FAIR Synthesis: Legal Issues
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View web retention policyPublishing 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