(Please note this paper is provided as information only and does not constitute legal advice. Readers are urged to contact the appropriate institutional representatives to clarify the precise nature of copyright law.)

Digitisation and copyright do not make for easy bedfellows. Copyright law does its best to prohibit the copying of original material. Digitisation embraces the act of copying, firstly when developing a digital surrogate from a physical original, and secondly, in putting this surrogate on the Internet which thousands of users can then access and copy onto their own computers.

This paper introduces readers to some of the basic copyright issues a digitisation project may face when operating under UK law. It explores the definition and span of copyright, how ownership is determined and indicates how some of the problems associated with copyright can be solved. Several themes raised in this paper require more detailed discussion and these will be the subject of further AHDS Information Papers.

The paper also looks at other rights issues that may have an influence on a digitisation project. These include database rights, moral rights and the possible rights attached to a digital object developed from an original real-world source.

As a definable statute within the UK, copyright law has been evolving since the 16th century. Much of its modern impetus came in the eighteenth century, offering protection to engravers whose works were being copied and then sold on the market as cheaper (and inferior) versions. The law developed slowly at first, giving only limited rights to artists and novelists. It was not until the twentieth century, with laws passed in 1910 and 1955, that copyright law became more systematic. These two laws were overhauled and the current law is the 1988 Copyright, Designs and Patents Act. Since then various EU Directives, implemented in the UK as Statutory Instruments to the 1988 law, have been adopted. At the writing of this paper, the most recent has been the EU Directive of 2001, implemented in 2003.

Copyright is classed as an Intellectual Property Right (IPR), a family that includes other familiar concepts such as Trademarks and Patents. The categorisation of copyright as a property is deliberate, demonstrating that copyright is something that belongs to someone, cannot be taken away without consent and cannot be abused without the possibility of legal action ensuing.

Rather than existing, copyright is said to subsist in creative, recorded work. An idea or something similarly intangible cannot have copyright attached to it. The copyright comes into subsistence as soon as the created object has some material form. In the UK there is no need to publish a work or to accompany it with the copyright symbol (Ó) in order for the copyright to be asserted although because of inconsistencies in legislation world wide it is recommended that the copyright symbol is used. The actual range of creations that can fall under the protection of copyright is wide. Some of the categories defined under the 1988 Copyright, Designs and Patents Act include "original literary, dramatic, musical and artistic works" and "sound recordings and films". Other categories less likely to be thought of as being under copyright, such as designs and typographical arrangements, can also be protected by the law. Additionally, the actual quality of work is irrelevant, as long as the work is recorded in some form. A child's doodled sketch can receive the same protection as a contemporary artwork in the Tate Gallery.

The 1988 law, as modified by the 2003 Statutory Instrument, stipulates that copyright lasts for the author or creator's lifetime and then

• 70 years for literary, dramatic, musical, filmed and artistic works
• 50 years for sound, computer-generated works and performances, and 'communications to the public right' (which includes websites, TV and cable programmes)
• 25 years for typographical arrangement (from date of publication)

So, for example, a project is aiming to digitise the work of a watercolourist who died in 1935. The project would have to wait until 1st January 2006 (the 70 years begin on the 1st January of the year succeeding the artist's death) before these works fell out of copyright.

These guidelines seem clear enough but for those working with copyright in the heritage and academic sectors various sub-clauses can dramatically affect the material they are dealing with. Present-day Ordnance Survey Maps and government records can fall under Crown Copyright, which have varying rates of copyright duration. Anonymous and historical materials can have a confused legal status, for example where the copyright-holder is known but proves impossible to trace. There is also some confusion about unpublished literary items such as letters and manuscripts; one reading of the law indicates that unpublished literary material from the nineteenth century will remain in copyright until 2039. It is important to remember that original works are often (but not always) subject to the laws that were in existence at the time of creation. A photograph developed in 1914 would be subject to the Copyright Law of 1911 rather than 1988; and a film from the 1960s would be subject to 1955 jurisdiction.

A separate AHDS paper is being planned covering the duration of copyright for historical and unusual items

By and large, the author or creator of a work initially owns copyright and this can be assumed as soon as the work exists in a recorded form. In many cases, however, there is no one single creator. Co-authors of a book both own the copyright of the book, and the seventy years span will begin only when both authors have passed on. At a more extreme level, copyright in a theatrical performance can involve not just the actors, but directors, musicians, playwrights and back-room staff, making copyright in the performing arts a very complex subject.

Where a literary, dramatic, musical or artistic work is made by an employee in the course of her employment, her employer is the first owner of any copyright in the work subject to any agreement to the contrary. This tends not to be the case where the employee is working on a part-time or freelance basis, although of course individual contracts can affect this position.

Ownership of copyright can be sold and bequeathed, and, crucially, is not tied to ownership of an object. Purchasing the object does not guarantee that one will own the copyright.

