5. What do I need to know about copyright and data protection?

Any active copyright and/or the inclusion of personal data in, or associated with creative works, such as original artwork, documents, sound recordings, films, music, dramatic work or photographs can impact on your ability make and use a reproduction, particularly online.

There is plenty of guidance for those wishing to navigate this complex area and who wish to reuse reproductions to provide public access or income generation.

How will copyright affect my digitisation project?

The intellectual property right most likely to affect reproduction and reuse is copyright. Understanding the circumstances under which you can copy and use a work under the exceptions to copyright and those in which a licence is required is vital before you begin to digitise such works. Provision for museums, libraries and archives, and affecting education and research, exists within recent legislation. Legal guidance also exists for situations in which it is not possible to trace the rights holders or they are unknown “orphan works”

  • A brief guide to copyright [Tate 2016] is a good starting point to understanding the issues that might be involved. It covers fair dealing (use of works in certain circumstances without permission), orphan works (for which the copyright holder can’t be traced), the moral rights of a work’s creator and the process of licensing.
  • Current legislation relating to all intellectual property rights can be found on the UK Government’s website, and The Copyright Notice: digital images, photographs and the internet [Intellectual Property Office, 2015] explains copyright in more detail and explores a number of scenarios around use. The slides from recent IPO training for cultural organisations on Understanding the IP framework [Intellectual Property Office, 2019] are also useful.
  • If you want to understand the issues surrounding this area of law in more depth, Copyright User is a good site covering the topic in an accessible way. It includes a page called Copyright for Museums and Galleries, written by copyright specialist Naomi Korn.
  • Copyright cortex is another good source for those seeking further information about many aspects of rights management for cultural heritage institutions.
  • Collections Trust’s Practical Guide to Copyright by Naomi Korn with Gordon McKenna, 2015 is an excellent starting point, but it isn’t a free publication. (It’s available from Collection Trust’s online shop.)

What about photographs?

Working out whether a photograph is still in copyright is particularly complicated and the exact nature of protection will depend on when a photograph was taken and who took it.

  • This Design and Artists Copyright Society factsheet is a simple guide to some of the key dates to be aware of in relation to photography. It picks through some of the complexities of  who owns the copyright in photographs, how long it lasts, whether it can be revived in old photographs and who then owns the copyright in a revived work.

What about data protection?

Material you want to copy and make public might include details of living identifable people, this can include photographs, letters etc. This means it falls within the scope of data protection law so it’s important to understand the circumstances in which this applies before you begin.

  • The data protection guidance sheet [Collections Trust, 2018] sets out the law as it applies to collections and includes links to other useful information sources.
  • In May 2018 the General Data Protection Regulations (GDPR) (EU) 2016/679  came into force in an update to UK law. All organisations and institutions that collect and store personal data need to be increasingly accountable and transparent in how they handle this information.

How should I record and manage all this information?

Recording and managing information about rights holders, permissions and licences is vital in order to use digitise collections with confidence and to demonstrate the information gathering, legal advice and decision-making process you may have applied to the process of digitisation.

  • Collections Trust’s Spectrum – Rights management [2017] is a good starting point which sets out how to record and manage relevant information once you have established the legal status in a particular situation.

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