guide to intellectual property rights and other legal issues
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Guide to Intellectual Property Rights and Other Legal Issues
by Naomi Korn
Guide to Intellectual Property Rights and Other Legal Issues Version 1.0 by Naomi Korn General co-ordination Rossella Caffo (Minerva Project Manager) Antonella Fresa (Minerva Technical Coordinator) Secretariat Marzia Piccininno (Ministero per i beni e le attivit culturali, Italy) Web version Maria Teresa Natale and Andrea Tempera http://www.minervaeurope.org/publications/guideipr.htm 2005 Minerva Project
Table of Contents 1. Overview and key issues
Introduction Rights and the digital environment The digitisation life-cycle How to use this guide
2. Copyright and other types of Intellectual Property Rights
Context and background What is copyright? Ownership of copyright Originality Duration Moral Rights What can legally be done with a work? Checklist for determining copyright protection Other types of Intellectual Property Rights
3. Why is Copyright Important?
Legal responsibilities Duty of care Financial implications
4. Other Legal Issues
Legal landscape Right to privacy Freedom of expression Data Protection Obscenity and Indecency Personality rights Freedom of Information
5. Step by Step Guide to Clearing and Managing Digital Rights 6. Rights Clearance
Documentation and raising staff awareness Legal requirements Project planning Rights audit Context of use Locating rights holders
Negotiating rights 7. Licensing
What is licensing? Licensing models Open Source, Copyleft and Free Software Collective licensing schemes
8. Managing and Protecting Rights
Benefits of rights management systems Recording and managing rights information Why do you need to protect content? Content-protecting solutions
9. Concluding Remarks
Importance of following good practice 10. Further information 11. Index
1. Overview and Key Issues Introduction Rights issues are prevalent within pretty much anything to do with digital content, from its formation, reproduction, adaptation, negotiation, dissemination and repackaging. In order to limit risks of infringement and take advantage of the benefits that the digital environment presents, it is essential that museums, libraries and archives familiarize themselves with copyright and other issues, as well as train staff in good practice procedures. This guide is based upon the Legal Workpackage component of the EMII-DCF Report1 published by the EMII consortium [led by MDA] in 2003. This Report explored the legal issues and processes surrounding the creation and licensing of digital content and specifically issues surrounding copyright. The information contained within the guide will be beneficial to a broad spectrum of users from the cultural heritage fields across Europe. It should particularly appeal to those involved in on-going digitisation projects which need to embed an appropriate attitude towards rights management into their ethos and culture as well as organisations who have inherited rights conditions from funding bodies as part of specific project funding. Typical digitisation projects might include the development of websites and CD/DVDs, or the creation of digital material for mobile phones, pdas and other devices for the following purposes:
eLearning and virtual learning environments (VLEs) Managed learning environments (MLEs) Digital repositories Digital preservation Digital asset exploitation Online publishing and the promotion of access to collection
works. The guide recommends good practices and mechanisms that can be employed to minimise risks and maximise the exploitation of assets housed in the sector. It also acknowledges that many organisations are
positioned in the dual roles of digital content consumers as well as holders of digital assets and so need to understand the issues from a broad dual perspective. As well as providing clear processes for handling rights effectively, the guide offers an insight into the importance of licensing to facilitate rights transactions, good practice suggestions for rights clearance and solutions offered by rights management systems. It is hoped that this guide addresses the key issues of concern and flags up relevant resources if further information is required. Rights within the digital environment Over the last few years, the shifting tensions between rights holders and rights users, together with developments in new technology and pressures from music and software companies, have succeeded in strengthening the copyright legislation. The impact of these new measures has been viewed by many as restricting the creation and use of digital content because they include the development of technical measures to prevent the abuse of copyright, tying in users to licence arrangements to restrict potential abuse, as well as stricter punishments for infringements. Focus on these measures and their negative impact has been such that the term digital rights management (DRM) has become synonymous with some user groups with constraining access to content and linking digital rights to proprietary ideologies. In response, there is increasing interest in ways of making content more widely available for educational use by implementing initiatives such as the Copyleft and Open Source licensing schemes, including the licences offered by Creative Commons2. Cultural heritage organisations can also help themselves to understand the changes to the copyright law and the advantages that DRM offers them by developing a thorough knowledge about the key issues and in particular the scope of rights issues in the life-cycle of their digital content. The digitisation life-cycle This life-cycle (below) defines the various stages in the creation, acquisition and use of the object and in particular the extent that rights issues need to be considered along each stage. It is a useful tool for navigating around the layers of rights issues prevalent within the lifecycle of any piece of digital content and determining a rough guide about what needs to be done and when. STAGE 1: Acquisition of the object (Chapters 2, 4, 6 & 7) A digital object can be created from an existing work - digital surrogate - which includes scanned images or alternatively created afresh - born digital - such as websites, metadata, databases and pieces of net art. In
each circumstance, it is crucial that compliance is sought for a number of rights issues. In the case of digital surrogates, this may be prior to the creation of the digital object and at the point that the real object enters a collection. Key issues which are discussed in more detail within this guide that need to be established include:
1) Identifying any rights issues 2) Identifying who owns the rights 3) Negotiating the appropriate rights for the creation and use of the
digital object 4) Ensuring that rights issues and/or terms and conditions in third
party contracts, (such as those with software suppliers, digitisation companies and third party funding bodies) are resolved and /or can be complied with.
STAGE 2: Management of the object and associated rights (Chapter 8) Once an object is created or acquired, it is important to find solutions to manage the rights appropriately. A digital object cannot be reproduced or disseminated, unless it is clear whether it can be used. Rights issues to be resolved include:
1) Documentation of rights3 2) Establishment of rights management systems 3) Development of ecommerce applications to assist
transactions and licensing.
STAGE 3: Access to the digital object (Chapters 7 & 8) Before a digital object can be disseminated more widely, mechanisms to control access need to be activated in order to ensure that the digital object is not used inappropriately. These would include:
4) Deciding who should be granted access to the digital object and under what terms
5) Formulation and implementation of the appropriate licences/permissions to support the delivery/harvesting of the image in an appropriate medium
6) If necessary, the activation of technical measures to protect content from unauthorised access.
STAGE 4: Re-use of the digital content (Chapters 6, 7 & 8) Digital objects can be repackaged as learning materials (eLearning), harvested to other projects and reused in other contexts. In these cases, it is unlikely that the original rights that have been negotiated will be sufficient for these additional purposes. At the same time, organisations in the cultural heritage sector should consider how they might benefit from
3 For more detailed information, please refer to the procedures outlined in SPECTRUM .
material that they supply to third parties. Rights issues to be considered might include:
7) Renegotiation of rights for repackaged material from rights holders
8) Securing rights to access content generated from third party licencees.
How to use this Guide This guide is intended as a short introduction to the key issues. It is meant as a first-step user-friendly guide to approaching and understanding the core rights issues within the context of digitisation issues. It is not intended as an alternative to professional legal advice nor can address the varied legislation existing across Europe and in these cases, if necessary further advice might be necessary. However, the main principles and issues have been addressed and, as lo