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www.dloc.com Permissions and Copyright: 1 Digital Library of the Caribbean (dLOC) Manual Guide to Permissions & Copyright/Public Domain Review Introduction In addition to digitizing materials following preservation standards, dLOC further supports preservation and access by ensuring that all applicable rights are respected and supported by seeking Internet distribution permissions as needed. Internet distribution permissions can be required for cultural and documentary heritage rights, privacy rights, and copyright. This guide provides an overview of rights and responsibilities related to copyright and moral rights for digitization projects. The guide includes step by step procedures used by dLOC partners for evaluating rights and requesting permissions. Permissions Based Model dLOC relies on a permissions based model. In this model, dLOC members request permissions as the primary method for ensuring compliance with copyright, moral rights, and other applicable rights. Using a permissions model allows dLOC to provide equitable support for rights holders and the public good. This is especially helpful for dLOC as an international collaborative, with different rights protected and understood in different countries and institutions. The permissions model supports discussing rights as a collaborative opportunity. The permissions based model complements the process of reviewing materials for their status under copyright or within the public domain. Rights & Responsibilities Copyright law has changed dramatically in the US in the last 50 years and even more so when viewed on an international scale. Copyright is a property right that seeks to balance the rights of the creator with the rights of the global society. Copyright is but one of many rights and responsibilities that must be considered when digitizing materials. Digitization makes use of new and emerging technologies, technologies whose use may not yet have applicable laws supporting their use for the global public good. Moral Rights In addition to copyright, creators may also retain moral rights to their works. Moral rights are generally the creators right of attribution and right of integrity for the work, but can include many specific rights depending on the type of work and the law of the country. Moral rights are separate from other rights,
www.dloc.com Permissions and Copyright: 2 and creators retain moral rights even after transferring copyright or ownership of the work. dLOC supports moral rights by ensuring proper attribution is included for materials, for their creators and the partner institution that contributing materials. Moral rights also grant creators the right to integrity which offers protection for holism of the creators work. dLOC supports these rights again by ensuring that works are presented and preserved as artifacts. The U.S. does not yet fully recognize moral rights, limiting support only to visual art creators right of attribution, right of integrity, and right to prevent destruction of their work (1990 Visual Artists Rights Act). The U.S. has a reductive view of moral rights compared to many countries. France offers a counter model where moral rights may survive the expiration of copyright. Cultural Heritage Rights In many countries, cultural heritage and public institutions have specific additional rights and responsibilities. These may include provisions to support access, preservation, use in teaching, and use in research. These responsibilities may include rights for certain uses that would otherwise be prohibited by the creators rights. Copyright Copyright law varies from country to county. Though many of the Caribbean Basin countries are Berne International Copyright Convention signatory nations, it is often difficult to determine which set of laws to apply or what the term of protection may be from one country to another or, for that matter, from one year to another. The copyright laws of the European Union and the United States represent the Caribbeans most challenging and longest lasting copyright protections. When in doubt it is often a safe bet to apply the laws of those countries. For assistance understanding United States copyright legislation and duration of protections see: Cornell Universitys Copyright Term and the Public Domain in the United States.i When an item selected for digitization is scanned in its country of origin, the laws of the country of origin should be understood to apply. However, when an item selected for digitization is scanned away from its country of origin, consider both the laws of the country of origin and the laws of the location from which the digital resource will be made accessible via the Internet and apply those laws that afford the item the longest protection For content providers using the centralized services of the Digital Library of the Caribbean the laws of that location are the laws of the United States. Applying the longest protections may not be to the advantage of archives, libraries and museums, but this policy affords the Digital Library of the Caribbean the greatest protection under the international law.
www.dloc.com Permissions and Copyright: 3 Permissions, Evaluating for Copyright/Public Domain, and Handling for Orphan Works Evaluating for Copyright/Public Domain Evaluation for copyright status will vary based on the jurisdiction, type of materials, whether the work was officially published, and whether the work was created by an individual, corporation, or government. International trade agreements have assisted in standardizing many areas to a default length of copyright and for many it is the life of the author plus either 50 or 70 years.ii Copyright requirements and length are subject to change based on legal changes. Overview of Permissions Because of the collaborative opportunities presented by requesting permissions and the complexities of copyright law, dLOC partners focus on requesting and receiving permissions to support the digitization, online access, and long term preservation of materials. dLOC partners frequently work with publishers and copyright owners to request permissions. Copyright owners can grant permissions to dLOC through any partner or by contacting the dLOC Coordinator. dLOCs permissions process has been refined over the course of many years. Currently, dLOC partners use a template letter as a cover letter to send to rights holders along with a template form for the grant of permissions that rights holders are requested to sign. The cover letter template provides basic information: on dLOC, the permissions model wherein rights holders retain all rights, and the included grant of permissions. The grant of permissions template is the standard agreement signed by all who grant permissions. The grant of permissions explicitly states that the rights holder is only granting: a non exclusive grant of permissions for on line and off line use for an indefinite term. Off line uses shall be consistent only with the maintenance and preservation of an archival copy. Digitization allows dLOC to generate image and text based versions as appropriate and to provide and enhance access using search software. To ensure the permissions model is clearly understood, the grant of permissions also specifically states that dLOC is not requesting and is not being granted permissions for commercial or for profit uses.
