Evaluating Rights for Scanning & Sharing
The 20th century generated a vast amount of cultural heritage material relevant to the Caribbean and the Diaspora. At the same time, copyright laws were evolving worldwide. Self-determination of formerly colonized nations, increased globalization, and political or corporate pressure to lengthen copyright terms all contributed to a more complex intellectual property ecosystem. Today, countries have varying terms of copyright, with the standard ranging from 50-100 years after the life of the creator. Further, as countries enact new laws and international treaties, it is often the case that a work is protected by copyright in one country, but not in another. Scholars and practitioners in the Caribbean, as well as dLOC partners elsewhere, are keenly aware of the challenges this complexity presents for cultural heritage.
Decision Workflow
Identify copyright holder
- Who created the work?
- Were the creator’s rights owned by an organization?
- Has rightsholder transferred some or all rights?
Determine copyright status
- Where will the work be scanned and shared?
- What type of work is it?
- When did the creator die?
- When was the work published?
Evaluate risk
- Are there any relevant exceptions to consider?
- Is it feasible to get permission?
- Would sharing cause harm?
Take action
- Conservation
- Digitization
- Outreach
- Revision of workflows based on lessons learned
Who Owns What?
“Very rarely will a new collection solely contain material created and owned by the donor. In many instances, third-party material will be implicated, requiring consideration of the intellectual and privacy rights of individuals not directly involved in the accession process.”
—Librarian and legal scholar April Hathcock, “From Dusty Boxes to Data Bytes: Acquiring Rights to Special Collections in the Digital Age”
Creators automatically hold copyright
One rule that applies globally today is that copyright is automatically in place as soon as a work is “fixed”—put into a tangible format such as writing, drawing, or code. While many countries allow copyright registration to make it easier to document and find protected works, this formality is not required.
Collections have many different rightsholders
Intellectual property is distinct from physical ownership. As a simple example, buying books for your library does not grant you the copyright or other intellectual property rights to those titles. The same holds true for photographs, ephemera, manuscripts, and other materials found in dLOC.
Rights transfers may have exceptions
Donors can transfer rights to a collecting institution, but they can only transfer the rights they actually hold themselves! For instance, if a donor grants copyright to an archive for a collection of personal letters, they probably only hold the rights to letters they wrote, not those others wrote to them.
Copyright can reinforce inequity
Legal ownership doesn’t always align with what seems ethical or fair. For instance, the subjects of photographs typically do not hold copyright to those photos (unless it’s a selfie). Copyright in recordings of music or oral storytelling has historically been owned by the person doing the recording—for instance, anthropologists recording indigenous cultural practices—rather than the source community.
Exceptions to Copyright Law
“Without robust intellectual property (IP) frameworks that balance fair use with creator rights, institutions may hesitate to make collections openly available. Similarly, the lack of harmonised licensing models across the region can inhibit collaborative initiatives, especially when collections span multiple jurisdictions.”
—Junior Browne, University of West Indies-Cave Hill, “Digital Revival of Heritage: Elevating Caribbean Cricket Through Technology and Policy”
Most countries have some common exceptions, excluding some material from the scope of copyright law or allowing limited uses of in-copyright materials. Highlighted here are areas most relevant to dLOC, where partners are seeking ways to share not only with individuals or small groups of local users, but also with a global online audience.
Public domain
Once the term of copyright has ended, a work becomes part of the “public domain.” This means the series of rights allotted to the creator now belongs to everyone. Legally, anyone may reproduce, share, adapt, display, or perform the work without permission from the original creator. This is the reason many digital collections overrepresent older works that are out of copyright.
Applying these rules to an online library, where a major goal is to work across international boundaries, is challenging. Beyond dLOC, another example of this in practice is Wikimedia Commons, which similarly is based in the U.S. but also acknowledges the importance of copyright law in other jurisdictions. As Wikimedia’s copyright rules page states, “Files uploaded to Wikimedia Commons should be free of copyright restrictions both in the country of origin and the United States.” DLOC emphasizes copyright status within the U.S., but partners and users should also consider copyright laws where they are sharing or repurposing the work.
Tools to evaluate whether or not an item is in copyright exist, but all have limitations or often require further research. One ambitious 2011 project developed flowcharts for nearly 30 European countries, while in the US Cornell University maintains a detailed table. In the Caribbean, CERLALC hosts a calculator that takes into account differing terms across countries, though it lacks some of the detail necessary for complex materials.
The biggest issue is that copyright within individual countries, while broadly similar, has changed in small ways over time. For instance, in the past century many countries have lengthened the term of copyright protection. As one example, French law grants an extra 30 years of protection to works created by authors who have died in military service. Representing this kind of granular change in a one-size-fits-all tool is a challenge.
Fair use, fair dealing, fair practice
Nearly 30 dLOC partner countries, islands, and territories–both in the Greater Caribbean and internationally–explicitly cite “fair dealing” or “fair use” in their respective copyright laws. (As this concept originated under British law, most of these jurisdictions have historical and/or present-day ties to the UK.) Some of these laws list all of the ways fair dealing may apply, while others list examples but leave substantial flexibility in the scope:
“Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided it is accompanied by a sufficient acknowledgement.”
—Belize Copyright Act Cap. 252; Saint Lucia Copyright Act of 1995; Saint Vincent and the Grenadines Copyright Act, 2003
Some Caribbean-based dLOC partners’ laws and the Berne Convention treaty also mention “fair practice.” While this term is in the same spirit as fair use and fair dealing, it refers to a more general, minimal expectation that nations will allow quotation of copyrighted works.
