A look at the rights in cultural heritage collections

I've taken a quick break from my weekly posts (yes, already!) to talk about rights - whilst at the National Digital Forum conference I promised to blog the paper I've been working on about rights. So this is a two part-er: firstly a quick (though lengthy) round up on what all the different kinds of rights are, and then next a look at a suggestion for how the Creative Commons licences could be extended so they meet the needs of cultural heritage institutions.

And of course no rights discussion would be complete without a disclaimer: This is just how I personally understand it to be based on what I've read, so it holds absolutely NO legal weighting.

The cultural heritage collector's dilemma when providing access

There are many fine institutions collecting New Zealand's culture and heritage; to keep it safe and then make it available so others can create new knowledge and experiences. Often this is made possible through the generous donations of material from members of the public.

These institutions know it is important to share the treasures in these collections, but there is a fear some users may not treat the material with the respect it is due.

This is concerning to:

1. Past donors - they trusted the institution would take appropriate care, and often this is documented in a legally-binding agreement around how the donated material may be used
2. Future donors - people won't choose to donate to an institution that seems to let things in its care be used in 'inappropriate ways'. It is worth noting that it doesn't matter whether this inappropriate use actually happens or not, what matters is how people perceive how the institution cares for items in its care.
   

So generally the issue is less about copyright or access rights, and more about re-use rights.

Mind you, copyright is still a big issue too - there is a wide range of scenarios for ownership of items and it can be difficult to work out (and track) the rights status for each, for example:

• The institution holds the copyright, eg. they bought the item or commissioned its creation
• Someone external holds the copyright, eg. a recent digital cartoon
• Someone external holds the copyright, however the institution administers the copyright on their behalf
• The copyright holder is unknown (often called an 'orphan work')
• The copyright status is unknown (don't know how old the item is to know whether it is still in copyright)
• The item is now out of copyright (copyright has expired)
• The donor has placed specific restrictions on the access or use of the item, eg. to embargo potentially slanderous statements they wrote down
• The institution doesn't own the item, eg. taonga on loan
• The institution has made a digital copy of an item owned and held outside the institution.
  

So many rights, so little time...

What, in a nutshell, are the different kinds of rights in law?:

• Property rights - control who has access to things
• Copy-rights - control who is allowed to use copies of things
• Moral rights - control how things/copies are allowed to be used
• Patents - control who is allowed to use ideas
• Trademarks - control who is allowed to use symbols/logos
  
• Indigenous rights - (in parallel to the above) control all rights over things of particular significance to an indigenous culture.

Let's look at each of these (apart from the more specialist patents and trademarks) in more detail, especially in relation to cultural heritage collections and from the New Zealand perspective.

A. Copyright ©

The basic purpose of copyright is to stimulate creative development. For example, when authors/creators can’t earn a living by selling their work (because anyone can get a copy for free) then they are forced to stop creating new works (to earn a living some other way), and this loss is detrimental to society. The initial UK Statute of Anne in 1710 gave a 14-year term of copyright “for the encouragement of learned men to compose and write useful books”.

Copyright law provides the foundation for determining the usage of things by controlling who is allowed to use copies of them:

• It is a particular type of property right
• Copyright protection is automatic (i.e. once an item is created it automatically has copyright protection)
• Ideas cannot be copyrighted (that is what patents are for), nor can small works (like a headline)
• Copyright in New Zealand expires 50 years after the end of the year the creator dies. In Australia, Europe, and the United States, it is generally 70 years.
• More detail at:
• An introduction to Copyright in NZ (Copyright Council)
• What is Copyright? (Creative Freedom)
• Copyright protection in NZ (Ministry of Economic Development)
• Enabling Use and Re-use (DigitalNZ)
• Public Domain Guide (DigitalNZ).
  

Copyright legislation establishes that a particular person/organisation holds the rights over an item for copying it; this means by default all (copy) rights are reserved to that holder – i.e. no one is allowed to make or use copies of that thing without express permission from the copyright holder.

There are three categories of exceptions:

1. Fair dealing (a.k.a. ‘fair use’, ‘permitted acts’) - it is agreed some uses of copyrighted things are necessary to improve society, so certain small uses are permitted without breaching copyright (eg. quote in another document or copy for personal research)
2. Licences - the copyright holder may choose to revoke some of their copy rights so that others may use copies of the item within certain usage conditions (which become contractual obligations on the user), eg. "you aren't allowed to use a copy of this item, except I will allow you to so long as you attribute me". Creative Commons licences fall into this category.
3. Public domain - the copyright holder may choose to revoke all ownership of the copyright placing it into the 'public domain'. (NB: The 'public domain' is a US concept, NZ legislation doesn't recognise a public domain, though it does recognise an item may have no copyright ownership.) The process of placing an item in the public domain is either because its copyright period has expired or a dedication statement is made.

