Digital content and the law
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Contents |
OVERVIEW
This article provides a short introduction to the range of legal issues to be considered in managing digital content and signposts high-quality resources comissioned by the Strategic Content Alliance and by the JISC. These resources - the IPR Toolkit and Web2Rights - provide a wide range of guidance and exemplars and taken together, will provide the necessary tools.
An understanding of legal issues is an essential requirement for any institution or individual who is in any way responsible for the development or deployment of digital content. Such an understanding must extend well beyond the recognition of intellectual property rights or the licensing for use of other people's content. With any developmental project there will be issues relating to contract and employment, data protection and freedom of information that must be dealt with, but in relation to digital content there will be in addition the need to address matters such as international issues and liability, e-security and dealing with inappropriate content. As more content is shared and more people external to the organisation can engage with that content, for example Web 2.0 blogs, tagging and Wiki technology, legal issues become a major risk factor if they are not fully understood and built into the project or service of whatever size.
Sources of advice
Strategic Content Alliance IPR Toolkit
The IPR Toolkit has been a part of the work of IPR consultants to produce a comprehensive toolkit for use by professionals and policy makers working across the public sector, which has been evaluated and amended following stakeholder peer review. It includes decision support tools, navigation resources with exemplars and detailed case studies from organisations representing interests of the sector represented by the sponsors of the Strategic Content Alliance, illustrating specific models adopted to deal with rights issues.
Full details of the scope of the IPR Toolkit and links to its content can be found at IPR and licensing.
Web2Rights
Web2Rights is a comprehensive guide to legal issues relating particularly to the use of Web 2.0 technologies in universities and colleges, funded by JISC. It covers legal matters likely to be faced when using Web 2.0 technologies but are equally relevant to the creation and licensing of digital content of all types, not least since it is now not uncommon for such services to exploit the new social technologies. The extracts from the Web2Rights Legal Issues Fact Sheet within this section refer specifically to universities and colleges, but they describe general duties that may apply across public sector institutions are therefore present a useful introduction to the range of legal issues that will need to be faced by those involved in digital content services. The reader is urged to explore the Web2Rights resource where there are animated guides, flow charts, diagnostic tools and podcasts along with references to other sources of guidance and information.
OER IPR Support
The OER IPR Support Project aims to provide IPR and licensing support for JISC/HEA funded OER Phase 2 projects in order to help them identify and manage IPR issues with particular emphasis on the use of Creative Commons Licences. A range of resources has been provided including briefings and guides, diagnostic tools and flowcharts. Whilst these resources have an immediate application to JISC OER projects, they have been prepared so that they are applicable in the wider public sector and have lasting value.
JISC Legal
JISC Legal is a JISC Advance service which works to ensure that legal issues do not become a barrier to the use of IT in further and higher education. To this end, advice and guidance on a range of legal issues is provided including data protection, IPR, human rights and freedom of information.
A word of caution
It must be stressed that the guidance is just that, guidance, and cannot be used alone as insurance against particular problems that may arise. At the end of this entry there are further sources of advice that may be approached and if there remain uncertainties it will be important to seek professional help and advice.
Intellectual property rights and licensing: key facts
This section is an extract from the IPR Toolkit. It is licenced for use under a Creative Commons Attribution non-commercial 2.0 UK: England & Wales licence.
Intellectual Property Rights (IPR) and licensing issues will be central to the creation, sharing and delivery of e-content, amongst sponsors of the Strategic Content Alliance and other public-sector organisations. However, the complexity of rights and permissions associated with the broad range of e-content held by public-sector bodies, plus the necessity for succinct processes, documentation and staff awareness to manage such issues, means that access and use of e-content may not always be optimised. In typical circumstances where public-sector bodies are likely to generate their own IPR, as well as be responsible for providing access to IPR owned by third-party rights holders, it is important that these issues are addressed in order to maximise opportunities and also remove potential barriers in the sharing of e-content within and across the public sector.
The types of e-content that are typically encountered, owned and generated by public sector bodies include a combination of both born-digital and digital surrogate material, including:
- Research data and derived data
- Photographs and images
- Audio visual material such as broadcasts, footage, sound recordings and film
- Journals, books, newspapers, policy documents, and other print material
- Ephemera (postcards, posters, flyers etc)
- Archival and unpublished material such as manuscripts, letters and diaries
- User-generated content
- Databases
- Multimedia
Much of this content, particularly in digital form, will combine various different varieties of content-types.
Crucially, the length of copyright protection, the heterogeneity of this content and the likelihood of mash-ups and creations of media-rich works, will result in multiple layers of rights, owned by a diverse range of rights holders. Rights holders can include any of the following and a combination thereof located across international jurisdictions:
- Public-sector bodies themselves
- Creators
- The Crown
- Licensing agencies and other nominated agents and administrators
- Business and other sectors
- Non-staff and other third-party rights holders
However, out of all these, a growing and unresolved issue for public-sector bodies remains the vast quantity of culturally, historically and academically valuable works, usually of low commercial value, for which the rights holders are unknown or cannot be traced, (so called ’orphan works'). A recent survey of 503 respondents across the public sector, carried by the SCA and the Collections Trust, has revealed the figure to be around 5–10% of all works, which at a minimum extrapolation, would amount to 25 million works across the cultural heritage sector alone. Evidence pulled from the SCA IPR Case Studies also reveals that in most digitisation projects, the costs of identifying and negotiating with rights owners exceed the costs of acquiring the actual licences.
