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Digital content creation and copyright issues
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National Institute of Science Communication and Information Resources, New Delhi, India
G. Mahesh and Rekha Mittal
Received 2 May 2008 Revised 4 June 2008 Accepted 18 June 2008
Abstract Purpose – The purpose of this paper is to identify the modes of digital content creation for digital libraries and discuss the associated copyright issues with the types of digital content. Design/methodology/approach – Prevalent copyright laws in India in the context of digital content have been studied and issues related to specific types of digital content have been discussed. Findings – In addition to two known types of digital content, namely born digital and turned digital, a third type, gained digital has been delineated. It is found that extant copyright laws, particularly in India, allow scope for forming opinions with regard to digital content thereby giving room for insecurity for digital content creators. Research limitations/implications – Copyright laws in the context of World Intellectual Property Organization and India only have been discussed. Practical implications – The paper will be useful to digital content creators and digital library managers/administrators to understand copyright issues relevant to the digital library. Originality/value – The classification of digital libraries based on content as has been delineated in this paper is an original work and has reported for the first time. The linking of digital content with the copyright issues makes it useful. Keywords Digital libraries, Copyright law, Digital storage, India Paper type Viewpoint
The Electronic Library Vol. 27 No. 4, 2009 pp. 676-683 q Emerald Group Publishing Limited 0264-0473 DOI 10.1108/02640470910979615
Introduction The advent of digital libraries at the turn of the twenty-first century has been mired with several aspects including the development of appropriate technologies, issues related to storage, rights management, and so on. Digital libraries, along with associated technologies and related issues, are still somewhat in infancy with very few fully established digital libraries the world over. The concept of digital libraries itself varies greatly with several known definitions. With digital library technologies maturing, storage capacities increasing and digital access improving, the focus needs to be crystallized on content for digital libraries. However, research on digital libraries so far has focused on the containers and conduits rather than the contents. A recent review of digital libraries in India found that out of 63 studies, only two have discussed about content in comparatively greater details (Mahesh and Mittal, 2008). Other studies also reflect a similar trend (Bearman, 2007; Fox and Urs, 2002). This clearly shows that digital library creators as of today focus less on content compared to other aspects. Consequently, it may be appropriate to conclude that copyright issues with regard to content in digital libraries are hardly on the radar of digital library creators. Although, digital library creators presently focus on areas other than content, the creators realize that content is the key for success. It has been reported that for the success of information gateways, the effective selection of high-quality content forms
the chief rationale for the gateway approach. The content includes selection criteria, technical and policy issues, management, recommended standards and conventions, creation of metadata, provision of browsing and searching (Heery, 2000). Digital content creation requires strategic leadership, sustainability plans, and cognizance of best practice in the field. During creation of digital content, staff gain valuable skills that can be utilized by taking contract projects. This will also create new audiences for such types of material there by opening up the collections to the world. However, high-quality digital content creation is an expansive undertaking (McMenemy, 2007). It is well known that in a largely print based traditional library setting, acquiring the content is a relatively easy task. But this is not the case with digital libraries. The variability of digital content per se and the variability in the availability of content is increasingly becoming a problem for digital libraries. Variability of digital content per se include the types of content such as text, audio, video, pictures, etc. types of file formats such as DOC, PDF, JPEG, AVI, and so on. Variability with regard to availability of digital content include the origin and sourcing of the content, creation of content, etc. which is discussed in greater detail in this paper. Normalizing, these and other varied content in digital libraries may be less challenging today owing to technological developments. But choosing content in light of copyright issues may be a daunting task. Although, the copyright issues with regard to digital content have been a subject of discussion in earlier studies, the same have not been looked at from the content creation point of view. Digital libraries and content creation Digital libraries, by virtue of how content has been created and made available, can be broadly grouped into three classes: born digital, turned digital, and gained digital libraries. Born digital The advent of the internet has seen the voluminous growth of born digital material (Taylor, 2004). In born digital libraries, the content is created in digital form with the purpose and understanding that the content is primarily meant for storage and use in digital form. The tools for creating such born digital content can include simple word processing package or complex multimedia content authoring and development tools. In the past, i.e. in the print based traditional library era, the role of library as a publisher has been marginal. Leaving aside the bibliographies, catalogues, guides, and other masses of printed ephemera that such libraries have been producing, the concept of publishing a booklet or book with the library’s imprint have not been common (Field, 1979). However, in the present digital age it has become possible for libraries to play a more indulgent role as publisher. The content creation job itself being left to the students, researchers or faculty of the institution concerned. The libraries are usually entrusted with the responsibility of publishing or hosting the content on the digital library or digital repository of the institution. Wherever, the library wants to be directly involved in content creation, the libraries can do so themselves or commission or collaborate with content creators to develop user specific contents. And depending on the agreed upon modalities for content creation, the digital libraries can ensure that the copyright rests with the digital library.
