Basic Copyright Issues for Digital Projects

Approaches to Copyright

1. Know the law2. Know your issues3. Know the status of your intellectual

property4. Know your rights

David Green, 2004

Why Are The Risks Greater?

Ease of digital publishingUncertain legal environmentIncreased non-profit entrepreneurshipBroad dissemination

How Does Infringement Occur?

Unauthorized use of copyright owner’s exclusive rights“Bundle of rights”

Display or perform publiclyReproductionDistributionDerivative

How Does Infringement Occur Digitally?

Literary InfringementVisual Work InfringementDigital Alteration

What Are the Risks?

Litigation or threat of litigationGoodwillManagerial efficiency

What Are the Risks to Goodwill?

Copyright ownersPotential collaboratorsFundersEmployees

What Are the Risks to Management Efficiency?

Unrecoverable sunk costsUnplanned for licensing expenseDiversion of staff resourcesDisruption of operations

Besides Copyright, What Are Other Risks?

TrademarkPatentMoral rightsRights of publicityRights of privacyLibel, misrepresentation, obscenityBreach of contract

How Can Risks Be Minimized?

Confirm copyright statusAdopt policyExercise due diligenceDocument due diligenceObtain written licensesControl end usersCheck insuranceKnow law and when to ask questions

Why Have A Copyright Ownership Policy?

To protect the institutionTo clarify the rights of staffTo protect the rights of student assistants, volunteers, etc.To deal with issues before a dispute arises

Complicated Issues

Grant funded research that produces a copyrighted work

Ownership terms of grant prevailUsually specifies public domainOr institutional ownership

Faculty/student or curator/staff collaborations

Principal investigator on grantsMany collaborators – institutional ownership likely

Implementing Copyright Policy

Establish an effective date

Will need some lead time post approval

Use time to educate staff

On-going dispute mechanism

Review policy every 3 years

Why Should an Institution Conduct an IP Audit?

To manage risk with knowledge To create an IP policy that accurately reflects institutional assets and needsTo highlight existing IP practices and make adjustments accordinglyFor the sheer joy of inventory:

What do you have? Where did it come from?

To trigger and facilitate creative projects using found “assets”To monitor compliance (for your use of third party IP and vice versa)

When Should an Institution Conduct an IP Audit?

Regularly

Prior to entering into a business deal or starting a new project,e.g. prior to digitizing the collection

With introduction of a new rights or permissions employee

As result of a lawsuit

How to Start an IP Audit?

Set priorities based on institutional needs and perceived value of IP assets

Establish a realistic schedule

Often best to conduct department-specific audits, followed by larger inter-departmental reports

What are You Looking For? Immediate Goals of the IP Audit

Documents and other written evidence that rights are owned by the institution or some other 3rd party

Identity of copyright owner(s)/claimantsEvidence that the rights have expiredEvidence that claimed ownership is invalidEvidence the work is in the public domain

Where are the Answers?

employee agreementsacquisition documentslicensesloan forms gift correspondencesubscriptions exhibition contracts

volunteer policies inventory slips invoicespurchase ordersreleasesshrink wrap and click wrap agreementsprior copyright searches

Rights information will be found in the institution’s records

Where are the Answers?

Relevant documents may be found in various departments in whole or in parts:

CuratorialRegistrars Development/Major GiftsEducationInformation TechnologyPress/Communications

PublicationsPhotography ArchivesLicensingDirector’s OfficeMuseum Store

What Does it All Mean?

Recognizing Relevant Language in Relevant Documents

Work-for-hireAssignmentsExclusive licensesNon-exclusive licenses (including oral and implied)Scope of rights including the right to sublicenseMediaTerritoryDurationConditions or restrictions

Double-checking the Conclusions

Is the copyright expired?Has the work been published?Has the copyright been forfeited for failure to observe legal rules?Is the content in question copyrightable expression?Is the copyright valid in one country but not all countries?If the copyright is subject to restoration, has the owner fulfilled its notice requirements?

Double-checking the Conclusions

Is there more than one copyright, e.g. in a photo of an artwork?

Are there compilation copyrights, e.g. in a website of otherwise non-copyrightable facts?

Are there layers of copyright, e.g. in the collective layout of a newspaper and in individual contributions?

Are there contractual restrictions that may make copyright findings unhelpful, e.g. no photography of an artwork on loan?

Possible Findings

Copyright is clearly in the public domainCopyright is valid and clearly owned by the institutionCopyright is valid and clearly owned by someone else who is identifiable; co-ownersCopyright is valid and seemingly owned by an unidentified partyThe institution has partial copyright or specific usage rights; note restrictions and conditionsA third party purports to own the copyright but further analysis may be beneficial to determine public domain, additional heirs, implied licenses and so forth

The Next Step

Managing Intellectual Property Assets Well and Assessing Value

Review employment, independent contractor and volunteer agreementsPolish forms and routine documents to clarify rights ownershipImplement IP policies, including fair useAssess value: Does the IP asset have market value or does it offerother value to the institution’s mission?Keep good records: Create staff Intranet, databases and info systems for tracking rights ownership and related facts; paper files are good, too.

The IP Audit Summary: Five Important Rules

Knowledge Comes from ExperiencePractice Makes Audits EasierClear Answers are Not Possible for All SituationsDue Diligence is Important

There is No “Safe Harbor” for Copyright Infringement

Keep Good Records