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Help & guidance Guides to Good Practice

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Copyright and intellectual property rights (IPR)

Francis P. McManamon, Shelby Manney, Adam Brin and Kieron Niven, Archaeology Data Service / Digital Antiquity (2011) Guides to Good Practice

Introduction

Copyright and intellectual property rights (IPR) are important considerations when planning for the digital archive throughout the life cycle of an archaeological project. The ease of dissemination and re-use of digital data makes copyright issues and other intellectual property rights particularly important to both creators and users of data. Both should be aware that copyright and IPR could exist automatically in any original work. Copyright and IPR laws differ significantly from country to country and these guides are intended to provide an overview of the issues involved but specific questions and issues may need further research. In general, it is important to ensure that rights are determined and/or resolved prior to contribution to an archive.

This section contains an overview of the issues related to copyright in the US and UK in general whereas subsequent sections cover country-specific issues. This section is structured as follows:

  • General Topics:
    • who Holds the Copyright
    • recommendations
    • raw Data
    • licensed Materials
    • metadata and Copyright
    • multimedia
    • other Considerations
  • UK and US specific sections

Who holds the copyright

Commonly, the creator of the work or her/his employer holds the copyright of a work unless this has been formally transferred to another person or organization. This does not preclude contracts or funding sources from requiring that another party hold the copyright to a work that they have funded.

Recommendations

In practice, archaeologists should negotiate with clients for whom they perform investigations to ensure that the data and documents created by their investigations are widely accessible and available. Archaeologists should ensure that contracts explicitly address copyright issues and make it clear in advance what information will be considered confidential when a project is complete. At the time when the information is deposited in an archive, it is important to identify any copyright holder(s). Also, if there are data, documents, or parts of documents in the archive that have restricted access, it is important to identify which individuals are allowed access to the digital archive and under what conditions.

In general, it is recommended that archaeological information held in digital archives be made available to the widest number of people possible. In the case of proprietary information, there may be, however, temporary embargoes placed on information for a fixed period of time. In the case of confidential information, public agencies may restrict distribution of this information in order to ensure site protection.

Raw data

Raw data may have copyright restrictions and/or specific limitations of access or use. Restrictions and copyright will depend on the country in which it was produced. Regardless of the country specific regulations, projects where data is digitized and/or digitized raw data is used, it is key that permission is sought and that sources are sufficiently documented within the project.

Licensed materials

Certain materials, such as background or contextual geospatial survey data, are often acquired from sources external to a project and therefore owned by third parties who may retain a license to the information. In the majority of cases an external organisation cannot archive such data without the express permission of the license holder and where commercial value still exists for the licensed dataset such permission is often unlikely to be granted. In such cases a potential solution is the creation of a ‘distributed archive’, i.e. one where the repository or archiving organisation hold the derived data but also hold metadata which points to relevant raw data at the third party organisation. Particularly in the case of Big Data (e.g. sensory scans and other complex data sources), such a distributed arrangement additionally has the advantage that maintenance and access to the large dataset is maintained by a specialist organisation other than the archive. The reverse of this, however, is that users who require access to the full dataset may be required to purchase the raw data from the third party.

Metadata and copyright

A key component to ensuring that rights are observed and maintained within an archive is their documentation. In the previous chapters on Project Documentation and Project Metadata – and throughout the subsequent technique-focused chapters – the recording of the relationships between records and individuals or organisations are key elements. In overview, it is essential that rights, use, and access conditions are clearly documented in metadata alongside names of the relevant data creators or licensees. As mentioned previously, where materials are digitised or purchased then such information should be recorded alongside details on how the data can be used.

Multimedia

It should be noted that the above guidelines represent an overview for all but moving image and sound files. Audiovisual and multimedia items have complex copyright protection. This is especially true of films, which can include a video of an excavation or a lecture, and in such cases there may be separate copyright protection for the moving images, sound track, screenplay and so on.

Other considerations

In addition to copyright, the owners or creators of intellectual property have a related moral right pertaining to their work. In archaeology this right might extend to individuals working on a large excavation team or work party. While it may not be possible to identify these people individually, it is consistent with ethical practice that their contribution be acknowledged. In most instances, this does not compromise copyright.

