Basic Copyright Issues

Approaches to Copyright 1.Know the law 2.Know your issues 3.Know the status of your intellectual property 4.Know your rights David Green, 2004

Why Are The Risks Greater? Ease of digital publishing Uncertain legal environment Increased non-profit entrepreneurship Broad dissemination

How Does Infringement Occur? Unauthorized use of copyright owner’s exclusive rights “Bundle of rights” Display or perform publicly Reproduction Distribution Derivative

How Does Infringement Occur Digitally? Literary Infringement Visual Work Infringement Digital Alteration

What Are the Risks? Litigation or threat of litigation Goodwill Managerial efficiency

What Are the Risks to Goodwill? Copyright owners Potential collaborators Funders Employees

What Are the Risks to Management Efficiency? Unrecoverable sunk costs Unplanned for licensing expense Diversion of staff resources Disruption of operations

Besides Copyright, What Are Other Risks? Trademark Patent Moral rights Rights of publicity Rights of privacy Libel, misrepresentation, obscenity Breach of contract

Conclusion: How Can Risks Be Minimized? Confirm copyright status Adopt policy Exercise due diligence Document due diligence Obtain written licenses Control end users Check insurance Know law and when to ask questions

Why Have A Copyright Ownership Policy? To protect the institution To clarify the rights of staff To protect the rights of student assistants, volunteers, etc. To deal with issues before a dispute arises

Policies Are Better If They Are: Not drafted solely by legal counsel with no other input Shared with all parties with plenty of time for comment Publicized widely Reviewed every few years and they Deal fairly with all parties including the institution

Complicated Issues Grant funded research that produces a copyrighted work Ownership terms of grant prevail Usually specifies public domain Or institutional ownership Faculty/student or curator/staff collaborations Principal investigator on grants Many collaborators – institutional ownership likely

Getting Started Educate drafting group about copyright Surveying other institutions’ policies Policies from other types of institutions may be useful CopyOwn

Implementing Copyright Policy Establish an effective date Will need some lead time post approval Use time to educate staff On-going dispute mechanism Review policy every 3 years

Overall Benefits of Policy Drafting Process Helps to crystallize thinking about various policy choices Focuses attention on the good of the institution vs. self interest Excellent team-building exercise Can involve staff at all levels Produce an end-product Opportunity for leadership in institution & in field

Why Should an Institution Conduct an IP Audit? To manage risk with knowledge To create an IP policy that accurately reflects institutional assets and needs To highlight existing IP practices and make adjustments accordingly For the sheer joy of inventory: What do you have? Where did it come from? To trigger and facilitate creative projects using found “assets” To monitor compliance (for your use of third party IP and vice versa)

When Should an Institution Conduct an IP Audit? Regularly Prior to entering into a business deal or starting a new project,e.g. prior to digitizing the collection With introduction of a new rights or permissions employee As result of a lawsuit

Who Should Conduct an Institution’s IP Audit? Anyone dealing with or benefiting from the assets in the ordinary course of business Audit leader must be someone who knows what she/he does NOT know

How to Start an IP Audit? Set priorities based on institutional needs and perceived value of IP assets Establish a realistic schedule Often best to conduct department-specific audits, followed by larger inter-departmental reports

What are You Looking For? Immediate Goals of the IP Audit Documents and other written evidence that rights are owned by the institution or some other 3rd party Identity of copyright owner(s)/claimants Evidence that the rights have expired Evidence that claimed ownership is invalid Evidence the work is in the public domain

Where are the Answers? employee agreements acquisition documents licenses loan forms gift correspondence subscriptions exhibition contracts volunteer policies inventory slips invoices purchase orders releases shrink wrap and click wrap agreements prior copyright searches Rights information will be found in the institution’s records

Where are the Answers? Relevant documents may be found in various departments in whole or in parts: Curatorial Registrars Development/Major Gifts Education Information Technology Press/Communications Publications Photography Archives Licensing Director’s Office Museum Store

What Does it All Mean? Recognizing Relevant Language in Relevant Documents Work-for-hire Assignments Exclusive licenses Non-exclusive licenses (including oral and implied) Scope of rights including the right to sublicense Media Territory Duration Conditions or restrictions

Double-checking the Conclusions Is the copyright expired? Has the work been published? Has the copyright been forfeited for failure to observe legal rules? Is the content in question copyrightable expression? Is the copyright valid in one country but not all countries? If the copyright is subject to restoration, has the owner fulfilled its notice requirements?

Double-checking the Conclusions Is there more than one copyright, e.g. in a photo of an artwork? Are there compilation copyrights, e.g. in a website of otherwise non-copyrightable facts? Are there layers of copyright, e.g. in the collective layout of a newspaper and in individual contributions? Are there contractual restrictions that may make copyright findings unhelpful, e.g. no photography of an artwork on loan?

Possible Findings Copyright is clearly in the public domain Copyright is valid and clearly owned by the institution Copyright is valid and clearly owned by someone else who is identifiable; co-owners Copyright is valid and seemingly owned by an unidentified party The institution has partial copyright or specific usage rights; note restrictions and conditions A third party purports to own the copyright but further analysis may be beneficial to determine public domain, additional heirs, implied licenses and so forth

The Next Step Managing Intellectual Property Assets Well and Assessing Value Review employment, independent contractor and volunteer agreements Polish forms and routine documents to clarify rights ownership Implement IP policies, including fair use Assess value: Does the IP asset have market value or does it offerother value to the institution’s mission? Keep good records: Create staff Intranet, databases and info systems for tracking rights ownership and related facts; paper files are good, too.

The IP Audit Summary: Five Important Rules Knowledge Comes from Experience Practice Makes Audits Easier Clear Answers are Not Possible for All Situations Due Diligence is Important There is No “Safe Harbor” for Copyright Infringement Keep Good Records