Clipper – Legal Issues – the long version

At the last Jisc sandpit workshop we were asked by the Judges to expand on the legal issues surrounding the use of Clipper. This is quite a long post but we thought it best to have this all in one place. Here we analyse the situation from 2 points of view (this is a working draft):

  1. The owners / managers of the audio-visual content that is being clipped and annotated
  2. The users who are generating the clips and annotations

Contents

 1 – Owners / managers of the audio-visual content that is being clipped and annotated

  • Copyright
  • License compliance
  • Misrepresentation, ‘Passing Off’’ & Moral Rights
  • Moral Rights
  • Database Right
  • Privacy and Data Protection

 2 – Users who are generating the clips and annotations

  • Copyright
  • License compliance
  • Misrepresentation, ‘Passing Off’’ & Moral Rights
  • Moral Rights
  • Database Right
  • Privacy and Data Protection

We shall present this analysis in terms of the legal rights and responsibilities of both groups and include, where relevant, the technical aspects of Clipper that affect the legal issues. We also include risk mitigation ideas that can be included in the design of Clipper and provision of sources of guidance (as sub bullets).

It should be noted that the legal issues identified here also apply to anyone creating and sharing web content in general and are not exclusive to Clipper in particular.

1) Clipper – Collection content rights owners / managers / licensees

Copyright

  • Perhaps the most obvious legal issue is copyright (the law governing who can and cannot make copies of intellectual works) this is governed by the Copyright, Designs and Patents Act 1988 (as amended), more general information is available from the UK Intellectual Property Office at this link.
  • Clipper does not copy, or cut, or move the source content when it creates a virtual clip – so it does not break copyright law
  • Clipper only plays an existing media source from a user defined start point to an end point
  • The user only clips and annotates content that they already have a right to access
  • Copyright statements and information can (and should) be included in any Clipper installation as well as citation and bibliographic information. So when installing Clipper locally in-house or as a shared service it will be important to have it ‘connected’ appropriately to existing sources of collection records and bibliographic information so this can be accessed easily and included automatically – we have been discussing this in practice with the BUFVC at recent meetings
  • So, in an installed version of Clipper we could have the copyright statement and citation information for the resource content displayed in different ways as text next to the clips. Another option is to copyright statement and citation information displayed automatically at the start of a clip. In these ways both the creators and end users will be made aware of the legal rights governing the use of the content
  • A clip or cliplist created and shared by a user in ‘edit mode’ will only have content that can be viewed by an end user in ‘consumer mode’ if the end user has the same rights to view it. To try this out in practice, as an experiment we have created a clip from a video in the Jisc media hub service here’s the link to our clip http://reachwill.co.uk/clipper2.1/wp-content/users/clipper23/1446497366815/?clipid=1446820807702. It has an annotation at 00:01:01. To play the clip you have open another tab in Chrome and log into the Jisc Media Hub site at http://jiscmediahub.ac.uk/ via the UK Access Federation – you should then be able to play the clip (after refreshing the browser). Please note that the large ‘play button’ at the top of the page will not work – use the small ‘play button’ under the clip
  • So, if you are logged into the Jisc Media Hub service you will see the content of the clip. If you are not logged in you will not see the resource content but you will see the user-generated information about the clip and the Clipper player app.
  • The clip is taken from a resource called “BRITAIN TO DEVELOP NEW FIGHTER JET:” at this web address: http://jiscmediahub.ac.uk/record/display/024-JISC_T17010120_01. You can only view this resource content if you log into the service via the UK Access Federation
  • Important – there are other protected sites that we are working with where there are more technical obstacles to both making clips and playing clips, such as the Scottish Screen Archive (http://movingimage.nls.uk/) and EUScreen (http://euscreen.eu/) – where the paths to the resource files are obscured. In phase 3 we hope to explore satisfactory solutions with these kinds of services to both creating clips and sharing them that keep content rights holder happy.
  • Of course, in those sites that are more openly licensed things can be easier (at least legally)
  • For research content (after our workshop encounters and discussions) we envisage the main legal protection measures not to be very technical (although in some cases that may be so) but will comprise service terms and conditions, data protection law, employment contracts and research ethics codes etc. Technical protection is likely to be governed by institutional user accounts and related permissions in research data management systems and that could be included in Clipper to govern levels of access and amount of functionality a user would have access to in Clipper in relation to research workflows (a bit like the levels of permissions in WordPress)
  • A ‘Notice and Takedown’ policy can and should be added to any Clipper installation or service to manage disputes
  • Perhaps most importantly, a clearly written legal guidance pack for Clipper installers and users should be made available with Clipper code distributions – this could include an online help / FAQs section built into Clipper

