5.3 Preparing the Collections

5.3 Preparing the Collections

Among GLAMs’ competing priorities, copyright may not be at the top. But copyright is a fundamental part of everyday activities at GLAMs, particularly when it comes to digitization and open access projects. Here is a basic overview of some of the important considerations about copyright and digital collections.

Big Question / Why It Matters

在讨论文化遗产的开放获取时，为什么版权如此重要?glam的任务是保存、传播和教育大部分不属于其版权的物品、物品和收藏品。版权法使其中一些任务非常具有挑战性，特别是在例外和限制不包括基本活动的国家。版权问题必须在每个机构层面得到解决——无论是在日常活动中、数字化项目的开始阶段，还是在开放获取政策的设计阶段。告知用户如何重用现有作品的数字化副本对于任何开放获取政策都是至关重要的。

Learning Outcomes

1. Describe how the basics of copyright apply to your collection and non collection materials
2. Explore tools and techniques that will help you conduct your own copyright research

Personal Reflection / Why it Matters To You

Have you ever searched online for a specific image or work and found a digital reproduction that did not have the terms and conditions under which you could use it? Have you chosen to use an alternative image, because the terms and conditions for using that other image were clearer?

Acquiring Essential Knowledge

当我们探讨开放获取的好处和挑战时，我们简要地讨论了一些glam在责任方面面临的合理担忧。因此，一些机构对版权采取了更为保守的做法。

This happens because GLAMs steward works in which they often do not own copyright. In addition, copyright is automatic and lasts a very long time. Even when limitations and exceptions can help institutions achieve their mission of providing access, it can still be quite challenging to identify who owns copyright over a work, and how long the work will be copyright protected before it falls into the public domain and an institution can freely make a copy or put it online.

Here are some reminders:

1. Owning a physical copy of the work does not give you copyright over the work.单位对实物有一定的控制权并不意味着单位对受版权保护的作品有任何权利。
2. A work receives copyright regardless of aesthetic merit.Copyright law is guided by the principle of “esthetic neutrality.” This means that the only factor for granting copyright protection is whether the work is an original expression made by an author.^[1]This is particularly relevant for archives, who might think that some of the works that they steward are not protected because they are not “artistic.” For the purposes of copyright law, however, this is not relevant. This means that it is likely that vast amounts of documents held in archives will be indeed protected as works by copyright regardless of their artistic or esthetic merit.
3. Digitization should not create new rights over the work.忠实的数字复制不会创造出任何原创的东西。相反，作品的数字化通常是一个非常标准化的技术过程，试图以尽可能高的保真度捕捉原始作品。几乎没有任何创造性的选择，授权版权保护的要求，是由创造数字复制品的人做出的(如果有一个人参与的话)。这在文化遗产领域仍然是一个有争议的问题，因为我们将在讨论数字作品的层次时进一步探讨这个部分。
4. Standardization and legal interoperability are crucial for discoverability.使用标准化的工具，如CC0，公共领域标志和权利声明带来的价值比简单的声明“该工作是在公共领域”更多。您可能还记得第3单元，CC许可和工具被设计成机器可读的。This is one of the most compelling reasons to use CC tools and licenses (andRightsStatements): because they are designed to “speak” a language that machines can understand, and therefore allow for better search functionality. Furthermore, these are tools that users can understand easily, unlike having to read through complicated terms and conditions. Lastly CC licenses and tools are multilingual — they are available in dozens of languages. This makes it easier for international reuse!

General rights workflow for digitization projects

There are several tools that can help you create your own workflow for integrating copyright considerations into your digitization projects. Here are some important considerations:

