1. Introduction

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.

2. Outline

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.

3. General Rights Issues

1. What is copyright?

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.

For example:

1. The words of a song will be protected as a literary work, and its music as a musical work: these copyrights might be held by different people, and might have different commencement and expiry dates.
2. In a book of essays contributed by different authors, each essay would be a separate literary work, the compilation itself would also be protected, as would the typographical format.
3. In a multi-media digital object, each of the content elements may be subject to separate copyrights, and the rights might be owned by different people.

The usual term of protection for copyright is 70 years from the end of the year of the death of the author.

2. Other rights issues

1. Rights in databases (in outline)

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.

2. Legal Deposit

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.

3. European Union Copyright Directive

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.

3. Who owns the copyright for this work?

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.

4. Has copyright been infringed?

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.

1. Copying

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.

2. Lending

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.

3. Renting

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.

5. Is there an excuse for the copyright infringement?

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.

1. General - fair dealing

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.

2. Education and libraries

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.

1. Libraries

Only prescribed libraries benefit from these provisions. Libraries are prescribed by statutory instrument. For example, all university libraries will be prescribed libraries.

1. Copying

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.

2. Lending

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.

4. Rights Negotiation for Preservation

1. Preparing for negotiation

1. Discover who can authorise the preservation of the digital object in question. Obtain accurate contact details for this person, taking into consideration the possibility that there may be several rights owners.
2. Discover and document actions one needs to be able to take in order to preserve access to the intellectual content of the digital object.
3. Find out why the person who could authorise a request to preserve an object might refuse to do so. Prepare reasoned arguments, and explanations of technical preservation methods, to persuade them that authorising preservation will not cause them, or their institution, commercial harm.
4. Request permission to preserve access to the intellectual content of the digital object.
5. Keep detailed records of all steps in the negotiation process.

2. Sample letter

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.

Yours sincerely,

(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.

5. The Licencing Agreement

1. The archiving institution

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.

2. Points for consideration

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.

1. If the digital object is protected by intellectual property rights, the archiving institution must seek a licence before any attempt to preserve the digital object.
2. During the preservation process the archiving institution may need, for example, to store, translate, copy, or re-arrange the electronic form of the digital object to ensure preservation. Care should be taken to ensure that all actions necessary for the preservation process are permitted under the terms of the licence.
3. Consideration should be given to the type of permission required and requested. If necessary, it is possible to draft a very limited licence which allows access for the purposes of preservation only, and for no other purposes.
4. It may be appropriate to display a notice to authorised users accessing the preserved object. The notice could warn them of the rights status of the object, or permitted actions, or both.
5. Right owners will be concerned to ensure the integrity of the digital object. The archiving institution needs to consider the technical and administrative means by which this can be guaranteed. An institution which wishes to preserve digital objects will have to respond in a flexible manner to the needs of the rights owners.

6. Summary

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.

Footnotes

... Preservation^[*]

I would like to thank Richard Braun, Brian Jenkins, Patricia Killiard, Anne Murray, Mark Nicholls, Charles Oppenheim, Kelly Russell, and John Wells