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					Seminar 3: Creative use of archive
‘Rights and permissions: Not re-inventing the wheel’
–Naomi Korn, IP Consultant



Bill Thompson, Chair and Head of Partnership Development, BBC Archives:

First up we’ve got Naomi Korn to talk about rights and permissions, and how to
avoid re-inventing the wheel and then passing it off as your own and then being
sued by the original inventors, presumably.

Naomi Korn, IP Consultant:

Thank you.

Thank you from me for inviting me to come along to talk, but also I’ve so enjoyed
the talks so far, so thank you so much all the speakers.

I wanted just to start my session off by going back in the past a little bit, about 10
years ago, and sharing with you a story, and then, after sharing a story with you
I’m going to draw you a picture, OK?

And we’re going to do copyright that way, today.

So my story is that, 10 years ago, I was working at the Tate. I was a copyright
officer, I was pretty new in post, and it was at the time of the Matisse/Picasso
blockbuster. And these are two of the most, in terms of copyright, not only because
of wanting to control if a work by one of those artists can be reproduced or not, but
also how’s it’s treated. The issue of moral rights is particularly strong in France, so
in other words, the colour had to be absolutely bang on for reproduction of the
images.

And also, every time that the Tate wanted to reproduce one of those images, it had
to send proofs multiple times to the estates.

Apart from that, both estates were represented in the UK by DACS, the Design
and Artists Copyright Society, who charge a fortune for the reproduction of those
images. So there were a number of rights issues associated with using those
works.
And I was approached by Tate Modern’s education department, and they said,
‘Look Naomi, we want to do this project. We want to create an online, interactive
tool for visually impaired users, using the works of Matisse and Picasso’.

And I’m a candy type of girl, I really am.

[Laughter]

I think my heart sunk. I just thought, how are we going to do this? I want it to
happen, I really want it to happen. And I was determined for this project to happen
because the value, I could see, would be massive, not just for the time of the show
but also for the longevity. It was a project that would really change something and
help people who couldn’t traditionally go to these works, engage with them.

So I said, ‘Look, we’re going to have to come up with a strategy’.

And it’s the first time, I think, that Tate had ever heard the words ‘copyright’ and
‘strategy’ said in the same sentence.

I said, ‘We’re gonna come up with something, we’re gonna make it happen, we’re
gonna sit down and we’re gonna work this out’.

So I sat with them. We planned a strategy where we time-lined it, and this was just
when the project was an idea. And we time-lined it, and we thought about the
issues, and we worked them through. We factored in trips to Paris, which was
rather nice. We worked out exactly what we wanted our users to do with these
works, and we did it, we achieved it.

We managed to work with DACS. We went straight to the Matisse and Picasso
estates. They at first actually said no. They said, ‘We will not let you do this. We
will not let people interact with our works’.

And we put the argument together, we got the curators together, we brought the
curator of the show over to Paris to meet them, I went as well, and we sat down
and we chatted to them and we explained about the project. And they said yes!
And I think it’s still live on the Tate’s website. It was a huge, huge achievement.

So that was the story and it was that sort of relationship of copyright, and strategy,
that I wanted to talk to you more about today. I’m not going to talk about what is
copyright, there are lots of places you can find out about that. But, the places
where it’s less prevalent is the issue of process, strategy – how do we get from A
to B? From the beginning of a project, to actually seeing the project coming into
fruition because we’ve considered the rights and permissions issues, and also
because I like pushing this stuff as well.

I’m going to talk a little bit about how that interacts with business models and
sustainability. So how can we really think about the bigger picture?

Hence: flipchart and pens.

So I’m going to try and do this in terms of concepts.

This ball represents a ball of content, a ball of material, a ball of recourse. It could
be anything, and probably it is everything that we have spoken about, so far in this
room today.

I’m a good thinker but I’m not such a good drawer, but we’ll get there.

And these people are the people that we want to engage with these resources.
This content, this material, it can be text, it can be dance, it can be music, it can be
images, it can be audio-visual – whatever.

And because we’re about digital archives today and making them accessible and
reusable – that represents a platform of delivery. So it could be a website, it could
be a virtual learning environment, it could be a hand-held device – it doesn’t
matter.

Now, we spoke in today’s world about reuse. We ideally want not only these
people to be able to see the resources that we have in our archives, we actually
want them to be able to engage with them, we want them to be able to reuse, and
potentially repurpose them as well. We want them to really be able to use them
creatively, to add to them, to interpret them.

Now, there is an obstacle. There’s an elephant in the room, which is why I’m
talking today. Which is, in an ideal world the work that Paul and Jake were talking
about shows this sort of idea that we can have these spaces where all this stuff
exists, and wouldn’t it be brilliant if we didn’t have to think about copyright and we
could just let people use it and do what they want with it?

