Information Outlook Article - Sept 2006
Digital Rights Permissions
By Lesley Ellen Harris
Obtaining permission to use digital content should generally be approached in the same manner as analogue or traditional content. In any digital project, whether simply including a photograph or article on your Web site, or developing an entire Web site or DVD, or creating a digital archive, permission-wise, you need to consider the following:
- Are you using a work that is protected by copyright? Digital and non-digital works are equally protected by copyright. Follow the rule that content on the Internet is protected by copyright unless there is information associated with the content that states otherwise.
- Is the duration of copyright still running or is the work in the public domain? In the U.S., copyright protection lasts 70 years after the author's death. In some countries, duration is only life-plus-50. When using work on a Web site, get permission for life-plus-70 to cover yourself in all countries.
- Is the work an adaptation or translation of a public domain work? Adaptations and translations may be copyright-protected works even if they are based on public domain works. Generally, digitizing a work will not in itself result in a new copyright-protected work. However, if it is more than a mere digitization and there are modifications to the work, there may be a new copyright-protected work. In this situation, you may need to obtain permission from both the original/underlying work, and the new digital work.
- Are there underlying works for which permission is needed? Digital works are by their very nature composed of many layers of rights and different kinds of copyright-protected works. Works like Web site content, CDs or DVDs, video games, and educational software, often consist of various types of works from literary (including computer software/code) to artistic to musical to audiovisual. Each of these works must be cleared when creating a multimedia work or when reproducing a part of that work. Different works may have different copyright durations, and different ownership and authorship.
- Are you using a substantial portion of a work? Generally, very small uses of works like quotes do not require permission. It is more difficult to use a "small" portion of a photograph or painting.
- Are you using the work in a copyright sense? Reproducing, publishing, performing in public, or adapting a work are copyright uses. Also, including content on a DVD or Web site or digital archive are copyright uses.
- Is there an exception in the law that exempts you from obtaining permission? Exceptions are generally limited and vary from country-to-country. If in doubt about whether an exception applies to your situation, or if you need to be completely risk free, obtain permission.
- Are you using the work in a country where an author has moral rights? If so, are you modifying the work in a manner that may be prejudicial to the honor or reputation of the author, and does the author's name appear in association with the work? In the U.S., moral rights only attach to authors of works of fine art. However, in many countries, authors of all copyright-protected works have moral rights. Even mere digitization of a work may result in a modification of that work and may harm the reputation of an author. Thus, moral rights may have an even greater role in the digital world. If possible, obtain a waiver of moral rights if you are using the work on a worldwide basis.
Negotiating with Digital Rights Owners
Some unique considerations may arise when negotiating the permissions you need for using content in a digital format. These include the following:
- If you are obtaining permission to use content in a digital format, also consider obtaining some traditional rights. For example, you may want to promote some of the content through print publications and may require certain print rights.
- Your permission to use the content on a Web site, for example, may not include the right to digitally archive that same content on a DVD or on the Internet. Consider all digital rights you may need at your initial negotiations with the rights holder. It is always better to obtain more rights than what you need than to have to later negotiate further rights for use of the same works.
- The value of digital content is still not established and is always a matter of negotiation. Sometimes rights holders see their work as having more value in the future in a digital format and may ask for much more than you are willing to pay for that content. Determine your budget before negotiating rights and place your own value on those works before negotiating with the rights holder.
- The Internet often means that the content may be reproduced in unlimited quantities. Is the rights holder in agreement with this?
- Digital content may be reproduced in a variety of quality. Negotiate with the rights holder the quality of the reproduction (to avoid a future complaint by the rights holder and a possible allegation of moral rights infringement.)
- If you are adapting the content at all or digitizing traditional content, ensure that the rights holder agrees with what you are doing with that content and is fully aware of your use of that content.
- Consider how you will pay the rights holder. If the rights holder is a book author, for example, he is used to being paid a royalty for the use of his work. However, in the digital world, it often makes more sense to pay a fixed fee, especially if a work is one of 1000's going into a Web site or DVD. This is negotiable.
- Many rights holders are concerned about unauthorized uses of their works once their works are available in a digital format. What precautions are you taking to protect content, for example, copyright notices, encryption, password-protected sites, and policing authorized uses?
Conclusions
Whether you are clearing copyright in traditional or digital content, a checklist or written permissions policy (as a stand-alone document or as part of a copyright or intellectual property policy), may help ensure that your enterprise has a thorough and consistent approach to clearing digital permissions.
| Lesley Ellen Harris is a copyright lawyer/consultant who works on legal, business, and strategic issues in the publishing, content, entertainment, Internet, and information industries. She is the editor of the print newsletter, The Copyright and New Media Law Newsletter, in its 10th year of publication in 2006. If you would like a sample copy of this newsletter, e-mail: contact@copyrightlaws.com. She also is a professor at SLA's Click University where she teaches a number of online courses on copyright, licensing, and managing copyright and digital content for SLA members. SLA members may register for the fall 2006 courses at: http://www.sla.org/content/learn/learnmore/distance/ 2006cul/index.cfm. |
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