Rights Management and the Digital Library Workflow

Introduction

There are complex technical issues that must be resolved in the development of digital libraries. The technical workflow, however, can be overly burdened by the policy and legal obligations that intellectual property rights pose. If the rights are incorporated into the work flow at appropriate times this burden can be lessened and the documentation of rights will be less disruptive of the technical processes.

In this document we propose a way to break down the work flow so that rights are handled at the appropriate points. Our other goal is to make sure than some processes, like the submission of a digital resource to a repository for preservation, are not hindered by rights that should be settled in other parts of the system.

The Workflow

The diagram below shows a macro view of the digital library workflow, with the following steps:

1. Digitize: library digitizes documents, or receives digital documents. In either case, the library has digital documents that need preservation.
2. Package: preservation will require the creation of preservation metadata and the packaging of the digitized files in a secure and portable format.
3. Submit: the authorized preservation agency within the library submits the digital resources to the repository. The materials in the repository may be technically safe, but they must also be made safe (to the extent possible) from human error, i.e. the overwriting of files or accidental deletes. The role of the preservation agency is to interact with the technical specifications and security measures of the repository to control the flow of materials into the repository, including updates and deletes.
4. Provide access: in addition to preserving the materials, the library may be providing access to a defined set of users. Placing materials in the repository does not change their status in terms of intellectual property rights. Some materials may be preserved that are not accessible to library users, and some materials accessible to library users may not be in the repository.
5. Disseminate: if a library needs to receive a copy of materials it has placed in the repository (for example to replace a damaged copy), it can request that the repository disseminate the resource package to an authorized representative of the library. Some materials may be available to other members of the community as well, and the dissemination of these materials will be governed by policy statements and the repository's authorization technology.
6. Restore: the library can restore a damaged copy or refresh its access system using materials from the repository.

As we work through these steps we will highlight the issues of rights, both those that must be determined at that step, and those that should be carried with the digital resource as it is used by that function.

Digitize Documents

This is a key area where decisions about rights are made. The library or archive must determine whether it has the right to make the copy. For the rights work flow the most important thing here is to record how that decision was made. Note that the right to make the copy may be different from the access rights, and that a careful recording of the right at this point in the work flow will inform access decisions later on. The key categories of rights in this area are:

• The work is in the public domain, so no rights need to be secured.
• The copying is covered under the library reproduction rules of section 108 of the copyright law. Section 108 is generally interpreted to allow libraries to make up to three digital copies of a work for archival purposes, under these conditions:
• The work is in the library's collection, is unpublished, and the library wishes to make a copy for the purposes of preservation.
• The library's copy of a published work is deteriorated or was lost or stolen; the work is out of print; the work is on or of a medium that has become obsolete; a replacement copy is not reasonably available.

Section 108 also requires that the relevant copyright notice be included on the copy, or the library must supply such a notice following a prescribed format.

• The copy being made by the library is covered by fair use (section 107 of the copyright law).
• The library has a license or contract with the rights holder that allows the copy to be made. This also covers the case where the rights holder is the same institution as the library, such as the Regents of the University of California, such that the library and the rights holder are the same.

Although the determination of rights may be a difficult process, below we will suggest some simple categories for recording the determination so that the information on rights can be easily carried with the digital resource.

Digitizing Documents

Package Creation

There are no additional rights required for the creation of the digital package. This step is important, however, because it involves the creation of metadata that will be carried with the digital resource into the repository and wherever the resource is stored or accessed. It is our goal to specify a small number of rights metadata elements that would be included in the package.

Submission to a repository

What enters a digital repository is a discrete package that contains resource files and metadata relating to those files. The package that enters the repository is itself a copy and that copy is covered under Section 108 of the copyright law. The law permits libraries to make up to three digital archival copies of both published and unpublished materials for storage and retrieval.

Packaging and Submission

Provide Access

Libraries provide access to hard copy materials by lending them, and this is covered under the First Sale doctrine. With digital materials, however, there is no method of lending or accessing that does not require the library to make a copy of the material. The Digital Millenium Copyright Act allows libraries to make digital copies for preservation purposes but restricts distribution of those works to the library's premises. Libraries can provide access to public domain works, or works for which the library has obtained permission from the copyright holder. Some uses may also fall under Section 107 of the copyright law, which defines "fair use."

Access

Disseminate and Restore

The purpose of the archival version of the digital copy is to allow the library to restore the archived copy should the library's working copy be damaged or lost. We are using "dissemination" here solely as part of the library's archival function, not dissemination to end-users or to other libraries, which is covered under Access.

Restore

Rights Categories for Repository Packages

Below we give some very simple rights categories that could be attached to resources in the Digital Repository. These rights categories do not change the submission and update rules of the Repository, which limits those functions to the Depositor institution. The Deposit restrictions are not based on rights but on the system's need for security. The rights categories would be used in a future scenario should the Repository be opened for wider access, or to inform campus staff as to the availability of digital materials in the UC environment.

For any given deposit, the package could be given one of these access codes:

• Public Use
• UC Use
• Depositor only
• Other

We are assuming that the Repository will only be able to disseminate entire packages, not parts of packages. For this reason, if a package has items with different levels of access (i.e. high resolution images that are UC only, and thumbnails that can be accessed by the general public), the individual items within the package may have their own access codes, but the package itself must be coded with the most restrictive access level.

Rights Metadata

The access codes suggested here for use in repository packages are not the same as the rights metadata that is needed to describe the full rights associated with the resource. Many items will either be in the "other" category, or will need additional statements about the rights. Section 108 of the copyright law requires that any rights statements on a piece be included in the copy of the piece made by the library for archival purposes. Although such a statement is a minimum requirement, ideally each deposited resource would contain full contact information for inquiries about additional rights. When possible this contact should be one that will be of long duration (thus a department or unit rather than an individual), and will often not be the rights holder. At the very least, rights metadata should include:

• Who holds the rights, and the date associated with the rights. If "unknown", then that should be stated here, as should a statement that the resource has been determined to be in the public domain.
• Who is making the rights assertion for the depository package. This may be the depositor (i.e. a UC library's systems office), or it could be the archive or department that holds the original, and who provided the rights information for the digitization project.
• Who to contact regarding rights. This should be full contact information (name of unit, address of unit, phone numbers, etc.). This would be the department that could answer questions like: "Can I use this material on a public web site?"; or "I'd like to reprint this in a course pack. Who should I contact for permission?"