Rights and Repositories: Reshaping the Cultural Perceptions of Copyright

The afternoon sessions for the event are more discussion based – I’m sitting in one being run for John Casey (EDINA) who spoke this morning.

His top 5 practical tips:

  • Factor IPR issues at the start of an activity – he said that if he was marking bids that left IPR to the last few weeks, they wouldn’t get through. He also stressed the usefulness of consortium agreements – look at the JISC Model agreement
  • Effective information and records management procedures are needed – simple is best!
  • Always get contractors to sign – don’t use contractors who won’t sign, and don’t assume that you get the rights because you are paying – you must get a license from the person doing the work
  • Take advice and improve your knowledge
  • Funding bodies – mandate and audit the correct use of licenses – money talks!

Top 5 Policy tips:

  • Need to be clear about where we want to go
  • Have to have individual academic integrity and institutional quality control in place
  • Workable solutions to IPR need the involvement of senior managers to provide top-down direction and leadership. Good approach to partner with other institutions – ideally ones that aren’t competing with you geographically or sectorally
  • Institutional IPR policies should reflect the underlying business model and what is considered valuable
  • IPR issues act as a ‘lightning conductor’ in institutions – surfacing underlying issues of ownership, control, authority, power and status

John saying with teaching and learning material you don’t need to stop tutors using their own materials – but you might want a right to use the material in perpetuity – need to be clear what you want and need to get out of agreements…

Rights and Repositories: Licensing Content for PRIMO

This presentation by Katharine Ellis from the Institute of Musical Research. PRIMO is ‘Practice as Research in Music Online’ – http://primo.sas.ac.uk

The PRIMO project was to look at whether there were alternatives to asking musicians to describe their research in words if they could demonstrate it better – and how could their work be published free to the widest audience.

PRIMO now has a very small (6 items) peer-reviewed repository with full-length videos of music rehearsals, workshops and demonstrations. It is open-access with downloadable files licensed for non-commercial/research use. This allows citation using abstracts etc. – something that has traditionally been difficult – you haven’t been able to include a ‘sonic’ abstract in your commentary or criticism.

However, they found that they were pushing at the boundaries of what was seen as acceptable in the academic community.

The challenges they face were:

  • IPR – what forms it took, who owned it etc.
  • Licensing
  • Research Councils UK directive for open access

Whose rights need to be protected? Performers, participants, funders, photographers, camera crews (potentially)

Decided to have a form which asked each headline researcher to say that all participants had said that the work could be regarded as their research for the lifetime of the work – essentially non-exclusive license to publish open access for non-commercial use (under Creative Commons). In the end, all comes down to trust. To engender trust, don’t believe they can look at material created without these agreements in place – i.e. not looking at historical material.

Licensing Third-Party Rights in Music:

  • Be clear about what you as a broadcaster of online material can/must be responsible for
  • Be clear to researchers and users about where their own responsibility lies
  • In the interests of permanent access, do not accept responsibility for IP permissions that are time-limited
  • Be aware that a video of a presentation involing educational use exemptions ceases to benefit from those exemptions when it leaves the classroom
  • Use your metadata system to record the dates on which nested copyrights in a repository item will expire
  • Know your UK copyright timelines:
    • Original artisitic works (70 years after the death of the author, composer, photographer, artist)
    • Films (70 years after the death of the last of the following to die: principal director, author of screenplay, author of dialogue, or composer of music specially created for an used in the film)
    • Sound recording, remasterings and broadcasts (50 years after the date of the recording or remastering or broadcast)
    • Typographical arrangement of music (25 years from the date of the edition)
  • How many 3rd party IPR items are nested in a single video?
    • Musical text (composition and typography)
    • Film
    • Record musical performance
    • Images (e.g. CD Cover)
    • Stage music (other rights)
  • Can one license cover all these rights?

PRIMO pays for a limited online exploitation license – for a nominal annual fee, covering a certain number of downloads a year – it covers “Online broadcast to UK users (i.e. users in the UK at the time they are using the material), for limited downloading of performances involving complete musical works which are still in copyright”

This license doesn’t cover:

  • Any rights antedating the presentation/performance which is to be posted
  • Any in-copyright stage music
  • Any in-copyright music to which new images have been added
  • Any recording rights or performing rights for in-copyright recorded/broadcast music
  • International usage (UK only!)
  • Any non-musical rights (images etc.)

The license is based on radio licensing – which assumes transmission in only a limited geographical territory.

PRIMO have taken the approach of getting the user to state whether they are in the UK before they have access – the user is responsible for acting legally here, not the ‘publisher’ – i.e. PRIMO in this case.

Rights and Repositories: Overview of the legal landscape

Charles Oppenheim now presenting. He is going to concentrate on Copyright as he believes this is the main issue that academia is interested in (as opposed to trade marks, designs, patents etc.) (although I suspect  that these may become more important to us as I think there is a growing pressure to look at commercial opportunities growing from academic research)

Copyright protects the skill and labour expended by someone creating something new. Copyright is automatic (doesn’t require registration of any kind). The owner has the rights to authorise or prevent third parties from copying (and certain other things) the work. There are various exceptions, such as library privilege, fair dealing etc.

Database rights protects collections of data or materials. In general as long as the collection and verification of the contents of the database involved significant resources, protection is given – arguable most repositories will enjoy both database rights and copyright.

Charles goes on to mention Performers Rights and Moral Rights.

Some major questions for repositories:

  • Who owns the rights in the materials that are being added? (The employer? the academic? students?)
  • Have those rights been licensed or assigned to the repository?
  • If not, can the repository hold the materials?

