Slide 1: Copyright management
Iryna Kuchma, eIFL Open Access program manager, eIFL.net Presented at “Open Access: Maximising Research Quality and Impact” workshop, July 23 2009, Kathmandu, Nepal
Slide 2: Copyright gives legal protection to creators of “works of the mind” by granting an exclusive right to a creator to control production and use of the work by others
Copyright
Slide 3: The creator has the right to control the reproduction (making copies), distribution of copies, public performance, broadcast and translation of their work. It covers literary, dramatic, musical or artistic works. To qualify for copyright protection, the work must be original and “fixed” in some tangible or material form e.g. written down or recorded.
Copyright 2
Slide 4: Copyright is an economic property right, in other words, it is not a personal or human right. This means that copyright may be assigned or licensed to a third party e.g. an author may assign the copyright in a book they have written to a publisher in return for payment. The publisher then owns the copyright and controls the use of the book e.g. distribution and translation. Copyright can also be inherited by the heirs of a deceased author.
Copyright 3
Slide 5: The duration, or term, of copyright protection: The international legal standard, as set out in the Berne Convention (1886) which establishes the ground rules for national copyright protection, is now life of the author plus fifty years after the death of the author
Copyright 4
Slide 6: During the 1990’s however, the term of protection was extended in many countries by a further twenty years i.e. to life of the author plus seventy years
Copyright 5
Slide 7: For developing and transition countries, where the issue of accessing information is a key determinant in their development, term extensions mean that information that traditionally belonged to everybody is removed from collective ownership with grave consequences for education and innovation
Copyright 6
Slide 8: Furthermore, the extension of the term disproportionately benefits rights owners and their estates in developed nations, at the expense of users of information and potential new creators in developing countries, reflecting the information flows from North to South
Copyright 7
Slide 9: The public domain is considered to be part of the common cultural and intellectual heritage of humanity and can be a source of inspiration, imagination and discovery for creators. Works in the public domain are not subject to any restrictions and may be freely used without permission for commercial and non-commercial purposes.
Public domain
Slide 10: Uploaded by FreeWine http://www.flickr.com/photos/freewine/478332550/
Slide 11: Private Property Uploaded by FredoAlvarez http://www.flickr.com/photos/fredosan/492773528/
Slide 12: Copyright - Nepal
The Copyright Act, 2059(2002)
Date of Royal Assent and Publication
2059.4.30 (15 August 2002) Act number 8 of the year 2059 (2002)
Slide 13: Copyright – Nepal 2
(a) "Work" means any work presented originally and intellectually in the field of literature, art and science and in any other field, and this term includes the following work: (1) Book, pamphlet, article, thesis, (2) Drama, dramatic-music, dumb show and a work prepared to perform in such manner, (3) Musical notation with or without words, (4) Audio visual works, (5) Architectural design,
Slide 14: Copyright – Nepal 3
(6) Photography, painting, work of sculpture, work of woodcarving, lithography, and other work relating to architecture, (7) Photographic work, (8) Work of applied art, (9) Illustration, map, plan, three-dimensional work relating to geography, and scientific article and work, (10) Computer program
Slide 15: Copyright – Nepal 4
(b) "Author" means a person who creates a work as referred to in clause (a) above. (h) "Copyright owner" means the author of a work in cases where the economic right of that work is vested in that author, a person or organization in cases where the economic right of the work is primarily vested in the person or organization other than the author, and a person or organization, in cases where the economic right of the work is transferred to that person or organization.
Slide 16: Copyright – Nepal 5
4. Non-availability of copyright protection: copyright protection under this Act shall not be extended to any thought, religion, news, method of operation, concept, principle, court judgment, administrative decision, folksong, folktale, proverb and general data despite the fact that such matters are expressed or explained or interpreted or included in any work.
Slide 17: Copyright – Nepal 6
5. Registration not compulsory
Slide 18: Copyright – Nepal 7
6. Owner of economic right of work: (1) The author of a work shall be the first owner of the economic right of that work. (2) Notwithstanding anything contained in sub-section (1), the economic right of a work shall vest in the following person or organization in the following circumstances:(a) Co-author in the case of a joint work;
Provided, however, that where such a joint is divided in different parts and each part can be identified as of different authors and the work can be used separately, the economic right shall vest in the concerned author in respect of each part created by that author.
