LEGAL ASPECTS OF DIGITAL LIBRARIES By TALWANT SINGH ADDL DISTT. & SESSIONS JUDGE; DELHI

LEGAL ASPECTS OF DIGITAL LIBRARIES Digital heritage materials are subject to a range of rights and expectations, some of which have legal force. Digital heritage materials are subject to a range of rights and expectations, some of which have legal force. Many, such as copyright, result from the intellectual property invested in the material. Many, such as copyright, result from the intellectual property invested in the material. However, there may be other rights and expectations that also need to be taken into account. However, there may be other rights and expectations that also need to be taken into account.

LEGAL ASPECTS OF DIGITAL LIBRARIES Intellectual property rights of producers including copyright may exist in various layers associated with different aspects of the material. Intellectual property rights of producers including copyright may exist in various layers associated with different aspects of the material. The right to set conditions of access and use. The right to set conditions of access and use. The creator’s moral right to be recognised. The creator’s moral right to be recognised. Legislated rights of certain institutions to collect, preserve and provide access to some materials. Legislated rights of certain institutions to collect, preserve and provide access to some materials.

LEGAL ASPECTS OF DIGITAL LIBRARIES The rights and expectations of privacy, confidentiality and authorisation of use are associated with some subjects of materials such as: The rights and expectations of privacy, confidentiality and authorisation of use are associated with some subjects of materials such as: > organisational records > oral history recordings > personal data and > private communications Expectations of the broader community that material of enduring heritage value will be preserved and made accessible within the regime of rights established in law. Expectations of the broader community that material of enduring heritage value will be preserved and made accessible within the regime of rights established in law.

LEGAL ASPECTS OF DIGITAL LIBRARIES CHALLENGES Obtaining permissions to cover these activities may be difficult. Obtaining permissions to cover these activities may be difficult. Producers and other rights owners may be unwilling to give permission. Producers and other rights owners may be unwilling to give permission. Rights of access and rights of privacy and confiden- tiality are often in tension. Rights of access and rights of privacy and confiden- tiality are often in tension. In an environment of fragmented or collaborative creation of digital materials, it may be hard to identify or negotiate with all rights owners. In an environment of fragmented or collaborative creation of digital materials, it may be hard to identify or negotiate with all rights owners.

LEGAL ASPECTS OF DIGITAL LIBRARIES CHALLENGES cont… The legal position may be ambiguous, as many jurisdictions are still in the process of clarifying legal frameworks of rights and how they should be managed. The legal position may be ambiguous, as many jurisdictions are still in the process of clarifying legal frameworks of rights and how they should be managed. In dealing with globally networked materials it may be even unclear which legal jurisdiction applies. In dealing with globally networked materials it may be even unclear which legal jurisdiction applies. That in which jurisdiction material was produced, or published, or captured for preservation, or stored, or accessed – all of which may be different. That in which jurisdiction material was produced, or published, or captured for preservation, or stored, or accessed – all of which may be different.

LEGAL ASPECTS OF DIGITAL LIBRARIES LEGAL FRAMEWORKS Legal deposit or records management legislation Legal deposit or records management legislation Organisational rules governing corporate information Organisational rules governing corporate information Contractual requirements to deposit data Contractual requirements to deposit data Conditions of grants, awards, employment, or membership of organisations Conditions of grants, awards, employment, or membership of organisations Rights inherited by one organisation from another Rights inherited by one organisation from another Negotiated or purchased licence agreements Negotiated or purchased licence agreements Rights implied by voluntary submission of material to a preservation programme Rights implied by voluntary submission of material to a preservation programme

LEGAL ASPECTS OF DIGITAL LIBRARIES Some preservation agencies capture and store materials such as publicly available, free access Web sites without seeking prior approval. Some preservation agencies capture and store materials such as publicly available, free access Web sites without seeking prior approval. Some do this on the assertion of ‘fair use’ for material in the public domain. Some do this on the assertion of ‘fair use’ for material in the public domain. Others rely on an ‘opt out’ option whereby rights owners are generally invited to express an objection. Others rely on an ‘opt out’ option whereby rights owners are generally invited to express an objection. It is responsibility of the preservation programme to determine, on the basis of competent legal advice, whether any of these or other approaches is applicable, and It is responsibility of the preservation programme to determine, on the basis of competent legal advice, whether any of these or other approaches is applicable, and What is required as an adequate legal defence. What is required as an adequate legal defence.

LEGAL ASPECTS OF DIGITAL LIBRARIES SOME COMMON STEPS SOME COMMON STEPS Determine the legal situation regarding rights specified by legislation, existing organisational rules or licence agreements. Determine the legal situation regarding rights specified by legislation, existing organisational rules or licence agreements. Identify the rights that will be needed to carry out a preservation responsibility. Identify the rights that will be needed to carry out a preservation responsibility. Identify relevant rights owners, and other stakeholders with an influential interest in what rights are negotiated. Identify relevant rights owners, and other stakeholders with an influential interest in what rights are negotiated.

