Mar 092012
 

I am just about to take part in the RSP webinar on Web 2.0, Creative Commons Licenses and Orphan Works being run by Prof. Charles Oppenheim.

This is the first free RSP – Repositories Support Project – webinar and we are just hearing an introduction from Nancy Pontika. The webinar is being recorded and both the PowerPoint and the webinar recording will be available online after the event. For that reason I’ll just be taking summary notes here and linking to the recording when it goes live.

Charles is now beginning here. This talk is based on one to the UK Electronic Information Group – it was one of two and we will be having a second webinar on the other title as well. He assumes those listening are

Charles is using a definition of Web 2.0 from Wikipedia – I note that Time Berner-Lee calls Web 2.0 “a piece of jargon” – which is fair enough to the extent that it is all built from existing technology. The key difference is the interaction between users.

There are some novel copyright issues here though. There are multiple collaborative players, and related to that, it is often international with contributors all over the world. In many web 2.0 situations few of the people involved know about or care about copyright – indeed Charles says some of them have contempt for copyright.

Copyright does have provision for jointly owned works: this is where the work is jointly owneed when more than one person has collaborated in the work’s creation and it is impossible or difficult to distinguish who contributed what. So an email thread may be jointly owned for instance but usually they would be a set of smaller singly owned copyright. But something like Wikipedia is clearly jointly owned – many contributors editing each others work. But the problem is that when you have something jointly owned any one party, any one contributor has a veto – they must all agree to the licensing of the outputs. No reply to a request also has to be taken as a veto. And that point actually extends to copyright in general. When you ask to use material there are three possible answers: yes, no, and no answer. Only a “yes” means you can use the material. So if 9 out of 10 copyright owners approve reuse of material but the tenth does not then that material cannot be reused.

The lifetime of copyright in most work is typically 70 years after the last of the joint owners have died. It could be a very very long time. So if any of you are involved in Web 2.0 tools it would be good to have terms and  conditions that do allow appropriate licensing for their material.

Other issues with web 2.0 is the difficulty of policing such sites – so on something like YouTube there are many many content owners and only some motivated to police that. Again Charles says that many Web 2.0 users have contempt for copyright. And he also draws us to the notion of “Vicarious Liability”, which means that things done by employees/students may have legal repurcussions for the employer/institutions, who may not have been aware of what was going on – and that applies to everything, not just Web 2.0. The risk is high in Web 2.0 because of the risk of copyright infringement.

Moral rights allow the author “Paternity right” – but you must assert that. If you do then you are the author of that work and your name must also be associated with that work. You also have a moral right to protect yourself from “false attribution” where that could damage your reputation etc. More importantly there is also “derogatory treatment” – a protection for using your work in any way that misrepresents you, quotes you out of context etc. Note that moral rights cannot be assigned to someone else. But they can be waived. Moral rights are very important in a Web 2.0 environment – you need to identify authors, to make sure you quote them appropriately etc.

There are also Performers Rights – these cover things like musical performances, dances, acting, lectures, etc. You must ask permission before making or reproducing copies of the performance – and the performer can choose whether or not to grant that. A podcast is a recording of a performance. To give you an example of a case at loughborough – a professor in an engineering department sent Charles a video on YouTube that was prefaced by a comment “the world’s worst lectuer” – it was a clip taken in a lecture on a mobile phone, showed some of the audience. It wasn’t a great lecture but that’s not the point, this infringes his performers rights. I replied that yes, it is infringing your performers rights as only you can give permission to record (except in the case of a student with a disability to use for their own studies), and certainly you shouldn’t add it to YouTube before getting permission!

If this all alarms you then help is at hand – there are a whole set of webpages from the Web2Rights project, a JISC funded project (http://www.web2rights.org.uk/) to help people with legal problems associated with Web 2.0. It’s such a good resource that it’s useful for any legal and copyright issues around Web 2.0 or other digital  information. It includes a ToolKit that gives all kinds of background information. It can help you look at all sorts of IPR and Licensing Issues. And the whole website is provided under a Creative Commons licence. You can use, adapt, remix, rebrand etc. as useful. You can implement policies in your institution etc. You just need to attribute the source. There are tools for Library and Information Services staff and policy teams.

That site also looks at Risk Management. In general copyright is all about managing risk. You have to be proportionate and pragmatic – be diligent and reasonable. You may be happy to take a low risk, but if something is very high risk you probably will not want to do that. Strategies should reflect and be reflected by employer policies – some organisations are much more risk averse than others. You also need to educate your users about copyright and avoiding infringing behaviour. If you do find you receive a complaint on infringing copyright then most importantly you must respond and take some sort of action – don’t ignore it or do nothing.

