lawyer do not take i am not a lawyer do not take any legal responsibility small print i am not a lawyer do not take any legal responsibility small print

Digital Copies “ Looking” at something on the web is the wrong terminology Much of what you see is downloaded to your computer Copies of original works in digital form are therefore proliferating at an incredible pace  Immense copyright problems for artists and potential digitisers

“ Looking” at something on the web is the wrong terminology

Much of what you see is downloaded to your computer

Copies of original works in digital form are therefore proliferating at an incredible pace

The angry Mr. Hogarth 18 th -century copying initiated law Additions since then (1842,1862, 1911, 1955, 1988, 1993, 2003) Copyright, Design and Patents Act, 1988 is the key legislation An Intellectual Property Right Subsists in creative, recorded output Does not need to be asserted

18 th -century copying initiated law

Additions since then (1842,1862, 1911, 1955, 1988, 1993, 2003)

Copyright, Design and Patents Act, 1988 is the key legislation

An Intellectual Property Right

Subsists in creative, recorded output

Does not need to be asserted

Nearly everything is creative Original literary, dramatic, musical or artistic works Sound recordings, films, ‘communication to public right’ Typographical arrangement of published editions But must be recorded in some format Quality is irrelevant

Original literary, dramatic, musical or artistic works

Sound recordings, films, ‘communication to public right’

Typographical arrangement of published editions

But must be recorded in some format

Quality is irrelevant

Duration of copyright The author or creator’s lifetime and then: 70 years - literary, dramatic, musical & artistic works, films 50 years – ‘Communication to public right’ (websites, tv, cable), sound, computer generated works & performances 25 years - typographical arrangements (from date of publication) Crown Copyright – up to 125 years Historical / retrospective, anonymous, unpublished work can be more difficult to define

The author or creator’s lifetime and then:

70 years - literary, dramatic, musical & artistic works, films

50 years – ‘Communication to public right’ (websites, tv, cable), sound, computer generated works & performances

25 years - typographical arrangements (from date of publication)

Crown Copyright – up to 125 years

Historical / retrospective, anonymous, unpublished work can be more difficult to define

Who owns copyright? Author or Creator of Work … … or a full-time employer Multiple rights frequently exist Ownership can be bequeathed / sold Ownership of object does not give you copyright control Beware of photographs

Author or Creator of Work …

… or a full-time employer

Multiple rights frequently exist

Ownership can be bequeathed / sold

Ownership of object does not give you copyright control

Beware of photographs

Rights associated with copyright Enables copyright holder to prevent reproduction Owner has exclusive right to exploit the work Infringement can mean legal action Fair Dealing allows for limited copying Author retains all moral rights

Enables copyright holder to prevent reproduction

Owner has exclusive right to exploit the work

Infringement can mean legal action

Fair Dealing allows for limited copying

Author retains all moral rights

Copyright subsists ... Now what? Rights holder(s) might already be known Direct contact? Or contact via agency? Obtain rights by negotiating and then developing new license form or updating existing ones Performing Rights Society Copyright Licensing Agency Newspaper Licensing Agency

Rights holder(s) might already be known

Direct contact? Or contact via agency?

Obtain rights by negotiating and then developing new license form or updating existing ones

Performing Rights Society

Copyright Licensing Agency

Newspaper Licensing Agency

Developing licence agreements Needn’t be long; must be precise … … but flexible enough to deal with technical evolution and future project planning Sample models in existence, but will need to be tailored for individual projects Try and exploit institutional help Licence(s) must identify all rights holders Clarify who holds the digital rights Sample at http://vads.ahds.ac.uk/fineart/feasibility.html

Needn’t be long; must be precise …

… but flexible enough to deal with technical evolution and future project planning

Sample models in existence, but will need to be tailored for individual projects

Try and exploit institutional help

Licence(s) must identify all rights holders

Clarify who holds the digital rights

Sample at http://vads.ahds.ac.uk/fineart/feasibility.html

What if rights-holder is not obvious? Ideally, a legacy of documents provides this information … … but this legacy often does not exist or requires much work to uncover The Law does not exempt the digitiser But many projects do advance if they feel they can defend their position I.e. Non-commercial, educational purpose to project Projects must judge risk of prosecution against advantages in proceeding. Tracing copyright holders

What if rights-holder is not obvious?

Ideally, a legacy of documents provides this information …

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

The Law does not exempt the digitiser

But many projects do advance if they feel they can defend their position

I.e. Non-commercial, educational purpose to project

Projects must judge risk of prosecution against advantages in proceeding.

Even more issues … Digital Rights Digital objects have copyright too Database Rights Complex database design Publication Rights Discoveries can be rewarded Moral Rights Author have their rights too Eeek!

Digital Rights

Digital objects have copyright too

Database Rights

Complex database design

Publication Rights

Discoveries can be rewarded

Moral Rights

Author have their rights too

Eeek!

Even more issues … Data Protection Data Protection Act, 1998 Data controllers must be aware of the possibility of recording data which can identify living people Implied consent needed for all personal data Explicit consent required for sensitive personal data Religion, health, politics, sexuality Exceptions made for researchers Data can be held indefinitely May be used for other purposes Non-identification of persons is the key

Data Protection Act, 1998

Data controllers must be aware of the possibility of recording data which can identify living people

Implied consent needed for all personal data

Explicit consent required for sensitive personal data

Religion, health, politics, sexuality

Exceptions made for researchers

Data can be held indefinitely

May be used for other purposes

Non-identification of persons is the key

In conclusion Don’t panic. Problems can often be worked around Obtaining legal advice often necessary Negotiation and Organisation – Good practice Management – Copyright can influence much of your project As with most of the workshop, a project management issue Identify problems early on - ultimately, it is your responsibility Research – Tracing copyright holders

Don’t panic. Problems can often be worked around

Obtaining legal advice often necessary

Negotiation and Organisation – Good practice

Management – Copyright can influence much of your project

As with most of the workshop, a project management issue

Identify problems early on - ultimately, it is your responsibility

Research – Tracing copyright holders