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Born digital content can be categorized into exclusive digital wherein the analog version is not developed at all. This could include creating curriculum focused content, e-books, learning objects or other multimedia content where analog counterparts are not meant to be created or are not required. The other type of born digital content type is digital for print. In this type, the content is created in digital form for dual purposes, which include hosting the content in digital libraries and also having a print counterpart of the content so developed. Many books and journals publishers follow this model of content creation. The problem with born digital content is that content creation can be a time consuming task taking a long time to populate the digital library. Further, resource requirement in terms of manpower and financial resources would be high for the content creation process. Recently, with institutional repositories and archives gaining popularity and in some instances being mandatory, the content creation keeps the digital requirements in perspective although a print counterpart such as a journal or a thesis is also produced. Turned digital In the turned digital type, the contents that are in analog form such as the printed books are converted to digital form. Digitization technologies particularly the scanning technology is exploited to turn analog material existing on print media including paper, manuscripts, etc. to digital form and storing them in digital form only. Digitization technologies are also improving day by day making it easier to turn analog content into digital content. Major digital library initiatives in the world such as Project Gutenberg and the Million Book Project belong to the turned digital library kind. Based on the type of conversion involved, the turned digital kind can be categorized as turned digital with replica content and turned digital with modified content. In the former kind, the digital content is an exact replica of the print counter part. Cover to cover scanning and digitized books, theses, etc. are exact digital copies of the print counterpart. But for some materials, this kind of scanning is not suitable such as for an abstracting publication. Such material is turned digital by keying in the entire content or doing an optical character recognition (OCR) scanning where editable text results from the scanning process. However, the accuracy levels of OCR scanning are low and require editing of the converted text. Turned digital content, the scanned image or the OCR text are the most common types of content in digital libraries particularly for dated content that exist in print form only and require to be converted to digital form. The disadvantages of turned digital content include the large size of the resultant scanned file which can become time consuming to download for voluminous publications. With regard to copyright issues, digitizing “out of copyright” material and institution owned copyrighted material such as dissertation and thesis is easier but obtaining permissions from copyright owners of other desired materials is a daunting task. Gained digital In the gained digital type, the content per se might have been born digital or turned digital at some source but the library is not associated with the creation of content. The library only acts as a facilitator to access the already available content. This could include licensed resources such as the e-journals, e-books, databases, etc. to which
through licensing mechanisms, the library facilitates access to these resources but do not own the content themselves. The content is hosted by the licensors such as the publishers themselves and the libraries facilitate access to the content without the library actually owning the content. In another form, the library could have acquired or purchased the digital content on media such as CD-ROM and DVD-ROM and have hosted it on the library computing infrastructure. Though very high costs are involved in developing a gained digital content in the library collection, the consortium access ensures that high-quality resources can be made available to the users in the shortest time and content is easier to manage. However, considering that content is usually licensed, the perpetuality of the digital content can be a problem area. Furthermore, the users should be sensitized about the copyright issues involved as the library is likely to have entered into licensing agreements with publishers or other intermediaries with regard to the usage of the content. Copyright issues There is a misconception that the contents available on the internet may be used by anybody without the authorization of the right owner but these contents are protected by copyright law regardless of whether they are published on paper or on the internet. Therefore, it is necessary for those involved with the management and distribution of books, articles, and content produced by others to be well conversant with copyright issues. Copyright law is national law. Although copyright laws of all countries have certain things in common, the specifics of the law apply at a national level. Most nations adhere to international treaties which set out a basic framework, with the Berne Convention of 1886 bring the principal international treaty. Creators of digital libraries and its contents, namely, born digital, turned digital, and gained digital should keep copyright issues in the scheme of digital library creation and management so that copyright issues are addressed within a legal framework and the rights of the creators and owners of the content is protected. When digital libraries are in the process of creating digitally born content, it would augur well to take into account the technological protection measures such as digital watermarking, digital signatures, encryption, etc. to control infringement in the digital environment. In the present era of open access where content is being made available for free use, the creators of the content are concerned about the violation of the copyright. With regard to the turned digital content, digitization of out of copyright material has not been a problem. Other than uploading digitized content on websites, digitization is undertaken by libraries to preserve old, brittle, and crumbling documents for posterity. Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works (1886) provides that countries may allow for exceptions to the author’s exclusive right or reproduction in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. Under this Article, libraries can digitize the content but uploading the same for public access requires permission of the copyright owner. While libraries can be more liberal in digitizing content such as theses and other in-house generated content, the library has to tread a cautious path when turning digital other’s work that is still in the copyright regime (James, 2001, 2005). So far as the gained digital content is concerned, the digital library is under contract or has obtained licenses for using such content. Depending on the license terms and