NB: There are also a number of other more-specific exceptions specified in law to allow certain sectors to operate efficiently, eg. use of copies in libraries/schools, temporary caching by ISPs, etc.

Orphan works is a term sometimes used to describe works that are still in copyright but where the copyright owner is unlocatable, eg. because it was published anonymously or is unclear who inherited the rights after the original creator died.

Crown copyright is like ordinary copyright except the duration is different – 100 years or 25 years for published works (sections 26 and 27 of the Copyright Act 1994). Note that Crown copyright does not include any licence (or inferred licence) of how Government-created materials may be used. The State Services Commission is working on a set of licences for Government material (most likely to be based on the Creative Commons licences) - NZ Government Open Access and Licensing.

In New Zealand the copyright legislation is:

• Copyright Act 1994 (repeals the Copyright Act 1962)
• Copyright (New Technologies) Amendment Act 2008 (the key changes: extended to digital works, new exception for transient copying, and clarification of transmission via Web)
• Copyright (Commissioning Rule) Amendment Bill (currently only at its first reading, it proposes to change copyright ownership defaulting to the creator instead of whoever commissioned the work) -

Digital New Zealand is developing flowcharts to help determine whether items are within copyright

A1. Creative Commons (CC) Licences

The aim of the Creative Commons is to provide copyright holders more options than just the two ends of the spectrum of ‘no use’ (all rights reserved) and ‘all use’ (public domain), adding a new range of licences under the label ‘some rights reserved’.

The Creative Commons allows copyright holders who have “all rights reserved” control to voluntarily revoke a selection of those rights to allow others to make copies under certain usage conditions. They do this by issuing a licence. Creative Commons offers (at least) six pre-packaged licences so copyright holders can do this without having to employ lawyers.

The CC licences were established under US law in 2002. In October 2007 the licences were matched to New Zealand copyright law so they then held legal status within NZ.

The CC licences are permutations of the following components:

• Attribution – You must attribute the author and/or licensor in the manner the copyright holder requires (but not in any way that suggests that they endorse you or your use of the work)
• Non-commercial – You may not use the work in a manner primarily directed toward commercial advantage or private monetary compensation
• Derivative Works, which comes in three flavours:
• Derivative Allowed – You may make derivative works
• Derivative Allowed but must Share Alike – You may only make derivative works if you license them under the same Creative Commons licence terms (to encourage further building on top of the work)
• Derivative Not allowed – you may only make verbatim copies of the work, you may not adapt or change it.

Extensions include:

• CC Zero (March 2009) – the public domain has been added as an additional CC licence aiming to make it less US centric than the current public domain dedication. This has not been ratified under NZ law yet
• CC Plus (December 2007) – CC+ is recognition that you can provide multiple licences for different audiences, eg. a CC licence for general users (which links to the CC licence description page) plus a commercial licence for commercial users (which links to your local licence description page).

Future work includes:

• Indigenous CC Licence – covered further below.

The CC licences all require attribution (aside from public domain) and are constructed from the permutations of attribution plus permissions for commercial use and for creating derivative works:

A2. Creative Archive Licence (UK)

In 2005 the BBC established a prototype licence for copyright material in UK cultural institutions, basically extending CC to restrict ‘immoral’ usage. The pilot ended in 2006.

It is a single licence like the Creative Commons BY-NC-SA (attribution, non-commercial, share alike), but adds two extra components: ‘not usable for endorsement (or derogatory use)’ and ‘licence only granted to UK users’. It is only for in-copyright material.

“ ’No-Endorsement’ means that You must not use the Work and/or Derivative Work in any way that would suggest or imply the Licensor's support, association or approval.

The licence granted is provided to You only if You do not use the Work (which includes any underlying contributions to the work) and/or any Derivative Work for any illegal, derogatory or otherwise offensive purpose or through the use of the Work or any Derivative Work bring the Licensor's (or underlying rights owners') reputation into disrepute;

...The bottom line is, don't use the content to promote political or charitable organisations or for campaigning or promotional purposes, and remember to treat others and their work in the way that you'd expect them to treat you and your work...with respect!”

A3. No Known Copyright Restrictions

Many cultural institutions have material that they wish to distribute but don’t know the copyright status of – they believe it is free of copyright restrictions but can’t warrant that status (can ‘neither confirm nor deny’).

Part of these institutions’ mission is to provide access to their collections, so rather than being ‘conservative’ and denying access altogether, they release those items with conditions attached – ie. a disclaimer (and the willingness to remove material proved to be still within copyright). Releasing them also has the added benefit of attracting copyright owners to declare their ownership (many would be unaware the institution held the material if the institution hadn’t distributed it in the first place).

