Risky Business: Copyright and Making Collections Available Online
Victoria Stobo, CREATe, University of Glasgow
Victoria Stobo, Risky Business: Copyright and Making Collections Available Online, in Andrea Wallace and Ronan Deazley, eds, Display At Your Own Risk: An experimental exhibition of digital cultural heritage, 2016.
Display At Your Own Risk is a research project primarily concerned with the way cultural institutions make their digital collections available online, for use and reuse by the general public. In many respects, the exhibition places the perspective of the user centre stage as the organizers explore the risks inherent in making use of digital surrogates of public domain works from internationally renowned museums and galleries, without the express permission of those institutions. But the ‘risk’ alluded to in the project title speaks to a range of issues. For example, the organizers also draw attention to the risks that cultural institutions face when making collections available online in the first place. Although digitizing works in the public domain presents institutions with no risk (from a copyright compliance perspective), what risks are incurred when digitizing copyright-protected collections, and how might these be managed?
The potential benefits of making collections available online are addressed elsewhere in this collection. This essay provides a no-nonsense run-down of some of the issues to be aware of when making heritage collections available online. Often, these are issues that cannot be satisfactorily resolved with any certainty: whether an item is protected by copyright or not; whether you have identified the correct rights holder(s) for an item; whether you can expect a response from those rights holder(s), and so on. With that in mind, any evaluation of the risks and uncertainties involved must be tempered by a clear focus on the potential benefits associated with making these collections available online.
COPYRIGHT AND THE DIGITIZATION WORKFLOW
Copyright considerations can impact the digitization of a collection at almost every stage. Before digitization begins, collections will be selected and the shape and form of the online resource will be determined. This selection process might address particular research needs within an institution, respond to the needs of users, take advantage of a commercial partnership, or map onto a particular call for funding proposals. At the selection stage it is essential to have an idea of the rights issues that might be triggered by digitizing the collection and making it available online. This helps to determine what rights clearance activity can be undertaken given the budget and timescale associated with the project, as well as the type of permissions that may be required from rightsholders. When digitization commences without these insights, project outcomes can be seriously affected.
Following the selection process, ideally a rights audit would be carried out to identify material that is protected by copyright, as well as who owns that copyright. The level of intellectual control of the collection will influence how accurate and quickly progress can be made at this stage. Depositor and accession documentation, as well as the collection catalogue, will help to identify rights information as well as devise processes to locate this information. If the collection is well-documented, it may be possible to quickly identify the rights that have been assigned to the institution and which rights are owned by third parties. If the collection has been minimally processed, further cataloguing will have to take place to get a full picture of the rights issues at play.
A rights audit will help determine whether rights clearance is required, and if so of what kind. For example, a commitment to strict copyright compliance may be called for, or clearing rights might be simplified by prioritizing only certain rightsholders (a risk-managed approach).
Assuming some form of rights clearance is required, the audit will help generate the list of rightsholders that may need to be contacted. Rightsholders can be contacted via letter, email, social media or phone to ask for their permission to digitize the material and make it available online. When contact is made, inform them about the digitization project, and explain why it is important. The material to be digitized should be described in detail. An explanation of how the material will be made available as well as what users will be able to do with it is often helpful in securing the relevant permission. You should be prepared for the rights holder to ask further questions about the project and the material being digitized. They may want to see copies of the items before granting permission, which will have practical implications in terms of managing the digitization workflow.
As a result of contact, you’ll find that most rightsholders who go to the trouble of responding to your request will grant permission, and especially when digitization is for noncommercial and educational purposes. Some may respond by withholding permission, whereas some may not respond at all. Discretion is required when dealing with non-responders. In some cases, you may have the wrong contact details or the rights holder may simply have decided not to reply. In other cases, the rights holder may be genuinely unlocatable, in which case the material should be considered to be orphaned. Within the UK, when dealing with orphan works, there are various options: you can avail of the exception for orphan works laid down in European copyright law, or the Orphan Works Licensing Scheme (OWLS) managed by the UK Intellectual Property Office, or you might choose to make some (or all) of the orphan works available on the basis of an appropriate risk assessment.
Once the collection is made available online, this necessarily involves a commitment to the ongoing maintenance of the digital resource and metadata including rights information concerning the digital collection. If possible, your resource could incorporate a function that enables users to contribute descriptive tags, or identify authors of rightsholders of works in the collection. (This information will need to be checked before being added to the resource.) If you have made material available without contacting or successfully locating rightsholders, and those rightsholders subsequently contact you about your use of their work, you will need to consider how best to craft and implement a takedown procedure for that content. This needn’t necessarily involve taking down the material on request. For one thing, you will need to determine whether the claim is valid or not. If it is, negotiation with the rights holder may result in the material remaining online subject to appropriate terms and conditions, or perhaps a fee. If paying a licence fee isn’t appropriate, then the material should be removed from the website until permission is granted on other terms, or the material passes into the public domain.