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conditions, the digital library has to sensitize the users and make them literate and aware so that there is no violation of copyright in general and also specifically about the agreement that the terms and conditions in the agreement are honored. Copyright, digital environment, and WIPO It is observed that in digital medium most copyright owners rely on the technical systems designed to control access and copying of works in digital formats. As technology can provide protection systems, it also has potential to create systems which can circumvent such protection. Hence, in most jurisdiction and particularly World Intellectual Property Organization (WIPO) has considered that law must provide adequate policing at the stage when circumventing systems are created, possessed, imported, circulated, and used against technological protection measures. The WIPO was the pioneer in initiating global discussions on protection of intellectual property rights in digital environment. The World Copyright Treaty envisages model provisions to be incorporated in domestic laws in order to provide certain basic protection against copyright infringement in digital environment. Most recently, WIPO agreed to the 1996 WIPO Copyright Treaty (WCT) which addresses the copyright issues raised by digital technology and networks. However, many countries have not yet implemented it into their laws. Articles 11 and 12 of WCT deals with preventing abuse of copyright, access control/copy control and rights management information (RMI) such as owner’s digital signature, licensing information, watermarks, etc. These articles state: (1) Article 11: obligations concerning technological measures: . Contracting parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law. (2) Article 12: obligations concerning rights management information: . Contracting parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know that it will induce, enable, facilitate, or conceal an infringement of any right covered by this treaty or the Berne Convention: – to remove or alter any electronic RMI without authority; and – to distribute, import for distribution, broadcast, or communicate to the public, without authority, works, or copies of works knowing that electronic RMI has been removed or altered without authority. . As used in this Article, “rights management information” means information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public (WIPO, n.d).
Under the WCT, it is unlawful to remove RMI, e.g. a digital watermark. It is potentially dishonest to circumvent technical protection measures if the objective is thereby to avoid paying license fees or additional license fees to the copyright owner. The WCT requires signatories to provide legal protection and effective legal remedies against the circumvention of technological measures used by copyright owners to protect their material. One of the first national laws to implement this requirement was the USA’ Digital Millennium Copyright Act (the DMCA). One (probably unintended) consequence of the DMCA is that it may be unlawful to publish information which exposes the weaknesses of technical protection measures. Digital content, Copyright and Indian Copyright Act The first Indian Copyright Act was passed in 1911 by the British and India signed the Berne Convention in 1927. The Indian Copyright Act of 1957 has undergone numerous amendments, the latest being in 1999. Further draft amendments in the Act in the light of the WCT Articles 11 and 12 are being worked out and it is proposed to insert a new section 65 (comprising two parts) in the Indian Copyright Act (Indian Copyright Law, n.d). The proposed new Section 65A of the Act relates to the Protection of Technological Measures and deals with anti-circumvention measures preventing abuse of copyrights, access control (user id, password, IP, etc.), copy control (illegal copies), encryption technology. The offence shall be punishable with imprisonment, which may extend up to two years and shall also liable to a fine. The proposed new section 65B to be added relates to protection of RMI and covers electronic tags, codes, watermarks, owners’ digital signature, licensing information, and signals for copying confirmation. The offence is likewise punishable with imprisonment for up to two years plus liable to a fine. The text of above mentioned proposed amendments are given as follows: (1) Section 65A. Protection of technological measures: . Any person who circumvents an effective technological measure applied for the purpose of protecting any of the rights conferred by this Act, with the intention of infringing such rights, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine. . Nothing in sub-section (1) shall prevent any person from: – doing anything referred to therein for a purpose not expressly prohibited by this Act: provided that any person facilitating circumvention by another person of a technological measure for such a purpose shall maintain a complete record of such other person including his name, address, and all relevant particulars necessary to identify him and the purpose for which he has been facilitated; or – doing anything necessary to conduct encryption research using a lawfully obtained encrypted copy; or – conducting any lawful investigation; or – doing anything necessary for the purpose of testing the security of a computer system or a computer network with the authorization of its owner or operator; or
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doing anything necessary to circumvent technological measures intended for identification or surveillance of a user; or
– taking measures necessary in the interest of national security. (2) Section 65B. Protection of rights management information: . Any person, who knowingly:
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removes or alters any RMI without authority; or
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distributes, imports for distribution, broadcasts or communicates to the public, without authority, copies of any work, or performance knowing that electronic RMI has been removed or altered without authority, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine; provided that if the RMI has been tampered with in any work, the owner of copyright in such work may also avail of civil remedies provided under chapter XII of this Act against the persons indulging in such acts described above.