www.dloc.com Permissions and Copyright: 4 Overview of the Process to Request Permissions Requesting permissions does require locating the person or entity holding the rights and sending them the permissions request letter and grant of permissions. Most often, simply locating the person is the most difficult part of this process. Luckily, the Caribbean fosters many rich collaborative networks and often other dLOC partners can assist in locating particular rights holders. The dLOC cover letter and grant of permissions templates cover most of the information needed, including: the scope of dLOC as a collaborative, international digital library where and how the work will be used any future uses envisioned the specific rights being requested Partners will need to amend the templates to include the specific creator, title, and item information for the item for which permissions are being requested. Placeholder text in red marks where the information needs to be updated in the templates. The templates are included with this guide and are also available from the dLOC website. Partners will need to, maintain documentation on the process of requesting permissions: when, where, and to whom permissions have been sent; and similar documentation on any responses received from rights holders.iii This documentation is important for internal workflows. Further, if the rights holders prove to be un findable, the documentation will show due diligence in the process. With this documentation, some institutions will proceed with digitization. For example, some institutions will digitize orphan works for open access online. The works are displayed with a note stating that the institution believes the use to be acceptable per copyright and other laws and requesting that any concerned parties contact the institution, and then providing contact information.iv
www.dloc.com Permissions and Copyright: 5 Workflow Steps Evaluating materials for copyright: 1. Review or contact a legal advisor to review the countrys copyright laws.v a. Wikipedia offers a general summary with links to further reading as a first step in this process.vi 2. Note: items published before 1900 are often simple to review, and most often are in the public domain. 3. Determine further research requirements, which may include: a. What are the copyright terms based on (publication date, author death date, material type)? b. For copyright terms based on years after the death of the creator, consult reference materials to determine when the creator died.vii c. Are there any special considerations? 4. Conduct any additional research needed copyright, and conduct research on other rights when needed. 5. Decide on the next action: a. Determine the work is in the public domain. b. Determine the work has an unclear status and request permissions. Requesting Permissions: 1. Determine the appropriate contact for requesting permissions. 2. Locate contact information for the rights holder or an appropriate group to forward the request. a. Scholars and others who have been in contact with the rights holders are often able to pass on the inquiry and/or to share contact information.
www.dloc.com Permissions and Copyright: 6 b. For books and published works, the copyright page will usually state who the copyright holder is. i. Individuals: individual authors and their estates can often be reached care of their publishers. Well known authors often have a contact address for copyright contact address listed in an online databaseviii ii. Publishers: the mailing address for a publisher can often be found using Books in Print. 3. Download a copy of the templates: a. Cover Letter Templates: http://dloc.com/AA00002863 b. Grant of Permissions Templates: http://dloc.com/AA00004147 4. On cover letter template (http://dloc.com/AA00002863), update the text in red with the appropriate information: a. Date the letter or email is being sent. b. Creator, title, and item for which permissions are being requested. 5. Update the text in red in the grant of permissions template (http://dloc.com/AA00004147) to include the items information. 6. Send the permissions request through mail, email, or in person. a. When sending through email: copy and paste the text from the cover letter into the body of the email; and attach the grant of permissions document. 7. Update documentation tracking the permissions process. a. Note in internal documentation: date permissions request was sent, where permissions request was sent and include address information (email or physical). b. Note any responses for the permissions request as they are received.ix
www.dloc.com Permissions and Copyright: 7 Additional Resources Cornell University, Copyright Information Center. Copyright Term and the Public Domain in the United States, 1 January 2011 http://copyright.cornell.edu/resources/publicdomain.cfm Peter Hirtle, Emily Hudson, and Andrew Kenyon. Copyright and Cultural Institutions: Guidelines for U.S. Libraries, Archives, and Museums http://ecommons.library.c ornell.edu/handle/1813/14142 Electronic Frontier Foundation. Copyright Watch http://www.copyright watch.org/ University of Pennsylvania. Online Books: Permissions http://onlinebooks.library.upenn.edu/okbooks.html#permission NCECHO (North Carolina Exploring Cultural Heritage Online). Digitization Guidelines, Chapter 3: Legal Considerations http://www.ncecho.org/d ig/guide_3legal.shtml OCLC. Copyright Online Resource Kit (includes sections: Risk Management and The