Copyright is much less to do with the law but more about ‘risk management’ and perception of risk – you don’t need to be nervous, but you do need to be aware of the risks.

Also need to question whether moral rights have been infringed in any way and whether performers rights are involved?

For Orphan works, if it is low risk that anyone will anyone will complain, then why not make stuff available? If you feel it is higher risk, you need to judge the risks and make a decision.

Licenses you might use or encounter are:

  • Open Source s/w licenses
  • Creative Commons, Creative Archive, Science Commons
  • CLA or other RRO licenses

There are a number of forthcoming possible changes to the law:

Gowers Review

This was generally satisfied with current UK IP environment, although identified a number of areas where law was inappropriate or out of date.

There are expected to be a number of consultations to be carried out as a result – so far only one has been done, which is about possible changes to ‘exceptions to copyright’ and especially relevant are those relating to exceptions for educational use.

Gowers recommended an expansion to the exceptions to encompass ‘distance’ learning (even trivial distance), and that it should be media-independent – and to like exceptions to intent (i.e. for education) rather than medium.

Also recommended changes to use for research or private study – why restricted to literary, artistic, dramatic and musical works – why not all materials, and what would be the impact of doing this?

Gowers recommend extension of Library Privilege to bring more flexibility and more types of materials, and to expand to museums and galleries.

There were many more recommendations, and in theory we should see legislation to this later this year – but Charles believes we may see these bundled up with other changes coming out of EU proposals.

EU law

Changes to Sound Recording term from 50 years to 95 years. Gowers commissioned work that showed this was neither necessary or desirable. However, this has gone to EU with lobbying from major music companies, and they have drafted a directive (which may not become law) to this effect. If it is passed, it could have a significant impact on repositories collecting sound recordings (and there tends to be a high proportion of Orphan Works with sound recordings because of the number of people involved in the creation)

There is also currently a general review of copyright law by the EU, but at this stage only a discussion document, and it isn’t clear what this will mean for UK law, but Charles believes that this discussion could hold up implementation of any of the legislation coming out of the Gowers Review – so we can expect UK law to remain as is for some time.

A final thing worthy of note is that there is a draft directive on public secotr information in place which, if it becomes law, it would mean all documents created and published by a University would have to be offered at minimal costs to any private sector organisation that wishes to commercially exploit it – which would include material held in publicly accessible repositories. It should be noted that there was a previous attempt to bring this in, but lobbying by HEIs managed to stop it.

Rights and Repositories

Today I’m speaking at the JISC Rights and Repositories event – I’m here as part of the EThOSNet project – which is setting up a e-thesis service based at the BL (called EThOS) – see http://www.ethos.ac.uk for more details.

Starting with an introduction from John Casey from EDINA including a brief overview of OpenJorum, and then followed by Prof. Charles Oppenheim giving an overview of the legal landscape. After this, it’s me – I’m a bit worried as some of the work on which we’ve based the approach that EThOS is taking towards rights was done by Charles Oppenheim, who is on hand to contradict me if I get anything wrong!


OK – starting with John (slightly frustratingly, I’m sat at the front as a speaker, and so I can’t see the slides that are being shown)

John is talking from the ‘teaching and learning’ point of view, but sees the issues very much overlapping with research repositories.

John says we need to see IPR as an essential part of academic integrity and Institutional quality control. Noting that the media industry have very well established approach to IPR – even if not everyone agrees with them. We are in a the midst of change in academia in our approach to IPR. It isn’t necessarily the legal stuff that is difficult but what John calls the ‘underlying’ issues – by which I think he means the cultural issues – norms of what is acceptable practice within a community.

John saying IPR is only a problem if you let it be a problem. John often sees people either putting their heads in the sand, or feeling that IPR is detail they can’t be bothered with. John believes currently attitudes are related to the pre-digital era, and contain greatly exaggerated ideas of the value of content – John think that teaching content is often of little value cash wise, but of high utility.

By putting stuff online, ‘we’ (institutions etc.) are publishers – and this comes with rights and responsibilities. We are joining the ‘publishing’ world, which is already trying to come to terms with the challenges presented by digital production and distribution of material.

JORUM is a JISC sponsored national online repository, intended to hold learning resources for UK HE and FE. When JORUM was setup licenses for ‘open’ sharing (e.g. creative commons) were in their infancy. In the early days there was a high degree of risk aversion with regards to IPR in the sector, which resulted in a complicated license regime.

Now JORUM is moving in the direction of ‘open access’, and wants to foster the creation and re-use of learning material and ensure long term access. At the same time they want to reduce transaction costs, become a user-centred service to support sharing and reuse. JORUM wants to see more explicit acceptance and management of risks – there is a lot of nervousness around IPR, even though financially other issues in the sector cause a lot more problems (e.g. building project overruns, software project overruns etc.) – but perhaps nervousness is because the academic ‘industry’ is essentially and industry base around Intellectual Property.

JORUM will have three licenseing regimes going forward – all user-to-user:

  • JorumOpen – for free sharing under Creative Commons and similar licenses
  • Jorum Education UK – for sharing withing the UK HE and FE sectores
  • JorumPlus – more restricted content

The main obstacles around open content and IPR are philosophical, pedagogical, political and organisational – technical issues are comparatively minor. Legal matters are good for ‘surfacing’ soft cultural issues.

The current concentration on technical issues is a ‘displacement activity’ – we focus on DRM etc. to avoid the real problems – where no or lo-tech solutions are more realistic.