3. Intellectual Property Rights

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By Cecilia Buffery (RBGK), in publication as: IPR problems and solutions for the natural history domain, in: OpenUp! Newsletter #5, p.9-12

 

Table of contents

1. Introduction

2. OpenUp! Data Access Agreement

3. OpenUp! Memorandum of Understanding (MoU)

4. Europeana Licensing Framework

5. The Europeana Data Use Guidelines

6. Sensitive Issues for Natural History Organizations

7. GBIF

8. References

 

1. Introduction

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Natural History institutions considering allowing access to their multimedia content via the OpenUp! technical infrastructure will be sharing that content via the BioCASe provider software to Europeana, which allows for additional sharing to GBIF and the BioCASe Network. Accessing content and sharing information has Intellectual Property (IP) implications which will need to be considered by policy advisors at participating institutions. The requirements of the project will necessitate signing the following:

  • OpenUp! Data Access Agreement
  • OpenUp! Memorandum of Understanding, at the end of the project.
  • Europeana Data Exchange Agreement (DEA), part of the Europeana Licensing Framework.

To help in assessing what this means to your institution the rest of this document will look at these requirements in more detail and put them into context.

2. OpenUp! Data Access Agreement

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This agreement (between a content provider and the OpenUp! project coordinator) outlines the terms under which the provider’s information will be used. Its two main elements are:

  • All textual metadata provided via the BioCASe provider software is under the terms of the Creative Commons Zero Public Domain Dedication (CC0 waiver)
  • All other content, such as previews, soundbits, and the content referenced by a URI (web addresses) in the metadata do not fall under the CC0 waiver and remain completely under the control of the Content Provider.

These two undertakings will ensure the aggregated information is compatible with the requirements of Europeana. A modified version of the DAA is in use by certain existing providers, whereby the textual metadata released under CC0 is restricted to a subset of fields.

3. OpenUp! Memorandum of Understanding (MoU)

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At end of the project funding, OpenUp! consortium partners will be asked to commit to maintaining and enriching Europeana with Natural History content. The MoU describing these efforts will be formulated later this year and will need to be signed by all consortium partners and additional partners of the OpenUp! project.

4. Europeana Licensing Framework

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Understanding how CC0 and other rights statements are used within Europeana requires a closer look at the difference between content and metadata. Europeana suggests that visualising 4 layers of information helps illustrate this. The 4 layers are (2):

As far as Europeana is concerned, layers #1, #2 and #3 are Content (The rights to Content, including previews, are under the provider’s control, and usage terms will be specified through the rights statement). Everything in layer №4 is public domain – CC0 (there is no restriction on re-use). Europeana considers all textual data to be metadata to the content. Although in the natural history domain some of that textual data are considered scientific data. (See chapter: Sensitive Issues for Natural History Organisations).
The Europeana Licensing Framework provides the context for the relationship between Europeana, its data providers (and other contributors) and its users in regard to the layers #2 to #4. The main elements of the framework are:

  • Data Exchange Agreement
  • CC0 copyright waiver
  • Europeana Data Use Guidelines

Rights statements

The Europeana Data Exchange Agreement (DEA). The DEA is the central element of the Europeana Licensing Framework. It specifies how metadata (layer #4) and previews (layer #3) provided by data providers can be used by Europeana and third parties. It details the exchange whereby data providers receive back enriched metadata as well as access to other metadata of interest. It establishes rules for updating and deleting metadata stored by Europeana and deals with issues such as liability and removal of data at the request of third parties. The two main principles relating to Europeana’s use of providers submissions are:

1) Data providers grant Europeana the right to publish previews provided to Europeana. (The rights in the preview still belong to the provider but Europeana has a licence to display it on the site)
2) For all other metadata provided to Europeana, data providers grant Europeana the right to publish the metadata under the terms of the Creative Commons Zero Universal Public Domain Dedication.
The Creative Commons Zero Universal Public Domain Dedication (CC0 waiver). The CC0 waiver is a legal tool that has been developed by Creative Commons whereby copyright owners can waive that right if they choose to. The DEA establishes that Europeana publishes metadata it receives from its data providers under the terms of
the Creative Commons Zero Universal Public Domain Dedication. This means that anyone can use the metadata published by Europeana for any purpose without any restrictions whatsoever. Its basic principles are:

  • Re-use of licensed material is free from all restrictions.
  • Copyright and similar rights are waived.
  • In jurisdictions where copyright cannot be waived, it provides a “condition-free” licence.
  • In jurisdictions where such a licence would be invalid, it asserts that the rights holder will not exercise those rights.
  • Commercial use is permitted.
  • Silent on Attribution (Citation is not required)

5. The Europeana Data Use Guidelines

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A link to the “Terms of use & Policies” will accompany any content page in Europeana, giving information about the Data Use Guidelines. These guidelines make best practice requests to users of the metadata. They are non-binding but reflect the norms of the Europeana community. The Data Use Guidelines deal with issues like attribution and data integrity. The guidelines should be read in conjunction with the CC0 waiver and form part of the Europeana Licensing Framework. They deal with some of the issues certain providers might prefer were part of the licence itself, but separating them out into a nonbinding usage guideline allows Europeana much greater flexibility in how it disseminates its message.
The main elements of the guidelines are:

  • Attribution strongly recommended but not a formal licensing condition
  • Dynamic metadata – recommend use of Europeana APIs
  • Acknowledge modifications
  • No endorsement
  • No warranty

Rights Statements

Whilst the metadata is licensed under CC0, the previews of the digital objects (layer №3) and the digital objects themselves (layer №2) that this metadata describes need not be. Users of Europeana need to know what conditions are attached to the downloading and re-use of objects they have seen through the portal, and there is a specific metadata field devoted to this. Providers must choose from a limited list of standardised rights statements which are linked to explanatory documents. So the last aspect of the Europeana Licensing Framework to explore here is the choice of rights statement to attach to a provider’s content. Providers are obliged to state under what terms the viewer can access and use the digital objects referenced in Europeana. There are four classes of rights statements to choose from:
1) Public Domain Mark (PDM) – out of copyright. Objects that are not protected by copyright (either expired or never under copyright) should be marked as being public domain by applying the Public Domain Mark

2) CC – Zero (copyright waiver)

3) Creative Commons Licences. When the data provider is also the rights holder and wants to make the digital object available for re-use (or has been authorized by the rights holder to do so) the data provider can apply a Creative Commons licence. These are standardised and widely used waivers of certain rights – there are different licences for different conditions. These are:

  • CC BY (Attribution)
  • CC BY-SA (Attribution, Share Alike)
  • CC BY-NC (Attribution, for non-commercial use only, others can apply different license on derivatives)
  • CC BY-NC-SA (Attribution and share alike for non-commercial use only)
  • CC BY-ND (Attribution without derivative)
  • CC BY-NC-ND (Attribution, for non-commercial use only and without derivative)

4) Rights Reserved. When the data provider is also the rights holder and wants to make the digital objects available without authorizing re-use by third parties under Creative Commons conditions, the data provider can apply one of the three available Rights Reserved statements

  • Rights Reserved – Free Access
  • Rights Reserved – Paid Access
  • Rights Reserved – Restricted Access

5) Unknown. Digital objects whose copyright status is unclear (for example because no rights holders could be
identified) can be marked with an “unknown” copyright status statement. This should be used only if absolutely necessary The choice of rights statement will depend upon the nature of the digital object it covers and the policies
of the providing institution. You can only apply one rights statement to each object. Providers will need to familiarise themselves with the details of each statement type before selecting the most appropriate for any given object.

6. Sensitive Issues for Natural History Organizations

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Attribution
Much of the content on Europeana comes from nonscientific organisations which may not use attribution and citation in the same way as scientific communities. For some of the objects, the associated metadata is merely descriptive and commonplace, for others the metadata can be rich and significant intellectual investment has been made in it. Information from Natural History organisations participating in OpenUp! often falls into the latter  category, and because of that investment, the lack of a licence condition stipulating attribution can be a concern. The argument for not making attribution a licence term is that where information is supplied by multiple providers and enriched in layers by others over time, enforcing attribution can make an entry’s listing and re-use extremely cumbersome and off-putting for some applications. Further, it is best practice in scientific communities to cite sources of information wherever practical to do so, regardless of formal obligations, and there is no indication that the absence of such an obligation here will alter that practice.

Commercial Use
Many of the organisations considering contributing to OpenUp! will be comfortable sharing information for educational and research purposes, but may be less comfortable with the prospect of permitting commercial use of their data. The term “commercial” is however open to interpretation and in its most expansive definition has the potential to restrict Europeana from engaging in activities in which a lot of providers would have little objection. Examples of such activities include compatibility with Wikipedia and sharing as Linked Open Data. Additionally once data are on the open web it becomes very difficult to enforce any restrictions on it, and it may be better to share only that information where such loss of control is tolerable. It is important to note that applying a CC0 licence does not prevent the licensor from making commercial use of its own material, nor does Europeana intend to make direct commercial use of the information it hosts.

7. GBIF

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A final remark about the IP implications of contributing to GBIF. This document has focused primarily on the Europeana aspect of the OpenUp! Project because that portal has the most permissive approach to data re-use. Contributing to GBIF will not necessitate the signing of any additional agreements as only one national institution signs the GBIF MoU, not all individual contributors. GBIF differs from Europeana in that it deals in data only. The data providers retain all rights, but the GBIF policy allows free access to that data and states attribution is a condition of use. GBIF data providers can add specific terms and conditions of use to their own data which are reproduced when the data are downloaded.

8. References

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  1. Much of the text here is derived from policies, guidance documents and FAQs available on the Europeana website, which are licensed under the Creative Commons Zero Universal Public Domain Dedication. The text is based on a presentation given at the 2nd OpenUp! Tutorial, held at the 2nd Annual OpenUp! Meeting in Prague in April 2013.
  2. Paul Keller: Main Aspects of the Europeana Data Exchange Agreement, Nov. 11th 2011. Online presentation, slide 5. For more information see: http://pro.europeana.eu/web/guest/content-and-metadata

 

Further reading