Copyright permits the owner the right to prevent reproduction and the exclusive right to exploit the work. Infringement by a non-copyright holder permits the copyright holder to commence legal action and so it is incumbent on digitisation projects to clear copyright before developing any digital material. Readers may be familiar with the concept of Fair Dealing that allows for limited copying of copyrighted material. However, Fair Dealing is aimed more at those engaged in private research or for use in the classroom, i.e. those that are only producing a small number of copies. The digitisation project that aims to disseminate a digital resource on the Internet, with the potential for infinite copying, will not find much assistance from Fair Dealing.

In order to avoid any possible litigation over copyright, the potential digitiser should always ensure copyright does not subsist in the works she wants to digitise, or obtain the necessary clearances. In certain cases, and this is particularly true of modern works, third parties exist to negotiate between creator and digitiser. So, for example, the Performing Rights Society administers rights issues relating to the public performance and broadcast of musical works; and the Newspaper Licensing Agency helps potential licensees obtain permission to copy newspaper content. In other cases, often when the creator worked on a more independent basis, it will be necessary to contact the rights holder or rights holder's estate directly and make the suitable arrangements, usually via a licence form or short agreement.

While a licence form for digitisation needn't be a lengthy legal document, it still takes time to prepare and finalise. Any digitisation project has to be able to describe what they intend to do with the object and this necessitates a degree of long-term vision, working out how the digital object might be handled in the lifetime of the project. Will the digital surrogate be significantly edited? Does the project intend generating an income stream via the digital objects? Projects also need to consider the extent to which any digital object will need to be protected during access. Will the site be password-controlled? Will there be user authentication or watermarking? Rights holders will be keen to know exactly what a project is planning to do with the work in question before agreeing to its use. This may mean that the process of negotiating the wording of a licence form with a rights holder will be tricky. Rights holders are in the driving seat; they have the right to question and request changes to a licence form. And while many rights holders are perfectly amenable to the aims of digitisation projects, there are others, particularly when an economic context is introduced, who are suspicious of the greater possibility for manipulation, reproduction and dissemination that comes with a digital object.

A longer AHDS paper on the topic of Developing Licence Forms is being planned.

For some cultural material, tracing the copyright holder can be a difficult task, even before developing a licence form. Identifying copyright holders for anonymous photographs, unpublished letters and manuscripts and various other 'difficult' materials can be particularly problematic. Where the copyright may have passed through several generations it can be a project in itself to identify who now holds the copyright; the same is true with multiple rights or where it is unclear precisely who held the copyright in the first instance; equally, anonymous material can raise similar predicaments. Although in many cases this is a theoretical problem that will have little practical import (the original objects being almost worthless), the law only offers partial leeway to projects, and the possibility of infringement (however slight that may be in practical terms) still exists.

Nevertheless, some projects in these circumstances go ahead with digitisation without having gained the permission to copy. But they do so only after they have taken enough steps to show good efforts towards locating the copyright holder and that their output is non-commercial and for an educational purpose. In such a position, many projects believe that they could defend themselves should any matter proceed to court. But this is very much dependent on their assessment of the risk. When it comes down to copyright in unusual and historical items, projects will find that they need to make their own interpretation of the law (and their own assessment of the risk involved) rather than being able to say with absolute confidence that there is no risk involved.

An AHDS Information Paper exploring this theme greater detail, Identifying and Tracing Copyright Holders, is being planned.

International collaboration on copyright has been developing since the nineteenth century and agreements such as the Berne Convention and the Universal Copyright Convention offer mutual protection for foreign work copied in the UK, and UK work copied illegally abroad. Various EU directives over the past few decades have further sought to provide mutual protection amongst the nations of the European Economic Area (the EEA which comprises the EU nations plus Liechtenstein, Norway and Iceland). Thus the 1993 EU directive (which came into effect in the UK in 1995) standardised the EEA date of copyright subsistence at author's life plus seventy years - (a fact which caused some legal difficulties in the UK owing to the fact the previous term had been author's life plus fifty years).

Attempts to harmonise copyright laws internationally continue, however, as with many copyright issues, there are no easy answers. The French give extra leeway to artists affected by the two world wars, adding around eight years to the term of copyright. The duration of copyright in Mexico, which some cynics see as a test-bed for American law, is at least the author's lifespan plus seventy-five years. In less-developed countries, copyright laws may be very different or may not even exist at all.

Every digital project should be aware that they are likely to be building up their own rights in the digital objects they are creating. In UK law, the photograph of a copyrighted work can acquire its own copyright over and above that of the original object, and so anyone wanting to use that photograph would have to contact the photographer as well as the copyright holder of the original work. The legal presumption is that taking the photograph is a skilled piece of work that demands protection. The same is true in creating a digital surrogate. Skill, training and experience are often required in developing a digital image or documenting an historical resource, and thus deserve to accrue copyright. Thus digitisation projects can be steadily building up their own copyright.

It should be made clear that at the time of writing, there is little UK case law to clarify the separate rights of a digitiser developing a digital object from an originally copyrighted work. But, thanks to the growing demand for disseminating music and other digital objects over the Internet, there is implied acknowledgment of the importance of the digital object in the Statutory Instrument of 2003. This explicitly makes it an offence for users to tamper with devices designed to protect digital objects being disseminated (e.g. password or encryption systems). This acknowledgement sets the stage for greater legal interest, and therefore a degree of clarification, in the status of digital objects and the rights of the digitiser.

