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Social History Domain: Specific Issues on IPR

The social and political history archives are often a result of the very complex changes in society and in the organizations that played an active role in them.

The origin of many of the documental fonds incorporated and treated by social and political history archives is not always linear to the changes in society. They result mainly from deposits made by the organizations themselves or by political and social activists who produced and/or collected those documents as well as by researchers that, somehow and at some point, had access to them.

This characteristic is essential in understanding what differentiates the social and political history archives from the more traditional public archives. In the majority of these more traditional public archives the documentation passes from a state institution to another state institution.

In the social and political history archives this chain of original and ownership is most often absent. As a consequence IPR and related rights have a fluidity that usually isn’t found in the public archives. As the origin of the record is normally unclear, so are any applicable IPR and associated rights which is why we apply a special focus on identifying Orphan Works and Unpublished Works.

There are also a number of unique considerations for social and political history archives;

  • The political or historical relevance of a given document may often raise difficulties in the determination/exercise of any applicable rights.
  • On the other hand, epistolography, drafts, different versions of the same document, are quite present realities in the social and political history archives, with very different situations regarding the determination of any applicable IPR - quite often these situations require their clarification and additional consideration when determining IPR status.
  • It is important to emphasize that the very expression of will of public availability of documentation is very diverse, following closely the intentions of the donors or depositors, who may determine their public availability (reserving rights about the documents dissemination and re-use).
  • We shouldn’t also set aside the growing multiplicity of media, where, after the paper – characteristic of the archives of the nineteenth century – various others succeed, from photography to cassettes, tapes and discs, passing by the digital media – creating new and more complex network of applicable rights.

These complex realities strongly influence the ability of HOPE Content Providers to identify the correct IPR and associated rights, and then manage clearing them for publication and re-use.

The availability of archival materials via internet has undoubtedly raised new issues, or rather, raised issues of a new greatness. The access for a lone researcher to archived documents in a given institution is indeed very different to the open access provided to the same documents over the Internet. In the modern world, the institutions that hold that documentation are dealing with two completely different realities: on the one hand, the ability to closely monitor (in person) the investigator's access to documentation and on the other, access unidentified and almost impossible to control, such as the further use of the information accessed.

Realities like Google and many other search engines have opened entirely new perspectives in this field, with evident mutation in the conditions for the exercise of intellectual property rights, often addressed in a negative way: a document is on the Internet regardless its rights, which can only be exercised retrospectively or by the denunciation of the digital objects.

Are we facing a derivate from the traditional conception of IPR? In countries like the United States of America, court decisions (as Feist Publications, Inc. v.. Rural Telephone Service Co., 1991) emphasize that "The primary objective of copyright is not to reward the labor of authors, but "[t]o promote the Progress of Science and useful Arts." To this end, copyright assures authors the right in their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.

Rights clearance

Social History Community practices: copyright clearance

Depending on their nature and characteristics, many Social History Collections present specific copyright clearance problems. Basically, it’s necessary to establish a balance between access and custodianship. At the same time, the introduction of new information technologies in Archives and Libraries has brought new issues, such as aggregating data in databases, and in general, the digital reproduction, publication and distribution – as well as issues arising from globalization of information and new possibilities for access to digital platforms.

Also the exponential development of "content industries" has brought new problems to the holders of information, increasing the commercial interest in their content – and frequently that commercial use wasn’t mentioned in the agreements with the owners of rights. Museums, Archives and Libraries tend to form networks for the exchange of originals or copies – not always accompanied by appropriate consideration of the applicable rights. In this context of consensual sharing, it is also important to mention the relevance of the collective rights management, namely through specialized organizations. Most of collective management organizations, act on behalf of their members, negotiating rates and terms of use with end-users, issue licenses authorizing uses, collecting and distributing royalties. The individual owner of rights does not become directly involved in any of these steps.

Conflict situations (wars, colonial situations, etc.) and natural disasters can jeopardize the normal application of author’s copyright protections, creating difficult situations, especially in what regards to the succession of the owners or possessors of those artistic or documental fonds. This situation requires an accurate research about their successive ownership and about the legality of the transfer to correctly identify the applicable rights.

In any case, the general principle of research and educational use should be a relevant instrument in promoting and disseminate the cultural values of the collections held by Archives and Libraries.

Obtaining Permissions and license negotiation

Archives and Libraries are specially positioned, because of their cultural role and support in research, to negotiate the transfer of copyright of cultural works – since the relevance of these works (and authors) tend to be expanded when made available by Archives and Libraries. Moreover, these negotiations can encompass different levels of use, according to the preferences of the authors and specialization of the Archives and Libraries.

The digitization and the internet have raised new and broader issues in this area – and often protocols, agreements and negotiations nowadays should also focus on these new ways of dissemination and the limits of their use (for example, size and resolution of copies available on the web).

The donation or storage (temporary or indefinite) of documental fonds in Archives and Libraries raises the possible interest of the author or copyright holder to achieve a wider dissemination of his work by making it available to researchers and general public, underlying their cultural interest.

