Appendix I: Copyright

(by Louise Heinink)

Introduction

Clearing and protecting copyright are two major challenges facing every hybrid and digital library today. With the increasing diversity of materials held within a given collection and specific rules applying to the different media, libraries must ensure that procedures are put in place to deal with complex issues of copyright when acquiring new material, digitizing existing material, and looking to protect against misuse of their own collections.

This report addresses the basic principles of UK copyright law with particular reference to the hybrid/digital library environment. It covers both clearance and protection, and looks at recent legal developments and current institutional initiatives of relevance to the library world. The report is based upon a workshop given by Professor Charles Oppenheim at Queen Elizabeth House, Oxford, on 12 July 1999, and was written by Louise Heinink, with extracts taken from a document prepared for the Refugee Studies Programme by Professor Oppenheim, and substantially revised for this appendix by Peter Leggate. For a more detailed description of copyright law reference should be made to the publications listed at the end of this Appendix.

Basic Principles of Copyright Law

Copyright is an automatic right for the originator of any new item – a piece of text, a painting, a sound recording etc. It is, in effect, a negative right to prevent other individuals or organizations from reproducing what is considered an original piece of work without appropriate permission. The two key issues which are addressed in the following sections are:

Copyright Ownership

Copyright may be owned by an individual or an organisation, or both. A clear distinction must be made between copyright ownership, authorship and physical ownership.

Libraries have physical ownership of large amounts of material but own the copyright of almost none of it (this may change with the development of digitization programmes which create images in which the Library does hold copyright). Ownership does allow a library to prevent copying if it so wishes.

The copyright in an author’s work may be owned by the author, or by the author’s employee, or assigned to a publisher or some other organisation. If an author creates material in the course of his or her normal duties copyright is owned by the employee, unless there is an agreement to the contrary. Copyright ownership in materials produced by academics is unclear. Most academics create publications in the course of their employment by the Universities, but most Universities choose not to exercise any rights they might have. It is therefore reasonable to follow customary practice and approach the academics or their publishers directly.

In the case of anonymous materials, if there is an obvious corporate source, that organization should be approached for clearance. If it is not obvious that the material is associated with any particular organisation, the material can be produced without clearance, but if a copyright holder identifies themselves and complains, negotiations to reproduce the material would have to be entered into.

A publication may have more than one copyright holder for different parts, e.g. the author or the publisher of a textbook may hold the copyright in the text but not in some illustrations. Multiple ownership is especially likely with multimedia works.

Copyright ownership is especially complex with photographs and with music recordings where copyright may be held by creator, producer or director or, as is often the case, jointly.

If the originator of the text was the copyright holder, but the text is still in copyright, their heirs and successors will be copyright owners. Similarly, a publisher who was the original copyright holder may have transferred the rights to another publisher.

Assistance in tracing copyright holders is available from several sources including a database of authors held at the University of Reading. If it is not possible to trace the author or creator of an item, a record should be kept of the efforts made; if digitisation is undertaken this record will be evidence of “best endeavour” under UK Law and should provide adequate protection.

When receiving gifts of unpublished materials, libraries should request (and keep on file) the licence to make copies from the copyright owner. It requires a letter, dated and signed by the donor. Note that in order for the donor to sign such a statement, the materials really must be his or her copyright; for example, documents in a collection which were sent to the donor but not written by him or her (or staff working for the organization) are not his or her copyright and should be excluded from digitizing.

Proof of copyright clearance is required in the form of a written assignment bearing the signature of the author. Faxes are considered acceptable for this purpose but, at the present time, copyright clearance by electronic mail has no legal validity. However, an EU directive is underway to make electronic signatories legally binding when attached to an email or other electronic document. If this directive becomes law it will greatly facilitate the provision of on-demand digital services and e-commerce in general.

If a request for copyright clearance receives no reply, the law does not permit digitization or reproduction to proceed. Requests for clearance giving a deadline by which the author must reply are not legally binding.

Permissions

The 1988 Copyright Act defines a number [47 according to the LA guide] of exceptions or “permitted activities”. Two of these exceptions which allow copying without the need for permission from the copyright holder and are particularly relevant in the Library environment are:

There are uncertainties about the application of these exceptions to the use of digitisation as a means of copying from paper, and to the copying of digital images. These arise in part because publishers consider digital copying to be de facto multiple copying.

One matter of some concern here is the EU Draft Directive on copyright and related rights in the information society as it appears to take away the concept of fair dealing in the electronic environment. At the present time both the status and the timing of this draft directive are unknown, but if passed the directive would effectively abolish fair dealing of electronic documents in law, permitting only limited rights for the purposes of illustration. The directive is currently with the EU Council of Ministers, the final hurdle before the draft becomes law. However, the role of this council is not merely to rubber stamp the directive, they may reject it completely, ask for amendments, or insist upon national exemptions according to the traditions of the individual member states.