DLOC, which is hosted in the U.S., relies heavily on the U.S. Copyright Law definition of “fair use,” which courts have generally interpreted more broadly than courts in countries with fair dealing. (Experts point out that this is changing in some countries, with fair dealing treated more flexibly and more interchangeably with fair use.) This requires analysis of four “factors”:
- the purpose of the use and whether it transforms or recontextualizes the work
- whether the work is more factual or more creative
- the portion of the work used relative to the purpose
- the potential to undermine any existing commercial market.
Government works
Copyright in works created by government employees varies across dLOC partner countries. While some laws are silent on this topic and apply the same rules to government works as any other material, others have more complex approaches:
The United States, including Puerto Rico and the U.S. Virgin Islands, automatically place works created by federal government employees in the public domain. There are some exceptions—for instance, some contractors may still keep rights to their work, and privacy or security laws sometimes limit access. But in general, such materials may be widely digitized and shared.
Countries including St. Lucia and Jamaica, among others, implement “Crown copyright,” a system that sets protections for government works for a given length of time. However, Jamaica allows nonprofit uses of government materials, which may give cultural heritage institutions the ability to digitize and share materials without requesting permission.
Library and archive exceptions
A 2017 WIPO study (Crews 2017) describes exceptions in 161 countries that directly facilitate the work of libraries and archives. Common provisions relevant to dLOC allow for limited copying to support patrons’ research, to preserve at-risk materials, or to replace items that have been lost or stolen. Some countries have updated statutes over time to include specific provisions for digital content; for instance, the EU and a number of other countries have formalized “reading room” models that allow patrons to access digital copies on library premises. If copyright laws include other exceptions—e.g., for fair dealing or education—libraries and archives may typically rely on those as well.
Spotlight on: Orphan Works
During a 2019 Latin American/Caribbean intellectual property seminar hosted in Santo Domingo, archivist David Sutton outlined the challenges of orphan works—that is, materials where it is difficult or even impossible to identify the rightsholder or to seek permissions. Sutton, director of the Diasporic Literary Archives project, highlighted a challenge familiar to Caribbean institutions: Related materials are often split across many collections, countries, and continents. Correspondence collections, which might have thousands of copyright holders (each author, or their employer), are intellectually valuable but in most cases economically worthless, including many orphan works. Based on local laws and risk evaluation, institutions must decide for themselves whether it is worthwhile to move forward with digitizing and sharing such materials.
The EU has taken concrete steps to address this challenge by implementing the Orphan Works Directive, which went into effect in 2014. Unlike many intellectual property regulations, this one has the needs of cultural heritage institutions at the forefront. After undertaking a rigorous search for rightsholders, institutions may enter works into a public registry. However, the process has come under fire for being too onerous for most institutions, and only about 7,000 items are listed over a decade since the database was started. A 2019 EU Directive has broadened exceptions for “out-of-commerce” works, though still with some bureaucratic hurdles.
The Roxane Players Present “Drums of Haiti,” University of Miami Libraries, https://dloc.com/UM00000650/00001
Moral rights
The history of copyright across dLOC partner countries depends largely on early ideas of ownership that originated in Europe, especially in the UK and France. Put simply, while UK tradition focused primarily on the economic benefit of copyright, French tradition also emphasized the moral rights, or rights that a creator cannot sell or give away. Still, most countries in the Caribbean have some provisions for moral rights. As seen above, many countries’ fair dealing provisions hinge in part on attribution to the creator: this is a moral right. As one example, the Bahamas explicitly requires attribution when creative works are published or performed.
US Copyright Law gives short shrift to moral rights, with few exceptions limited to visual artists. While this US federal legislation applies to Puerto Rico, the territory has historically emphasized broader moral rights that follow in a Spanish legal framework. In 2012, Puerto Rico enacted the Moral Rights of Authors Act to clarify how moral rights apply locally. This law demonstrates how legislators have attempted to reconcile some of the differences between moral and economic rights. For instance, moral rights in Puerto Rico end 70 years after the death of the work’s creator, while in countries such as France these rights are perpetual and do not expire.
Art 1962, Trinidad & Tobago, University of Florida, https://dloc.com/AA00010881/00001
Risk Assessment
01
Balancing mission and risk
The breadth and complexity of copyright legislation mean that arriving at a “perfect” conclusion is difficult, and sometimes impossible. This is especially true for the kinds of materials that partners often share: anonymous photographs, long-out-of-print periodicals, and 20th-century materials created under fast-changing copyright regimes. DLOC and its host institutions rely on partners to assess rights issues in good faith and to do their best to adhere to copyright law. But as cultural heritage professionals, we also stress the need to prioritize our educational and research mission. The benefits of sharing material, whether to enrich scholarship or to engage learners spread across a diaspora, might outweigh minimal legal risk.
02
Takedown workflows
Also note that for partners, any objections from copyright holders to content hosted on dLOC are typically directed to the University of Florida Libraries. Under a process established by the US Digital Millennium Copyright Act, UF staff can coordinate with partners to review a takedown request, determine whether or not it has merit (i.e., if the item is protected by copyright in the relevant country), and decide whether or not to remove the item.
Examples
Collective Work
Brochure for Art 1962 exhibition celebrating Trinidad and Tobago independence, including numerous photographs of art included.
Contemporary public art
Mural Presencia E Identidad En Cidra, https://dloc.com/AA00112183/00001.