Dealing with copyright-protected works and, specifically, those that might be classed as ’orphan works‘ reinforces the importance of basic IPR and licensing literacy across the public sector. In particular, the effective management of rights needs to be supported by standard forms, documentation systems and high levels of staff awareness about copyright and risk management. This is important in order for public-sector bodies to make informed decisions to take full advantage of their content, providing public access and reducing risks. Certainly, rights management should be seen as an ongoing process within a broader IP ecosystem of events, workflows and standards, rather than an occasional, one-off event.
Other legal issues: a summary
Over and above IPR and copyright, there are many legal issues that need to be addressed by public-sector bodies when dealing with e-content, the risk of which increase with Web 2.0 engagement. These issues include:
- Accessibility: ensuring that your service meets the necessary legal requirements, but also adopts a holistic approach to accessiblity
- Data protection: making sure that your service complies with the Data Protection Act if personal data are involved.
- Defamatory, obscene and other unlawful content: protecting your service against the unwitting hosting of illegal materials
- e-security: keeping information secure when necessary.
- Freedom of information: taking the correct steps to adopting a publications scheme, giving details of routinely produced information and how it may be obtained
- Incitement of racial hatred: publishing and disseminating online materials that are likely to incite such hatred is also a criminal offence, so it will be important to ensure your content does not contravene the law.
- Prevention of terrorism: terrorist offences may be committed or facilitated by computer use and public-sector bodies should play their part in ensuring that such crimes are not committed or facilitated on their computer systems
- Sensitive personal data: consent to processing sensitive data can only be granted with explicit written consent of contributors obtained before processing the data and public sector bodies should have a strategy in place.
The Web 2.0 and Legal Issues Factsheet forming a part of the IPR toolkit provides a useful overview of each and gives details of further souces of more in-depth advice and guidance. The factsheet is adapted from the Web2Rights Legal Issues Fact Sheet.
Read the full Factsheet (html)
Download the full factsheet (pdf)
Links to IPR Toolkit Resources as PDFs
Background papers
Reports
Practical tools
3.4 Top Tips for Issuing Licences
3.5 Top Tips for Requesting Licences
3.8 Template Email Permissions Form
3.9 IPR Template Permission Letter
3.10 Rights Management Template
3.12 Model Contractual Clauses for Requesting Permission from Staff
3.13 Example Consortium Agreement
3.14 Model Contractual Clauses for Requesting Permission from Students/Volunteers
3.15 Model contractual clauses for requesting permission from freelancers/subcontractors
3.16 Template Terms and Conditions of Service
Template policy statements
2.1 Draft Institutional IPR Policy Statements
2.2 IPR and Licensing Blue Print for Funding Bodies and Recipients of Funding
Related Digipedia links
Digital content and the law
IPR policy statement for the public sector
Orphan works and risk management
Web 2.0 and legal issues factsheet
Further information
General resources
Intellectual Property Office: Overview of the legislative framework and policy issues/developments regarding Intellectual Property Rights
Office for Public Sector Information: Information about Crown Copyright material, click use licence for reusing Crown Copyright material and access to the consolidated copyright legislation.
British Library Business and IP Centre: Provision of resources, support and advice relating to the creation and exploitation of IP within a business context
Licensing schemes and open content licensing initiatives
Copyright Licensing Agency (CLA)
Design and Artists Copyright Society (DACS)
Resources for health professionals
Resources for schools, colleges and universities
JISC Digital Media Online Image Finding Tutorial: Interactive tool providing information about how to find images online which can be used with the least amount of restrictions
Web2Rights Project: JISC funded project providing interactive copyright and other legal issues tools, resources and charts for use by JISC funded projects
JISC Casper: Interactive tools and associated resources for dealing with copyright issues in schools and projects who are reusing content
JISC IPR and Web2.0 Animation: IPR and Web2.0 animation commissioned by JISC and built around the Web2Rights project deliverables
Becta: Information about IPR for schools
JISC IPR Consultancy: Briefing documents about IPR and monthly IPR Newsletter
JISC Open Content Licences Overview Paper: Overview paper providing guidance about the use of open content licences for JISC funded projects
JISC Model Licence Interactive: Interactive tool which provides an overview of the benefits of the JISC Model Licence
TrustDR Project: JISC funded project providing supporting documentation relating to the establishment of a digital rights management system for repositories
JISC Legal: Support for HEIs and FEIs on legal issues
OSS Watch: Support for HEIs and FEIs on open source licences
Resources for the cultural heritage sector
Collections Link: Comprehensive resources relating to IP and licensing for cultural heritage bodies
Harvested links
- Copyright Essentials
- A Collections Trust factsheet providing an introduction to copyright law for the non-specialist collections manager. [?]
- Training Course: Copyright Essentials
- This training course provided by Museums Galleries Scotland offers an introduction to the principles of copyright within the context of caring for collections. It offers basic and practical training, [?]
- New guide to copyright for cultural heritage organisations
- The Collections Trust is delighted to announce the publication of a new guide to copyright for cultural heritage organisations. [?]
- Collections Management Network website
- Collections Management Network (CMNetwork) is a consortium of consultants, advisers and trainers with expertise in collections management. We work together to provide practical, authoritative, cost ef [?] <span id="fck_dom_range_temp_1287584946184_396" />
[[Role::newcomer]] [[Role::strategy manager]] [[Role::policy maker]] [[Role::project manager]] [[Role::content manager]] [[Role::acquisitions manager]] [[Goal::managing]] [[Goal::copyright]] [[Goal::IPR]] [[Goal::legal]] [[Level::basic]] [[Level::medium]] [[Level::deep]]
