Workbook on Digital Private Papers > Legal issues > Intellectual Property Rights

Intellectual Property Rights

Copyright and born-digital archival material

Introduction

In the UK, digital records are largely protected by the same copyright regime as other kinds of record: rightsholders retain the same rights while archivists and researchers enjoy the same Fair Dealing exceptions and Library and Archive Privilege (see below). When the Patent Office amended the 1988 Copyright, Designs and Patents Act to take into account the EU Information Society Directive 2001, it decided that an explicit exception dealing with the provision of electronic works in archives and libraries was superfluous as such activities were lawful under existing provisions or under licences. These provisions must, however, be interpreted for the digital archival environment. The very nature of digital material makes copyright easier to infringe and such infringements are potentially much more visible (e.g. posting to a listserv or weblog), thus increasing the likelihood of litigation. Careful thought about the ways in which archivists preserve and make accessible born-digital archives is needed, particularly while best practice in this area is at a nascent stage.

Copyright and personal digital archives

Personal archives often include material created by numerous entities, but technological and social changes have made the question of copyright in such archives yet more complex.

Copyright and types of digital archive

Many individuals represented in an archive will be but minor rightsholders: the quantity or significance of the materials in which they own rights is very small. It is understandable then, that archivists cannot trace and approach each rightsholder in order to establish preservation and access licences for the material in which they hold rights. As with traditional archives, it will be more usual for archivists to:

Copyright and websites

In the UK, legal deposit does not extend to material published as websites; it is therefore illegal to take snapshots of a website for inclusion in a web archive without permission of rightsholder(s) in the website. To ensure the survival of key websites, UK archivists must either obtain the permission of individual rightsholders or risk prosecution for copyright infringement. While it is feasible to obtain permissions for a limited number of small-scale and simple websites it becomes increasingly fraught the wider the net is cast; it is particularly complex in the case of sites using social software, such as blogs, which contain material from multiple creators. To date, web archiving programmes internationally have followed one of two courses: the pragmatic - albeit legally risky - course of continuing to archive until specific problems with IPR holders are encountered, or permissions-based archiving. The Internet Archive is an example of the first approach, while the Australian Pandora project is an example of a project in which permissions are painstakingly obtained, which of course limits the extent of collecting. If the first course is chosen, it is essential that there is a robust 'Take Down' policy in place whereby contentious material can be rapidly removed from the public arena.

Copyright and email

A person depositing their personal digital archive cannot, of course, grant permission on behalf of the hundreds of correspondents captured in their email mailbox. It is also probable that an email archive will contain more material created by non-UK nationals than paper correspondence, which could have different copyright protections. This may complicate both the archivist's assessment of rights and rightsholders and the administering of the archive. In practice, many countries have signed international treaties which attempt to harmonise intellectual property rights across countries. One example is the Berne Convention; its principle of 'national treatment' means that material created by a citizen of one state enjoys 'national treatment' in another provided both are signatories of the treaty. For example, an email from Egypt in a personal archive in England is protected under English law because Egypt and the UK are both Berne Convention signatories. The World Intellectual Property Right Organization (WIPO) website includes further information on international treaties and their signatories. It seems likely that until copyright has expired (70 years after the death of each author for literary works, but the attachments may have different copyright protections) access to email archives will be administered in a controlled environment, probably a research room, and only to registered readers.

Copyright and the preservation of digital archives

There is confusion surrounding the rights of heritage repositories to undertake preservation actions in respect of digital holdings. The Copyright (Librarians and Archivists)(Copying of Copyright Material) Regulations 1989, s. 6, does allow copying by archivists or librarians for the purpose of replacing items in a permanent collection, but the wording is not geared towards digital preservation actions, which include making multiple copies of digital archives and migrating them to other formats. This affects all digital materials where the rightsholder has no formal agreement with the repository. In future, it is hoped that the rights of archives and libraries to undertake such preservation actions will be clear. In 2005, the Chancellor commissioned The Gowers Review of Intellectual Property, which reviewed the suitability of the UK's current IPR framework for a digital and global age. Among the Review's recommendations (published in December 2006 ) were that:

