22 IPR and Copyright Issues

T S Kumbar and Pallabh Pradhan

I.  Objectives

The objective of this lesson is to impart knowledge and create awareness on the following aspects of digital library and Intellectual Property Rights, more specifically the copyright issues involved in developing and managing digital library collections and how to handle the process of obtaining rights.

•    What is digitisation and digital library?

•    What are the digital objects?

•    What are the components of Digital Library?

•    Steps involved in planning for Digital Library

•    What constitutes Intellectual Property Rights?

•    What are Copyrights?

•    Importance  of managing copyright in digitisation or developing digital collection

•    How to identify what is covered or not covered under the copyright

•    How do we deal with fair use provisions while digitisation?

•    How to identify the materials available in public domain?

•    How to obtain copyright permissions & manage written agreements?

•    What is Creative Commons License & its importance in digitisation?

II.  Learning Outcome 

After going through this lesson, learners would get an idea about different aspects involved in Intellectual property rights in digital environment. They would develop understanding of copyright and managing issues involved in digitising the collection from print to digital. They would also get an idea about Creative Common License and context of its application.

III.  Structure 

1.      Introduction

2.     Digital Library and Digital Collection: Definitions

2.1    Types of Digital Collection

2.2   Components of Digital Library

2.3   Planning for a Digital Library

3.     What is Intellectual Property Rights?

3.1.   What is Copyright?

3.2.  Indian Copyright Act

3.3.  Managing Copyright Issues in Digital Library

4.     International Copyright Treaties and their Status

5.     Summary

6.     References

1.  Introduction 

The information and communication technologies or the digital technologies enables the easy transmission, access and retrieval of various digital contents and materials available in libraries over the Internet, on-line through interactive networks. Providing access to books on shelves in library and to provide access to electronic resources/digital materials are totally different. While collecting, preserving and providing access to digital resources, it is a great concern to achieve an appropriate balance between copyright owners and users, which is also a topic of worldwide discussions from a legal perspective in academic and library fraternity. The very purpose of a digital library or digital archive is to collect, ensure long-term preservation or to provide an easy and convenient means of access to its subject matter. But, the manner in which the digital library will acquire contents/copies, as well as who/how will have access to the contents, from where, and under which terms and conditions, are all factors critical to determining the copyright implications for works to be included in it. To understanding the copyright issues and proper safeguarding of it is a very complex task for libraries and library professionals worldwide. The goal of this module is to provide its reader basic information about the copyright law, its related rights, issues to consider before/after for planning and developing any digital library or digital collections.

2.  Digital Library and Digital Collection: Definitions 

Digitization is a process of converting the content of physical media (analog) in to digital format.

Digital Library 

An informal definition of a digital library is a “managed collection of information, with associated services, where the information is stored in digital formats and accessible over a network” (William Arms, Digital Libraries, 1999)

“A focused collection of digital objects, including text, video, and audio, along with methods for access and retrieval, and for selection, organization, and maintenance of the collection”. (Witten and Bainbridge, How to Build a Digital Library 2003)

Digital Objects 

The digital library consists of objects like still images- photographs; textual documents-books, journals, thesis etc, ; moving images-video; audio; raw data files- statistical; complex objects- combination of more than one and others materials which are worth the use.

Digital Collection 

The digital collection consists of digital objects that are selected and organised to facilitate their access and use and good digital collections include metadata used to describe and manage them including copyright cleared (NISO: A Framework of guidance for building good collections 2007).

2.1  Types of Digital Collection 

There are mainly two types of documents covered in the digital library. One is born digital which means the documents is generated in digital form while it was created and there may or may not be parallel document in print form. The second one is converted from print to digital using all required technological tools and preserved for future use.

2.2  Components of Digital Library 

Following are the four essential elements for a digital library:

•    Content- collection & metadata

•    Technology- Enabling tools

•    Users – user interface

•    Services- digital library services in different form & varieties

Developing collection needs clearance of intellectual property rights specifically copyrights of the respective authors or owners of the rights.