Slide 19: Copyright – Nepal 8
(b) In cases where a joint work is prepared at the initiation or direction of any person or organization, that person or organization at whose direction or initiation such a work has been so prepared, (c) In case where a work is prepared on payment of remuneration by any person or organization, that person or organization who has paid such remuneration
Slide 20: 14. Term of protection of copyright: (1) The economic and moral rights available to the author under this Act shall be protected throughout the life of the author and in the case of his death until fifty years computed from the year of his death.
(2) The economic and moral rights over the work prepared jointly shall be protected for fifty years computed from the year of death of the last surviving author. (3) The economic and moral right of the work prepared pursuant to clauses (b) and (c) or sub-section (2) of Section 6 shall be protected until fifty years from the date of first publication of such work or the date on which the work is made public, whichever is earlier.
Copyright – Nepal 9
Slide 21: Copyright – Nepal 10
15. Term of protection of work published after the death of author: Notwithstanding anything contained in Section 14, the work published after the death of the author where there is only one author of such work and after the death of one of the authors where there are two or more authors shall be protected until fifty years from the year of publication of that work.
Slide 22: Exceptions & Limitations
16. Reproduction allowed for personal purpose: (1) Notwithstanding anything contained in clause (a) of Section 7, no authorization shall be required from the author or the copyright owner to reproduce some portions of any published work for personal use
Slide 23: Exceptions & Limitations 2
17. Citation allowed: Notwithstanding anything contained in clause (a) of Section 7, some portions of a published work can be cited for fair use without authorization of the author or the copyright owner in a manner not to be prejudicial to the economic right of such author or owner. In making such citation, its source and the author‘ name, in cases where it appears, shall also be mentioned.
Slide 24: Exceptions & Limitations 3
18. Reproduction allowed for teaching and learning: (1) Notwithstanding anything contained in clause (a) of Section 7, the following acts may be done for teaching and learning activities without authorization of the author or the copyright owner in a manner not to be prejudicial to the economic right of such author or owner:(a) To reproduce a small portion of any published work by way of citation, writing or audio-visual aid, (b) To reproduce, broadcast and exhibit some portions of the work for purposes of educational activities to be performed in the classroom. (2) All copies reproduced pursuant to sub-section (1) have to indicate the source and the author's name.
Slide 25: Exceptions & Limitations 4
The use is permitted without authorization of the author or the copyright owner of the work (§ 19)
Slide 26: Exceptions & Limitations 5
Preservation and Replacement Who can copy? Public libraries and archives.
Conditions: None. What can be copied? Works made available in the library
or archive.
Conditions: Only one copy can be made. Purpose of the copy? To reproduce a work is lost,
destroyed, old, or incapable of being obtained.
Conditions: None.
Medium of the copy? Not specified.
(§ 19)
Slide 27: Exceptions & Limitations 6
Research or Study Who can copy? Public libraries and archives.
Conditions: None. What can be copied? Works made available in the library
or archive. a person.
Conditions: Only one copy can be made. Purpose of the copy? Research or study, at the request of Conditions: The use must not derive economic profit directly or indirectly. Medium of the copy? Not specified.
(§ 19)
Slide 28: Copyright law and contract law
Printed material, such as books, journals, etc. are usually governed by copyright law So when a library buys a book, the rules under national copyright law apply
Slide 29: Copyright law and contract law 2
A contract, on the other hand, is a private legally binding agreement between parties who are free to negotiate the terms and conditions.
Slide 30: Copyright law and contract law 3
Licences, which are mostly regulated by contract law, came into widespread use as a means to govern access and use of electronic products such as software, computer games, online film and music and databases. This means that most electronic material purchased by libraries is subject to a licence.