License compliance

  • If the source content that a Clipper installation or service is using is governed by one or more licenses then it is important that the license information is conveyed clearly to both the Clipper creators / editors and end users. The situation is very similar to that involved in the Flikr online image sharing service.
    • The solution to this is largely covered in the copyright section above – by making sure the copyright / license information is correctly displayed to users 

Misrepresentation, ‘Passing Off’’ & Moral Rights

  • There is a risk that a user of Clipper could (deliberately or accidently) misrepresent the source content as being produced by themselves or someone else by embedding a clip / cliplist in a web page, sometimes referred to as ‘passing off’ someone else’s work as yours. This would infringe the authors / creators moral rights
    • A good solution to this is to have the bibliographic / copyright information clearly displayed and accessible by users so they find it difficult to claim they did not see it
    • Admin settings in a Clipper install could mandate / enforce the display of copyright information in a number of ways – including at the start of each clip
    • Terms of service are another level of protection – where users have to agree to the terms and that agreement is recorded in the system in case of future disputes
    • The legal guidance pack and an online help / FAQs section would also provide further assurance, in terms of due diligence etc.

Moral Rights – some more detail

In addition to copyright, the moral rights of the authors / creators are protected under law (its worth remembering that often authors sign over – or assign – copyright to publishers or their employers). Moral rights include (the descriptive text in the first bullet points is reproduced from the IPO web site under the OGL licence):

Right to be identified as an author (attribution right)

  • This is the right to be recognised as the author of a work. This right needs to be asserted before it applies. For example, in a contract with a publisher, an author may state that they assert their right to be identified as the author of their work.
    • This right can be complied with by the correct display of the copyright and citation and bibliographic information. 

Right to object to derogatory treatment

  • Derogatory treatment is defined as any addition, deletion, alteration to or adaptation of a work that amounts to a distortion or mutilation of the work, or is otherwise prejudicial to the honour or reputation of the author.
    • The correct display of the copyright and citation and bibliographic information will help to ensure that the end user is made aware of the provenance of the clips and their relations to the parent works. Being able to access and play the entire parent would also help comply with this right, for instance by having a ‘Play all’ option or similar
    • Guidance (built into Clipper distributions) to users on how to avoid derogatory treatment would provide further assurance as would a terms of service agreement and notice and takedown policy 

Right to object to false attribution

  • This is the right not to be named as the author of a work you did not create. This would prevent, for example, a well-known author being named as the author of a story they did not write.
    • The correct display of the copyright and citation and bibliographic information will help to ensure that the end user is made aware of the provenance of the clips and their relations to the parent works. Being able to access and play the entire parent would also help comply with this right, for instance by having a ‘Play all’ option or similar
    • Guidance (built into Clipper distributions) to users on how to avoid false attribution would provide further assurance as would a terms of service agreement and notice and takedown policy.

Right to privacy

  • This right enables someone who has commissioned a photograph or film for private and domestic purposes to prevent it from being made available or exhibited to the public. For example, this would allow you to prevent a photographer from putting your wedding photographs on their website without your permission.
    • For research content research ethics codes, data protection law and user awareness are source of assurance as are would a terms of service agreement and notice and takedown policy.
    • Guidance (built into Clipper distributions) to users on how to avoid infringing privacy would provide further assurance 

Database Right

‘Databases are protected by copyright if the selection and/or arrangement of their contents is original. But they may also, or instead, be protected

by ‘database right’ if there has been a substantial investment to make the database. Database right protects databases against anyone extracting and using their contents without permission. Database right lasts for 15 years from when the database is made or, if the database is published during this time, for 15 years from publication.’(from ‘Copyright: Basic facts’ published by the IPO)

Actions that might infringe this right are described as:

“16.—(1) Subject to the provisions of this Part, a person infringes database right in a database if, without the consent of the owner of the right, he extracts or re-utilises all or a substantial part of the contents of the database.

