Let's take a look at your collections
So you decided to go through with this? That's great!
Before we continue with the practical stuff you'll need to know more about the way we handle collections and copyright. Copyright is a fairly complicated topic to tackle as it varies from jurisdiction to jurisdiction. This makes it almost impossible to write a universal course on the copyright issues in cultural collections and open data. However, there are some common ground rules that everyone should be aware of before opening cultural data. These include:
- the distinction between content and metadata
- multiple layers of copyright
- the distinction between a reproduction and a new work
- and most importantly the duration of copyright protection.
No matter what type(s) of collection(s) your institution has, chances are that your data consists of content and something called metadata. We make the distinction between opening up content and metadata because they generally have a different set of rights attached to them:
- Metadata: Metadata is the descriptive information you add to the objects in your database to provide them with context and improve searchability. Metadata can include any kind of descriptive data like dates, names of authors, geographical information, etc.
- Content: All digitized cultural objects like scanned paintings, photographed objects and digital texts are content.
Copyright on Content
In most cases, the content in your collection is created by various third parties. This means that copyright to these works does not belong to your institution, but to a large number of different authors or creators. This can make it quite hard to make these objects available as open data. If you don't own the intellectual property rights to a work, you'll need to ask permission from those who do before you can make it public.
Copyright on Metadata
For metadata this will seldom be the case. Metadata will mostly be created by your own institution and it isn't even always clear if metadata is subject to copyright or not. When we are talking about factual data like dates, names, etc., the general rule is that they aren't copyrightable. When the metadata includes more elaborate descriptions that transcend factuality, copyright could be involved, but this depends very much on the jurisdiction you are in. When you wrote the descriptive metadata yourself, you usually own the copyright and it's up to you to share this data with whoever you want. For the purpose of this challenge we will assume that all content and metadata of your collections are copyright protected.
However, depending on the jurisdiction that you seek protection in, metadata is not protected. In general we can assume that factual information cannot be copyrighted. That means that basic information about a cultural object, like it's name, creator, year of publication, is not copyrightable. It does not matter how long it took to gather the information, it matters how creative the information is. Despriptions about a cultural object can therefore be copyright protected, names or dates not.
Duration of Copyright
Copyright protection is temporary. It protects a creator of a work for a certain perdiod of time. In Europe this term is harmonised at 70 years after the dead of the longest living author. Worldwide however it varies per jurisdiction. Mexico for example grants protection up until 100 years after the dead of longest living author, whereas China only grants protection for 30 years after publication.
When copyright expires a work falls in the public domain. Everyone can freely copy and distribute a public domain work without having to ask permission. Check the term of protection in your own country to see which works can be freely copied and distributed in your jurisdiction. Cultural institutions cannot claim copyright on works that have fallen into the public domain.
Reproductions have the same rights as the original. When you reproduce a work, make a scan a copy or a transcription, the new works retains the copyright protection of the original. This is also true for taking non-creative head-on photographs of 2D objects like paintings of photographs.1 Because rights are not renewed with each copy, the reproduction will fall into the public domain at the same time as the original does.
For photographs of 3D objects however (chairs, amulets, coins, pottery, ect.) we assume these are not straight reproductions. Because you can't capture the object in it's entirety in one photograph, there will always be some 'creative' decisions involved. For this reason, we have to assume that photographs of 3D objects bring about a copyright of their own.
multiple layers of copyright
A work can also have multiple layers of copyright. When you take a photograph that consists of a copyrighted work in the background, you need to have permission from all the rights owners whose works are depicted in the photo to distribute and copy that photograph. Even if the photograph in itself constitutes copyrights of it's own for the photographer. A cultural institution needs to have the rights to all the content and/or metadata to publish an entire collection/dataset with an open license. Cultural data cannot be shared openly if the rights have not already been transferred to you, without the works being in the public domain or without permission of all the copyright owners of a work.
Now it's time to get hands-on! Before you can continue you'll need to complete two tasks. First you'll need to find out how copyright is handled in your country. If there's a copyright specialist in your institution, grab him or her by the arm and ask him for a crash course. If not, there's lots of information to be found on the internet.
Try to answer following questions:
- How long does copyright protection last in your jurisdiction? (hint)
- When is a work considered to be copyrightable in your jurisdiction? (Does it require originality or is there another criterium?) (hint)
- Are there any copyright exceptions applicable to your institution? (hint)
Now take a look at the collections in your institution and write down for each collection:
- What does the collection consist of? (e.g. video, images, sounds, etc.)
- What is the rights status of the content in your collection? How did you make this assessment?
- Describe the metadata in your collection?
- What is the rights status of the metadata in your collection? How did you make this assessment? Is this metadata copyrightable in your jurisdiction?
- Do you work with collecting societies? What's their licensing policy?
1This is one of those rules that differ in some jurisdictions. Pivotal is how a work is defined: if a copyrighted work is defined with rules of originality these paragraph holds. If on the other hand a sweat of the brow doctrine applies to your jurisdiction you need check your local laws.