Rights management concerns what the repository can do with content submitted for deposit. It involves a basic understanding of copyright law as well as an analysis of the creation and ownership of content for deposit.
N.B. Some of the questions below will need to be answered for each new collection, and sometimes for each new piece of content. Many repositories contain a range of content with a range of different rights situations, so you should be prepared to engage with these questions frequently and as needed.
These principles concern deposit by repository managers. When repositories permit users to self-deposit, they must also employ a mechanism to ensure that users have the authority to deposit the relative work(s). Requiring users to affirmatively select and authorize licenses for their work places rights management responsibilities on users.
- Who has the Authority to Deposit Work in a Repository?
- How do I Perform a Copyright Analysis?
- What Documentation is Necessary to Determine Copyright Status?
- What if there is content in my repository that may not have been through these processes?
- Research Data
- What do you do when someone asks you to remove an item from the repository?
Only copyright owners have the authority to deposit a copyrighted work into a repository. A content creator is typically the first copyright owner. As noted above, if the content creator has licensed or transferred his/her copyright, s/he most likely no longer has authority to permit deposit of the work into a repository, depending on the terms of any license or transfer agreements.
Because the copyright owner may so easily change, repository managers will need to evaluate whether they have authority to deposit a work based on a number of facts that help establish copyright status. Among these facts are copies of any agreements that govern ownership and use of the content.
- Identify copyright owners for all content to be added to the repository.
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Generally speaking, content was, is, or is not protected by copyright. You should assume content is protected by copyright, although there are a variety of reasons why the content nonetheless may be used. It may have been protected by copyright at one time, but now be in the public domain. It may not be eligible for copyright protection. It may be protected by copyright, but subject to a legal exception or a private license or agreement between the author or publisher and consumers. It may have a Creative Commons license. It may have been licensed through a subscription service. The following sections will assist repository managers in performing a cursory copyright review. For more complicated scenarios, repository managers should collect the data indicated in the Documentation section and contact a copyright expert in their organization for assistance.
- Is the content eligible for copyright protection? a. Is the work an original work of authorship, including a literary, dramatic, musical, artistic, or other intellectual work? Is it in a fixed, tangible form? Does it contain a modicum of creativity? i. If yes, continue with analysis. ii. If no, the work is not eligible for copyright protection and may be used. b. Is the work a trademark, slogan, patent, invention, or trade secret? i. If yes, the work most likely does not have copyright protection, but may have another legal protection.
- Is the work in the public domain?
a. Was the work published before 1924?
i. If yes, the work is in the public domain and you can use it as you'd like. ii. If no, continue the analysis. b. Was the work published between 1924 and 1977 without a copyright notice? i. If yes, the work is in the public domain and you can use it as you'd like. ii. If no, continue the analysis. c. Was the work published between 1978 and 1989 without a copyright notice, and without registration within 5 years? i. If yes, the work is in the public domain and you can use it as you'd like. ii. If no, continue the analysis. d. Works created between 1924 and 2002 may or may not be in the public domain depending on whether they were published, registered, registry renewed, or contain a copyright notice. To determine the copyright status of a work, consult Copyright Term and the Public Domain in the United States, the Copyright Digital Slider, or your local copyright expert. - Does any permission, special license, contract, or other arrangement apply to the work?
a. Did the author give you permission to use the content? Is there a written agreement that describes the permitted use? Is there a deed of gift? What does it allow?
b. Is the content subject to a special license? What do its terms allow?
c. Does the content have a Creative Commons license? What type of CC license is it?
- Become familiar with process of copyright analysis.
- Evaluate content for inclusion in repository.
- Contact a copyright expert for clarifications as needed.
Repository managers will need as much of the following information as possible to perform an educated copyright analysis. Frequently, not all of this information will be available; but the more of it a repository manager has access to, the more informed their copyright analysis will be. Relevant information to collect includes:
- Creator information: Author's name, date of birth, data of death, obituary, a list of heirs (spouses, children, grandchildren, parents, siblings, nieces/nephews)
- Copyright owner information: Author? Publisher? Employer? Individual and corporate names, including any name changes and dates after creation of the content.
- Date of creation
- Date of publication, if any
- Any evidence of copyright transfer (e.g., publishing agreements, estate transfers)
- Any other agreements or licenses (e.g., deed of gift, Creative Commons license)
In addition to obtaining this information, it's important to keep it in such a way that it can be easily located and referenced later -- and by later, we mean at any point while the object is still being kept by the library. Where possible, this information also should be retained as metadata. If that cannot be done with the system being used, workflows should be established so that permission documentation can easily be found. In either case, plans should be made to keep the information for as long as the object is kept, including transfers between systems and managers.
- Obtain sufficient documentation for determining copyright status.
- Work with a metadata expert to incorporate this documentation into metadata if possible.
- Establish alternated means of keeping documentation if it cannot be incorporated into metadata.
Such situations will require a risk analysis to determine the best course of action. Consult with your manager to determine how to proceed.
Use and attribution of research data is contemplated by Introduction to Intellectual Property Rights in Data Management published by the Cornell Research Data Management Service Group.
Takedown notices can be worrisome, especially those that come with threats of legal action. However, by following the steps above, you'll be better prepared to deal with them. You will want to find out if your library supports denying such requests if the copyright and permissions analyses for the item in question were performed correctly.
Nonetheless, it's also important to have a policy in place for how to respond to the requests you receive. One key distinction is whether the request comes from the content owner or not. How you respond to requests from the content owner can impact your relationship with that entity, and if they're a faculty member or a donor, that's an important consideration. If the request does not come from a content owner, and your copyright and permissions analyses were correct when the item was uploaded, you likely should not take down the item. Having a policy in place to refer to in communicating with the requester can be very helpful.
- Takedown policy established.
- Policy has been discussed and approved by relevant stakeholders
- Policy accounts for requests from content owners.