Thursday, 24 September 2015

Thing 19: The Legal Side of Things

For the purposes of this blogpost I have referenced legislation from a variety of countries to illustrate the legal principles behind intellectual property and copyright. This blogpost is not legal advice and should be treated only as a signpost towards some pertinent pieces of legislation. Please check the copyright and intellectual property legislation for your own country in order to fully inform yourself on this topic.

Working in the information world, one thing we all need to be aware of is our legal responsibilities. The terms “Intellectual property”, “Copyright”, “Creative Commons”, “DRM” and “DMCA” are terms that we need to understand in order to:

  • educate our clients about their rights and responsibilities regarding materials they access and/or borrow,
  • share our own works in a manner which supports free and open movement of information,
  • comply with any contractual or organisational obligations we may have.

You will notice that in my opening paragraph I have used the term “works”, not “work”. That is because I am referring to intellectual property, rather than the completion of tasks. Intellectual property is defined by the World Intellectual Property Organisation (WIPO) as “creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.”

To every cow its calf. To every book its copy

A (short) History of Copyright

According to legend, the Irish invented copyright law. In the 6th century, a monk named Columcille secretly copied a book belonging to a monk named Finnian. On discovering this, Finnian accused Columcille of theft and brought him to the king for judgement. King Diarmuid (the judge before whom they appeared) ruled that, in the same way that every calf belongs to the cow that birthed it, so each copy is a product of the original book and consequently belongs to the owner of that book. Hence copyright law was born.

Copyright came into existence in England (with consequences for any country under British rule) in the 18th century with the creation of the Statute of Anne in 1710. The invention of printing had seen a rise in the number of printers and book publishers, many of whom printed and reprinted texts without the knowledge or consent of the original authors. The publishers and printers made fortunes while the authors were unable to support themselves. The Statute of Anne remedied this by granting authors”the sole right and Liberty of Printing such Book and Books for the Term of One and twenty Years”. During the copyright term, only the creator is entitled to publish, reproduce and benefit from their work. However, once copyright expires then anyone else may make use of the content.

Copyright duration was subsequently extended, but as copyright is a legal concept, the time periods for which copyright apply vary depending on the country, the type of content, the date of creation and the type of author (individual or corporate). In the US for example, lobbying by global corporations has seen the copyright period extended so that some works are protected for over 95 years from date of publication or 120 years from date of first creation.

As time progressed, copyright has extended to include not just the printed word but also lectures, literary, dramatic or musical work, records, film and (later still) computer programs. In addition to protecting the rights of individuals, additional obligations were imposed on publishers. Section 15.1 of the Copyright Act, 1911 required the delivery to the British Library of a copy of any book published in the United Kingdom.

Changing Copyright For a Changing World

In 1967, the World Intellectual Property Organisation (WIPO) was created via a mandate of the United Nations as a global forum for intellectual property services, policy, information and cooperation. In 1996, the countries involved in WIPO agreed the WIPO Copyright Treaty which recognised the changes - economic, social, cultural and technological - which had taken place globally and attempted to create new rules under which artists and creators would be able to protect their rights.

As technology evolved, so did the attempts to prevent copyright breaches. Global corporations began implementing digital rights management (DRM), placing coding in software and hardware which would prevent alteration or copying of content. More recently DRM has been applied in cars, mobile phones and e-books. In 1998, in recognition of the increasing threat posed to commercial interests by online copying, streaming and sharing, the US passed the Digital Millennium Copyright Act (DMCA) This legislation criminalises those who avoid Digital Rights Management (DRM) restrictions, can be used to force takedown of websites and provides “safe-harbour” protection for Internet Service Providers (ISPs) who are hosting challenged content. Other countries, including Ireland, have similar legislation. While DRM protects rights holders, it also has significant potential for abuse and organisations such as the Electronic Frontier Foundation and Defective By Design are active in lobbying for its elimination.

From a library point of view, copyright and copyright restrictions impact everything we do; the content we make available (for example, journal and e-book licensing restrictions), Inter-Library Loans, (restrictions on sending PDFs), photocopying, use of our public access computers and the content we make and share to educate our patrons and ourselves. “Fair use” or “fair dealing” provisions which allowed for the use of copyrighted material for educational purposes or personal research have historically been of some value. However, photocopying an image to stick to a page which will be displayed in a school might be acceptable under fair use, but scanning that image and uploading it as part of a blog or wiki project could potentially be a breach of copyright because it contravenes the creator’s right to be the sole publisher of that content.

Technology such as digital rights management can prevent multiple users from accessing an e-book at the same time or prevent readers transferring books to their preferred e-reader, forcing them instead to download additional software or to use particular devices. However, recognition is still given to necessity of allowing libraries and archives to behave in ways not permitted to individuals, for the sake of cultural or educational activity. WIPO has created a number of videos examining the limitations and exceptions for libraries and archives which apply in member states.

