FAIR Synthesis: Legal Issues
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Publishing has always taken place in a legal framework. Traditionally
academic authors have transferred copyright of their articles to
publishers. In doing so, they may forfeit the right to archive their
article in a repository. The open access movement has encouraged many
publishers to be more lenient about archiving, but practices vary widely
and can influence an author’s choice of publisher. Authors need to
understand copyright and what the agreements they sign allow them to
do. Repositories need consent from authors to archive their papers,
and authors must have the necessary rights. And once the article is
archived, there need to be mechanisms to protect their rights when the
article is made available to others. The FAIR programme has done much
to explore the legal issues associated with open archiving and develop
solutions, an important outcome of the programme.
Copyright and self-archiving
RoMEO conducted supporting studies related to copyright and self-archiving
early in the FAIR programme. The objective was to investigate the IPR
issues associated with sharing resources using OAI and develop metadata
elements to describe the rights status of e-prints, so these rights could
be protected in an open access environment. Readers interested in an
overview of the issues related to copyright and self-archiving may wish to
read these summaries of the RoMEO work.
During the project, many studies were conducted, six reports were issued,
and a metadata rights solution was proposed. The work done by RoMEO
has been well received internationally. Though the project has ended,
the work is being carried forward. The work on rights metadata
(see rights metadata solution) is being carried
forward by the OAI-rights Technical Working Group. Further work on
copyright and licensing is being carried forward by the JISC-SURF Copyright
Group.
ePrints UK has developed a pilot national ‘service provider’ of e-print
records by harvesting metadata from subject-based and institutional
repositories and making them available through a single search
interface. The report below introduces some of the business and
intellectual property rights issues associated with the metadata approach
taken by the project. This includes a summary of IPR issues
associated with the harvesting and enhancement of third-party
metadata. It builds on the work of the Open Archives Forum project
(2001-2003) in which UKOLN participated.
Theses Alive has done a briefing paper to raise awareness of the legal
issues involved in going digital for theses and dissertations. This
includes existing theses held by institutions in paper format and those
submitted by students electronically (born digital). It considers
issues like ownership of copyright and other IPR, licence agreements, and
freedom of information.
Awareness of copyright and IPR
The FAIR Enough project explored copyright and IPR as issues related to the
embedding of JISC collections within a consortium of FE colleges. In the
first phase of the project, the team conducted a survey within the partner
colleges to gauge attitudes and knowledge about copyright issues. The
results showed that there was uncertainty about individual rights and
responsibilities and a lack of tolerance for the constraints enforced on
working habits when copyright rules were adhered to. The project team
then held a number of staff development sessions to highlight some of the
misconceptions and to show how and why it is possible to use resources
appropriately.
The second phase of the project focused on solutions to problems identified
in the first phase. There are implications for copyright when
practitioners disaggregate learning objects and then reuse the parts to
create new electronic materials. The project therefore decided to
create a repository to house multimedia elements so that practitioners
across the consortium could use them to build learning objects without
having to consider the origin or the copyright associated with the
constituent parts. This work is in the early stages and there are
still challenges to overcome. A guide will be made available on the
project website for institutions wishing to develop a similar
repository.
FAIR Enough has found that IPR and Copyright issues pose a significant
challenge to the effective use of electronic resources across the FE
community. The project has also gone some way to proving that the
needs of the FE community are quite different to those of Higher Education
with regards to IPR and Copyright. This stems in part from the
institutional differences in resource structures and general
attitudes. The studies on copyright and IPR are described on the project web site and
outputs of interest include:
The studies that RoMEO conducted with academic authors suggest that many
have a limited understanding of copyright and don’t always know the status
of an article they might like to archive. FAIR projects developing
repositories found it was essential to brief authors on copyright and make
sure they had the rights to archive an article before doing so. In
the section on
advocacy there are examples of their briefings to authors on copyright,
plus a few developed by RoMEO.
Publisher policies on self-archiving
Academic authors can’t archive their journal articles in repositories if
they have already signed legal agreements with publishers that prevent
this. Similarly, publisher policies on self-archiving can influence
an author’s choice of publisher. RoMEO analysed 80 journal
publishers’ copyright transfer agreements and found that about 50% allowed
authors to self-archive (though conditions vary) and about 30% didn’t allow
authors the right to do anything with their article. There was so
much interest in the results that RoMEO created a publisher policy
directory so authors could check policies before choosing a
publisher. The RoMEO directory is now available as a searchable
database hosted by SHERPA.
Repository licence agreements
The Arts and Humanities Data Service has prepared a useful report for
SHERPA on deposit licences for e-prints. This explores all the legal
issues and includes two sample deposit licences. Theses Alive! has
prepared a report on IPR for electronic theses and dissertations.
This covers all the legal issues in detail, and appendices include sample
deposit and end user licence agreements.
Individual FAIR projects (and institutions within them) have developed
their own deposit licences. Some are listed below, and others can be
accessed from the Deposit Guides listed in the section on
advocacy. RoMEO also made a short list of depositor licences.
IPR for OAI Data and service providers
One of the RoMEO IPR studies focused on data providers and service
providers. According to OAI, a data provider maintains one or more
repositories that support OAI-PMH as a means of exposing metadata. A
service provider issues OAI-PMH requests to data providers and uses the
metadata as a basis for building value-added services. DPs and SPs
were both asked about rights metadata and how it should be protected.
DPs were also asked whether they asked authors to sign depositor
licences. RoMEO Studies 5 reports the results of the OAI D&SP
surveys. It found that very few DPs have rights agreements with
depositing authors, and there is no standard approach to the creation of
rights metadata. The paper also considers whether metadata could or
should be protected by copyright and compares this to the views of DPs and
SPs.
Hybrid Archives has developed a new model for the preservation of
datasets. The model allows for data to be deposited at the Arts and
Humanities Data Service through harvesting via OAI-PMH, but for the content
to also be held by the data owner who then provides access to it.
There are legal requirements to this model, to lay down who has rights to
do what with the data. The licence produced addresses these
requirements and has been tested with data owners.
Rights metadata solution
A key objective of the RoMEO project was to develop a solution for
protecting the IPR of e-prints in an OAI environment. They first
surveyed academic authors and data and service providers about the rights
they wished to protect. The rights solution involved developing simple
rights metadata by which authors could describe the rights status of their
e-prints, and a means by which OAI data providers and service provides
might assert the rights status of their metadata under OAI-PMH. This
can be done using Creative Commons licenses. The work of RoMEO
influenced and fed into the formation of the OAI-rights Technical Working
Group in the US, which seeks to extend the findings from RoMEO as a generic
solution when using OAI (as opposed to just for e-prints). Draft
implementation guidelines have been produced and are available for view
and comment.
Patient consent for medical images
The BioMed Image Archive project aimed to produce a national repository for
biomedical images to enable UK academics to share their images with the
education community. However, the project encountered problems in the
area of patient consent. Research indicated that existing guidelines
on the use of online images were unclear, and this could lead to
misunderstandings or even legal problems. The project consulted with
similarly concerned image specialists and subsequently organised a
conference on patient permission. Expert speakers considered patient
permission from different perspectives, including legal, ethical, and data
protection. The conference attracted 120 delegates and did much to
raise awareness of patient consent in the wider education and health
communities