Copyright in the UK

Generally, the creator of the work or her/his employer will hold copyright unless this has been formally transferred to another person or organization. Though, depending on the original source of funding for an archaeological project, this may not always be the case. In projects where data is digitized, however, it is key that permission is sought and that sources are sufficiently documented within the project. Issues that should be considered when undertaking a digitisation project are covered in the JISC Digital Media document ‘Learning Lessons from Other Digitisation Projects’.

Data creation and copyright

In the UK the legal framework for copyright is provided by the 1988 Copyright, Designs and Patents Act. This act provides details of special Crown Copyright that exists on works made by the UK’s sovereign or by a servant of the Crown (including employees of government agencies) in the course of duties[2].

The European Commission also has a variety of copyright directives that have been, or are being, adopted into UK law. These include copyright protection for the life of the creator plus 70 years (Directive 2006/116/EC[3]) and copyright protection for databases (EEC 1996[4]).

For current information on copyright in the UK, readers are directed to the following JISC Legal documents:

  • Copyright Law Essentials[5]
  • ‘Intellectual Property Law Essentials’[6]
  • ‘e-Repositories and the Law Essentials’[7]

Copyright and multimedia (audio, video, etc)

The JISC Digital Media website provides a detailed overview of the issues associated with digital video and audio file in the document ‘Copyright and Other Rights for Creating Time-based Media Resources’[8].

Copyright in the United States

In the United States (US) copyright is often held by the creator of a work or by the employer of the creator. However, some archaeological data and documents may not be restricted by copyright. This applies when archaeological data or documents are in ‘the public domain’. Works are in the public domain if the copyright to the work has expired or been abandoned, or if the data or document is a US government work product (see below for more details on public domain). This is the case, when the work has been contracted by a US government agency or is conducted by US agency staff (US regulations call the products of such investigations ‘US Government Work’). Examples would include archaeological studies contracted for by Federal Government agencies, such as, the US Forest Service or the Army Corps of Engineers, or investigations conducted by National Park Service archaeologists.

Data creation and copyright

In US law, copyright protection exists for the creators of original works of authorship fixed in any tangible medium of expression (17 USC. § 102(a)[9] or for the organization for which these individuals worked while they created the work (‘Works Made for Hire’, US Copyright Office (2010)). In specific instances, copyrighted works can be utilized under the Copyright Code policy of Fair Use. For more information on Fair Use, please see the section titled Fair Use below or refer to the US Copyright webpage.

Creative works may be literary (nonfiction, fiction, or poetry) musical, dramatic, images, audiovisual, sound recordings, architectural works, or other kinds of tangible creative expressions. When considering issues of copyright, it’s important to remember the law’s constitutional purpose: to promote science and the useful arts. Copyright in the US was not intended to restrict the dissemination of knowledge through limitation of access or otherwise. A copyright is a right of intellectual property, whereby authors obtain, for a limited time, certain exclusive rights to their works. In the US, copyright is federal law derived from the “copyright clause” of the US Constitution (Article 1, section 8, clause 8), which provides Congress with the power “to promote science and the useful arts, by securing for limited times to authors … the exclusive right to their … writings.”[11].

Limitations to copyright

Not all works can be copyrighted, for example, as mentioned above, some works created by or for the US Government are not copyrightable. Copyright protects only an author’s original expression. It does not extend to any ideas, systems, or factual information that are conveyed in a copyrighted work, and Copyright doesn’t extend to any pre-existing material that the author has incorporated into a work (17 USC. §§ 102(b)[12], 103[13]). To be copyrighted, a work must be original; however, there is no requirement that the work be different from everything that has come before. The work need only embody a minimum level of creativity and owe its origin to the author claiming copyright.

Five rights of US copyright

In the United States, copyright holders have five basic rights :

  1. The right to reproduce the work in copies;
  2. The right to produce derivative works based on the copyrighted work;
  3. The right to distribute copies of the work;
  4. The right to perform the copyrighted work publicly; and
  5. The right to display the copyrighted work publicly.

Not all of these rights apply to all types of works.

Moral rights

In addition, the US recognizes two more rights, sometimes called ‘moral rights’, on a limited basis. These rights mainly pertain to works of visual art and some examples might include, but are not limited to, photographs or drawings. The rights can be summarized as follows:

  • The attribution right (sometimes called the paternity right): the right of the author to claim authorship of the work and to prevent the use of his or her name as the author of a work he or she did not create; and
  • The integrity right: the right of an author to prevent the use of his or her name as the author of a distorted version of the work, to prevent intentional distortion of the work, and to prevent destruction of the work.

