Collections Principle 5

Collections Principle 5: A good collection respects intellectual property rights.

The collection development policy should reference the organization’s copyright policy and/or incorporate principles of support for copyright and the copyright status of the organization's collections.

Intellectual property rights must be considered from several points of view:

  • what rights the owners of the original source materials retain in their materials;
  • what rights or permissions the collection developers have to digitize content and/or make it available; and
  • what rights or permissions the users of the digital collection are given, to make subsequent use of the materials.

Rights management is facilitated by good recordkeeping. Collection managers should maintain a consistent record of rights holders (including contact information when possible) and permissions granted for all applicable materials.

Rights management is complicated by the fact that a work may include contributions from many creators. The underlying rights of complex multimedia works can be challenging to untangle and can involve contract law as well as copyright.

Many useful collections lack a deed of gift that clearly permits the digital distribution of resources. When resources have uncertain provenance, current best practices suggest a practical approach:

  • actively solicit information about the creator—from the donors or their heirs or from the audience that utilizes the digital collection; and
  • develop a risk management strategy that balances the educational value of the collections against principles of fair use, the potential commercial exploitation of the collection, and the organization’s ability to identify and solicit permissions from copyright holders.

A risk assessment will enable the library to make practical, defensible choices among collections of uncertain provenance—a critical concern for digital collection building. Viewed from any side, rights issues are rarely clear-cut, and the rights policy related to any collection is more often a matter of risk management than one of absolute right and wrong. A policy statement, posted prominently on the web portal to the collection, can articulate the organization’s reasons for making works of uncertain provenance available in digital form to a wide audience.

Rights in the International Arena

It is important to realize that intellectual property rights are an international protection that is governed by treaty. Current intellectual property law derives from international treaty. As nations sign and ratify an intellectual property rights treaty, they must develop laws to reflect the provisions of the treaty.

Intellectual property rights treaties provide the minimum requirements to which all signatory states must adhere. Treaties generally provide guidance to signatory states on the areas where member states have flexibility to customize their laws to reflect regional and local needs.

The fundamental treaties governing international copyright are:

Berne Convention (Paris, 1971) The primary international copyright treaty is the Berne Convention for the Protection of Literary and Artistic Works. This treaty provides minimum enforceable standards intended to harmonize across the laws and standards of its signatory countries. The most significant minimum standard is the term of protection granted to a work: life of the author plus fifty years.

WIPO Copyright Treaty (WCT) (Geneva, 1996) The WCT is intended to bring copyright into the digital era and is the genesis of many provisions of the Digital Millennium Copyright Act, the U.S. copyright law enacted to enable compliance with the WCT. Among other provisions, the WCT recognizes computer programs as copyright protected literary works, as well as providing copyright status for compilations of data that exhibit creativity in the arrangement or selection of the data.

WIPO Performances and Phonograms Treaty (WPPT)  (Geneva 1996) The WPPT updates the Rome Convention of 1961, particularly describing the rights of performers and producers for authorizing the fixing of performances and phonograms and making them available to the public by wired or wireless means.

The WCT and WPPT are noteworthy for two controversial provisions. The treaties require signatory countries to provide legal protection and remedies against the circumvention of technical measures that protect the exercise of authors’ rights or that restrict acts of use that are not authorized by authors or permitted under law. This provision represents a critical change in the treatment of infringement by providing for the prevention of infringing uses of a work. Previously, the Berne treaty provided for legal remedies against infringing use after the fact within the country of origin for the work. For the first time, the WCT and WPPT provide authors with the legal ability to technically prohibit or restrict infringing uses of a work in advance of such use, and legally bind the signatory countries to protect against the circumvention of these technological measures.

The WCT and WPPT also require that signatory countries provide legal remedies against any party that knowingly removes or alters rights management information, where this information is defined as “information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public.” (WIPO Copyright Treaty, art. 12)

Legally enforced metadata is a new concept for metadata that is discussed further in Metadata Principle #4.

Four key issues that are important to understand about international copyright are:

  1. Copyright is viewed by treaty as a “natural right” that obtains to a work as soon as it is fixed in tangible form. No country requires registration for copyright to take effect. The United States is notable for applying copyright requirements on works based on the law in effect when the work was first fixed in tangible form. Thus some works require copyright registration or renewal or copyright notice conforming to specifications. Most nations apply the current provisions of copyright law to all existing works.
  2. International copyright originates in treaty, which establishes minimum standards for compliance. These minimum standards may only be referenced in national law, so when dealing with works of an international character or that will be distributed internationally, a basic understanding of at least the three treaties referenced above is important.
  3. Copyrighted works are accorded “national treatment” by all the signatory member states of a treaty, which means that a copyright holder who is a foreign national is accorded the same treatment, with respect to copyright and copyright infringement within the member state, as the citizens of that member state.
  4. Every country may make exceptions to copyright to further the common good of its citizens. These exceptions, generally called fair use or fair dealing, differ markedly across countries but must meet the minimum conditions imposed by treaty. They:
  • must represent special cases rather than the normal use of resources,
  • must not conflict with “normal exploitation of the work,” and
  • must not “unreasonably prejudice the legitimate interests of the author.”

The best source for information about international copyright is the World Intellectual Property Organization, which has oversight for intellectual property treaties:

The IFLA Committee on Copyright and Other Legal Matters (CLM) provides news and information by country as well as background papers, etc.

Most countries have government agencies tasked with intellectual property right management. Many countries also have non-governmental organizations that advise on copyright. The national library or national library association is a good place to find the relevant agency, as well as a good copyright bibliography, if you are unfamiliar with the authoritative copyright agency or organization for a specific country.

“How-to” guides for digital collections:

Helpful general publications on copyright:

Particular material types:

 Clearinghouses on law and policy related to copyright and intellectual property:

In the UK, the Technical Advisory Service for Images (TASI), a JISC-funded project that advises the UK’s further and higher education community on digitization initiatives, provides a number of useful guides that address each aspect of rights, from digitization to use:

Although treaties have an important role to play in the international arena by providing the minimum standards to which all signatory countries adhere, every country is different in its approach to copyright law. This edition of the Framework of Guidance uses Web 2.0 technologies to encourage readers to share information. The editors encourage readers to share guidance in copyright adherence for digital collection building for their countries.

If digitized materials do have restrictions on use, these must be documented and enforced. At this time there are few mechanisms for exercising programmatic control of resources. Rights Expression Languages (RELs) are not widely in use in cultural heritage environments, but their continued development and application bear watching.

Examples of digital collections with copyright or legal policies on their web pages:

Last updated: 09/03/2008