To mitigate risk you need to make sure you have mechanisms to take down content and do this whenever you receive a complaint. Then you should look at whether the claim is substantiated or not – it may be that you put the content back again, that may just require you to attribute the content, or there may be a fee for use, or it may be that it has to be removed. You should apologise as appropriate, have a rapid take down procedure and be aware that organisations usually have insurance that may help with charges/royalty fee issues.

So, onto Creative Commons. Lets start with a reminder of how you can copy under normal copyright law. There are exceptions within the copyright law – use for fair dealing, ability to make a single copy etc. Secondly you can use material where the owner has explicitly waived copyright – or has given a Creative Commons or similar free licence. Or you can buy a licence from the copyright owner or someone who acts on its behalf – Copyright Licensing Agency, ERA licence for television recordings etc. But I’m going to focus on Creative Commons.

A reminder of what a licence is, the copyright owner or his/her/its authorised representative (licensor) grants licensee rights to do certain restricted acts. In return fees are (often) paid. Terms and conditions are imposed – you must follow them, or be in breach of the licence and may be infringing. If you have a paid-for licence than you may be covered by indemnity – so the licensor should deal with any claims for infringing in theory. One of the most important licences is Creative Commons.

Firstly there is a website for Creative Commons: http://creativecommons.org/. If something has a CC licence then you may copy that content at no charge as long as you attribute creator. There may be other limitations which we will come back to. CC licences apply to text, sound effects, music, images, moving images, most any electronic format. To find licences materials there are many sources – Google, Google Images, Mediahub (for HEIs and FEIs only), Flickr, YouTube, much of the content on Google Scholar as well. Many of the Wikimedia (including Wikipedia) materials are on CC licences. In many cases you find these materials through advanced search options. But BEWARE! many people share things under CC that they are not entitled to so you must exercise common sense. So if you find a clip of a recent football match or a BBC programme on YouTube and it says it is CC licenced then it’s pretty unlikely the person who uploaded that has the rights to share that. Be sensible.

There are a number of CC licence types. The base line type is to copy and disseminate the work without changes and as long as you give attribution (CC-BY). So you can use the content but must give the author/licensor credit. You may also find that work has a CC-BY-NC licence – you may only use work for Non-Commercial purposes – there have been court cases here, with glossy magazines using images for instance where the author has had their licence breached and must be paid damages. You may fine that you have a CC-BY-ND licence – this means there may be No Derivatives. Or a CC-BY-SA – this means you must Share-Alike – you must share anything you do with an item under the same licence term.

CC licensed work is very useful – for presentations, for teaching materials, etc. And it’s a great way to share your own work with others.

Now, onto Orphan Works. These are anything that is in copyright but you cannot identify or trace the owner so cannot get permission to copy/permission. This is a growing problem, especially with uploading of content online. A likely solution in the future would be to use licences where funds are put in a pot for rights holders to claim – so you pay a fee and that fee is kept so that if the copyright owner comes forth they can be awarded some money from that pot of money. A big question arises here – in the majority of cases the owner will not come forward in which case the money will build up and how can that be dealt with?

The EU has issues a draft Directive on Orphan Works along these lines but it only covers text and some limited film works. It may not get passed but will certainly take a long time to come into force even if it does. Meanwhile Hargreaves has made some proposals likely to occur earlier and which are a bit more wide ranging. That is the current (vague) legislative position here.

Believe it or not even ancient works (e.g. a cuniform tablet) are still “in copyright” if they have just been found. Again Hargreaves has recommendations there. Obviously from a risk management perspective that would be a low risk issue though.

Hargreaves is a professor at Cardiff University who David Cameron asked to look at copyright law. He has recommended a new exception for orphan works for non-commercial use, with licensing bodies to administer (perhaps Copyright Tribunal). He also suggested the lifetime of copyright for unpublished or anonymous/pseudonymous works to life of author plus 70 years, or 70 years from data of creation. He does recommend requirement for a “diligent search” – before paying a fee to the licensing centre – but it’s not clear what the criteria for such a search would be . And it’s not clear what happens if someone comes forward as an author – they will get fees for prior use but can they block future use for instance?

And there is suggestion of a Possible Extended Collective Licensing schemes – so that colelcting societies c overing a majority of rightsholders in their media can offer licenes for c oprying materials not currently in their repertoise. And this could potentially include orphan works. OR there could be a special Orphan Works Licensing Agency.

Finally the IPO is to develop plans for a “copyright opinions service” in early 2012 for anyone, perhaps specifically/only educational institutions worried that they might be infringing. But this may not happen, the IPO are not keen on it. And there was to be a White Paper with proposed legislation in “Spring 2012” but it will be much later than that and Orphan Works may or may not be included as the independent photographers groups really don’t like the orphan works part of Hargreaves recommendations.