Slide 31: Copyright law and contract law 4
Contract law usually takes precedence over copyright law, so anything that the library agrees to in a licence is usually binding regardless of what the copyright law says
Slide 32: Copyright law and contract law 5
Parties to a licence agreement, in this case, the library and the publisher, are free to negotiate the terms and conditions. This means that the library may negotiate extra provisions over and above what is allowed in their copyright law, or conversely, they may waive their rights granted under copyright law
Slide 33: This principle of “freedom of contract“, however, often puts libraries at a serious disadvantage. Firstly, the position of the parties is unequal because the publisher has an exclusive, monopoly right over the material. Publishers, who are often international, can afford to employ lawyers to draft their licences, which are often highly technical. The licence is usually governed by the law of the country most favourable to the publisher, rather than the law of the country in which the library is situated
Copyright law and contract law 6
Slide 34: Copyright law and contract law 7
For printed material, the library and its users have potentially unlimited access. There are no restrictions placed by the copyright owner on the length of time the library may keep a book on the shelf or where the user reads the book after it is borrowed. If a library cancels its subscription to a journal, it may keep the previous issues for future use.
Slide 35: In contrast, the licence usually provides access to the electronic material for a specific period of time and under the conditions as specified in the licence. This means that the library must negotiate each and every use that they wish to make of the material.
Copyright law and contract law 8
Slide 36: Copyright law and contract law 9
The increased availability of internet-based digital material in the late 1990s led to the establishment of Electronic Information for Libraries (eIFL.net) to negotiate licences and to support the growth and development of library consortia in developing and transition countries
Slide 37: One of the outcomes has been the development of model licences which set out the terms and conditions which are acceptable to the library or consortium. Some model licences have been jointly developed by publishers and librarians, thus easing the negotiation process.
Copyright law and contract law10
Slide 38: TPM
A technological protection measure (TPM) is a means of controlling access to and use of digital content by technological means i.e. through hardware or software or a combination of both
Slide 39: Librarians and other users began to take notice when TPMs acquired their own special legal protection in the 1996 WIPO Copyright Treaty (WCT). This means that there is an international treaty provision making it illegal to circumvent or break a TPM used by authors in connection with the exercise of their rights. Anti-circumvention provisions are being implemented into the national laws of countries that have signed the WCT.
TPM 2
Slide 40: This means that right holders have been given a new tool with which to enforce their copyrights. Using technology, they can set the rules by which content is accessed and used, effectively bypassing copyright law and any provisions that may exist for the benefit of users e.g. exceptions and limitations
TPM 3
Slide 41: TPM 4
Together with the prevailing use of licences to govern access to digital content, and the propensity of licences to override copyright law, rights holders find themselves in a very powerful position in the digital world, placing users in a “triple lock“
Slide 42: Libraries must not be prevented from availing of their lawful rights under national copyright law. TPMs cannot distinguish between legitimate and infringing uses. The same copy-control mechanism which prevents a person from making infringing copies of a copyright work, may also prevent a student or a visually impaired person from making legitimate copies under fair use/fair dealing or a legal copyright exception.
TPM 5
Slide 43: Long-term preservation and archiving, essential to preserving cultural identities and maintaining diversity of peoples, languages and cultures, must not be jeopardised by TPMs. Obsolescent TPMs will distort the public record of the future, unless the library has a circumvention right.
TPM 6
Slide 44: The public domain must be protected. TPMs do not cease to exist upon expiry of the copyright term, so content will remain locked away even when no rights subsist, thereby shrinking the public domain
TPM 7
Slide 45: Libraries are strong opponents of anti-circumvention provisions that enable rights owners to override exceptions and limitations in copyright law. Libraries must be allowed to circumvent a TPM to make a non-infringing use of a work.
TPM 8
Slide 46: Dealing in Devices? Importing, producing, or Access Control or Owner’s Rights Control?
TPM - Nepal
renting circumvention devices is prohibited.
provisions relate to technical measures designed to discourage unauthorized reproduction.
Exemptions that could be used by libraries?
Owner’s Rights Control. The
There are no explicit exemptions (§ 25(e))
Slide 47: Copyright provisions in international trade agreements, translated into national law, can have a great impact on the operation of libraries and the services they provide to their users. By imposing new obligations and strengthening enforcement, bi-lateral agreements can upset the traditional balance of rights and exceptions, so important to libraries, in international agreements and also perhaps in national law.
