2.9 PHASES OF DIGITIZATION
2.10.9 Management of collection and selection of digital
2.10.9.1 Copyright/intellectual property rights
According to Nicholson (2010:8), copyright is a category of intellectual property which represents the property of the mind or intellect. Nicholson (2010:8) added that copyright “is a statutory monopoly or a bundle of exclusive rights conferred by the law on authors and creators to protect their original work.”
Nicholson (2010:8) stipulated that the legal considerations that have to be made regarding the creation and maintenance of digitized collections is encompassed in the copyright. In South Africa the copyright is governed by the Copyright Act No.98 of 1978. The purpose of this Act is to “regulate Copyright and to provide for matters incidental thereto” (South African Copyright Act No.98 of 1978). Nicholson (2010:8) explained that the Act provides various categories of ownerships, for example copyright ownership in music, literary materials, sound recordings, broadcasting rights and copyrights in Government publications.
According to the South African Copyright Act No.98 of 1998, the Act has been amended a number of times to effect certain changes. This has been done by introducing a number of copyright amendment acts, such as the Copyright Amendment Act No.61 of 1989, which was passed to make provision for the importing, selling and distribution of films and sound recordings, Copyright Amendment Act No. 125 of 1992 was introduced to amend, delete or insert certain definitions and to ensure that computer programs be eligible for copyright. This issue plays an important role in digitization projects and must be addressed as early as possible.
Beagrie (N.d.:Copyright) emphasized that copyright is very important in all digitization projects. Liu (2004:342) pointed out that copyright law is one of the main issues in digitizing library materials. Smith (2001:4) agreed that copyright is one of the main factors influencing selection decisions. Nicholson (2010:8) cautioned that with copyright there are legal issues that must be considered “regarding the creation and
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maintenance of digitised collections”. Liu (2004:342) warned that, “before beginning the digitization process, librarians have to consider whether or not the digitized material will violate copyright and intellectual property laws.” Lopatin (2006:278) also felt that it is important for libraries to be aware of the status of the materials they plan to digitize in relation to whether there are protected by copyright law or not, before they even engage in the digitization project(s).
The South African Copyright Law, as stated in the Copyright Act No.98 of 1978 and its amendments, provides guidelines on issues such as categories of works protected, copyright ownership, transfer of copyright, exclusive rights of authors and creators and term of copyright protection. According to Nicholson (2010:12) it is important for libraries to make a decision concerning which works require copyright clearance. Nicholson (2010:12) provides a number of procedures that need to be followed if copyright clearance is needed:
Establish whether or not the works are in the public domain. If not, they need to establish who owns the copyright, e.g. individuals, institutions, organisations, shared or joint owners (known and anonymous), research organisations or funding agencies, and so on.
Approach the relevant copyright holders. The Dramatic, Artistic and Literary Rights Organisation (DALRO) have a mandate to clear only reprographic reproductions and transient electronic copies. Permission for works to be digitised or to convert, adapt, translate or migrate born-digital (soft copy) works need to be obtained directly from the rights holders.
Establish whether the work has more than one copyright holder, e.g. a film, video or DVD can incorporate a number of different copyright works.
Permission would be needed from all relevant copyright holders.
Establish whether all parts of multimedia can be made accessible or whether there are embargoes on some.
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Establish whether there are any digital rights management systems with technological protection measures embedded in the works to be digitised, or in the born-digital works. The library would need to obtain the ‘keys’ or decryption codes from the rights holders to ‘unlock’ the content in order to enable access to these works and/or to engage in preservation or digital curation activities.
The above procedures are also mentioned by other authors, such as Hazen and others (1998), Hughes (2004), Hammond and Davies (2009), Beagrie (N.d.) and Lopatin (2006). Lopatin (2006:278) pointed out that libraries must take into consideration whether or not the material to be digitized is protected by copyright law, or whether or not it is in the public domain, when they undertake a digitization project. According to Hazen and others (1998:2), digitizing works that are not in the public domain requires the library to first secure permission and pay appropriate fees before embarking on such a project. Ignoring these issues will create many legal battles that may end up causing institutions problems. On the other hand Hughes (2004:56) pointed out that works in the public domain can be used freely without paying royalties or fees or asking permission as these are not protected by copyright.
The digitization project may continue without problems. Also, if the source materials to be digitized are protected by copyright, but rights are held by the institution, or if permission can be secured, the work can continue.
Hammond and Davies (2009:13) pointed out that sometimes institutions and other organizations keep content that is copyright and other rights protected. Hammond and Davies (2009:13) indicated that, in a case where the library wants to digitize a collection that is rights protected, it is necessary to seek permission for providing such content online for public access. Clearing rights is time-consuming and expensive, as it sometimes requires paying rights owners to clear the rights.
According to Hammond and Davies (2009:13), “many institutions and organizations are deterred from digitizing copyright-protected content despite much of this material
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having high academic, cultural and historic worth”. Beagrie (N.d:Copyright) stated that the amount of time needed to clear rights in order for a digitization project to continue is sometimes underestimated.
Lopatin (2006:278) cautioned that, in a case where you may have to deal with rights- protected content, it is important to decide beforehand how to handle it, whether you leave out copyrighted content or you digitize it. If you digitize, detailed plans on how to approach this must be in place. With regards to copyright issues, De Stefano (2000:13) warned that “obtaining copyright permission is not always possible and can derail a project that appears otherwise straightforward.”
In the case of theses and dissertations, institutions usually do not have copyright issues, since they are written by students and research staff and are submitted as a requirement for a qualification. As a result, theses and dissertations are owned by the institution and can easily be digitized without complications.