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

Intellectual Property Rights

Copyright and born-digital archival material

Provisions for supplying copies of copyright material:

Fair Dealing and Library and Archive Privilege

Fair dealing provisions (s. 29-30 of the CDPA) and special provisions for libraries and archives (s 37-44 of the CDPA; further elaborated in Copyright (Librarians and Archivists) (Copying of Copyright Material) Regulations 1989, as amended by SI 2003/2498 reg 26) allow a limited amount of certain categories of material to be copied for the purposes of research and private study without the consent of the copyright holder. Some types of work can also be copied for the purposes of criticism or review, as long as due acknowledgment is made.

Copying material for commercial users

The implementation of the Electronic Commerce (EU Directive) Regulations 2002 in the UK in October 2003 means that commercial users no longer benefit from Fair Dealing and Library and Archive Privilege; copies of material cannot therefore be provided without the permission of the copyright holder. Deciding what is 'commercial' is tricky; for example an academic work which is published and thus attracts modest royalties is commercial, as would be research for a BBC documentary. The British Library advises that in cases where work is subsequently published, it is the intent at the time of copying which is important; genuinely unforeseen income at a much later date is therefore irrelevant to the question.

Requirements under the Library and Archive Privilege

*Sample declaration forms for copies of published and unpublished archives
This declaration form is taken from Tim Padfield's Copyright for Archivists:

Rules for copying published copyright digital material A 'reasonable proportion' of a published work may be copied under Fair Dealing provisions. Many of the UK's universities have acquired licences from the Copyright Licensing Agency (CLA), which acts on behalf of authors and publishers. This licence allows its members to copy:

  • One article in a single issue of a periodical or set of conference proceedings.
  • An extract from a book amounting to 5% of the whole or a complete chapter.
  • A whole poem or short story from a collection, provided the item is not more than 10 pages.
  • In the case of a published report of judicial proceedings, the entire report of a single case.

Some materials, such as sheet music and maps, are excluded from the CLA's licence and the licence only allows one copy to be made.

Rules for copying unpublished copyright digital material

Under the 1989 Library and Archive privilege, all archives and libraries in the UK, including those run for profit, may make and supply single copies of literary, dramatic or musical works (including those in digital format), that have been deposited in the archive or library and that were unpublished prior to deposit, without permission and without infringement of copyright, provided that they meet the Library and Archive privilege requirements.

Outside this framework, substantial parts of the material may not be used in the acts restricted by copyright, which are exclusive to the rightsholder (s 16, see also What does copyright protect?). Legal precedent shows that the interpretation of 'substantial' relates to the significance of the part copied as well as to its length; the key question is whether the copying would undermine the rights of the intellectual property owner, including any economic benefit that they could make from their work. This means that substantial portions of an unpublished work may not be mechanically copied or published without the permission of the rightsholder. Further, if the rightsholder has expressly prohibited copying then it is an infringement to supply copies under the 1989 Library and Archive Privilege.

Readers will need to seek permission from the rightsholder(s) if they intend to publish material they have copied at a later date. As with traditional personal archives, researchers may need to trace the current rightsholder(s) to seek permission to publish. It is also possible that permission will be withheld by the rightsholder once located. Sometimes rightsholders are unaware that their material is held at an archive, and family members who have inherited copyright may choose to use it as a means of protecting the family's privacy, since data protection legislation applies only to the living. The WATCH (Writers, Artists and Their Copyright Holders) file is a useful source for tracing rightsholders.

Implementing copyright-compliant researcher access

Archivists should be conscious that digital dissemination and duplication techniques exceed those available in an analogue environment; social technologies such as listservs and blogs might increase the visibility of copyright infringements and elevate the risk of litigation arising from these. Digital archivists should therefore proceed cautiously when designing access systems for researchers. The guidelines outlined above suggest that copyrighted born-digital archives should not be made available across a network, and certainly not via a public website, although readers increasingly expect this kind of access. It seems unreasonable that a researcher abroad must visit in person to access archives which could be accessed remotely in order to avoid breaching copyright once other rights associated with living persons (e.g. data protection) have ceased. It is unclear whether Digital Rights Management techniques could be harnessed to provide secure remote reader access in accordance with the law and any agreements with rightsholders; more research into the feasibility and legality of remote access in such cases would be useful.

The legality of providing local network access restricted to the repository's own premises is also uncertain, though provided the network is secure and mechanisms to protect against unauthorised copying are in place this seems a reasonable solution. Paradigm recommends that non-sensitive copyrighted digital material is made available to registered readers in a secure search room once they have signed a condition of use form and the donor has given permission for the collection to be opened. Readers will be responsible for respecting copyright in a similar fashion to current practice in a paper archive and the repository may also supply copies under the terms of the Library and Archive Privilege. The repository should supply readers with access copies in standard read-only formats and/or on specially configured PCs (without network access or support for removable media), as this would offer some protection against unlawful copying and distribution.

When designing access protocols, archives should also be aware of the publication right, which is acquired by any person or organisation that publishes a previously unpublished work after copyright protection ceases and the work is said to be in the 'public domain'. The publication right affords similar rights to those given under copyright legislation and lasts 25 years after publication. If a Library holds unpublished material in which copyright has expired, or will soon expire, it will need to be careful when providing access to the material. Publication by an individual or organisation other than the Library could result in a new publication right, which might impact upon how the Library can make the material available to researchers for a further 25 years.