But copyright does exist – there’s a whole other discussion we can have about
that, if it’s good that it exists or not, and that’s not what I’m going to talk about. But
I am going to talk about the fact that, within this ball of resources, there’s going to
be a whole range of rights that needs to be identified, and then managed
effectively in order for these people to use this stuff. And this is the idea of process
already kicking in.

So I’ll draw this as a pie chart.

So, within this ball of resources, we will assume there will be material that you
created yourself. Ok, so I’ll put another little figure in there.

If it’s by paid members of staff, one would assume that you can use it freely. OK,
there won’t be any rights issues to think about.

If the material is being created by contractors, or freelancers, or students, then
issues start building up, because actually the default is that these other people
who work with our organisations, and I suspect there probably isn’t any
organisation in the room who doesn’t interact or have work created by volunteers,
or students, or freelancers. That’s an issue because there will be rights issues that
you will need to sort out with them. You will need to get their permission in order to
use their stuff.

And I will symbolize that by an arrow coming in, OK.

We spoke today about thinking about rights issues early, so in terms of process,
before a work is created, ideally you have a conversation about who owns what
rights, and then what permissions do they then grant to your organisation to be
able to use that material.

You may have objects that are created by third parties. In an ideal world, before
you acquire these objects, if you’re acquiring these objects from the person who
created the works, then again you can have the discussions about, do they give
you permission to be able to use these works, or maybe they want to assign you
the copyright, but ideally at the point of acquisition. Confusion, I admit, sets in with
documents such as letters, where actually it’s not the person who has received the
letter who would be the person who can give you permission, it would actually be
the person who created the letter, who wrote it. And in my life time I have never
come across a letter where someone has written something down and said, ‘Oh,
by the way, I will let you use this work for X, Y, and Z purposes’. It just doesn’t
happen. But you’ve got to think about the relationship between the person who
gave you the stuff, and their relationship to the copyright.

You will have, within your ball of stuff, the big question mark.
Orphaned work – these are works that are in copyright, but where the rights
holders are either unknown or cannot be traced.

JISC is a prevailing theme today. It’s actually another JISC funded initiative. We
did a big survey of orphaned works across the UK, a couple of years ago, so
works, as I said, that are in copyright but where the rights holders are either
unknown or cannot be traced. Massive problem; we estimated that there are
actually over 50 million orphaned works in the UK’s public sector alone. You can
read up more about this. I’ll show you some links at the end of my presentation.

So you need to have some kind of strategy – what do you do? Something’s in
copyright, you can’t chase the rights holders. Currently, it’s an infringement if you
use it.

So we then get this issue of risk management, which I think is synonymous now
with rights management. If you are going to manage rights, you’re going to need to
think about risk management as well, and, thinking again in terms of policies now,
what is your organisation’s appetite for risk?

Copyright in any organisation for it to be effective, has to be determined by a
policy: what are you going to do about X, Y, and Z? What are you going to do
about orphaned works? How do you want your stuff used by your users?

It needs to be supported by processes, so that staff know how to deal with it. It
then needs to be supported by the right tools, so they have to hand the right types
of mechanisms, in order to deliver the processes that support the policy.

And that all needs to be underpinned by staff awareness. If staff don’t know what
the issues are, they can’t do any of that.

Ok, so back to our ball of resources. We might have stuff in here where we’ve just
taken it from the web. We don’t know who created it, we know there is a rights
holder, we are almost sure it’s not something which is an orphaned work.

And then we might have other material that’s either out of copyright, or perhaps
represented by an organisation, a rights holder, maybe it’s a PRS with PPL for
music, maybe it’s DACS for images. So we’ve got a rights society of some
description.

So invariably as I said, in order to deliver this ball of stuff to our users, we’re going
to have a number of permissions that we need to get from third parties.
Illustrated by these arrows coming in.

Now, this is the trick, and this is the clever bit, and this is the bit that actually often
gets forgotten about. That’s only one part of the equation: getting the permissions
in. Because actually, you don’t know what permissions you need to get from all
these stake holders in this stuff, you want to deliver to these people, unless you’ve
worked out exactly what you want these guys to do with your stuff. If you have this
kind of vague, general aspiration that you want material to be used, what does that
mean? Under exactly what circumstances, what terms and conditions do you want
these guys to use the material that you’re going to put on the web, for which you
don’t own the rights?