Another issue faced by archives preserving born-digital archives is the growth of Digital Rights Management (DRM) mechanisms in technologies targeted at the personal computing and entertainment markets. DRMs provide protections over and above copyright and do not expire with copyright; such technologies are also subject to obsolescence. It is illegal to circumvent DRMs despite the fact that they inhibit legitimate archiving and research activities. There is a complaints procedure in place by which those unable to exercise a permitted right due to a DRM submit a 'notice of complaint' to the Secretary of State, but it is so complex that at the time the Gowers Review was published, no-one had used it. The Gowers Review has recommended the simplification of this procedure, but offers nothing more substantial to assist archivists and researchers in this area.

Acquiring explicit permissions for preservation purposes at accession

While clarity regarding the rights of archives to undertake preservation actions is wanting, Paradigm advises that repositories seek explicit permission for digital preservation in agreements with donors, even though such agreements do not cover materials in which people other than the signatory hold intellectual property rights. Archivists may need to assess the risk of undertaking preservation actions on material of rightsholders with which the repository has no agreement; and where other significant rightsholders in an archive can be established it may be wise to obtain permission to undertake preservation actions from them. Explicit rights to use copyrighted work(s) can be obtained by three means:

Copyright and researcher access to digital archives

In the absence of clear best practice for providing access to copyrighted born-digital archives, many repositories are unsure how to develop and implement access protocols and systems which ensure copyright compliance in a digital age. To provide access to archives for researchers, archivists require permissions from rightsholders or statutory provisions which enable:

Acquiring explicit access-related permissions from the depositor at accession

While Fair Dealing, and Library and Archive Privilege must be used to provide access to much material in archival collections, archivists can, and should, consult with the significant IPR owners in a collection to negotiate acceptable access conditions and to record appropriate rights metadata. Permission should be sought as part of the accession process, alongside permission to undertake digital preservation activities, and incorporated in the Terms of Agreement for the archive. Generally speaking, rightsholders do not wish to sign away their copyright in its entirety, but may happily come to an arrangement whereby the Library is licensed to administer certain rights on their behalf. This involves the Library taking responsibility for the interests of the rightsholder when approving requests to publish extracts and suchlike.

Providing access in the reading room

Since much of the material in an archive will be that of minor rightsholders with whom the repository has no agreement, the access mechanism provided to researchers for reading and copying digital archives for private study must be within statutory provisions. The following practices would normally be regarded as 'fair and lawful' in respect of literary works under the Guidelines for Fair Dealing in an Electronic Environment agreed by JISC and the Publishers Association.

Fair and Lawful under the 'Guidelines for Fair Dealing in an Electronic Environment'

  • Viewing part or all of an electronic work on screen, so long as any incidental copy made by the computer is deleted afterwards.
  • Printing out of a copy or part (to a maximum of 5%) of an electronic publication.
  • Copying a part of an electronic publication to disk where the disk is portable or is accessible by only one person at a time.
  • Transmission across a computer network of part of an electronic publication to enable it to be printed out locally, so long as any incidental copies are then deleted.
  • Transmission across a network of part an electronic publication for local storage and use, but not for onward transmission.
  • Quotation from electronic material for the purposes of criticism, review or current news reporting, so long as the source is properly acknowledged.

Unfair and unlawful without prior permission under the 'Guidelines for Fair Dealing in an Electronic Environment'

  • The copying of a whole of an electronic work, except an incidental copy for use when viewing on screen.
  • Transmission across a computer network of the whole of an electronic work, for any purpose.
  • The posting of all or part of an electronic publication on a network or a website.
  • The making of more than one copy.
  • The copying of an artistic work on its own or of one that was not integral to the text.

This advice is derived from the application of the following existing provisions to the digital environment.