It is crucial that before making content available online, cultural institutions assess the copyright status of the content they wish to make available and when necessary contract with the rights holders.

The formalization of protocols with donors or depositors, must establish rules for the use of the documental fonds they have delivered, including dissemination in the web and use in exhibitions. It’s important to emphasize the need to obtain such permissions before starting the reproduction and the dissemination of these materials.

HOPE Community Practice

The documents (digital objects) and metadata records that will be made available in the HOPE project through the different discovery services, share different levels of copyright. Efforts should be made by each Content Provider to identify and have the copyright status of their collections clarified.

The next step must be the attribution of a rights statement concerning each digital object.

Rights on Europeana

Metadata and Previews

  • The agreement between the HOPE project and Europeana includes the possibility of making derivatives of the previews and re-use metadata.

Europeana shall publish all Metadata under the terms of the CC0 1.0 Universal Public Domain Dedication.

  • Data Providers and Aggregators deliver to Europeana metadata and previews, following the terms of the Data Exchange Agreement.
  • The re-use by third parties of the derivatives provided by Europeana takes place under the same or compatible licensing conditions as the original licensing scheme chosen by the Content Providers and passed on to Europeana.
  • Metadata provided by the Content Providers “is licensed non-exclusively, unconditionally, free-of-charge for all types of use and for all territories to the public.”
  • The Content Providers are obliged to deliver to Europeana the information related to the Intellectual Property Rights status of the materials shared.

Digital Objects

Concerning the dissemination of HOPE collections in Europeana, it is necessary to take the recently adopted rules into consideration, expressed in the documents “The Europeana Licensing Framework” and “Guidelines for the Rights in objects submitted to Europeana” :

Four different types of rights statements that can be applied to digital objects:

  1. Objects not protected by copyright should be marked as being public domain by applying the Public Domain Mark;
  2. When the data provider is also the rights holder and wants to make the digital object available for re-use (or has been authorized by the rights holder to do so) the data provider can apply a Creative Commons license;
  3. When the data provider is also the rights holder and wants to make the digital objects available without authorizing re-use by third parties, the data provider can apply one of the three available Rights Reserved statements;
  4. Digital objects whose copyright status is unclear (for example because no rights holders could be identified) can be marked with an “unknown” copyright status statement. This should be used only if absolutely necessary.

In Appendix A there is a comprehensive table expressing the Rights in the Objects submitted to Europeana, based on the referred “Guidelines for the Rights in objects submitted to Europeana”.

Rights on Social History Portal

Following Europeana rules concerning rights statements, Social History Portal should apply the same standard, which depends on each Content Provider policies and practices about IPR.

Social Sites (default dissemination profiles)

HOPE Project has contemplated the possibility of dissemination of its content by means of Social Sites, depending on the specific decision of each Content Partner.

Taking into consideration the specificities of the Social Sites, by default, only documentation under Public Domain will be shared in those platforms.

Publication guidelines on Social History Portal

The update of the Social History Portal, foreseen in the HOPE Project, must be completed with publication guidelines, such as:

  • Copyright notice
    • To prevent the abusive use of the materials available, the Portal should have a clear copyright notice, making clear what is allowed and what is not allowed to be done with the contents of the site.
    • It’s important to make the copyright clear (the related rights and the moral rights of any material displayed on the site), and it’s also important to indicate that all the measures had been taken to find or identify copyright concerned Orphan Works and indicate that “Opt-Out” solutions are available.
  • Disclaimer
    • The Portal may have a disclaimer, preventing future doubts or disputes on the materials shared online, namely because those documents were collected during a wide period of time and from very different origins.
  • Terms and conditions
    • Social History Portal should publish the terms and conditions of use, namely concerning the documents provided, making the end users responsible for its usage.
  • Credits
    • The credits published in the Social History Portal should indicate individuals and organizations involved in the project, with their contacts.
  • Ownership
    • The original ownership of the documents shared by the Portal must be evident to the end users, especially in a collective project such as Social History Portal.

Similar guidelines should be followed by the Content Providers on their institutional sites.

The HOPE data model and IPR

The HOPE data model includes a "rights" element that normalizes metadata about Copyrights and allows Content Providers to restrict uses on the digital resources they make available. Special care has been put into making that information compatible with the Europeana’s Copyright policy, as anticipated by the document “Guidelines for the europeana: rights metadata element” (v4.0, 30/11/2010) . This element will map Content Provider's own copyrights statements into 12 normalized values:

Europeana as a Dissemination Route

Europeana is a platform for the exchange of knowledge among librarians, curators, archivists, creative industries and the public. It is a single access point to 23 million cultural history items of images, books, paintings, films, museum objects and archival records that have been digitised throughout Europe. Endorsed by the European Commission, Europeana is a prestigious initiative and is a means to stimulate creative economy and promote cultural tourism.

As a data provider to Europeana, the HOPE project partners may submit their metadata, previews and content for publication in the Europeana Portal. As Metadata is made available under CC0 license terms, and as a Linked Open Data set, it is possible to link social and political history archive objects with those from other cultural heritage institutions from across Europe.