• • Determining the copyright status of objects should be considered at the beginning of any digitization project, at the planning stage.Many projects leave copyright decisions to the end, just to find out that some of the items that have been digitized cannot be made available. This might be particularly problematic if making works openly available is a funding requirement, as many funders currently require.
  • Document and record any decision you make related to the copyright status of items in your collection.This is good practice for several reasons. It helps inform future decisions regarding a collection inside your own institution, and makes your decision transparent to others. It can help you potentially avoid duplication of work. Having a tool like a DAMS (Digital Asset Management System) is helpful to record these decisions, but even a spreadsheet can also serve as the place where you register them.^[2]
  • Everyone working with collections should have at least basic knowledge of what copyright is and how it works or be able to reach out to someone who does. Ideally, every level of the staff involved with works should understand what copyright is and how it functions. This does not mean that they have to know every aspect of copyright law, but at least they should be able to grasp its basic concepts and practical implications.
  • All your copyright decisions are territorial.This means that even when you are making decisions to make the works available online (and therefore to be displayed globally), you should follow your understanding of applicable law (typically the law of the jurisdiction where the works are being digitized and uploaded). It is up to users of other countries to determine whether and how they can make use of those works based on the law that applies to their reuse.

Clarify copyright at the time of acquisition

这一点与任何项目都有关，而不仅仅是数字化项目。It is always better toclarify copyright at the time of acquisition，也就是说，当你委托或收到一件作品或收藏品时。理想的情况是，当一个作品或收藏进入你的机构时，你从一开始就清楚地确定所有的版权和版权所有者。For example, theHighsmith Archiveat the U.S. Library of Congress is based on a set of photographs donated by photographer Carol Highsmith, who allowed for anyone to have access to the photos and make copies and duplicates as long as she is credited as the author, similar in its terms to a CC BY license.^[3]

An institution can also make sure to negotiate the copyright terms under which both the institution and the public can use the collection before accepting donations. If there is no room for negotiation, at least the copyright terms should be made clear. The Highsmith Archive example above represents an ideal situation, where the author clarifies rights and permissions from the beginning, and even more so, allows for unrestricted access. But intermediate steps, where the institution is allowed to make copies for preservation purposes and to display high-resolution copies of the work online, are examples of what could be clarified right from the beginning, when receiving a work — such activities are sometimes allowed under an exception in certain jurisdictions and therefore permission from the author is not required. Another example of where you might clarify copyright at the point of acquisition is if you are commissioning a work. An agreement should clearly state who will own the rights in the commissioned work.

在某些情况下，可能很难达成这样的协议。这种情况对档案馆来说尤其明显。有些档案从垃圾中拯救了整个收藏;由作者的继承人或亲属等从不同来源接收由多种材料组成的捐赠的档案。在这些情况下，最好的选择可能是进行一项权利许可程序或遵循风险管理评估工具中确定的步骤(见下文“管理风险”小节)。

Managing risk

总的来说，每一个GLAM都需要评估其对复制作品和提供这些作品相关风险的适应程度。风险评估对每个机构都是特殊的，在某些情况下甚至对特定的项目也是特殊的。写下风险评估政策并遵循它是很重要的。

Dalhousie University currently offers their “University Libraries’ Copyright Assessment Tool” under a CC BY-NC-SA 4.0 license, meaning that this risk assessment tool may be copied and adapted by your institution if you do not have one and you need to make your own.

In the Copyright Assessment Tool by Dalhousie, the institution has taken the approach to define only two levels of risk –highandlow. Other institutions take a more granular approach, identifyinghigh, medium, low. Again, the decision to take this approach will depend on your institution.

一般来说，你需要回答的另一个重要问题是，作品的预期用途是什么。一个非常有趣的资源是Code of Best Practices for Fair Use in the Visual Arts这是美国大学艺术协会和美国大学媒体和社会影响中心合作的结果。即使本守则讨论合理使用，特别是在视觉艺术领域，其中提出的一些问题和原则也可以帮助您设计自己的风险评估。

If you are interested in seeing how other institutions approach risk, check the research carried out by Victoria Stobo, Kerry Patterson and Ronan Deazley on “Digitization and Risk” for their project onDigitising the Edwin Morgan Scrapbooks.

Important questions that you need to ask with respect to your own risk assessment are related to the nature and character of the works, the purpose for which they were created, visibility and relevance of the author or rightsholder, among others. And importantly enough, you need to make sure to always offer copyright holders the possibility of fixing any mistake that you inadvertently might have made in the process of doing copyright research. This shows good faith.