LEGAL ASPECTS OF DIGITAL LIBRARIES SOME COMMON STEPS Prepare a clear explanation of what is needed and how it will be managed. Prepare a clear explanation of what is needed and how it will be managed. Approach rights owners and negotiate a rights regime that is mutually acceptable. Approach rights owners and negotiate a rights regime that is mutually acceptable. Record rights management responsibilities in metadata that is clearly and securely associated with the relevant materials. Record rights management responsibilities in metadata that is clearly and securely associated with the relevant materials. Ensure that responsibilities are understood by staff. Ensure that responsibilities are understood by staff.

LEGAL ASPECTS OF DIGITAL LIBRARIES SOME COMMON STEPS cont… Have secure systems, procedures and tools in place to control access and copying, and to monitor compliance. Have secure systems, procedures and tools in place to control access and copying, and to monitor compliance. If necessary, isolate preservation actions from other kinds of access and use. If necessary, isolate preservation actions from other kinds of access and use. Ensure users understand their legal rights and obligations. Ensure users understand their legal rights and obligations. Regularly evaluate systems and procedures to ensure they do what they are supposed to do. Regularly evaluate systems and procedures to ensure they do what they are supposed to do. Monitor any triggers for a change in rights, such as the passing of a specified period of time. Monitor any triggers for a change in rights, such as the passing of a specified period of time.

LEGAL ASPECTS OF DIGITAL LIBRARIES NEGOTIATING ACCESS CONDITIONS Geographical restrictions, such as limiting access to onsite users. Geographical restrictions, such as limiting access to onsite users. Restrictions on the ability to copy, such as use of a stand alone computer without access to external networks or disk drives. Restrictions on the ability to copy, such as use of a stand alone computer without access to external networks or disk drives. Restrictions on the number of users who can access the material at any one time. Restrictions on the number of users who can access the material at any one time. Time thresholds allowing unrestricted access after a reasonable period for commercial exploitation. Time thresholds allowing unrestricted access after a reasonable period for commercial exploitation.

LEGAL ASPECTS OF DIGITAL LIBRARIES NEGOTIATING ACCESS CONDITIONS cont… Mutually agreeable triggers for a transfer of access rights, such as when the material is no longer available from a publisher’s site. Mutually agreeable triggers for a transfer of access rights, such as when the material is no longer available from a publisher’s site. Restricting access to authorised users who are required to meet specified conditions. Restricting access to authorised users who are required to meet specified conditions.

LEGAL ASPECTS OF DIGITAL LIBRARIES MANAGING RIGHTS Preservation programmes may deal with large amounts of material, so the use of standard licence agreements covering classes of material will avoid the need to negotiate and manage rights item by item. Preservation programmes may deal with large amounts of material, so the use of standard licence agreements covering classes of material will avoid the need to negotiate and manage rights item by item. System tools to manage rights are available and can be expected to continue to evolve. Such tools record access conditions applying to individual items, record and filter requests for use, and report on usage. System tools to manage rights are available and can be expected to continue to evolve. Such tools record access conditions applying to individual items, record and filter requests for use, and report on usage. In choosing rights management tools, it is important to decide what tools are appropriate to support a balanced approach to rights management. In choosing rights management tools, it is important to decide what tools are appropriate to support a balanced approach to rights management.

LEGAL ASPECTS OF DIGITAL LIBRARIES MANAGING RIGHTS It should be made easy for users to contact rights owners to negotiate their own permissions, such as the right to copy, where it is the user’s responsibility to do so. It should be made easy for users to contact rights owners to negotiate their own permissions, such as the right to copy, where it is the user’s responsibility to do so. Making authorised access as easy as possible may act as a disincentive to unauthorised access and use. Making authorised access as easy as possible may act as a disincentive to unauthorised access and use. Encouraging creators to use open source software should help reduce complications and costs involved in negotiating rights with proprietary software developers. Encouraging creators to use open source software should help reduce complications and costs involved in negotiating rights with proprietary software developers.

LEGAL ASPECTS OF DIGITAL LIBRARIES SEEKING EFFICIENCIES FOR PRESERVATION PROGRAMMES WITH FEW RESOURCES Take permissions in advance before launch. Take permissions in advance before launch. Go for data for which rights have lapsed (although this is unlikely to be the case for digital materials for some decades to come). Go for data for which rights have lapsed (although this is unlikely to be the case for digital materials for some decades to come). Create strong supporting interest of producers’ community in the preservation programme. Create strong supporting interest of producers’ community in the preservation programme. Take reliable legal advice about ‘fair use’ or other provisions, which can be a successful defence. Take reliable legal advice about ‘fair use’ or other provisions, which can be a successful defence.

THANKS TALWANT SINGH ADDL. DISTT. & SESSIONS JUDGE: DELHI For any suggestions/questions, please contact at: