Dr Catherine Seville - Mr Ellis Weinberger
Presentation to the CEDARS Conference, York, 8 December 2000
Ellis Weinberger is the CEDARS project officer at Cambridge University Library. His job is to help develop collection management policies, including intellectual property rights policies, for the preservation of digital materials.
Catherine Seville is the Intellectual Property Adviser to the CEDARS project. She is Director of Studies in Law at Newnham College, Cambridge, and specialises in copyright law.
The Consortium of University Research Libraries Exemplars in Digital Archives project, CEDARS, is run by the Consortium of University Research Libraries, CURL. It is funded by the Joint Information Systems Committee of the Higher and Further education funding bodies in the United Kingdom, JISC, as part of its Electronic Libraries programme, eLib.
CEDARS has developed collection management policies, including intellectual property rights policies, technical preservation concepts, and preservation-specific metadata. The project has also designed a digital preservation archiving system which has been pilot-tested at academic and public libraries in the United Kingdom.
This paper aims to assist librarians and archivists when they need to address the intellectual property rights issues which arise during digital preservation activities. Digital preservation activities may include actions which infringe intellectual property rights. This paper offers suggestions and advice which arise from the CEDARS experience. We will look at general rights issues in the United Kingdom, with an emphasis on copyright, rights negotiation, and preservation licence issues.
Copyright can be thought of as a bundle of economic rights and moral rights.
The basic framework of these rights is statutory, although the explanatory case law is of great importance.
Copyright can cover many types of creative effort, which may include plays, paintings, sound recordings, and the typographical format of certain published editions.
Several copyrights may subsist simultaneously in a single item, and care should be taken to establish the exact nature and ownership of each.
The usual term of protection for copyright is 70 years from the end of the year of the death of the author.
Certain databases, which by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation, are protected by copyright as a literary work.
A new right, called database right, to prevent unauthorised extraction, has been introduced for all databases, whether they enjoy copyright or not. Database right applies where there has been a substantial investment in obtaining, verifying or presenting the contents of the database. The term of protection in this case is only 15 years, but may be renewed if there is a substantial change to the database. Therefore, in principle, the database right can last indefinitely.
Legislation requiring legal deposit of published digital objects is under discussion in the United Kingdom. A voluntary deposit scheme for published digital objects is being used to explore the issues involved.
Legislation in the United Kingdom for the legal deposit of published digital objects will not solve all digital preservation rights problems. Many libraries will still need to negotiate rights for the preservation of commercially published material which is of importance to their institution, since it is certain that some digital objects will fall outside the legislative boundaries for compulsory legal deposit.
A draft European Union Copyright Directive is currently being negotiated. This directive is likely to change what libraries are allowed to do in order to preserve items under copyright.
The proposed Directive seeks to offer protection to copyright works where these are distributed electronically. The aim is to facilitate cross border trade in copyright works. Member States will be permitted to apply various exemptions from the basic restrictions on copyright, although they may also have to provide fair compensation for copyright owners.
The draft Directive permits member states to limit the copyright owner's exclusive right of reproduction ``in respect of specific acts of reproduction made for archiving or conservation purposes by establishments which are not for direct or indirect economic or commercial advantage, such as, in particular, libraries and archives and other teaching, educational or cultural establishments". [Article 5(2)(c).]
It is not yet clear whether the United Kingdom intends to take advantage of this exemption, or, if it does, what form such an exemption would take. The wording of any exemption will be a contentious matter, and considerable lobbying from all affected parties is to be expected.
Until these issues are resolved, our paper can do no more than flag the approaching debate.
We will now take a closer look at topics which are specific to copyright.
The basic principle is that the author of a work is the first owner of any copyright in it. The main exception is where a work is made by an employee in the course of employment, where the copyright is first held by the employer. This may not necessarily be the case for work produced by scholars employed in institutions of higher education. Copyright may be transferred to others in subsequent transactions.
The copyright owner has the exclusive right to do certain acts, including copying the work, and renting or lending the work to the public. Infringement occurs when a person does, or authorises another to do, one of the restricted acts, to all, or a substantial part of the copyright work, without the licence of the copyright owner.