Permissions Process) http://worldcat.org/arcviewer/1/ OCC/2005/12/27/0000016179/viewer/file88.html University of Florida Digital Collections. Rights and Responsibilities http://digital.uflib.ufl.edu/procedures/copyright/ National Initiative for a Networked Cultural Heritage (NINCH). NINCH Guide to Good Practice in the Digital Representation and Management of Cultural Heritage Materials, Chapter IV: Rights Management http://www.nyu.edu/its/hu manities/ninchguide/IV/ Berkeley Art Museum and Pacific Film Archive (BAMPFA). COPYRIGHT RESOURCES PROJECT: Working with CopyrightProtected Materials in a Digital Environment Case Studies http://www.bampfa.berkeley.edu/copyright_p roject/copyritetoolbox/copyritetoolbox.php US Government, CENDI. Copyright, Permissions, Data Rights, and Control Requirements & US Government Works http://www.cendi.gov/activities/10_07_ 2010_digitization_legal_Issues.html LLRX, Law and technology resources for legal professionals. Library Digitization Projects and Copyright Part I Introduction and Overview http://www.llrx.com/features/digitization.htm
www.dloc.com Permissions and Copyright: 8 Pennsylvania Newspaper Association. Copyright Newspaper Handbook http://www.pa newspaper.org/web/2005/10/copyri ght_newspaper_handbook.aspx New Jersey Digital Highway. Copyright Issues for Digital Collections http://www.njdigitalhighway.o rg/copyright_issues_libr.php Northeast Document Conservation Center (NEDCC). Handbook for Digital Projects: A Management Tool for Preservation and Access, Overview of Legal Issues for Digitization http://www.nedcc.org/resour ces/digitalhandbook/v.htm Orphan Works European Commission. Adopted Orphan Works Directive http://ec.europa.eu/internal_mar ket/copyright/orphan_works_en.htm The European Digital Libraries Initiative. Sector Specific Guidelines on Due Diligence Criteria for Orphan Works Joint Report http://ec.europa.eu/information_society/activitie s/digital_libraries/doc/hleg/orphan/guidelines.pdf Accessible Registries of Rights Information and Orphan Works towards Europeana (ARROW) http://www.arrow net.eu/ Society of American Archivists. Orphan Works: Statement of Best Practices http://www.archivists.org/standards/OWBP V4.pdf UNC, University Libraries. Building a Program for the Large Scale Digitization of Manuscripts, Legal Considerations http://www.lib.unc.edu/mss/archivalmassd igitization/index.html?section=legal OCLC. Well intentioned practice for putting digitized collections of unpublished materials online http://www.oclc.org/research/ac tivities/rights/practice.pdf Notes i http://www.copyright.cornell.edu/tr aining/Hirtle_Public_Domain.htm ii Supporting agreements include the Berne Convention for the Protection of Literary and Artistic Works iii Sample form for internal use in tracking permissions process: http://dlg.galileo.usg.edu/pdf/Checklist.PDF
www.dloc.com Permissions and Copyright: 9 iv Example of a Fair Use declaration in use by the UF Libraries: Digital reproductions of this item from the University of Florida's Special Collections and Area Studies is made available under an assertion of fair use (17 U.S.C. 107) for noncommercial educational and research purposes only. The University of Florida Libraries respects the intellectual property rights of others and does not claim any copyright interest in these materials. Written permission from the copyright owner and any other rights holders must be obtained for any reuse of these images that extends beyond fair use or other statutory exemptions. Furthermore, responsibility for the determination of the copyright status and securing permission rests with those persons wishing to reuse the materials. The Libraries would like to learn more about these materials, and welcomes individuals or organizations to contact UF Digital Library Center (firstname.lastname@example.org) with any additional information they can provide. Example is based on statement from the University of North Carolina Libraries: http://www.lib.unc.edu /dc/watson/help.php See also, Europas directive for orphan works: http://ec.europa.eu/informat ion_society/activities/dig ital_libraries/index_en.htm v General Counsel Offices and other institutional legal advisors should be contacted to inform them of the work being conducted. This establishes a clear line of communication. This may also result in additional support may be available for the review process. vi http://en.wikipedia.org/wiki/List _of_countries%27_copyright_length vii Many resources are listed on the University of Pennsylvanias Online Books Page: http://onlinebooks.library.upenn.edu/deathdates.html viii Most of these only cover a specific country or region, as with the online Writers, Artists, and Their Copyright Holders (WATCH) database which focuses on the US and UK: http://tyler.hrc.utexas.edu/about.cfm ix In Permissions: A Survival Guide Susan Bielstein recommends that if permissions are denied, the requestor should publish a record of requested use and the denial. This is based on her recommendation to scholars. Scholars publishing artistic images within their scholarly works are sometimes charged exorbitant rates to use the images, even though the use is scholarly and would appear in a scholarly publication with a limited distribution. For these, Bielsteins book has an excellent example of a gray square with the note beneath the square explaining that the image that should appear in the square could not be used because of the excessively high costs to do so.