Copyright and Digitisation

Alastair DunningArts and Humanities Data Service, King’s College London

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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

The angry Mr. Hogarth

• 18th-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

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 – 125 years

• Historical, anonymous, unpublished work

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 photgraphs

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

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

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.htmlhttp://vads.ahds.ac.uk/fineart/feasibility.html

Negotiation and diplomacy

• Rights holder suspicious of contracts and Internet• Will the work be devalued, exploited, edited?• Suspicion of legalese Need to negotiate and demonstrate

professionalism• Many surprised by approach• Expectation of financial reward• Owners can often expect income as well

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

• Does the Law therefore exempt the digitiser?

• No.

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

Not tracing copyright holders

“The publisher must balance the risks of infringement against the benefits of going

ahead … The Act gives absolute rights to the copyright owner … there is nothing about a

publisher having to take only reasonable steps”

Tim Padfield, Copyright for Archivists, p.101

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

Darwin Correspondence Project

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

• Why are 19th-century letters in copyright?

• They are unpublished literary works, due out of copyright in 2039

• Agreement signed for letters sent by Darwin with descendent involved in project

Letters to Darwin

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

throughout Europe• DCP proceeded with publication despite

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

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

Investigation, Protection

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

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

• Continuing investigation on particular letter-writers

• Following leads with new information• Finding some letters published

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

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!

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 - ultimtely, it is your responsibility

• Research – Tracing copyright holders