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Copyright and digital content

The growth of the internet has provided collection holders with more opportunities to digitise, adapt, publish and share material. The possibilities for collaboration have increased and the availability of large digitisation grants has made it possible for organisations to undertake some of their most extensive reproduction projects to date. However, the relative ease of reproducing resources with new media means that you need to be aware of the implications for your collections.

Copyright and digitisation

In most cases, there will be rights issues attached to material selected for digitisation and these will have to be dealt with before any digital reproduction is made. Collection holders will find themselves both granting rights to third parties and seeking reproduction rights for their own projects.

Collection organisations engaged in online projects are also likely to be working closely with third parties, such as software companies and freelancers specialising in web content. This type of collaboration also needs to be governed by rights agreements.

Digital copyright issues affect the creation of digital images, publishing on the web and even transmission of images via e-mail. They will affect your plans to reproduce and publish copyright material and they will affect how you respond if you find that your own material has appeared elsewhere without permission – for example, on someone else’s website.

How does digital copyright work?

Digital copyright protects digital material that satisfies the same copyright qualification criteria as are applied to print. It therefore protects works that have originality and/or show judgement and skill.

Copyright may exist both in the work to be reproduced and in the digital reproduction itself. Both of these may qualify independently as artistic works and it is through that qualification that they would both be in copyright. This dual copyright situation is only avoidable if a new work is “born digital” rather than taken from any pre-existing work in another media, or if it is exclusively created from material for which you are the only copyright holder.

In most cases, digital copyright will last for the duration period of the material’s print equivalent. Digital images will be protected as artistic works and protected for the lifetime of the creator plus seventy years, until the end of the calendar year in which they died. Emails, html code for websites etc will be afforded copyright protection as literary works and protected for the same duration as artistic works.

Can digital copyright be globally enforced?

Whilst the web is global, the legal systems governing its content are specific to certain countries. This makes copyright particularly complex in relation to the web.This means that if copyright is infringed in one location, but the server and the website itself are located elsewhere, it will be difficult to establish which national legislation the case falls under. One way to prevent such difficulty would be to specify, in copyright license agreements, which legislation should govern the use of the licensed material.

From October 2003, a number of measures relating to digital copyright and effective across Europe, became law in the UK, as part of the Copyright and Related Rights Regulations 2003. These included the provisions that any circumnavigation of technological measures used to protect content, such as password protection, digital watermarking and fingerprinting, are now viewed in themselves as infringements and subject to penalties as criminal offences. In addition, the removal of rights management information is now classed as an infringement. It is important that organisations remain vigilant about these restrictions both with regards to the use of their own digital content, as well as third party content.

How long does copyright last for digital media?

Copyright duration varies according to the type of work and when and by whom it was created. Digital works are implicitly included in this. In particular:

  • A digital reproduction or photograph of a work of art may in itself qualify as a separate work of art and therefore be covered by the same provision as the original. This would be copyright for the lifetime of the creator (photographer or the person digitising the work) plus 70 years, from the end of the calendar year in which they died.
  • Net art, unless it is purely randomly computer generated, is also likely to be covered as an artistic work.
  • Computer generated works are specifically mentioned in law as copyright for 50 years after the date of creation.
  • Webcasts are covered by the provision for copyright in broadcasts. This is a maximum term of 50 years from when the broadcast was made.
  • MP3 files released over the internet are covered by the provision for copyright in sound recordings. This is 50 years from the date of release.
What protection is given to databases?

Databases are automatically protected by copyright. They are afforded the same protection as literary works, providing that they are original and provide evidence of the creator’s intellectual investment.

In the EU, databases can, in addition, qualify for Database Right Protection. This is automatic upon the creation of database if there is proof of a substantial investment in obtaining, verifying or presenting the contents of that database. It lasts for 15 years after the completion of the setting up of the database, or 15 years from the date it was made available to the public, if that is later.

The owner of Database Right Protection is the creator of the database, or their employer if it was created at work. For more detailed information about databases and copyright protection, please refer to Simon Stokes book, Digital Copyright: Law and Practice.

Clearing digital copyright

Copyright permission for digital material should be sought in the same way as any other copyright permission since procedures are broadly the same. You may, however, find that negotiations are more complicated than they would be over traditional media. To be prepared for this you will need to bear the following issues in mind:

Web-based projects are more likely to involve the participation of third parties, (such as collaborative partners, software companies and freelance researchers or web experts). This creates extra issues of ownership and responsibility, which need to be clarified. Rights may also be held by funding bodies for digitisation projects.

  • There are likely to be copyright issues in every type of material appearing on the web, including the code in which a programme may be written.
  • Rights can exist in both the analogue and digital versions of the same work.
  • The web offers the ability to reproduce any type of content in a variety of qualities.
  • Tracking the variety of permissions you are likely to need for different types of digital content will be more complicated than tracking the print equivalent.
  • You will need additional permission to archive content on the web.
  • Once presented on the web, material can easily be downloaded, and reproduced on other web sites or in print publications.
  • Rights holders may be more reluctant to grant permissions. They will be aware of the difficulty of restricting reproduction rights once material is available on the Internet.
  • Digital rights can be more expensive than their print equivalents.

Copyright agreements may need to specify the precautions that will be taken to protect the material once it is displayed online (for example, copyright notices, digital encryption etc).

Author: Collections Trust

Publisher: Collections Trust