Copyright 8
Slide 48: Copyright 9
This means that libraries are important stakeholders and must be consulted during any trade negotiations
Slide 49: Librarians as stakeholders
Copyright law regulates the ownership, control and distribution of information and knowledge goods. Libraries enable people to find, access and use information and knowledge. Copyright is therefore a major concern to libraries because it governs the core library business.
Slide 50: Librarians as stakeholders 2
In particular, librarians should ensure that: exceptions and limitations are sufficient to meet the needs of a modern information service and learning environment; existing exceptions and limitations are extended to the digital environment and new exceptions appropriate for the new digital opportunities are introduced
Slide 51: Librarians as stakeholders 3
the public domain is protected from encroachment; contract terms in licences cannot override statutory copyright exceptions
Slide 52: Librarians as stakeholders 4
new rights on digital information are resisted; technological protection measures do not hinder libraries from availing of lawful exceptions or from preserving our global cultural heritage
Slide 54: Managing rights for OA
As content producers (responsible for licensing- out), universities need to deal with ownership of rights in material produced by academics, researchers etc - rights to be granted to others publishers; - users and re-users
Slide 58: Permissions
Slide 59: Copyright Management
Ensuring that your IR team liaising with the author is informed and up-to-date on self-archiving and related publisher policies Utilising and monitoring tools such as Sherpa/RoMEO to support you in your information. f. Liaising with publishers on a case by case basis if time and resources allow
From Proudman, V. (2007) The population of repositories. In Eds. K. Weenink, L.Waaijers and K. van Godtsenhoven, A DRIVER's Guide to European Repositories (pp.49 - 101)
Slide 64: Encouraging your authors to liaise with publishers on the self-archival of their own work, striving for the immediate deposit of publications in repositories in the future Discussing with your authors how to improve the dissemination of their work in the future and experimenting with them on making more material open access Securing agreements between Library and author where possible
– From Proudman, V. (2007) The population of repositories. In Eds. K. Weenink, L.Waaijers and K. van Godtsenhoven, A DRIVER's Guide to European Repositories (pp.49 - 101)
Copyright management 2
Slide 65: Repository Deposit License
ensures that depositors own copyright in the material they are depositing or have permission from the copyright owner to deposit; and grants to the repository the necessary rights to make the material available to end-users
(from A Guide to Developing Open Access Through Your Digital Repository by Kylie Pappalardo and Dr Anne Fitzgerald, Open Access to Knowledge Law Project: http://eprints.qut.edu.au/archive/00009671/01/9671.pdf)
Slide 66: Author Distribution Agreement
Do you want to provide a facility to enable authors to enter into an Author Distribution Agreement with end-users, for example by attaching a Creative Commons license to their work? Require end-users to agree (through a click-wrap agreement) to the terms of the Author Distribution Agreement or the Repository Distribution (End-User) Agreement
(from A Guide to Developing Open Access Through Your Digital Repository by Kylie Pappalardo and Dr Anne Fitzgerald, Open Access to Knowledge Law Project: http://eprints.qut.edu.au/archive/00009671/01/9671.pdf)
Slide 73: Creative Commons
Slide 100: Plagiarism
If articles are easily available, then plagiarism will be made easier? “In fact, plagiarism is diminished as a problem. It is far easier to detect if the original, date-stamped material is freely accessible to all, rather than being hidden in an obscure journal.”
(http://www.driver-support.eu/faq/oafaq.html )
Slide 101: Plagiarism 2
How can I protect myself from plagiarism, or from someone altering my paper and using it in a way I disapprove of? “It is easier to detect simple plagiarism with electronic than with printed text by using search engines or other services to find identical texts. For more subtle forms of misuse, the difficulties of detection are no greater than with traditional journal articles.
(JISC Opening up Access to Research Results: Questions and Answers, www.jisc.ac.uk/publications )
Slide 102: Plagiarism 3
Indeed, metadata tagging, including new ways of tracking the provenance of electronic data and text, promise to make it easier.”