Licenses

Licenses or guidelines, agreed between library and publisher representatives, may be used to define the interpretation of the above permissions, or to extend them. Two of particular relevance in the UK are:

· Copyright Licensing Agency (CLA) Agreement. The present Agreement is designed to allow multiple photocopying for teaching purposes, which is not allowed under the Library Regulations or Fair Dealing. The CLA is currently exploring the extension of this Agreement to electronic copying.

The Joint Information Systems Committee (JISC) of the UK Higher Education Funding Councils and the Publishers Association (PA) have been working together for the past two or three years to develop agreements and working documents in the area of copyright. So far the outcome of these negotiations has been:

· Guidelines on what is and is not considered fair dealing in a digital environment

A standard JISC/PA licence which can be applied both to providing access to electronic journals and to obtaining clearance for digitisation of text. The model license and other JISC/PA working papers is available on the UKOLN web site at http://www.ukoln.ac.uk/services/elib/papers/pa/.

Lifetime of Copyright

Copyright lasts for the originator’s lifetime plus 70 years. This applies to both published and unpublished materials. If the copyright for an item is jointly owned, UK law states that it expires 70 years after the death of the last surviving originator. In the case of anonymous, corporate, or pseudonymous material, copyright expires 70 years after the end of the calendar year in which the material was created. If the date of creation is unknown, the law allows someone to make a reasonable guess at the date of creation. There is also a copyright in typography and layout of text which lasts for 25 years. Because of successive changes in the law, there are particular difficulties in identifying the copyright lifetime of photographs. However, as a good working guide, assume that copyright in the photograph lasts for 70 years beyond the end of the year when the creator died or, if it is an anonymous photograph, 70 years from the date of publication. Special and quite complex rules apply to unpublished photographs.

Copyright in images

An image created by digitization, by virtue of being a new “literary, dramatic, musical or artistic work”, acquires its own copyright in addition to any copyright in the original from which it is copied. In this respect it is similar to a photograph, but not a microfilm. The image copyright belongs to the individual or organization that created the image. The same rules for lifetime apply as for photographs.

Moral Rights

Moral Rights are associated with individual rather than corporate ownership and fall into the three following categories:

  1. The right to be identified as the author or creator of a work. Unlike the copyright law, this right is not automatic and must be asserted by the individual. Once the author or creator has asserted this right, any digitization or reproduction must ensure that their name is always associated with that particular work
  2. The right to refuse to be associated with something you did not create. This right is, in effect, a quasi-libel law and the individual may sue if he or she is, for example, misquoted
  3. The “derogatory” right which allows the individual to object if copyright material is changed in any way which might impugn their reputation. This is an automatic right.

The possibility of actionable derogatory treatment of an author’s work is increased in the digital environment in which text and images can be cut and pasted.

Moral Rights do not apply to creators of computer programs, to the creation of any work reporting current events, to works that have appeared in newspapers, magazines or learned journals, dictionaries, yearbooks, or other collective works, to actions required by law or by a Court, and to employee created materials.

As a general rule, therefore, as well as common courtesy, when digitizing materials make sure that (i) the author’s name is accurately reproduced, and (ii) no changes to the materials are made that might be considered derogatory.

Copyright clearance for digitization of Library stock

Whether digitization is pro-active or reactive (in response to a user request), a decision must be made whether or not the material to be digitized is in or out of copyright. If it is out of copyright then no permission is needed and digitization can proceed. If material is in copyright then permission must be sought unless use is being made of the Library Privilege.

In the case of pro-active digitization of material in copyright, the copyright holder must be identified and permission sought. The permission, when granted, may be qualified by conditions imposed by the copyright holder on how the image can be used.

In the case of reactive digitization in response to a user request, it may be allowable to digitize under the Library regulations, as interpreted in the JISC/PA guidelines. If the user request is not covered by the Library Regulations, permission must be sought from a copyright holder in the same way as for pro-active digitization. If material is digitized for a user under the Library regulations, the Library may not retain a copy, i.e. such images cannot be incorporated into an image bank.

Copyright protection of images

Once text has been digitized, it is important to ensure that a library’s own rights are protected to prevent reproduction or adaptation (amendment) of the digitized material. UK law allows the copyright owner to sue for infringement if material is reproduced or amended without the necessary permissions. The owner may request that the individual or organization responsible for infringement removes the offending material or may sue those in breach of the copyright law for money. If the latter option is chosen the copyright holder must decide whether to sue either for the amount of money saved by the other party, or for damage to their own business, for example by loss of sales.

Increasing use of the World Wide Web, both at home and at work, means that protecting copyright material is now more difficult than ever before. Hypertext links to web sites are a particular cause for concern when information on the internet changes so rapidly and policing of content is minimal. Generally speaking, a simple link to another web site is not considered as infringement. However, when a link also contains a title and some text, infringement may take place and clearance is probably required. If you discover that a site to which you are linked is infringing copyright law you should break the link immediately. The law, however, does not require that you check all links to ensure that none contain material which might infringe. Finally, you may choose to sue other parties whose links to your web site associate you with, for example, offensive material.