What follows are some practical insights that flow from my doctoral research into risk-managed approaches to the digitization of archive collections within the UK.
There isn’t room here to go into the detail that a discussion of depositor guidelines and relations deserves, suffice to say that depositors (or donors, depending on your preferred terminology) can take many forms. A depositor may be the creator of a particular collection of items, papers or records; they may be a close relative of the creator; they may be an employee of a organization or business that is donating its records; or they may be entirely unrelated to the collection in any meaningful sense (for example, a solicitor or accountant responsible for the disposal of assets).
An institution may spend significant amounts of time courting and negotiating with specific depositors, and go on to establish a long, fruitful relationship with them and their descendants. Alternatively, institutions may receive the offer of a deposit unsolicited, and signing the paperwork is the last contact the institution expects to have with the depositor. Indeed, legacy collections may have no depositor or gift documentation associated with them at all, and where they do, these may not cover the ownership of copyrights in the collection. The relationship between an institution and a depositor can be positive, benign, or in some cases, awkward and strained.
Depositors may hold all, some, few or none of the copyrights in the collection they are gifting, donating or loaning to the institution. Every collection is different in this respect. They might ask for the collection to be closed to external researchers, and insist that the institution forward all requests for access to them for review and permission. Alternatively, they might grant full access and use of the collection subject to certain terms: for example, a specific form of acknowledgement on publication, exhibition or display of the materials. They may assign the copyright that they hold to the institution, or they may retain it. They may use the deposit agreement to permit only certain types of use of the material, for example, copying for preservation or other noncommercial purposes, while precluding forms of commercial use. Where the terms and conditions of the deposit agreement conflict with existing copyright exceptions, consideration should be given to whether these exceptions are subject to contractual override or not. For example, within the UK, any term of a contract that attempts to prevent the use of a work for the purposes of quotation, criticism and review (whether commercial or otherwise) is unenforceable. Of course, when presented with terms of this nature, an institution may decide to prioritize good relations with the depositor. Indeed, maintaining the trust of depositors that they have built up over time is of huge importance to heritage institutions.
The risks and benefits associated with making material created in a personal capacity available online (for example, private correspondence) will be different to those associated with a photograph or a sound recording created in the course of employment, or an art installation created in the course of a residency. Older material may carry less risk than recent or contemporary material, where the rights holder might still expect to be able to commercially exploit their work. However, older does not always equate with less risk, at least not within the UK where certain extremely old, unpublished material remains in copyright (until 31 December 2039) regardless of when it was created.
You may want to give some consideration to the fact that a collection that contains a great variety of material will take longer to audit, and longer to clear rights. This is particularly true of collections that contain sound and film recordings in addition to letters, photographs and other more traditional paper-based records. This is because sound and film recordings often have multiple, complex rights associated with them. This can be further complicated by collections that contain large amounts of born-digital material. Born-digital material is often very hard to audit because of the number of files within the collection, viewing and conversion issues with older file formats, and because file names may not logically correspond to the contents of the files.
CIRCUMSTANCES OF CREATION
It’s important to consider the context in which the collection materials were originally created. This can have implications in terms of identifying the authors and rightsholders within the collection. For instance, a collection of personal papers created over the span of a single person’s life will contain similar material like correspondence, photographs and personal records, but the contents of the papers created by a statesman (e.g. Winston Churchill), a geneticist (e.g. Rosalind Franklin), and an author (e.g. Virginia Woolf) will vary significantly. The records of a business or an institution will also vary depending on the industry and sector in which they operated.
You may need to consider whether material has been created in a personal or an official capacity, whether it was created for mundane, everyday purposes or exhibits intellectual, creative endeavour, and whether it was created with commercial exploitation in mind. Special attention should be paid to whether the creator worked as a freelancer, whether the works were created in the course of employment, and whether the relevant contracts that formalised these arrangements still exist. Often they will not.
Naturally, the circumstances of creation are very closely linked to the content of the material in the collection. A collection might contain clinical content, sensitive personal data, images of individuals or images of children, which may or may not have been obtained with consent, and while this essay is primarily concerned with copyright compliance issues, in the UK dealing with sensitive personal data is regulated by the Data Protection Act 1988. In short, material of this nature should not be made available online.