Conclusion The nature and use of copyright material in the digital environment differs from that of the print environment. Copyright materials in digital format can be accessed almost instantaneously from anywhere at any time. Advances in technology makes it possible for the digital content to be quickly and easily copied on a large-scale without the copyright owner’s knowledge, without the use of intermediaries, transmitted, and used by multiple users. The new exploitation opportunities in digital environment have come with new challenges to provide protection to the copyright holders against unauthorized use of their contents in digital environment. Digital content created for different purposes and by different modes is not covered by copyright laws in equal and exhaustive terms. In the digital environment, it is commonly seen that copyright owners many times directly transact with consumers via contracts, licenses, etc. The current concern in the Indian context is that at present Indian legislation does not deal with the intricacies of computer-based network systems. This is true for many countries, particularly developing ones. Digital content providers will have to conform to various jurisdictional laws and policies regarding the content provided as well as addressing differing intellectual property laws. Content providers in India need assurance of the proper use of intellectual property in the open internet environment and efforts in this direction are underway. There should be legal mechanisms to protect against the hacking of technological protection measures applied to copyrighted works in digital environment. Content industries want to secure content through various technological measures. This could stifle opportunities to use the content and in turn limit creation of new knowledge. This is where initiatives such as creative commons help the authors who want their works to be freely and openly exchanged to inform others of their position. When a work is made available, an author can declare that it is provided under one of the various creative common licenses. Either way, whether it is to make available the content freely available or to provide it in secure paid manner, appropriate copyright laws need to be in place so that interests of content creators can be protected.
References Bearman, D. (2007), “Digital libraries”, Annual Review of Information Science and Technology, Vol. 41, pp. 223-72. Field, R. (1979), “The library as publisher”, Library Association Record, Vol. 81 No. 8, pp. 383-5. Fox, E. and Urs, S.R. (2002), “Digital libraries”, Annual Review of Information Science and Technology, Vol. 36, pp. 503-89. Heery, R. (2000), “Information gateways: collaboration on content”, Online Information Review, Vol. 24 No. 1, pp. 40-5. Indian Copyright Law (n.d), Existing Sections and Amendments Proposed, available at: www. copyright.gov.in/View%20Comments.pdf (accessed April 26, 2008). James, T.C. (2001), “Indian Copyright Law and digital technologies”, Invention Intelligence, pp. 262-72, November/December. James, T.C. (2005), “Digital technology and libraries: a copyright law approach”, Annals of Library and Information Studies, Vol. 52 No. 1, pp. 1-7. McMenemy, D. (2007), “Less conversation, more action: putting digital content creation at the heart of modern librarianship”, Library Review, Vol. 56 No. 7, pp. 537-41. Mahesh, G. and Mittal, R. (2008), “Digital libraries in India: a review”, Libri, Vol. 56 No. 1, pp. 15-24. Taylor, R. (2004), “MINERVA: archiving born-digital material at the library of congress”, Slavic and East European Information Resources, Vol. 5 Nos 1/2, pp. 157-62. WIPO Copyright Treaty (n.d), “Article 1 and 12”, available at: www.wipo.int/treaties/en/ip/wct/ trtdocs_wo033.html#P87_12240 (accessed April 26, 2008). About the authors G. Mahesh is a Scientist with the National Institute of Science Communication and Information Resources (NISCAIR). He has nearly 13 years experience in library, documentation, and information activities and has been involved in information products and services management, digital libraries. He is a faculty member of NISCAIR’s Associateship in Information Science Course and is currently also the Coordinator of India’s National Focal Point of the SAARC Documentation Centre, New Delhi. G. Mahesh is the corresponding author and can be contacted at:
[email protected];
[email protected] Rekha Mittal has been associated with NISCAIR. She has more than 28 years experience in information services and management. She has several publications to her credit both in national and international journals.
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