1. Digitization: Considering the 3 C’s – Copyright Contracts Creative Commons Denise Rosemary Nicholson Copyright Services Librarian University of the Witwatersrand, Johannesburg 1 st African Digital Curation Conference – CSIR, Pretoria, South Africa, 12-13 February 2008

2. Digitization A process of conversion – more than reproduction Manipulation of data, modification & translation A form of publishing electronically A well-drafted policy addressing digitization, digital curation and copyright is necessary

3. Copyright ‘A bundle of exclusive rights which the law gives to authors and creators to control certain activities relating to the use, dissemination and public performance of their original works’ Copyright term = lifetime of author plus 50 years On expiry – material goes into the public domain

4. Exclusive Rights of Copyright Owners ● ●To reproduce the work in any manner or form ● ●To publish the work if it has not been published before ● ●To perform the work in public ● ●To broadcast the work ● ●To cause the work to be transmitted in a diffusion service ● ●To make an adaptation of the work – Authors retain their moral rights

5. What laws govern copyright in South Africa? ● ● SA Copyright Act No. 98/1978 (as amended) & Regulations ● ● Copyright Amendment Act No. 9/2002 ● ● Berne Convention ● ● TRIPS (Agreement on Trade-Related Aspects of IP Rights) ● ● WIPO Copyright Treaty & Performances & Phonograms Treaty

6. Works protected by copyright Literary, musical and artistic works Sound recordings Computer programs Cinematographic films Broadcasts Programme-carrying signals Published editions

7. Limitations and exceptions Users do not have rights – only limitations & exceptions to authors’ exclusive rights Berne & TRIPS Agreement allow legal flexibilities in national copyright laws Section 12 - Fair dealing Section 13 (Regulations) – for education & libraries Analogue = use restricted Digital = access & use restricted

8. Limited exceptions for libraries & archives 3(d) applies to ‘a copy of an unpublished work ….. solely for purposes of preservation and security or for deposit, for research use, in another library or archive depot…. 3(e) applies to ‘a copy of a published work …… solely for the purpose of replacement of a copy that is deteriorating or that has been damaged, lost, or stolen …….’

9. Copyright clearances When applying for permission, obtain the following rights:- ● ●To reproduce whole works & convert to digital ● ●To create a modified or derivative work ● ●To display the work electronically ● ●To download it onto CD, DVD or other device ● ●To make the work accessible without technological ● ●restrictions to users (or to ‘unlock’ such restrictions) ● ●To have permission in perpetuity to allow migration, conversion and/or adaptation as technologies change

10. Copyright ownership Usually vests in author/creator (or joint authors/creators) Can belong to third parties, e.g. institution, employer, publisher Can be commissioned, sold or bequeathed Copyright in originals and digital surrogates Who really owns copyright in academic institutions? Are student contracts legally enforceable?

11. Contracts Strict contractual conditions Contract law overrides copyright law & exceptions Licensing can wield power over downstream use of digital works and guarantee revenues Shrink-wrap and click-wrap contracts E-databases – strict conditions for paid subscribers only No longer just protection = now complete control over works

12. Digital rights management (DRM) System of information technology components and services ‘Electronic copyright management systems’ or ‘IP Management & Protection Systems’ Technological protection measures, encryption, spy-ware & licence management functions DRMs control access to digital material – ‘lock up’ content indefinitely Can jeopardize long-term preservation and other curation functions.

13. Digital rights management (DRM) (cont’d) Lock-up or protection codes on e-books Content-scrambling Regional coding Prescribed expiry dates Differential pricing & monopolies over devices/equipment Affects inter-operability and open source software development Legal anti-circumvention clauses protect DRMs

14. Creative Commons Conflict between copyright holders & users  CC Free legal and technical tools to facilitate access to digital content (www.creativecommons.org) Licences: – –Attribution (standard in all CC licences) – –Non-Commercial – –No Derivative works – –Share Alike New! CC+ for commercial

15. Creative Commons (cont’d) CC defines the spectrum of possibilities between full copyright ‘all rights reserved’ and the public domain ‘no rights reserved’ Examples of some users of CC licences – – –MIT OpenCourseware – (http://ocw.mit.edu) – –Public Library of Science (PloS) - (www.plos.org) – –Rice University – (http://cn.x.rice.edu) – –Commonwealth of Learning- (www.col.org) – –Shuttleworth Foundation – (www.shuttleworthfoundation.org) – –More: (http://www.wiki.creativecommons.org/Content_Curators)

16. Science Commons Focus areas – licensing, publishing & data Promotes access to data, against global trends to protect databases. Science Commons plans - – –to evaluate & draft open, voluntary & interoperable legal solutions for databases – ‘some rights reserved’; – –to promote understanding about benefits of enhanced research opportunities in digital environment; – –to describe conditions to maximise such opportunities for the public good (www.sciencecommons.org)

17. Recommendations Amend the following Acts:- – –Copyright Act 78/1998 – –National Library Act No. 92/1998 – –South African Library for the Blind Act No. 91/1998 – –Legal Deposit Act No. 54/1997 – –Electronic Communications and Transactions Act No. 25/2002 Protect ‘fair dealing’ in digital environment Provide legal ‘keys’ to ‘unlock’ digital content Provide access to public-funded research via Open Access

18. Thank You Denise Rosemary Nicholson University of the Witwatersrand, Johannesburg Email: Denise.Nicholson@wits.ac.za Tel. No. 011-717-1929 Fax. No. 011-717-1946 Website: www.wits.ac.za/library (click on ‘Copyright’ under ‘Services’)