The “fair use” doctrine

One of the rights afforded to the owner of US copyright is the right to reproduce or to authorize others to reproduce the work. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, US Code). One of the more important limitations is the doctrine of ‘Fair Use’. This concept allows users of a creator’s work leeway in making use of the creative work without explicit permission of the creator.

The doctrine of Fair Use, developed through a substantial number of past court decisions and outlined in Section 107 of the Copyright Law. Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as: criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for, or value of, the copyrighted work.

The distinction between Fair Use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. For more details about Fair Use see: Document FL102, Fair Use (2009), US Copyright Office[14].

Public domain

A work in the Public Domain is one that can be freely used by anyone for any purpose. Many documents, images, data sets, and other digital files created for archaeological studies are likely to fit within this category. There are guidelines for determining if a work can be considered part of the Public Domain, which can be summarized as follows:

  • The copyright has expired;
  • The work is a work of the US Government; such works can’t be copyrighted (e.g. the results of archaeological investigations conducted by, contracted for, or required by a public agency);
  • The work might be one that can’t be copyrighted (e.g. titles, names, short phrases and slogans);
  • The copyright might have been forfeited (e.g. the work may have been published without notice prior to the change in the law that eliminated the notice requirement (March 1, 1989); or
  • The copyright might have been abandoned, but this requires that the copyright holder intend to abandon the copyright and also generally requires an unambiguous statement or overt act on the part of the copyright holder that indicates his or her intent to dedicate the work to the Public Domain.

Most archaeological investigations conducted in the US are required to comply with federal laws that are intended to prevent the unmitigated destruction of archaeological resources. Many of these archaeological projects produce reports, data sets, images, and other digital files that are considered federal government works and are in the public domain. However, even for public domain works, federal agencies may restrict the distribution of ‘confidential information’, that is, information about specific archaeological site locations, the general release of which may cause ‘adverse harm’ to archaeological resources (e.g. maps showing sensitive site locations). While the bulk of a federal agency archaeological report may be in the public domain, an agency may redact confidential information and restrict access to it.

In general, public agencies are encouraged to make available the results of research that have been conducted, contracted, or acquired by the agency[15][16].

Digital media not covered in this section

It should be noted that the above guidelines represent an overview for all but moving image and sound files. Audiovisual and multimedia items have complex copyright protection. This is especially true of films, which can include a video of an excavation or a lecture, that can have separate copyright protection for the moving images, sound track, screenplay, etc. (US Code Tile 17, Ch. 10 [9]).

Further reading

  • “Public Domain”: UC Copyright web page, University of California: http://www.universityofcalifornia.edu/copyright/publicdomain.html#a
  • “Copyright in General”: http://www.copyright.gov/help/faq/faq-general.html#what
  • “Copyright Term and the Public Domain in the United States (2011),” Cornell Copyright Information Center. http://copyright.cornell.edu/resources/publicdomain.cfm
  • “Frequently Asked Questions About Copyright: Issues Affecting the U.S. Government, CENDI/2008-1 (2008)”: http://www.cendi.gov/publications/04-8copyright.html
  • Discussion of the The Federal Research Public Access Act (FRPAA) http://www.ala.org/ala/issuesadvocacy/access/accesstoinformation/publiclyfundedresearch/s1373.cfm

[2] https://www.nationalarchives.gov.uk/information-management/re-using-public-sector-information/uk-government-licensing-framework/crown-copyright/

[3] http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32006L0116:EN:NOT

[4] http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&numdoc=31996L0009&model=guichett&lg=en

[5] https://www.jisc.ac.uk/guides

[6] https://www.jisc.ac.uk/guides

[7] https://www.jisc.ac.uk/guides

[8] https://www.jisc.ac.uk/guides

[9] https://www.copyright.gov/

[11] https://www.archives.gov/founding-docs/constitution-transcript

[12] http://www.law.cornell.edu/uscode/17/102.html

[13] http://www.law.cornell.edu/uscode/17/103.html

[14] http://www.copyright.gov/fls/fl102.html

[15] https://digital.gov/open-government-directive/

[16] https://obamawhitehouse.archives.gov/blog/2010/03/08/public-access-policy-update

Bibliography

US Copyright Office (2010) Copyright Basics. Circular 1 rev:08/2010(20110629). http://www.copyright.gov/circs/circ01.pdf

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