(JISC Opening up Access to Research Results: Questions and Answers, www.jisc.ac.uk/publications )
Slide 103: In the early days, some authors worried that OA would increase the incentive to plagiarize their work. But this worry made no sense and has not been borne out. On the contrary. OA might make plagiarism easier to commit, for people trolling for text to cut and paste.
http://www.earlham.edu/~peters/fos/newsletter/10-02-06.htm#quality
Plagiarism 4
Slide 104: Plagiarism 5
But for the same reason, OA makes plagiarism more hazardous to commit. Insofar as OA makes plagiarism easier, it's only for plagiarism from OA sources. But plagiarism from OA sources is the easiest kind to detect.
http://www.earlham.edu/~peters/fos/newsletter/10-02-06.htm#quality
Slide 105: Plagiarism 6
Discovering and deterring duplicate publications A study in the January 24 issue of Nature turned up 200,000+ duplicate articles in journals indexed by Medline.
http://www.earlham.edu/~peters/fos/2008/01/discovering-and-deterring-duplicate.html
Slide 106: Plagiarism 7
As the OA percentage of the literature continues to grow, journals wishing to avoid publishing a duplicate or plagiarized article will find it easier to discover potential problems in advance of publication. Likewise, journals that don't care, or with the opposite desire, will find it harder to publish duplicates undetected.
http://www.earlham.edu/~peters/fos/2008/01/discovering-and-deterring-duplicate.html
Slide 109: http://web.wits.ac.za/Library/ResearchResources/SubjectPortals/Plagiarism+Portal.htm
Slide 110: Harvard
Harvard’s Faculty of Arts and Sciences voted to adopt a policy under which (1) faculty are required to deposit a copy of their scholarly journal articles in an institutional repository and (2) automatically to grant to the University a University License to make those articles openly accessible on the Internet.
Slide 111: Harvard 2
The Faculty of Arts and Sciences of Harvard University is committed to disseminating the fruits of its research and scholarship as widely as possible. In keeping with that commitment, the Faculty adopts the following policy: Each Faculty member grants to the President and Fellows of Harvard College permission to make available his or her scholarly articles and to exercise the copyright in those articles.
Slide 112: Harvard 3
In legal terms, the permission granted by each Faculty member is a nonexclusive, irrevocable, paid-up, worldwide license to exercise any and all rights under copyright relating to each of his/her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for a profit.
Slide 115: Action Steps Checklist
a summary of key steps to implementing a University License policy at your institution: 1. Identify key internal supporters and champions. 2. Research your institution’s rules and procedures to understand the right process for initiating the policy change.
Slide 116: Action Steps Checklist 2
3. Work with provosts, faculty governance, and the general counsel’s office to determine critical policy and legal requirements that must be met by the policy. 4. Work with an existing faculty committee or create an ad-hoc committee to study your institution’s scholarly communications policy.
Slide 117: Action Steps Checklist 3
5. Communicate the plan to faculty and key stakeholders and conduct surveys or obtain other feedback to determine faculty support. 6. Identify and take advantage of events for education and awareness building, such as seminars, discussion panels, presentations, and colloquia. Consider holding a workshop to discuss open access.
Slide 118: Action Steps Checklist 4
7. Develop a set of policy recommendations, including the scope of the University License, the deposit requirement, and opt-out provisions. 8. Identify critical resources and support that will be needed to implement the policy, including responsibility for maintaining an institutional archive. Prepare to provide resources to assist faculty in complying with the policy and working with publishers.
Slide 119: Action Steps Checklist 5
9. Plan for success: work with the institution library to make sure there is a repository to maintain and allow download of deposited articles and that it has sufficient capacity – or that there is a plan to create one. 10. Find the faculty who already are posting their work on the Internet by searching the Web and asking around. By their actions, they are signalling an understanding of why open access is important. Do the librarians have stories of access problems faced by faculty or other researchers?
Slide 120: Thank you! Questions?
Iryna Kuchma iryna.kuchma[at]eifl.net; www.eifl.net The presentation is licensed with Creative Commons Attribution 3.0 License