2.3  Planning for a Digital Library 

Planning for digital library or developing digital collection involves following major steps:

•    Defining set of goals and scope of the digital library collections

•    Critical evaluation and selection of reading materials to be digitized

•    Obtaining copyrights or permission to digitize the resource

•    Defining project objectives and milestones as the work of digitization progresses

•    Determining  technologies  required  with  clear  specifications  (  both  hardware  and software)

•    Creating workflows so that redundancy can be avoided

•    Preparing budget required to execute digitization work

•    Implementing or executing the digitization work

•    Evaluating the whole work of digitization done

•    Evaluating the usefulness of the digitized collections

In this entire process, obtaining copyright clearance for every document being digitized is considered as an important task without which developing digital collection or digital library cannot be achieved.

3.  What is Intellectual Property Rights? 

Intellectual Property Rights (IPR) is not a new concept. It is believed that IPR initially started in North Italy during the Renaissance era. In 1474, Venice issued a law regulating patents protection that granted an exclusive right for the owner. The copyright dates back to 1440 A.D. when Johannes Gutenberg invented the printing press with replaceable/moveable wooden or metal letters. Late in the 19th century, a number of countries felt the necessity of laying down laws regulating IPR.

Intellectual Property (IP) refers to creations of the mind: inventions; literary and artistic works; and symbols, names and images used in commerce.

Intellectual Property Rights refers to the protection of creations of the mind, which have both a moral and a commercial value. IPR typically grants the author of an intellectual creation exclusive rights for exploiting and benefiting from their creation.

Intellectual property is divided into two categories:

Industrial Property includes patents for inventions, trademarks, industrial designs and geographical indications.

Copyright covers literary works (such as novels, poems and plays), films, music, artistic works (e.g., drawings, paintings, photographs and sculptures) and architectural design. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and broadcasters in their radio and television programs.

Database Rights: Database rights is granted to a person, who funds, select and arranges the content into a database. There need to substantial investment in obtaining, verifying and presentation of the contents of the database. The rights last for 15 years and further its changes get protected by another 15 years by making it continually protected.

Intellectual property rights are like any other property right. They allow creators, or owners, of patents, trademarks or copyrighted works to benefit from their own work or investment in a creation. Some of the IPR are outlined below:

Trademark: A trademark is a sign that individualizes the goods or services of a given enterprise and distinguishes them from those of competitors. Under the IPR protection law, a trademark must be distinctive, and not deceptive, illegal or immoral.

Geographical Indication: A geographical indication is basically a notice stating that a given product originates in a given geographical area.

Industrial Design or Model: It is the aesthetics and ergonomics of a product. It consists of three-dimensional elements, such as the creation of the product’s shape, or two- dimensional ones, such as graphics, patterns and colors.

Patent: Patent is an exclusive right granted by law to an inventor or assignee to prevent others from commercially benefiting from his/her patented invention without permission, for a limited period of time in exchange for detailed public disclosure of patented invention.

Trade Name: A trade name or business name is a name that uniquely distinguishes a business from others.

Trade Secret: A trade secret is any information of commercial value concerning production or sales operations which is not generally known. The owner of a trade secret must take reasonable measures to maintain its confidentiality.

Integrated Circuit: A product, in its final form or intermediate form, in which the elements, or at least one of which is an active element, and whereby the interconnections are integrally formed in and/or on a piece of material, which is intended to perform an electronic function.

Related Right: Related Rights or Neighbouring Rights are rights that in certain respects resemble copyright. The purpose of related rights is to protect the legal interests of certain individuals, namely performers, producers and broadcasters, and to help them deliver their message to the public.

3.1  What is Copyright? 

The Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work.

Copyright includes:

The reproduction right (the right to make copies): For purposes of the reproduction right, a “copy” of a work is any form in which the work is fixed and from which it can be perceived, reproduced, or communicated, either directly or with the aid of a machine.