Managing risk in third-party platforms

如果您使用的是第三方平台，您需要通读他们的条款和条件，以决定该平台是否适合您打算对作品进行的操作，以及它是否遵守您自己的法律条款。

For example, Wikimedia Commons only accepts content that is in the public domain or available under particularpublic licenses. If an administrator of Wikimedia Commons (normally, a community appointed person) finds that there’s likely a violation, they will take down the content. To prevent this, you can spend some time navigating theirFAQto understand whether you can upload works to Wikimedia Commons.

Understanding the layers of digital reproductions

在GLAM空间的背景下，有时很难理解一个物理作品和同一物理作品的数字复制(或“数字代理”)之间的关系。这与数字复制的开放获取的定义有关，在不同机构之间，甚至在国家内部，开放获取的定义差异很大。上图是Andrea Wallace & Ronan Deazley制作的信息图，它试图清晰地说明“拥有实体作品”、“拥有该作品的版权”和创建数字复制品的过程之间的区别。

Some countries recognize rights over the digital reproductions of works (whether or not the underlying physical work is protected or in the public domain). These rights can sometimes be different from copyright (i.e., related rights or sui generis rights), and do not affect the public domain status of the underlying work; in such cases the underlying work remains in the public domain while a thin layer of protection is granted over the digital reproduction of that work.

这就是“独创性”要求可能发挥作用的地方。机械复制(信息图的“数字化”部分)，例如艺术品的数字复制，不符合在原创性或“少量创造力”要求存在的国家获得版权的要求，因为它们是技术性的、非原创性的照片。在某些情况下，他们可能根本不涉及一个人。

如果您的GLAM机构所在的司法管辖区认可这种权利，开放获取政策将允许您放弃您可能拥有的数字复制权利。最好通过使用CC0来实现这一点。这不会影响底层作品的版权状态。

需要注意的是，这一额外的权利层为重用者和未来的版权许可专业人员带来了一些挑战。它还以一些不合时代的声明告终，比如法国雕塑家奥古斯特·罗丹(Auguste Rodin, 1840-1917)的公共领域作品的数字图像被标记为“CC by - sa”。

总的来说，GLAM社区应该致力于将CC许可和工具以及权利声明应用于数字复制的标准化。仍有许多GLAM机构将CC许可应用于作品的数字复制(因此声称对数字图像拥有版权)。Good faith users tend to respect these statements, but using CC licenses for digital reproductions is not recommended practice.

Additionally, recent developments in Europe with the adoption of the Directive on Copyright in the Digital Single Market clarify that public domain works should remain in the public domain, and that their digital reproductions cannot be protected by copyright.Article 14 of the DSM reads:

“Works of visual art in the public domain. Member States shall provide that, when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author’s own intellectual creation.”

Establishing the copyright status of works

There are three broad categories of copyright status: public domain, in copyright or status unknown.

The best way to ensure that your decisions are consistent is to use a copyright chart, a copyright decision tree, or some type of framework for making copyright assessments. One helpful tool that you can use and adapt to your needs is theCopyright Assessment tooldone by Fred Saunderson at the National Library of Scotland. This framework is specifically designed for the Library’s own legal environment, but if you know your local legislation, you can adapt this framework.

对于不同的国家，互联网上还有很多很多其他的选择，当然你也可以自己创建。Some examples include:

1. Rights Review: An approach to applying Rights Statements from RightsStatements.org
2. Connecticut Digital Archive Copyright Guide
3. Copyright Term and the Public Domain in the United States
4. A permissions decision tree made by the Smithsonian
5. Canadian Copyright Term and Public Domain (PD) Flowchart made by the Copyright Office at the University of Alberta (Canada)
6. Out of Copyright(EU)
7. Copyright Status Flowcharts | Enabling Use & reuse | Make it Digital New Zealand

它们之间的区别是什么?主要是细节或复杂性。最终，你会想要找到或调整一个评估来满足你的实际需求。

Public domain

As a reminder, we have discussed the public domain in Unit 2. To determine whether a work is in the public domain, you will need to take a look at your local law in order to establish both the terms of protection (how long copyright lasts) and the conditions of protection that might affect your materials (for example, some countries make distinctions between unpublished and published works). A very general overview can be found in “Copyright Rules by Territory，由维基共享社区完成。

