Libtech '97

Four eLib projects: three electronic reserve projects, ResIDe [1], ACORN [2], PATRON [3], and one on-demand project, SCOPE [4], introduced and led a discussion about the difficulties/problems facing those who wish to digitise, store and disseminate copyrighted information.

Each project outlined their own specific copyright problems and approaches to solving them; giving examples of their experiences, their successes, failures and lessons learnt. They emphasised that they were unable to give anyone any clear advice on how to approach requests for copyright clearance or how to solve their own specific problems, but they were able to report what they had done, what conclusions they had drawn in the context of their own projects and experiences and give tips, for example, about identifying copyright owners, contacting them, writing letters, sending out reminders, dealing with royalties and with refusals.

To a degree, many of their experiences were very similar because they all share common problems. They are all operating in a confusing and uncertain environment which can boast no rules, no legislation, no case law, no agreements, no common practice - nothing at all. There is no provision under the Copyright Design and Patents Act of 1988 nor any accepted agreements on Fair Dealing or the role of the librarian. There is no collecting agency like the CLA for digitised works. Permission must be obtained for everything. Nothing is permitted until copyright clearance has been obtained; until all and everyone in whom any copyright rests with that document has given permission - whether this be author, publisher, illustrator, photographer etc etc.

This situation, obviously, must change with time. It may well change in the medium-term if not short-term. Over the past year, for example, 5 JISC/PA Working Parties have been examining these issues to seek and agree solutions. They have been looking at a possible standard licence agreement, copyright clearance mechanisms, fair dealing in the electronic context, provision and access to networks and retention and archiving of electronic material. The reports produced by these Working Parties may well form the basis for a working environment for digital copyright clearance. Certainly Dearing recommended (43) “We recommend to the Government that it should review existing copyright legislation and consider how it might be amended to facilitate greater use of copyright materials in digital form by teachers and researchers” (p 209 of the main report) [5].

Certainly, the present situation is unacceptable. Requesting copyright clearance for each and every document each and every time is far too time-consuming for librarian and publisher alike. ResIDe alone, for example, has sent out, in the space of one year, individual letters requesting permission to digitise the contents pages of over 400 journal titles. This number does not include chasers and, as ACORN reported, a large number of chasers may be sent. Chasers have to be sent for about 80% of their requests. On average, ACORN found that it took 2 months to obtain permission to digitise material. Nor does ResIDe’s requests for the 400 titles include repeat requests for 129 titles which had to be sent when the user base was increased. Nor does it include repeat requests for future years.

Against this general background, each project has faced and explored specific copyright issues which they are addressing. ResIDe, for example, is a short term project and has, therefore, sought faster, possibly more short-term solutions. Being concerned with the Built Environment subject area ResIDe has looked at copyright issues surrounding the inclusion of such multimedia as 3-D models and maps on a digital system. ACORN has been researching into the role of the subscription agent in the copyright process. PATRON, concerned with the performing arts, has more copyright considerations than mere intellectual, typographical and moral rights issues faced by the other projects. SCOPE is examining yet another set of conditions in that it is not a reserve or short loan project like the others, but is concerned with on-demand publishing which means it requires a longer copyright clearance permission period than a short-term reserve.

It quickly became obvious that there were a large number of points of agreement between the projects in their approach to the copyright issue. All agreed that it was vital to accurately identify the copyright owner of each item and that it was essential to create an accurate and up-to-date database of publishers, their addresses and a contact within that publishing house. A great deal of time may be wasted by sending letters to the wrong address or by not addressing them to a specific person. Addressing requests to a vague title such as ‘Permissions Manager’ or ‘Rights Officer’ can result in letters languishing in a mail room for weeks. Every speaker agreed that the publishing world is such a dynamic and fluid environment that it is essential to keep track of which publisher currently owns which journal title. They also all agreed that it was necessary to identify every copyright owner and that this could sometimes mean many different people. SCOPE, for example, identified 33 copyright owners in a document of only 50 pages. PATRON faced difficulties identifying and obtaining clearance from each copyright holder for most of their documents.

All four speakers also agreed that the wording of their letters was vitally important. Publishers are as uncertain about the digital environment as the academic community and need reassurance about security mechanisms which are in place. They also need information about the project - what it aims to do and about the user group - how many people will access the material, in which format the material would be held, how often users are likely to access it and over which time period. It was agreed that each letter should clearly outline what they would like the publisher to permit. All four speakers also emphasised the importance of obtaining written permissions as such letters became legal documents proving that permission had been sought and given.

Generally, publishers appeared to be sympathetic to academic institutions and each project had had considerable success in obtaining copyright clearance for documents.

There was some variation between the projects as to the wording of letters and the amount and type of information which should be included. There was also some variation in the approach to offers of a payment. SCOPE, which produces course materials, always offers payment with a standard contract. ACORN offers a payment in the form of usage statistics and other information beneficial to the publisher. ResIDe’s letter does not mention royalties. All projects, however, agreed that it was always possible to negotiate on any royalties requested - just as it was always possible to re-approach publishers (especially by telephone) who have refused permission.

An interesting discussion ensued which ranged over a number of issues:

1. Since the projects had stressed the necessity to keep copious details of publishers the idea was mooted that other institutions might access these details to save them time in requesting permissions, in future. This is a tricky area owing to data protection laws. eLib is about to put out a call for a project to gather together information on the permissions organisations have managed to obtain from publishers. The institutions interested in digitising a work would then be able to check if rights to digitisation had already been obtained, and by whom (although any confidentiality clauses in contracts would, of course, be honoured).
   There is also a closed email list called “lis-copyseek” which people use to share, informally, their experience of obtaining permissions.
2. The fact that publishers seem to drag their heels on the issue of granting permissions for digitisation was put down to the fact that: - clearing rights is a boring job for publishing staff and does not take priority - some publishers have huge backlogs of requests to plough through
   ACORN is currently investigating exactly what processes publishers have to undertake in order to approve copyright. This may well change our attitudes!
3. Publishers are sometimes culpable of granting rights to works they do not own. This raises issues for the agreements/contracts devised. It is advisable that they include warranties signed by the publishers accepting liability in this event.
4. On the subject of contracts and Heads of Agreement, it was pointed out that JISC would offer legal advice on any document an institution had drawn up to contract with a publisher for permission to digitise a publication.
5. The idea of a “one-stop-shop” clearing agency which would be sympathetic to libraries and the educational process was heavily supported.

References

[1] ResIDe:
http://www.uwe.ac.uk/library/itdev/reside/

[2] ACORN :
http://acorn.lboro.ac.uk/

[3] PATRON :
http://www.lib.surrey.ac.uk/eLib/Patron/Patron.htm

[4] SCOPE :
http://www.stir.ac.uk/infoserv/scope/

[5] National Committee of Inquiry into Higher Education (The Dearing Committee)
available online at:
http://www.leeds.ac.uk/educol/ncihe/

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