The right to create adaptations, or derivative works: A “derivative work” is a work that is based on a copyrighted work, but contains new material that is original in the copyright sense. For example, Windows 2000 is a derivative work based on Windows 98.

The right to distribute copies of the work to the public: The distribution right is limited by the “first sale doctrine,” which provides that the owner of a particular copy of a copyrighted work may sell or transfer that copy. In other words, the copyright owner, after the first sale of a copy, cannot control the subsequent disposition of that copy.

The right to perform the work publicly: To “perform” a work means to recite, render, play, dance, or act it, with or without the aid of a machine. For e.g. a live concert is a performance of a musical composition, as is the playing of a CD on which the composition is recorded.

The right to display the work publicly: To perform or display a work “publicly” means to perform or display it anywhere that is open to the public or anywhere that a “substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” It does not matter whether members of the public receive the performance at the same time or different times, at the same place or different places. Making a work available to be received or viewed by the public over an electronic network is a public performance or display of the work.

However, the copyright law distinguishes between ownership of a copy of a work (even the original copy, if there is only one) and ownership of the copyright rights. In context of a library, a library that acquires a book does not thereby automatically acquire the right to reproduce it. It just own only the physical copy and not the copyright rights associated with the physical book.

3.2  Indian Copyright Act 

The Indian Copyright Act, 1957 came into effect in independent India from January 1958. It has its origin from Indian Copyright Act 1847 enacted during East India Company. The Copyright Act, 1957 borrowed extensively from the new Copyright Act of the United Kingdom of 1956. Further, this Act has been amended five times since then, i.e., in 1983, 1984, 1992, 1994 and 1999, with the amendment of 1994 being the most substantial. The Copyright Act, 1957 continues with the common law traditions. The 1999 amendments have the Indian Copyright Act fully compatible with Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement. Also, India is signatory to both the International Copyright Conventions i.e. the Berne Convention of 1986, and Universal Copyright Convention of 1952. The MHRD, Government of India has constituted a “Copyright Enforcement Advisory Council” to look after copyright issues and its proper implementation.

3.3  Managing Copyright Issues in Digital Library 

It is important for the professionals to understand and adhere to copyright issues involved in developing digital collection (s) as part of their digital library. Any document which is added as part of digital library and access is provided for wider use on the Internet has to have copyright cleared or one has to ensure that it does not violate copyrights of the author or the owner of the rights. Following are some the ways how one could manage copyright related issues:

Fair use: If resources to be added have provision stating that it is being used for non-commercial activities such as research, private or individual study, academic purpose, writing reviews and criticisms etc.

The fair dealing/use approach followed in India under “the Copyright Act 1957” is clearly limited towards the purposes of:

•    private or personal use, including research,

•    criticism or review, and

•    reporting  of  current  events  and  current  affairs,  including  the  reporting  of  a  lecture delivered in public.

Documents in public domain: Some of the often used documents which are considered for addition in the digital library and if they happen to be available in the public domain as a policy for wider use, one can safely add these to the collection.

Written agreements & permissions: Documents considered for digitisation but copyright rests with authors or publisher, one will have seek the written agreement with certain clear terms and condition. Then only such documents could be added to the collection.

Licensed resources: There are certain documents where copyright holders have clearly stated what can be done with such documents and what cannot be done. Depending on the stated policy or licenses, one can consider adding documents to digital library.

Creative Commons: Presently, number of documents are generated in electronic only format. These are generated by individuals, institutions, associations, funding agencies, government departments and others. Considering either as policy mandate or other factors which favour authors and users, these documents are made available under any one of the six Creative Commons licenses. Depending on these licenses, one may decide to include documents in the digital collection. Mostly, all of these licenses encourage wider usage with due acknowledgement or credits to authors.

Deming Zhou has discussed and raised specific issues of IPR in digital context on Chinese copyright protection system, which may also relevant in the Indian context. The advent of digital technology has greatly accelerated the dissemination and distribution of information with great speed and accuracy. It is much easier to disseminate literary, artistic and scientific work to a very large community of Internet users and users of electronic media. At the same time, it poses some problems and issues for consideration. The major issues are:

•    Is digitization to be considered as similar to reproduction, for example using Xerox machine?