在第二单元中，我们还提到了国民待遇原则，这意味着国家对外国作者的保护与对本国作者的保护相同。The “rule of the shorter term” is an exception to national treatment. Under the rule, the term that applies to a given work should not exceed the term it receives in its country of origin, even if the country where protection is claimed allows for a longer duration of copyright.^[4]

Public Domain Mark当一个作品进入公共领域时，您应该确保重用者清楚地知道这是该作品的版权状态。Mark these works with the CC tools: thePublic Domain MarkorCC0. It is important that you add machine-readable statements to the works rather than simply stating “the work is in the public domain” so software platforms and search engines can easily identify and retrieve these works.

The difference between the two public domain tools comes down to whether or not the person or institution applying the tool has any rights in the work. The Public Domain Mark is a label only and does not have legal effect. As such, it should be used to indicate the lack of any known copyright in the work. CC0, on the other hand, is used to dedicate rights to the public domain and should be used when the person or institution has rights over the work that they want to forgo. In the open GLAM context, this arises most often with respect to the digital reproduction of public domain works, which can give rise to copyright protection in some jurisdictions.^[5]

There are tools that allow for searching for authors and works in the public domain. Aside from national and specific databases that might help in that search, you can navigate through Wikidata. If you are familiar with theWikidata SPARQL Query Service, you can try browsing through the properties “copyright status” and “public domain date.” Curious to know how this works? You can also check the Wikidata pagesHelp:Copyrights.

In some countries, the Copyright Office has made great efforts to digitize their registers, which allows for searching and browsing through catalogs to know whether works have been registered and whether they are in the public domain. In the US, you can also search through Stanford’s database ofCopyright Renewals.

Lastly, it is important to note that national laws will differ about whether moral rights (the rights of attribution and integrity) expire at the same time as the economic rights or whether they are perpetual. Make sure to check your national law to understand how you should treat moral rights.

In copyright – Locatable rightsholders

如果一个作品有版权，并不意味着你不能在网上展示它。You might not be able to make them openly available, but you can still display it by:

1. relying on a limitation and exception under your national law, if and where applicable;
2. obtaining free permission from the rightsholder;
3. entering into a licensing agreement with the rightsholder and/or the collecting society that represents the rightsholder.

Some members of the public tend to think that “online” equals “free for use.” To avoid this, you need to convey the proper copyright status of the works and any permitted uses. For works in copyright that you make available online, there are different ways in which you can mark their copyright status. Important takeaways are:

1. CC许可只能由版权所有人申请，或在版权所有人的允许下，方可用于拥有版权的作品。
2. CC licenses are not applicable absent an agreement between the rightsholder and the institution. This means that the rightsholder has to agree to make her work available under a CC license.
3. Do not use a CC license to convey the copyright status of a work you do not hold the rights to.
4. If you have an agreement with the author that allows members of the public to use the work for non-commercial uses or for educational purposes, you should use the proper Rights Statements forin copyright objects:
   • Educational use permitted.
   • Non commercial use permitted.
5. If you display the work by relying on a limitation or exception, make sure to follow best practices, such as including all the proper credit information, even when posting it onsocial mediaor displaying only a low-resolution photo of the work. Include the proper RightsStatements, “In copyright，以表示您正在限制或例外情况下提供该作品。

你可以使用一些工具来确定作品的版权所有者是谁。If you are based in the US, you can use theWATCH database. If you are in Europe, you can use the databases being provided byEUIPO.

The level of digitization of copyright records varies greatly across countries, in part because these are resource-intensive processes. However, an important detail to take into account is that generally speaking Copyright Offices normally have some information about contracts signed by authors and rightsholders, depending on the functions of the Copyright Office according to national law. Whenever in doubt, a good practice is to try to contact your local Copyright Office so they can provide you assistance with understanding how national copyright law works and how to use their contract records.

In copyright – Orphan works

As we saw in Unit 2, copyright protection is automatic, meaning that a work is protected right at the moment at which it is “created”^[6]in most countries. Long terms of protection and automatic copyright protection creates the ongoing problem of “orphan works,” works that are likely still protected by copyright but whose authors or rightsholders are unknown or impossible to locate.