Unless you answer that question, you can find yourself in a situation where you’re
pretty vague, and you’ve not really decided about it. You get the permissions in
and the permissions you get in aren’t enough, they’re not forward thinking. What
you can’t have is a situation where these third party rights holders give you less
permissions to use this stuff than these guys are actually gonna be doing. If these
guys, your users, are gonna be using the ball of resources for anything more than
you’ve actually got permissions, that’s basically an infringement – it’s not gonna
work. Or, if it’s not an infringement, it means that half way through a project, you’re
going to need to go back and ask for more permissions. It also means that if you
identify the rights issues early enough you can plan, in terms of how long you think
it might take you to clear the permissions, ie processing your project management.
You can put aside suitable resource – who’s going to be seeking permission?
What help do they have? How long might it take them to do?

And the costs of someone, or some people, clearing permissions, and possibly
there might be rights holders who need to be paid. It might be that because you’ve
done this early enough, and treated it as a process, that you decide to change
your mind, that maybe works that you were going to put online and make available
to these guys to maybe reuse, is just not going to be feasible, it’s going to be too
expensive. But you’ve got that timeline, within your project, to allow that to happen.
And this is really the idea of the compatibility of permissions coming in, with the
permissions that you then grant out to your end users. You might want to, for
example, use a local content licence, like a creative commons licence. And you
would certainly, absolutely, need to specify that, in your permission from any third
party rights holders.

And this is where things get a little bit more interesting. The world that we operate
in, in this technology rich world where we are all content creators, and content
publishers, and where the users of our stuff are also potentially contributors of
content as well, you have almost a cyclical model. By recognising that cyclical
model which is taking place, the point of these guys accessing your site, engaging
with the content, you can try and get permission from them to not only give you
permission to use the material that they create, but actually permission to use the
materials that other people create as well. And you have a synergy between
permission that they give you and permissions that they’re using everyone else
has given them. You have this sort of even playing field where ideally, if you’re
submitting content it’s under the same premise as somebody using someone
else’s content.

Now to add to that picture and to build. I just want to say something about
business models and sustainability which is that, within the bigger picture of
allowing people to use your stuff, I personally don’t believe that that precludes you
from developing business models that surround your content. And certainly, it was
picking up on a question that was raised, certainly if we’re going to make our
materials available more openly, I think there’s a very strong business case that
can act as a marketing mechanism and can propel the value added services that
you have.

So I would say that almost what you could be thinking about if you wanted a really
big picture is, not only the value added surrounding your resource, recognising that
the delivery of your resource to your end users can propel the value added, but
also, you can simultaneously have similar resources being delivered to the same
or different users. So, an example might be that you have low resolution images or
low resolution types of your resources being delivered to your users under one
type of licence, but high resolution images being delivered under another type of
licence. There would be nothing to stop you actually delivering the same content
under different licensing frameworks. That’s absolutely feasible, but it’s
recognising that this is all part of a much bigger, holistic picture.

Now I haven’t spoken about the detail because actually I’ve been working with
JISC and the SCA on some of the detail. Can I have access? Thank you. Ok, so
what you want to know is kind of the issues associated with this particular bigger
picture.

Over the last two to three years, or three years plus, I’ve been working with the
Strategic Content Alliance, on an IPR and licensing tool kit, which can be used by
publicist organisations to help them manage the rights and permissions associated
with their content.

It exists in paper form as a series of template rights, clearance letters, briefing
papers, risk assessment tables – your heart’s desire in one book, in terms of
helping you. It’s all free, and it can all freely be customized and adapted. It is
genuinely free, free, free, OK?

But in this digital world we wanted to do something a bit cleverer than that, and so
we developed six learning objects as part of the learning module that contains all
our resources and the contexts surrounding the resources.

So I don’t know if you can see clearly, they’ve been divided into an introduction to
IP, creative commons licensing, orphan works and risk management, the Digital
Economy Act, accessing and using third party content, protecting and managing
rights. So if I just load up you the orphan works and risk management one.

So if you want to find more about orphan works and risk management, you can
click your way through this little module. You can listen to this woman having a
chat to you about the tool kit.

Ok, I won’t impose that on you anymore. You get a structure. Some more talking
heads, a little post you can download, briefing papers and reports. OK, a whole
load of stuff.

A risk management calculator, which is kind of quite neat. If you want to actually
try and get an indicative score associated with the risk that you might be
encountering associated with using orphaned works, there’s a little resource here
that you can play with.

So, one of the benefits of going to this is that it’s all out there, it appoints the
process as being absolutely key in terms of rights management and obviously risk
management. But even better that that, this little resource can be freely used and
adapted and customised so, if you don’t like any of the talking heads, you can take
them out and put your own in. It’s all available under open content licences.

So I hope that you have found it interesting and please have a play with the tools
that we’ve had such fun in creating.

[Applause]

				
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