Creative Commons

As copyright restrictions became more onerous, educators, librarians, technologists, legal scholars and others came together in 2001 to establish Creative Commons, a non-profit organisation, set up with the intention of facilitating sharing and use of creativity and knowledge through free legal tools. Creative Commons have created licences which enable a content creator to allow others to use their work in a number of defined ways including permitting them to alter, or build on, an original work to create something new without requiring explicit consent. There are a number of different licence types.

  1. Attribution CC BY 
  2. Attribution-ShareAlike CC BY-SA 
  3. Attribution-NoDerivs CC BY-ND 
  4. Attribution-NonCommercial CC BY-NC 
  5. Attribution-NonCommercial-ShareAlike CC BY-NC-SA 
  6. Attribution-NonCommercial-NoDerivs CC BY-NC-ND 

Each of these licences allows a different level of permission from the original content creator. It is important to note that Creative Commons licences do not eliminate copyright. They build on it, enabling a “some rights reserved” approach rather than the traditional “all rights reserved” which copyright applied. You can read the full details of each licence on the Creative Commons website. I will give you a brief summary here:
  • Attribution. This licence requires that the content creator is credited for their work, so if you use a photo in your blog, include the creator’s name and any link to their personal website or the website where their content is hosted. You should also specify if you have adapted the content in any way. Creative Commons provides some examples of what a good attribution looks like.
  • Attribution-ShareAlike requires that you attribute the author as above and that any content which you create is shared under the same licence so that others may subsequently use your work to generate their own new content.
  • Attribution-NoDerivs requires attribution and prohibits you from distributing the material if you modify it in any way.
  • Attribution-NonCommercial allows you to adapt and share the content as long as you attribute it and as long as you distribute it for non-commercial purposes.
  • Attribution-NonCommercial-ShareAlike allows you to adapt and share the content as long as it is for non-commercial purposes and you must licence any adaptation under the same terms as the original licence.
  • Attribution-NonCommercial-NoDerivs requires attribution of the creator, that the content may only be used for non-commercial purposes and that the content cannot be altered in any way. No cropping, no changing, no adding a logo or text or anything else.

The Creative Commons movement has become so successful that “creative commons” has entered the English language as a way to refer to items licensed in this manner. Websites like Flickr and Opsound allow users to upload content with a Creative Commons licence so that others can then use this content to build new works. It is a useful search term to use when trying to source content for presentations or displays.

When you create your own work, be that a photograph, a blogpost, a graphic, or an audio or visual recording, you should also consider whether or not you wish to licence it under a Creative Commons licence. Creative Commons has a handy decision tool on their website to help you select the licence which is most appropriate for your needs.

Public Domain

Another option to consider when sourcing or licensing content is Public Domain. Public Domain content is content which has either passed out of copyright, or where copyright entitlements have been forfeited. So, for example the works of Jane Austen, Charles Dickens and others are now enjoying a resurgence in popularity because companies such as Amazon and Kobo made them freely available in digital format as an inducement to encourage readers to make the transition to e-reader, while organisations such as Project Gutenberg made them available as a public good. Public Domain content can be used by anyone for any purpose. Some creators now choose to make their works Public Domain immediately, as a contribution to society. The British Library released over 1 million images on Flickr under a Public Domain licence in 2013, making them available to remix and reuse without obligation. Pixabay is a website which which makes public domain images available for use for free with the option, when you select an image, to buy the creator of the image a cup of coffee.

Organisational/Contractual Obligations

Before you start licensing anything you have created, first consider when and how you created it. Then take a look at your work contract and the legislation regarding items created in the course of your work. Intellectual property created in the course of your employment may in fact belong to your employer and not to you!

In Ireland and the UK, copyright legislation holds that any work made by an employee in the course of employment belongs to the employer, unless otherwise agreed so check your employment contract to see where you stand. In the USA, the Bayh-Dole Act grants the government the right to practically use any invention or patent created where federal funding has been granted. WIPO has a useful leaflet on IP ownership.

You should also consider any other organisational policies which may apply to your works. For example, does your organisation have a social media policy which limits or prohibits your use of the social media in a work capacity? How about your home life? Does it prohibit you mentioning where you work on your social media profile? Do you need to include a disclaimer on your blog or Twitter or other profile indicating that your opinions are your own and not reflective of the organisation you work for?

Your Task for This Thing Is:

  • Write a blog post about the possibilities/issues/concerns which this post has raised for you regarding the content you have personally created in this course. 
  • Write a blog post about a website (other than Pixabay, Flickr or Opsound) which offers Creative Commons or Public Domain content and what it has to offer information professionals. Discuss how easy, or difficult, you found it to use and any issues you encountered in applying the necessary attributions. 
Include two images in your blog post which are public domain or creative commons and attribute them appropriately.

Legislation References
Additional References

All images used in this post have been sourced from

Thing 19 was written by Caroline Rowan, Health Services Librarian, Dublin. 

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