This is the driver behind the Flickr Commons, and has been picked up by the Digital New Zealand Kete.

The National Library of New Zealand's Flickr Commons rights statement says:

“To the best of our knowledge, all images we add to The Commons have no copyright restrictions. However, we can't guarantee that sharing these images may not inadvertently infringe upon the rights of copyright holders unknown to us. We also can't guarantee that your use of these images will not inadvertently infringe on copyright holders' rights, and we can't accept liability if this should happen.”

‘No Known Copyright Restrictions’ sets tend to include items both known to be out of copyright and presumed to be out of copyright (it isn’t usually stated which individual items are known or presumed).

B. Moral Rights

Moral rights provides the foundation for determining the usage of things by controlling how copies are allowed to be used.

Moral rights give creators:

• The right of attribution – to be identified as the creator, and also to NOT be falsely attributed as the creator
• The right of integrity – the ability to object to derogatory treatment of their work

Moral rights also includes privacy for photos/movies taken for domestic use (that they are not to be made public):

• Moral rights are separate to copyrights, but are established within the NZ Copyright Act 1994
• Moral rights are not automatic, they must be asserted
• Moral rights last for the same duration as copyright (ie. 50 years after their death), except the right for false attribution is only for 20 years after their death.
• More details at: Moral Rights (Copyright Council)

C. Property Rights

Property law provides the foundation for determining the usage of things by controlling who has access to them in the first place:

• In economic terms the rights are to use the item, to earn income from it, and to transfer the item to someone else
• There is no expiry to property rights, it transfers to the new owner.

Property rights allow those in possession of items to impose conditions on their use even though they are out of copyright – “You can do whatever you like with someone else’s copy of this out-of-copyright book, but if you want to use my copy you need to agree to do X”. As a result, unique items may potentially always have conditions of use attached, as there are no alternative copies available without conditions attached.

Cultural institutions often have obligations placed on them in donor agreements (though these may be unclear as they were written prior to the existence of the Web). These institutions may exercise their property rights to impose restrictions on use, in order to provide access whilst still satisfying their donor agreement obligations.

In New Zealand the legislation is:

• Property Law Act 2007 (focuses primarily on land ownership, but applies to anything “capable of being owned”, it repeals the Property Law Act 1952)
  

D. Rights of New Zealanders to access their culture and heritage

Lawrence Lessig (the founder of the Creative Commons) notes rights protection systems are creating barriers to society making the best use of knowledge it develops. This ‘Free Culture Movement’ calls for a move away from the excessive ‘permission culture’ so rights access also considers the cultural/preservation/access paradigm, ie. the benefits to society.

The rise of digital technology presents a new method for distributing content, but also the technology to restrict usage of that content based on its access/usage rights. Digital Rights Management (DRM) is the use of these hardware and software access control technologies to limit what can be done with digital content. One criticism of DRM is that it is pessimistic (guilt is presumed) as it tends to assume people will ignore rights and so ‘locks down’ the content (often accidentally restricting it further due to technology incompatibilities), as opposed to usage licences which are optimistic (innocence is presumed) as they inform users of their rights and assumes people will follow them.

When an item (e.g. sound recording) comes out of copyright protection, anyone who owns a copy (or the original) can choose to distribute it without restrictions. However, many cultural institutions choose to exercise their property rights and impose usage restrictions on their copy.

Some people see this exercising of property rights as placing cultural institutions in the same arena as DRM restrictions placed by commercial content owners, which many online users object to.

However, this may be partly due to how it is presented. For example, the usage conditions are often stated in a pessimistic way on the website, yet usually over 99% of requests received for use of copies are granted.

E. Indigenous Rights

The legal rights discussed above are based on a Western, secular view of property and ownership, especially the idea that society benefits from making knowledge and creative works open and freely available. However the belief systems of many indigenous cultures are more intertwined with their spirituality and cosmologies, so this Western view is isn’t just incompatible, it may be considered offensive.

For example, in some cultures, particular kinds of knowledge are considered sacred so they should never be known and/or used by just anyone, eg. traditional medicines or ritual songs. When well-meaning people release this knowledge into the wider society it undermines those who have been entrusted as the guardians or custodians of that knowledge, and there may also be consequences from causing an imbalance in the forces of nature.

Indigenous cultures are each interested in ways of expressing which knowledge/works may be freely used, which may be used but only within certain restrictions, and which may not be used, from the context of their culture. Amongst others, the Creative Commons is investigating new licences that will align with indigenous cultures and their rights.

• Protecting traditional knowledge in a digital world is part of Outcome 1 of the NZ Digital Strategy
  
• More details at: Indigenous Peoples and the Commons by Preston Hardison