One way of protecting copyright material, in particular on the World Wide Web, is by use of trademarks. By registering a logo, the name of a product or of a service as a trademark, infringement is likely to be kept to a minimum. The Trade Mark Registry produces a leaflet providing guidance on how to obtain an RTM. Whether or not a trademark is registered the copyright holder has to rely on searching the Internet(or being alerted by someone who has done) to ensure that copyright material is not being used without permission.

Digitization under Fair Dealing

Digitization can be undertaken by users under the Fair Dealing Regulations, using portable scanners, or self-service scanners, (as an alternative to photocopiers), when these become available. Publishers have expressed concern about digital copying, but the conditions considered acceptable are defined in the JISC/PA guidelines.

Libraries can, if they wish, copy on behalf of users under the Fair Dealing Regulations, but rarely do so, preferring to rely on the more definite legal protection of the Library Regulations.

Other issues

Corel vs. Bridgeman

This recent US court case concerns the reproduction of public domain works of art which are out of copyright. Corel published a CD-Rom series ‘Professional Photos CD-ROM Masters’ containing downloadable images of famous European paintings. The Bridgeman Art Library maintained that some of these images were reproduced directly from their archive and subsequently took action against Corel for infringement of copyright.

The US District Judge ruled in favour of Corel, maintaining that as the paintings themselves were out of copyright, Corel could use the images as they wished. The ruling held that the photographs were not considered to be creative works and were therefore not covered by copyright law.

This controversial ruling has been cause for considerable concern – museums and galleries worldwide rely heavily on the income generated from reproduction rights and wish to control the quality of reproductions of their works of art on sale to the public.

In the context of the United Kingdom, however, the ruling has little relevance. UK courts do not necessarily recognize their US counterparts and it is unlikely that a similar ruling would be made in this country.

Examinations

The law allows an individual to quote from in copyright works for the purpose of examination. However, a university which subsequently makes available or sells the examination paper without clearing copyright is in breach of the law.

Reproduction of examination papers which include copyright material for administration over the World Wide Web is permitted but only for the duration of the examination period, and it is limited only to the students registered to take the examinations. At the end of the examination period the papers must, however, be removed from the Web site.

For further information

Web Sites

The Joint Information Systems Committee (JISC) has a list of useful documents on electronic copyright at: http://www.jisc.ac.uk/curriss/collab

The Arts and Humanities Data Service (AHDS), which provides information about digital resources, services, and projects of general interest to the Arts and Humanities community, has a FAQ list on copyright at: http://www.ahds.ac.uk/bkgd/copyrightfaq.html

Copyright Licensing Agency (CLA) . The CLA is responsible for looking after the interests of rights owners in copying from books, journals, and periodicals. Their web site gives further information on the Electronic CLA (ECLA) http://www.cla.co.uk

Publications

The Legal and Regulatory environment for Electronic Information, Third Edition, Charles Oppenheim, 1999, Infonortics.

Copyright: Interpreting the law for libraries, archives and information services, Second Edition, Graham P.Cornish, 1997, Library Association Publishing.

The ASLIB Guide to Copyright, Charles Oppenheim, Jeremy Phillips, Raymond Wall, 1994, ASLIB.

Copyright in further and higher education libraries. Fourth Edition. Sandy Norman, Library Association, Publishing, London 1999.

Societies and Associations

Authors’ Licensing and Collecting Society

Marlborough Court

14-18 Holborn

London EC1N 2LE

Tel: 0171 395 0600

British Copyright Council

29-33 Berners Street

London W1P 4AA

Tel 01986 788 122

Copyright Licensing Agency

90 Tottenham Court Road

London W1P OLP

Tel: 0171 463 5931

Design and Artists Copyright Society

Parchment House

13 Northburgh Street

London EC1V OAH

Tel: 0171 336 8811

The Educational Recording Agency

New Premier House

150 Southampton Row

London

WC1B 5AL

Tel: 0171 837 3222

Fax: 0171 837 3750

Library Association

7 Ridgmount Street

London WC1E 7AE

Tel: 0171 636 7543

National Academies Policy Advisory Group

c/o The Royal Society

6 Carlton House Terrace

London SW1Y 5AG

Performing Rights Society

29-33 Berners Street

London W1P 4AA

Tel: 0171 580 5544

The University of Reading,

Whiteknights

Reading

Berkshire RG6 6AH

United Kingdom

Tel: (0118) 987 5123

Fax: (0118) 931 4404

www.reading.ac.uk

Society of Authors

84 Drayton Gardens

London SW10 9SB

Tel: 0171 373 6642