Q&A

Q1) In terms of vicarious responsibility – surely the employer isn’t responsible for all actions of employees and students and what they do in their personal lives?

A1) It must somehow be related to their employer responsibilities. If a student it’s about using the organisations facilities. So as an employee my personal conduct isn’t in scope. But if I do something at home related to my work role then that would be in scope. And if I do something personal on work computers the organisation can be liable. And with students it’s clearly about facilities. So it must be related to role, or use of facilities supplied by the institution.

Q2) Where do you draw the line between performance or conversation caught on camera – does the law differentiate?

A2) The law doesn’t differentiate exactly. But the law see performance as something that involved pre-planning. So improvised Jazz, some have argued, isn’t pre planned – though I’m not sure I agree. Lectures and concerts are clearly pre planned, schedules etc. There was a case the other day of someone who had created diagrams and graphs and had put them on camera as part of the talk – the question was whether those diagrams etc. enjoyed performers rights. I’m not at all sure. So there is a debate whether football recording infringes performance rights – the moves are not planned! But a conversation… well a pre planned interview would have performers rights but a chance conversation might not qualify.

Q3) Is there a list of organisations that are particularly copyright sensitive and will chase you always?

A3) There are some that usually persue: the film industry, the music industry, some publishers such as John Wiley, Ordnance Survey (happy to grant licenses but don’t do something without those or outside the terms. Some subject areas are dodgy such as business – you have various tests, questionnaires to measure personality or ability to negotiate or stages in marketings etc. and the copyright owners of those are very aggresive. The Honey and Mumford Test is a good example. Sheetmusic is aggresive. Andrew Lloyd Webber is very aggressive. No master list though.

Q4) Do performer and moral rights apply to work undertaken for your employer?

A4) You cannot assign your moral rights but if you create something for your employee duties there simply are no moral rights – so lecture notes here for instance. Performers rights are always retained by the individual not with the institution whether or not that is part of your employee duties. So an employer cannot on insist on recording an employees duties. So a university cannot insist on podcasting your lectures for instance. However even though legally in the right there may be plenty of reasons to approve such recording but these rights always remain your own.

Q5) For repositories can CC licences be accepted or must they always be checked?

A5) I did say you need to be sensible.  But you need to check that third party material is not in that material. And as an author I could have assigned copyright to a publisher… it’s a bit of a risk management approach. I would suggest that you need to get each academic when they submit, or when they first submit to the repository to sign a statement that they have the right to deposit anything going into the repository – a useful prompt for the depositor and this allows the institution to show they have tried to ensure compliance.

Q5) What is your liability for something that you have used that someone else CC licensed but is infringing?

A5) If it’s obviously infringing then you are probably liable. But it’s about how reckless you are. If you think that the CC licence is valid, it’s taken in

Q6) CC-BY-NC – does this mean you can’t sell the work, or that it can’t be used by a commercial organisation. And would a university be intentded a commercial organisation? Would a prospectus to attract students who make money for the university be a commercial use?

A6) It’s about direct or indirect money making usage. So a commercial organisation could use a CC-BY-NA item for non commercial purposes – an internal presentation, an intranet etc. But a prospectus would be a commercial use.

Q7) Non commercial is not the same as non profit…

A7) Certainly. You don’t need to make a profit to be commercial. A charity sharing a booklet that you charge for, even if it’s loss making, would be commercial.

Q8) We publish a photo with a non commercial licence and someone uses it on their blog. Their blog run ads and the blogger claims that it is non commercial as ads cover running costs.

A8) That’s a very grey area indeed. That may be a case to talk to the original copyright owner to ensure there are no objections.

Q9) CC licences for research papers: I read there are formulas for different licensing of materials like GNU, BSD, and CC for artworks. I do not think that these are appropriate for scientific articles – do you agree? What CC licence is appropriate for research papers? What does NC or ND mean in this context?

A9) CC isn’t just for artworks certainly. There are different and more appropriate licenses for software, CC isn’t designed for that. But articles wise I see no reason why a CC-BY-ND-NC licence wouldn’t be appropriate for research articles.

And that’s the last of some really interesting questions. The next webinar is on the latest changes to UK Copyright Law and registration will open up in a few weeks time.

 March 9, 2012  Posted by at 11:41 am LiveBlogs Tagged with: , ,  Add comments

  One Response to “LiveBlog: Web 2.0, Creative Commons Licenses and orphan works (RSP webinar)”

  1. […] is risk though with all this valuable data gathering reward and that is copyright which Nicola Osborne describes in-depth. Especially for elbo.ws which unfortunately falls into that category which Nicola describes as […]

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