The Europeana portal is also made available via an API, making it possible for a data provider to show Europeana content on their website, or even a third party develop to build a mobile app.

Furthermore, the Europeana platform and network of experts facilitate research and knowledge exchange between librarians, curators and archivists, and link them with digital innovators and the creative industries.

The cultural commons movement that has previously been discussed has moved on and is now going to take the form of three Commons pilots to demonstrate a shared value commons contributes to the creativity and innovation of the Europeana Network. The first, a research commons will be through Europeana Research with the aim of developing a platform for research content, tools and services to support the humanities and social sciences. The second pilot via Europeana Creative will build enterprise communities within Tourism through shared spaces, both online and physical, cultural heritage organisations interact with developers and commercial companies wishing to reuse the material they hold. The third pilot will be under Europeana Cloud , creating a cloud-based infrastructure capable of delivering cost-efficient content. metadata storage and tools for stakeholders across Europe.

HOPE Project and Dissemination Policies

As a BPN, the HOPE project studied and tried to take care of these different realities, following on the one hand, with special attention, the laws and applicable regulations and, on the other hand, accurately defining the conditions for the provision of their collections, whether as digital objects or as metadata.

In these circumstances, as we stated in HOPE Deliverable 1.3 (02.May.2012):

Archives, Libraries and Museums are repositories of cultural heritage and, increasingly, have an important role in its dissemination – to which the use of new information technologies and, in particular, the Internet have contributed.

This growing access by the public to Archives, Libraries and Museums collections, and the diversity of media introduced in the twentieth century, has brought issues of great relevance in the management of rights of those materials.

The aimed globalization of access (and the technical means to facilitate it, such as digital reproduction) justifies, in a project of Social History such as HOPE, special attention to copyright and neighboring rights. It is important to balance the desired promotion of access to culture and, in particular, the common heritage of the peoples’ Europe, with the due protection of the authors’ rights over their documents disseminated via the web.

This balance is complex and varies from country to country, it is not without issues even within the European Union and it has numerous areas of conflict.

In the same document, we underlined that “the HOPE Project aims to design a proper framework for the impact of IPR on the collections provided”, which is particularly important “in the HOPE Project, since it provides Social History documental fonds through Europeana (whose rules are already set) and Labour History Portal (of which the update is in progress).”

As we said, “we paid special care in the balance within the Archives and Libraries and its relationship with the public and, in particular, with research communities. This balance should be carefully drawn between the cultural promotion and protection of copyright.”

Under the established HOPE Best Practice Network, each Content Provider has been defining the practical incidence of IPR on their collections, in order to make them available with the necessary information to the public.

As stated before, the documentation provided by the HOPE project has special relevance in the matter of social and political history of Europe, especially the twentieth century, like for instance the movements that preceded or formed the main currents of thought of social and political action.

Given the already mentioned difficulties about the identification of different aspects regarding IPR on this documentation, it should be noted and implemented the appropriated protection mechanisms.

Two moments deserve special attention:

  • The previous definition, as accurate as possible, of the terms of incorporation of documental fonds in each Content Provider, ensuring in particular the rights of public disclosure (especially on the Internet) and clearly establishing any pending copyright. These instruments (protocols or agreements) of deposit or donation – when they exist – are the support for the decisions to be taken by each CP. When these instruments are not available, each CP should carefully consider the possible impact of IPR on the documentation to be published on the web.
    • The system implemented by Europeana (based on Creative Commons – cfr. III-Europeana and Dissemination Policies) allows the organization of different incidences of IPR in the documentation, defining their major or minor possibility of use.
  • Despite the diligence of each CP in identifying the impact of IPR on the provided documentation, it may still appear doubtful or controversial cases that are important to prevent/beware. The most common solution is the ability of the eventual rights holders on a document, image, sound or video, to make directly contact to the institution that published the subject on the web, in order to claim rights that they think be the owners – originating the review of the situation by the CP.

The execution of an opt-out system may allow a rapid and transparent solution of such controversial cases, reducing the pressure of this matter over the CP’s, while that will allow a more accurate reevaluation of the questions raised.

We should also emphasize the importance of the work done in the field of IPR, for finding good solutions for present and future, whether in an international network, or at CP level,.

The implementation of the Social History Portal, with some different characteristics of Europeana, including the level of contextualization of the historic collections, in particular thematic and geographical, and research tools, gave even more relevance to the proper and timely resolution of any incidences of IPR.

The guidelines adopted followed in substance what was already been prepared throughout the HOPE Project and incorporated many of the methodologies and solutions already adopted by Europeana, predicting even the reinforce and, in particular, the development of opt-out systems compatible with the documentation provided.

In this context, the dissemination policies adopted by the Social History Portal fit into the general framework previously established and designed with special attention to the proper balance between copyright and related rights and the importance of wide dissemination of historical and cultural heritage of Europe, to ensure growing web presence and the quality and relevance of the documentation provided.