•    Is digitization a deductive activity such as translation from one language to another?

•    Can transmission of digitized documents through Internet be considered as commercial distribution or public communication similar to broadcasting?

•    Is the principle of exhaustion of the distribution right still effective in the digital age?

•    Can we consider a database as a special collected work that should be protected by the copyright law or it can be considered as a special work requiring specific legislation for its protection?

•    What can be considered as ―Faire use in the Internet environment?

•    What are the concerns of the library community?

•    In the digital context if access could be technologically restricted by the copyright owner, how could the public exercise fair use with regard to those work?

•   Whether libraries should be prevented from employing digital technology to preserve work by making three copies-an archival copy, a master copy and a use copy?

•   Whether Internet Service Providers (including libraries and educational institutions) should be liable for copyright infringement merely because they facilitated the transmission of digital data (Zeroes and Ones) that translated into another party‘s copyrighted work.

All the above issues mentioned are specific to the library community. The libraries as a service oriented organisation have allowed their users to read a document, to browse through the whole collection; to search through the library catalogue; to supply Xerox copy for specific individual research and education purpose; to procure photocopies of articles from other libraries or clearing centres; to widely distribute the re-produced copies of documents requiring public awareness and to provide inter library loan service. Whether all these activities will continue in the digital age? If digitization is considered as reproduction, it is clear that in digitization the initial work is merely changed into the digital form and the process of changing is accomplished by a machine, without any creativity. At the same time if it is considered as a translation from one language to another, the digitization is also a change from natural language of humans in to binary language of machine. In digitization however, there is no creativity involved and it could be considered as an activity similar to reprography. The copyright protects creative works. Simply transformation in to the digital form of an original document cannot be considered as creative.

Further, there is an increasing shift away from the model of the library as a physical repository/archive of information artefacts to provision of licensed access to digital resources. Libraries are dealing with many e-books, e-journals publishers and vendors (the rights holders); negotiating and signing contracts / agreements to get access to e-resources by paying subscription fees for a specified limited time. Copyrights are moreover now being replaced by contracts / agreements in between libraries and publishers. There, libraries could ask rights holders for permission to copy those subscribed e-resources for preservation purposes or for perpetual access to those resources. However, clearing rights for the preservation of digital materials is likely to be resource intensive, difficult and very time consuming.

Model licences could reduce the burden on libraries and publishers. The JISC Model Licence for Journals allows the licensee to make backup copies of the licensed material in order to make them accessible locally. The publisher undertakes to provide access to the archive of subscribed material once a subscription ends. However, this relies on other players i.e. libraries or institutions to take full responsibility for and ensure preservation. Alternatively, the publisher may provide the former licensee with an archival copy of the material that was subscribed to, in a mutually agreed format.

4.  International Copyright Treaties and their Status 

The World Intellectual Property Organization (WIPO), a specialized agency of under the umbrella of United Nations (UN), is responsible for administering 23 international treaties that cover various aspects of intellectual property protection. Currently, WIPO have currently 188 signatory member states.

The main convention and treaties related to copyright protection are:

Berne Convention: The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland, in 1886. As of May 2016, there are 171 states that are parties to the Berne Convention. This includes 170 UN member states plus the Holy See. It assists the nationals of its member states with international protection for such works as novels, poems and plays, songs and musicals, paintings, sculptures and architectural works.

Universal Copyright Convention: The Universal Copyright Convention (UCC), adopted in Geneva, Switzerland, in 1952, was developed by United Nations Educational, Scientific and Cultural Organization (UNESCO) as an alternative to the Berne Convention for those states which disagreed with aspects of the Berne Convention, but still wished to participate in some form of multilateral copyright protection. These states included developing countries as well as the United States and most of Latin America. Under this, each member state undertakes to provide for the adequate, effective protection of the rights of authors and other copyright proprietors in literary, scientific and artistic works including writings, musical, dramatic and cinematographic works, paintings, engravings and sculpture.