An example of such a work would be an artistic photo of a popular alley taken in Germany in the 1960’s but with no additional information about who the author of the photo might be. For archives, orphan works are a particularly acute problem, since for some of them the vast majority of the works they hold are indeed orphan works.

Like other copyright works, in certain parts of the world orphan works can often be used and displayed under limitations and exceptions, and some countries may even have specific exceptions that allow for further uses of orphan works.

此外，如果你想展示孤儿作品，你还可以加入一些机制，让潜在的版权持有人可以很容易地联系你的机构，以便在版权持有人出现时将其撤下。

For orphan works, there are two available Rights Statements:

• For orphan works outside of Europe:IN COPYRIGHT – RIGHTS-HOLDER(S) UNLOCATABLE OR UNIDENTIFIABLE
• For orphan works in Europe:IN COPYRIGHT – EU ORPHAN WORK

Unclear copyright status / Unknown

The last category is “Unclear copyright status / Unknown copyright status.” This is when it is impossible to determine whether the work is protected or not, and who the rightsholder might be. Although in a way these could be considered “orphan works,” they are distinct in that it may be difficult to even tell if they are in copyright to start with.

Other rights or considerations

Aside from copyright, there are other considerations for making works available online. You should avoid posting works that might be culturally harmful: for example, in certain contexts, the display of human remains.

Privacy considerations are also paramount. Tara Robertson outlined an interesting case study in her talk: “Not All Information Wants to be Free: The Case Study of On Our Backs“在把信息放到网上之前，先考虑一下:这些信息是在什么背景下创建的;是否共享敏感或机密信息;创建信息的目的;以及数字化和在线可能造成的潜在危害。

See Unit 2,section 2.3获取有关土著文化遗产和传统文化表现形式的信息。

Releasing Your Original Content

A key component of a comprehensive open access policy is the release of content and materials that you have created as part of that policy. For example, original research, educational and training materials can be released under a CC BY or CC BY-SA license, or even dedicated to the public domain under CC0. You can use other licenses too, but these are the ones recommended for institutions that have a public mission. The goal should be to make usability as easy as possible.

You can also release the accompanying information (called “metadata”) of the works that you hold. There are many benefits to openly sharing materials such as catalogs and metadata. This content is particularly useful to provide context and expand open knowledge in different areas of scholarship.

在一些国家，元数据根本不受版权保护，因为它主要由不受保护的事实组成，通常缺乏独创性。然而，在其他国家，它可能受到保护，在这种情况下，建议在CC0下发布它。

Marking and labelling works

一旦您决定了您将使用的许可证或工具，最好使用许可证或工具标记项目。这取决于你使用的软件平台类型:你自己的网站;数字资产管理系统(dam);或者第三方平台，比如Flickr或者Wikimedia Commons。

在大多数情况下，在项目级别进行标记是很重要的，因为有时一个集合中的不同作品会有不同的版权状态和权限，为所有正在显示的作品做一个空白声明(例如通过您的网站中的条款和条件部分)实际上可能不准确或合适。

当然，政策和项目是相互关联的。例如，如果您决定在可能的范围内对您生产的所有内容应用CC BY许可，这是一种政策，但它将反映在项目级别上——理想情况下，每个项目都将被标记为CC BY，每个拥有不同版权状态的项目将被发布，以表明不同状态的工具、声明或标签。

For example, the website with digital heritage run by the National Library of Chile, Memoria Chilena, releases their research under a CC BY-SA license (as you can find inthis example), but they make sure to mark each individual work being used and presented with its corresponding public domain status (for example, in the section “Documents,” if you click ona specific document, you find a different statement that signals that they are in the public domain).

Whenever possible, make sure to mark the copyright status of the work at the item level. This will provide greater certainty to users about whether and how they can use any single item.

Final remarks

Copyright inside a GLAM institution can be a very tricky matter, but copyright is also a cornerstone of every open access release. Understanding some of the nuances and details of copyright when applied to a GLAM institution is very important to make sure that it is incorporated from the very beginning in the design of every project that deals with any type of content.

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