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Copyright and intellectual property rights
a case study from the web face

Content written on 7th October 2004 by William Kilbride.

Dr William Kilbride, Assistant Director, Archaeology Data Service / Arts and Humanities Data Service Centre for Archaeology, University of York, wgk1@york.ac.uk

Introduction

This short case study gives an account of intellectual property and rights issues relating to an online research archive. It describes the licensing regime in place to protect the creators and publishers of the data, and provides a case study of actions taken to stop unlicensed re-publication of data by a third party. It concludes that clarity is essential in the protection of intellectual property rights and that effort taken at an early stage will be rewarded in the long term.

Context

The Archaeology Data Service (ADS) / Arts and Humanities Data Service Centre for Archaeology (AHDS Archaeology) supports research learning and teaching in archaeology in the UK by promoting good practice in the use of IT, by preserving important digital research archives for the long term, and by making a large amount of data available online. At the time of writing, ArchSearch (http://ads.ahds.ac.uk/catalogue/), our online catalogue of archaeological resources, provides details of some 600,000 sites, monuments and research projects in the UK and wherever UK-based archaeologists work. In many cases, short descriptive records provide access to rich and detailed archives that may contain any form of digital object associated with archaeological research. Archives include very large quantities of text - theses, monographs and journal articles in digital form - as well as unpublished 'grey literature'. They include database files, images, CAD plans, geophysical and topographic survey, virtual realities, animations and statistical data. The vast majority of this data is supplied to us from external agencies who license us to distribute and preserve data on their behalf. This non-exclusive licence specifies the conditions under which we can distribute data, and has provision for digital preservation but does not transfer ownership of copyright.

Access

ArchSearch is free to users, and has few of the restrictions to access encountered in other online services. Archaeological information is the result of very many years of fieldwork and research - much of it funded through the public purse or explicitly to encourage and sustain a better understanding of the historic environment. It seldom has significant commercial value. Users of the data are not required to provide any personal details in advance, nor are they required to remember a password or login. There is no authentication system restricting access to registered IP addresses. Moreover, because we provide access to authentic archival materials, it would be prejudicial to the integrity of the resource were we to brand digital objects with copyright or other fingerprints. In some cases - especially print quality images - we present only screen grade images on the understanding that users can ask for higher quality originals: this is partly to protect copyright of depositors, but is also because these files can be very large and require high capacity bandwidth to access them.

This light regime places an extra responsibility to protect the intellectual property rights of material entrusted to us. Consequently, access to collections is covered by a generous but clear series of copyright, liability and access statements (see http://ads.ahds.ac.uk/cap.html and http://ads.ahds.ac.uk/copy.html). The copyright and liability statements form a common agreement that are shared across the AHDS. So, users are licensed to use resources for their own bona fide teaching, learning and research; they waive any liabilities that may result from use of the collections; and they are required to acknowledge the source of material. These statements are asserted repeatedly within ArchSearch. Moreover, a copyright challenge for use of the system explicitly requires that users agree to these conditions. This challenge sets a cookie which expires after 15 minutes, thus ensuring that users have little ground for objecting that they are unaware of the access conditions.

Preservation through documentation

Digital preservation is a specialist and demanding task, of which rights management is only one aspect. It is particularly important for the discipline of archaeology that, through the process of excavation, systematically destroys its own primary evidence. In such circumstances the preservation of notes of excavation - termed preservation by record - is of critical importance (Richards and Robinson 2000). Excavations in the crypt of Christ Church, Spitalfields in London in the 1980s provide an example of the need for such recording, the problems that arise from the creation of such documentation, and complications that can arise in relation to intellectual property rights from this process.

The excavations were undertaken under the auspices of the Greater London Council on behalf of the Parish and Friends of Christ Church Spitalfields who sought to turn the crypt of the church into a homeless shelter. Scientific interest in this unusual project ensured that a range of leading agencies and individuals collaborated to undertake the project and complete the painstaking laboratory research that followed. This included the Natural History Museum, the Nuffield Foundation, the Ministry of Works (subsequently English Heritage), as well as the architectural practice that was responsible for the conversion. Project staff were recruited on an occasional basis. Some stayed with the project for a long period of time, while sickness and attendance records suggest that some may have stayed for little more than a day.

Though published in generous detail (Reeves and Adams 1993, Molleson and Cox 1993, Cox 1996), much of the research is now only available by inspecting the site archives. The notebooks, photographs, drawings and recording sheets in the archive provide a meticulous account of the excavation and thus represent the primary source. A long held desire to digitise a representative sample of this data was fulfilled in 2000 with the start of an online teaching and learning project that drew attention to the interdisciplinary nature of this type of study.

