How to make rights determinations
In her third post in a short series, Anne Young explores the practical details for doing some rights determinations. Read the first post here and the second one here.
Do your homework first: do you know the copyright status of your collection objects?
GLAM institutions need to do some research before they make Public Domain content — or content in which they hold copyright — available via Open Access. Otherwise, what authority do they have to enact Open Access?
The challenges to R&R Specialists determining public domain with certainty are if a work has been published, registered, where was first published, if it was published with notice, and if registration was renewed. The older the work is, the harder it can be to answer these questions.
Firstly, you need to keep in mind the intellectual property and other issues discussed previously. Depending on the type of GLAM and the object(s) they steward, more than one IP type may apply. For simplicity today, I will address these general rules in terms of copyright, but the concepts can be applied to those other issues too.
Secondly, you might need to make broad determinations on a collection overall. Most R&R specialists don’t have the time or resources to research at the item level. General rules for making broad determinations include asking yourself the following questions:
- When was the work published? Assume all works by the creator are unpublished or unregistered until research on individual works concludes otherwise, then calculate the term that applies in your country.
- Who made the work? Works by anonymous creators or creators whose death date is unknown, and some other works, such as works made for hire, or in certain countries works made by corporations or institutions, might have a different term of protection that runs from the date of creation. For example, In the US, the first two types of works are under copyright for 120 years from the date of creation.
- Was the work created by more than a single author? A single work may have multiple creators and therefore multiple copyrights, such as with underlying rights.
- When did the author die? Works by living creators or creators who died in the past 70 years are under copyright for the life of the creator plus 70 years, if you are in a country that has life plus 70 years term. Check the term of your country here.
- Are there any exceptions that apply? In some cases, you could publish the work on the GLAM’s website if limitations and exceptions apply, such as fair use in the US.¹
With all these in mind, plus the “other” considerations and the rules for broad determinations, we can start to consider how a GLAM can establish its R&R workflow: the bread and butter of processing requests to utilize collection content.
In our next post, we’ll analyze possible scenarios to institute a rights and reproductions policy and its impact on Open Access.
Disclaimer: The content of this post does not constitute legal advice nor does it refer to any particular or specific situation. If you have any doubts about your specific situation, you should consult with a lawyer.
These posts were compiled out of the set of tweets that Anne did during her curation of the @openglam Twitter account. Remember you can do it too, just sign up here!
Anne Young is the Director of Legal Affairs and Intellectual Property at Newfields and editor of “Rights and Reproductions: The Handbook for Cultural Institutions, Second Edition”, for which she received the Visual Resources Association’s Nancy DeLaurier Award in 2017.
[1] Megan P. Bryant, Cherie C. Chen, Kenneth D. Crews, John ffrench, Walter G. Lehmann, Naomi Leibowitz, Melissa Levine, Sofía Galarza Liu, Michelle Gallagher Roberts, Nancy Sims, Deborah Wythe and Anne M. Young, Rights and Reproductions: The Handbook for Cultural Institutions, Second Edition. Edited by Anne M. Young. Lanham, Maryland: Rowman and Littlefield, 2019, p. 65–66.