Copying involves reproducing the work in any material form. For films and TV programmes copying includes a photograph of any image. This would include, for example, posters and postcards of a single frame.
Lending can be thought of as making a copy of the work available, through an establishment which is accessible to the public, for use by a person, without charging the person who is borrowing the work. Certain libraries have special privileges regarding lending, as will be explained.
Rental can be defined as making a copy of the work available for use by a person, and charging the person who is renting the work.
Copyright law has to balance the interests of the copyright owner against the needs of the public for access to copyright material. Some acts - which would otherwise constitute breach of copyright - are allowed. Some are expressly permitted by statute. These are known as permitted acts. Other permitted acts have developed at common law.
Fair dealing with certain types of works for the purposes of research or private study does not infringe copyright in the work. Fair dealing with databases is not permitted for commercial research. There are similar provisions to allow fair dealing for the purpose of criticism or review, and to allow the reporting of current events.
The rules are founded in statute law, but the case law is of considerable significance in determining the boundaries in each case.
The provisions dealing with educational establishments and libraries exemplify the Act's attempt to balance the interests of the copyright owner against the legitimate needs of the public. We will discuss certain provisions of particular relevance.
Only prescribed libraries benefit from these provisions. Libraries are prescribed by statutory instrument. For example, all university libraries will be prescribed libraries.
Under certain statutory conditions, prescribed libraries may make copies of articles in periodicals, and of parts of published works. These conditions include the librarian's being satisfied that the copies are only supplied to persons requiring them for the purposes of research and private study.
Copyright in a work is not infringed by the lending of copies of the work by a prescribed library or archive which is not conducted for profit.
There is no similar exception for rental, so it is important that libraries should not inadvertently or deliberately charge sums which convert lending into rental.
Sending this letter may be sufficient in order to obtain rights to preserve an object. If the rights owners agree to the terms in this letter, the institution will be able to carry out any actions necessary in order to preserve the digital object.
Dear (name of negotiator for owner of rights)
In order to ensure continued access to the (name of the digital object), (name of the archiving institution) requests permission to preserve the (name of the digital object) in a digital preservation archive. The sole reason for preservation of the (name of the digital object) is to ensure continued access to the digital object in the long-term. Access to the object would continue to be granted only in accordance with the terms of applicable licences (if any), and in accordance with prevailing law.
I would be happy to answer any further questions you may have, and may be contacted directly at the address below. I look forward to hearing from you.
(Name and contact details of negotiator for archiving institution)
We may be saved all this trouble in some cases, because preservation licences may be negotiated with rights owners by national higher education bodies.
If the rights owners are unwilling to agree to a licence on the terms indicated in this letter, then an individually drafted licence will have to be negotiated before preservation can take place. This will allow us to take account of the particular concerns of the rights owners. This brings us to the licencing agreement.
The archiving institution should seek a licence allowing it to take all necessary steps to preserve access to the intellectual content of the digital object. The nature of these steps should be clearly specified. They will include the technical and other actions defined in pre-negotiation preparation. It may be helpful to reiterate that the archiving institution does not seek any alteration to the existing conditions under which an authorised user is given access to the digital object, and that these will continue to be respected.
The following general points should be considered when a licence is being drafted. The detailed drafting of the licence should be carried out with the assistance of a legal advisor.
An institution should ensure that purchase of a digital object, or the licence to use it, includes the right to preserve access to the intellectual content of the digital object. It may need to negotiate the right to preserve a digital object, and it must maintain current information, relating to the owners of intellectual property rights in the preserved digital object, in the metadata concerning the preserved digital object.
In order to ensure the preservation of digital objects, librarians and archivists must consider the relevant aspects of current intellectual property rights. They will have to assure the rights owners that the commercial value, and the integrity, of the preserved digital object will not be lost. By attending to rights issues, they will reduce risk for their institutions and encourage the preservation of digital objects. Scholars today produce and use digital objects. By preserving digital objects, we ensure that future scholars will be able to build on today's research.
If you have any questions, please e-mail firstname.lastname@example.org.