Yet digitising this material presented a familiar problem for intellectual property rights (Dunning 2004). Specifically, it was far from clear who owned the copyright associated with the various files and documents that we digitised. It rapidly became clear that, while conventional archives are licensed via a single exchange of documents from the project team, in this case the project team no longer existed. The numerous agencies and staff involved in the excavations would have to be contacted and their approval sought individually. Amongst these, English Heritage, the Nuffield Foundation and the Natural History Museum had provided funding and in-kind support to the project. Each was asked to sign a standard deposit licence allowing ADS to distribute and preserve the data (but retain their copyright in the data. For more on this process, with an example licence see http://ads.ahds.ac.uk/copy.html ). These three were joined by a fourth licence provided by the Christ Church Parish and the 'Friends of Christ Church Spitalfields' - a voluntary group that supports the work of the Parish. These were recognised as the most important 'inheritors' of the project and the data that resulted from it. In addition, the project team made strenuous efforts to contact all of the individuals involved in the project, to inform them of our plans and to seek their advice and approval, and to offer them a deposit licence should they wish to sign. None in the end objected, but a consensus emerged that individual contributors would only be happy if the Parish and Friends of Christ Church Spitalfields also approved.

Archaeology and human remains

Parallel to legal concerns over copyright were ethical and quasi-legal concerns over the explicit nature of some of the archive. Christ Church Spitalfields was remarkable for the degree of preservation associated with many of the individuals recovered from the crypt. Soft tissue and fabric - seldom recovered from archaeological contexts - was present in significant quantities. This material became an important reference collection for forensic archaeology far beyond the context of eighteenth- and nineteenth- century London. Moreover identification of individuals through name plates and other inscriptions made it possible to cross reference forensic pathology with biographic details disclosed in historical sources. Consequently, much of the post excavation research concentrated on refining methodologies for analysing and identifying individuals from challenging archaeological contexts - such as may be found on battlefields or anonymous mass graves.

However, the handling and study of human remains for archaeological study is not unproblematic (for a discussion see Downes and Pollard 1999). Strict legal requirements exist, in part reflecting a number of ethical principles, such as a desire not to cause offence. It can be seen that digital images of partially decomposed human remains are appropriate tools in archaeological research and teaching. However, internet access raises the possibility that material can be lifted out of context and used easily for inappropriate purposes. Consequently the project team took particular pains to warn users about what they were likely to find in the archive. In this way the project team sought to avoid offence and to ensure that publication of the archive did not bring any of the agencies involved into disrepute. This desire was further amplified by creators of the data in their responses to the invitation to comment on the archive. In addition, senior independent advisors were asked for their opinions. All concurred that the archive was both fit for purpose and appropriate for use before it was released to the public.

Thus, after an extended process of licensing and review, the digital archive from Christ Church Spitalfields was released under the standard terms and conditions that apply to the whole of ArchSearch.

Research Data Online

The launch of the research archive, with the associated teaching and learning materials, has largely been a success. Patterns of use show that the archive has been among the most used resources within ArchSearch: in 2002-3 and again in 2003-4 the archive was the single most popular excavation archive available within the system (ADS 2004). The tutorial has been used in teaching in contexts that we previously could not have envisaged (Kilbride et al 2002), and we have received a number of requests for further data such as contact details for how to obtain access to the rest of the research archive. This represents a success within the operational plan of the organisation.

Late in 2003, routine monitoring of our systems showed an unusual amount of activity of use in the archive. Further analysis of this activity led to the identification of a website which had republished some of the more explicit - and thus potentially offensive - images from the archive. This new context in which the images had been embedded was a breach of the access agreement and copyright statements which users are required to accept before using these archives. Moreover, having seen this infringement it would have been negligent to allow this unlawful republication to continue. Given the legitimate concerns of data creators and those who licensed the data to us, it was imperative that we act swiftly and successfully.

Action plan and procedure

This is the first time since their creation that our Access Agreement and Copyright Statement had been invoked to protect the intellectual property rights of depositors. Though we hoped that the matter could be resolved without aggressive legal action, it was clear that we needed to imagine a 'worst case scenario', in which our host institution would have to take more formal legal action. Envisaging such a scenario we first had to be certain that the material was indeed copied from our web server and that the Access Agreement and Copyright statement had indeed been breached.

Both were straightforward. The project team had digitised the images from the original slides and still had them in our possession: the data could not have been obtained from any other source. The Access Agreement is explicit in only allowing users to pass on information to approved users - ie under the same terms and conditions by which they had been supplied to them - while the Copyright Statement offers a 'non-transferable' licence to users to use within their own research learning and teaching. Republication on a third party website is clearly beyond the scope of both documents. Moreover, the Access Agreement entitles us to terminate the licence they have to use the data, and makes it explicit that users risk legal action should they breach any of the conditions.