Project managers also need to be aware of who might own the copyright in their digital objects and the associated metadata. If data capture of an image is undertaken by a third party, projects should formally ensure that the copyright in the captured image is assigned to the project, in addition to the digital files themselves. Other staff involved with a project may also obtain copyright in digital works. Without an agreement to the contrary volunteers may automatically receive the rights to the work they create within a project.

But if managed well, it should be noted that the successful handling of digital rights could offer projects greater opportunity for sustaining themselves in the longer term. As electronic media continue to grows as a primary form of communication, holding rights to objects in digital form allow the possibility of projects deriving their own income streams.

Once digital objects are structured in a database, the structure itself starts to acquire rights. A database may be protected by copyright and/or database right. For copyright protection to apply, the database must have originality in the selection or arrangement of the contents and for database right to apply, the database must be the result of substantial investment. It is, of course, possible that a database will satisfy both these requirements so that both copyright and database right apply. The database right is an automatic right and protects databases against the unauthorised extraction and re-use of the contents.

The term of protection for database right is much shorter than copyright and lasts for 15 years from being created but, if published during this time, then the term is 15 years from publication. If of a suitably complex design (e.g. a large relational database), the database structure itself can be categorised as a literary work (even if its contents are of a visual nature) and attract the same 70 years copyright duration as other literary material.

Again, the lack of case law means that the legal status of databases is not well defined here. Further confusion is added by the differing legal philosophies of common law (e.g. UK, USA, Australia) and civil law nations (e.g. France, Germany). Loosely speaking, common law countries tend to see copyright in an economic context and prefer to extend copyright protection to any database; civil law countries see copyright as more closely related to personal expression and prefer to extend protection only to databases where the creator's reputation would be affected by infringement.

Moral rights, often seen asserted in the front pages of books, are only ever associated with the creator of a work, and exist in order to protect the creator's artistic / creative standing and reputation. Moral rights must be asserted in writing and give the creator rights including the right to be identified as the author of a work or the right to object to ill treatment of their work. In terms of digitisation, many of the issues raised by moral rights are covered by good scholarly and cultural practice - for instance, ensuring that authors are correctly attributed and their works faithfully presented. But digitisers, particularly those working with still and moving images, should be wary about the opportunities afforded by digital manipulation. It is feasible that an image edited (in terms of, for example, cropping or colour calibration) could contravene the creator's original moral rights. Again, the situation will only become clearer when there are more case histories within the UK.

Moral rights typically last the same length of time as copyright, but unlike copyright they cannot be sold to another party (although they can be bequeathed on an artist's death). Publication Rights

A fairly new right, introduced after the EU Directive of 1993, publications right offers rights equivalent to copyright to a person who publishes previously unpublished material that had already fallen out of copyright. In theory, this rewards those who have gone to the trouble of unearthing and then publishing old material by giving them copyright control over the republished work for another 25 years. In practice, other parts of copyright law make this publication right difficult to claim; this is especially true when it comes to unpublished manuscripts, letters and other items which fall under the category of 'literary material'. Although this interpretation is debated, a strict reading of copyright law says that such material will not fall out of copyright until 2039 and therefore, as publication right only applies when something has already fallen out of copyright, it is not eligible for publication right. As with digital rights, a lack of case law makes clarification of publication right difficult, a fact that is amplified by the confusing nature of the law itself. If digitising unpublished visual material, projects should explore this issue, but for many projects it will have little relevance.

Copyright law in the UK can put digitisation projects in a tricky position. Despite projects' educational, non-commercial aims, they are still obliged to go through the process of contacting and negotiating with the relevant rights holders, and maybe even undertake the task of identifying the rights holders in the first place. For such projects, the importance of introducing a copyright strand into the general management of the project, as opposed to dealing with copyright as an add-on at the end of the project, is of paramount importance.

To neglect these laws and run the risk of infringement is an option projects choose at their own peril. But to neglect these laws also means missing out on the benefits of an integrated approach to copyright issues. Firstly in ignoring the possibilities deriving from the exploitation of the rights that the project may itself hold, and more generally in ignoring larger global developments. As the Internet continues to develop as a prized mode of communication, the importance of intellectual property in digital form can only increase. Those that are prepared for it will be the ones that prosper.

AHDS / TASI Copyright FAQ

Case Study on Tracing Copyright Holders

Case Study on Developing Licence Forms

JISC Legal Service

Duration of Copyright around the world

Mike Holdness, Moral Rights and Authors' Rights: The Keys to The Information Age

Creating Digital Resources for the Visual Arts: Standards and Good Practice Section 2: Copyright and Rights Management

Copyright FAQs, AHDS / TASI

Sample Licence Agreement, AHDS Visual Arts

Museums Copyright Group

Copyright Matters, University of Glasgow

Simon Stokes, 2001, Art and Copyright, Hart Publishing

Peter Wienand, Anna Booy, Robin Fry, 2000, A Guide to Copyright for Museums and Galleries, Routledge

Tim Padfield, 2004, Copyright for Archivists, Library Association Publishing

Page last modified: 28th March 2006 by
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