Rome Convention: The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations was accepted by members of BIRPI, the predecessor to the modern World Intellectual Property Organization, on 26 October 1961. The agreement extended copyright protection for the first time from the author of a work to the creators and owners of particular, physical manifestations of intellectual property, such as audiocassettes or DVDs.

Geneva Phonograms Convention: The Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, also known as the Geneva Phonograms Convention, is a 1971 international agreement relating to copyright protection for sound recordings.

TRIPS Agreement: The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered in 1995 by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other WTO Members. The TRIPS agreement introduced intellectual property law into the international trading system for the first time and remains the most comprehensive international agreement on intellectual property to date. Specifically, TRIPS requires WTO members to provide copyright rights, covering content producers including performers, producers of sound recordings and broadcasting organizations; geographical indications, including appellations of origin; industrial designs; integrated circuit layout-designs; patents; new plant varieties; trademarks; trade dress; and undisclosed or confidential information. TRIPS also specifies enforcement procedures, remedies, and dispute resolution procedures.

WIPO Copyright Treaty: In 1996, a new international copyright treaty known as the “WIPO Copyright Treaty” was negotiated under the auspices of the World Intellectual Property Organization (WIPO) to addresses issues raised by new technologies. Under this treaty, the signatory countries has to provide legal protection to technologies, technological protection measures (TPMs), which can be used by rights holders’ to control access to, and use of, digital copyrighted works.

Digital Millennium Copyright Act (DMCA): DMCA Act is a United States copyright law that was passed on October 12, 1998. It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet. The DMCA amended Title 17 of the United States Code to extend the reach of copyright, while limiting the liability of the providers of online services for copyright infringement by their users.

5.  Summary

Digital libraries serve as an important source for preservation and widening the access to documents which are rare, important and which are otherwise not easily accessible. Digital Library consists set of collection(s) of documents which either born digital or converted from print to digital. Since most these documents are covered by Copyrights (rights owned by authors or publisher) it become imperative for the professional involved in creating digital libraries to ensure that these rights not violated. Since there are number of provisions as to how one could manage the copyright, it is important to understand these provisions and manage them effectively. This module presented some of those ways how one could manage the copyright related issues.

6.  References

• Adav, R. P. (2015). Digital Libraries and Intellectual Property Rights. In International Conference on Digital Libraries 2010 (Vol. 7637, pp. 1177–1187).
• Handa, S., & Bhatt, K. (2015). Intellectual Property Rights (Ipr) in Digital Environment: an Overview in Indian Digital Environment. International Journal of Digital Library Services, 5(2), 117–123.
• Hombal, S. G., & Prasad, K. N. (2012). Digital Copyright Protection: Issues in the Digital Library Environment. DESIDOC Journal of Library & Information Technology, 32(3), 233–239. Retrieved from http://www.publications.drdo.gov.in/ojs/index.php/djlit/article/view/2380/1271
• Besek. (2003). Copyright Issues Relevant to the Creation of a Digital Archive : A Preliminary Assessmentbody. Retrieved from https://www.clir.org/pubs/reports/pub112/body.html

• Mccarthy, C. (2006). COPYRIGHT AND DIGITAL LIBRARIES : presentation to the LOUIS Users Conference (LUC). In LOUIS Users Conference (LUC).
• Muir, A. (2003). Copyright and Licensing Issues for Digital Preservation and Possible Solutions. In Proceedings of the 7th ICCC/IFIP International Conference on Electronic Publishing (pp. 89–94).
• Tomaszewski, Z. (2000). Copyright and Its Effect on Digital Libraries, 1–8. Retrieved from http://zach.tomaszewski.name/uh/copyrightpaper.html
• https://en.wikipedia.org/wiki/WIPO_Copyright_Treaty
• https://en.wikipedia.org/wiki/Berne_Convention
• https://en.wikipedia.org/wiki/Universal_Copyright_Convention
• https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act