Having established this, we then approached senior managers to ensure that they supported our request to have the material removed - aware of the 'worst case scenario'. At this point we also consulted various legal authorities - in particular JISC Legal for their advice. This advice confirmed our view that we should begin with a relatively low key approach to the webmaster of the offending site, but also identified an alternative course of action which could be pursued through the website's Internet Service Provider (ISP). A recent case - Godfrey vs Demon Internet Ltd suggests that ISPs share liabilities in relation to material they publish (Charlesworth 2000).

The result of these consultations was to devise a simple decision tree that we should follow in the event of our requests being ignored or denied. This may be extensible to similar cases, so is published here should others find themselves in the same situation in the future. It is now our own agreed protocol of how to respond to future incidents of this kind, and might best be though of as a flowchart with 5 steps each of which take 14 days. It ends in either the offending material being removed or in more formal legal action. One would hope that it is resolved before the end point, which is 70 days from the first email.

1. ('Day 0') Contact webmaster identifying clearly the areas of concern, identifying the terms and conditions breached, specifying changes to be made, requesting an immediate acknowledgement and requesting that changes be completed within 14 days from the dispatch of the first email.

2. ('Day 14') If the matter has not been resolved in 14 days, contact the webmaster again making clear the legal implications and our intention to proceed to court if changes were not completed within 14 days of the dispatch of the second email. Copy of this email to the Internet Service Provider.

3. ('Day 28') If the matter has not been resolved in 28 days, contact the ISP pointing out the infringement and requesting that they intervene to have the offending material removed from their domain within 14 days of the dispatch of the third email.

4. ('Day 42') If the matter has not been resolved by this point, write again to the ISP making clear the legal implications for them and our intention to proceed to court if changes were not completed within 14 days of the dispatch of the fourth email.

5. ('Day 56') If the matter has still not been resolved, obtain letters from the university lawyers to the webmaster and to the ISP making clear the infringement and requesting changes within 14 days of the postmark of the letter.

6. ('Day 70') If the matter has still not been resolved, take further legal advice and begin legal proceedings.

Resolution and Conclusion

In the end we were pleased not to have to proceed beyond the first stage in our decision tree. The offending material was removed within a few hours of the first contact being made and the matter was closed.

At first inspection, threatening legal action seems an excessive and risky policy to resolve a breach of copyright. In this case, however, we were confident in our approach for a number of reasons, mainly to do with clarity. We had a very extensive documentation trail that showed conclusively where copyright resided. The Access Agreement and Copyright Statement were well drafted so the nature of the infringement was clear. We could spell out in simple terms the infringement that had occurred and what action we required. In fact these modifications required relatively trivial amounts of work: so we did not have to make onerous demands. In addition, one suspects that the relatively generous access conditions also worked to our advantage. It could hardly be argued that we were restricting access to information or protecting special intellectual privilege. All of these gave us confidence to act decisively.

Thus, clarity in intellectual property rights management was core to the protection of open access, web-based research materials. The effort at the start associated with licensing materials and ensuring that users are aware of conditions of use has proven to be time well spent. Our experience suggests that protecting IPR needn't require complicated mechanisms of authentication and authorisation: especially in contexts where resources have limited commercial value. But without clarity no regime - however sophisticated - is likely to be viable.

Bibliography

ADS 2004 Archaeology Data Service / AHDS Archaeology Annual Report 2004, online at http://ads.ahds.ac.uk/project/annrpts/2004.html

Cox, M 1996 Life and Death in Spitalfields 1700 to 1850, Council for British Archaeology Occasional Paper 21

Downes J and Pollard T (1999) The loved body's corruption: archaeological contributions to the study of human mortality, Cruithne, Glasgow

Dunning, A 2004 Copyright and Other Rights Issues in Digitisation, AHDS Information Paper online at http://ahds.ac.uk/creating/information-papers/copyright-introduction last visited 13/09/04

Charlesworth, A 2000 New Developments in UK Internet Law, JISC Senior Management Briefing Paper 10

Kilbride, WG, Fernie KM, McKinney P, Richards, JD 2002 'Contexts of Learning: The PATOIS project and Internet-based teaching and learning in Higher Education' in Internet Archaeology 12, online at http://intarch.ac.uk/journal/issue12/patois_toc.html last visited 12/03/04

Molleson, T and Cox, M 1993 The Spitalfields Project. Volume 2: The Anthropology - The Middling Sort, Council for British Archaeology Research Report No 86

Reeves, J and Adams, M 1993 The Spitalfields Project. Volume 1: The Archaeology - Across the Styx, Council for British Archaeology Research Report No 85

Richards JD and Robinson DJ 2000 Digital Archives from Excavation and Fieldwork: A Guide to Good Practice (Second Edition) Arts and Humanities Data Service, London (online at http://ads.ahds.ac.uk/project/goodguides/excavation/)