Indeed, sensitivity review presents particular problems for mass digitization and born-digital collections. Some institutions have found it simpler to check material for sensitive content after it has been digitized, either at item level or by sampling. Other institutions prefer not to digitize sensitive material at all, but will carry out a review on the physical collection to determine what material from the collection is available for access on site, and what material remains closed to access and for how long.
The extent to which the collection has been processed will affect the entire digitization project. A collection that has been minimally processed is essentially an unknown quantity: you won’t be familiar with the contents, and you won’t understand the extent of the rights issues until a full review has taken place. In contrast, a collection that has been catalogued to item level (a rarity in archives, but far more common in library and museum collections) may provide details with which to identify potential rightsholders, and enough description to make the creation of metadata, file-names and description for the digital version of the collection a much simpler process.
DISTRIBUTION OF RIGHTS IN THE COLLECTION
With the benefit of a catalogue and a rights audit, you will have a better understanding of the rights implications presented by the collection identified for digitization. Both the catalogue and the audit should help you to identify what (if any) rights have been transferred to the institution at deposit (or afterwards), and to what extent rights in the collection lie with third parties. And of course, there will always be material about which you are unsure: the existing documentation concerning the deposit of the collection will not necessarily provide bright line answers. However, once you have a sense of the number of potential rightsholders, as well as how the rights in the collection are distributed among these individuals, you can begin to prioritize copyright compliance activity: clearing rights with one person who holds 50% of the rights in the collection makes much more sense – in terms of transaction costs – than approaching 300 people to clear rights in 15% of the material.
STAFF TRAINING AND VOLUNTEERS
Consideration must be given to all of the staff who will work on the project, but especially to those who will work on rights clearance. It is essential that staff with little or no experience of rights clearance are supported with appropriate training, not simply in understanding and interpreting the relevant legislation, but also in the complexities of copyright licensing and the nuances of diligent search. Moreover, anything recommended for staff applies equally to volunteers: they should also benefit from training, supervision and support in what is a crucially important step in the digitization workflow, albeit one that is often perceived as an unnecessarily complicated and bureaucratic process.
Those involved in the digitization process would also benefit from basic training in copyright and sensitivity review, as sensitive or high-risk material that may have been overlooked during the audit might be identified as part of the item-level digitization process.
LAWYERS AND SENIOR MANAGEMENT
It’s also essential that the institution’s legal team (if there is a legal team) understand both the intention behind the project and that a certain amount of risk must be tolerated if the project is to happen at all. Similar overtures should be made to senior management: if you are able to convince them that the potential value of the digitization initiative outweighs any risks associated with making the material available online, then support for the project is more likely to be forthcoming. However, these are often difficult arguments to make.
THE USER COMMUNITY
You will have an intended audience for the digital resource you are creating, and you may be lucky enough to have subject expertise to draw on. For example, you may be digitizing a collection of a notable 20th century poet and, within the English Department at your local university, there is an academic that not only has a specific research interest in this poet, but is also eager to engage in Knowledge Exchange with an external organization. You could draw on this expert knowledge to build up a picture of the most noteworthy rightsholders within the collection to clear rights with. You could also rely on this expertise following the clearance process when attempting to identify which non-responses are simple non-responders and which are genuine orphan rightsholders (bear in mind, this will never be an exact science).
It’s also important to consider your audience, and the community that you could potentially build around the resource. If there is a feedback or contact function within the resource, users may be able to provide additional contextual information about the collection, and about rightsholders that you may have missed.
This list discussed above is by no means exhaustive but it does provide some insight into the range of issues that should be considered before collections are made available online. While cultural institutions who digitize public domain works take on no risk in terms of copyright compliance, the ways in which they seek to control access and reuse of material could also be viewed as an attempt to manage and mitigate other perceived risks associated with making material available. The risks with public domain material are not the same as those associated with making copyright-protected material available; but, guidance on risk management suggests that many of the practices highlighted elsewhere in this collection are deployed by cultural institutions in the same way to both public domain and copyright-protected content: low resolution images, watermarking, disabling the ability to copy and paste images, restrictive terms and conditions, click-through agreements, and user registration. None of these practices enhance use of collections. Many of them deliberately inhibit use. The risks associated with making cultural heritage works available online must be given careful consideration, but we should not allow them to inhibit us too much either.
Bielstein, S.M., Permissions: A Survival Guide (Chicago: University of Chicago Press, 2006)
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Stobo, V., R. Deazley and I.G. Anderson, Copyright and Risk: Scoping the Wellcome Digital Library, CREATe Working Paper 2013/10, University of Glasgow, available at: https://zenodo.org/record/8380/files/CREATe-Working-Paper-2013-10.pdf
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Web2Rights n.d., (information on intellectual property rights, licensing, risk management, etc), available at: http://www.web2rights.com/