(2) For the purposes of this Part, the repeated and systematic extraction or re-utilisation of insubstantial parts of the contents of a database may amount to the extraction or re-utilisation of a substantial part of those contents.”

Permitted uses – any lawful user of the database has a right under regulation 19(1)

‘A lawful user of a database which has been made available to the public in any manner shall be entitled to extract or re-utilise insubstantial parts of the contents of the database for any purpose.’

Extracts quoted from the The Copyright and Rights in Databases Regulations 1997

This right would extend to the catalogue of a film collection or a database of gene types, for example. However, in a research setting the database right would tend to be owned by an employer and use of it would be legal and / or governed by consortium agreements with third parties etc. (or should be). In the case of a public facing audio-visual collection it might be argued that there was an implicit right to use the database embodied in the collection records to create a cliplist. It would be sensible to review this when contemplating integrating a Clipper service into an existing collection.

Privacy and Data Protection

  • In the UK Data protection is governed by the UK Data Protection Act.
    • For research content, research ethics codes, data protection law and user awareness are source of assurance as are a terms of service agreement and notice and takedown policy.
    • Guidance (built into Clipper distributions) to users on how to avoid infringing privacy data protection would provide further assurance

2) Clipper users who are generating the clips and annotations

In broad terms the same legal rights and obligations that apply to the Clipper content owners also apply to the Clipper users who are generating the clips and annotations. It is worth expanding on this a little under the same headings as above.

Copyright

  • The titles and descriptions of the Clips are copyright of the creators.
  • The content of the annotations are copyright of the creators
    • It will be important to be able to record and display the copyright, citation and bibliographic information connected with this user generated content
    • In some cases the use of DOIs to identify cliplists, clips and annotations may provide further assurance

Misrepresentation, ‘Passing Off’’ & Moral Rights

A user who has created clips and annotations may face the risk of having these misrepresented elsewhere.

  • A good defence against this risk is record and display the copyright, citation and bibliographic information connected with this user generated content
  • In some cases the use of DOIs to identify cliplists, clips and annotations may provide further assurance

Moral Rights

  • Right to be identified as an author (attribution right)
  • Right to object to derogatory treatment
  • Right to object to false attribution
  • Right to privacy
    • For all moral rights: The correct display of the copyright and citation and bibliographic information about the creators of the clips and annotations will help to ensure that the end user is made aware of the creators rights – as well as the provenance of the content of the clips and their relations to their parent works.
    • Guidance (built into Clipper distributions) to users on how to comply with moral rights further assurance

License compliance

  • The creator of a clips cliplists and annotations may wish to license these in different ways. For instance, an annotation may be licensed by its creator under a Creative Commons Attribution But the clip content it is related to be maybe strictly copyrighted in a pay-per access service. In this case the annotation maybe distributed freely but only those who pay to view the clip content have the rights to do so. Note the legal right and technical ability to access the content are not always the same – as in the case of piracy – technical access to content alone does convey legal rights.
    • The correct display of the copyright and citation and bibliographic information about the creators of the clips and annotations will help to ensure that the end user is made aware of the creators rights

Database Right

  • It is quite possible that the creators of cliplists have a database right of their own. As with copyright it is important for the creator to clearly indicate the user rights they want others to enjoy from their creation.
    • The correct display of the copyright and citation and bibliographic information about the creators of the clips and annotations will help to ensure that the end user is made aware of the creators rights and intentions

Privacy and Data Protection

  • In the UK Data protection is governed by the UK Data Protection Act.
    • For research content, research ethics codes, data protection law and user awareness are source of assurance as are a terms of service agreement and notice and takedown policy.
    • Guidance (built into Clipper distributions) to users on how to avoid infringing privacy data protection would provide further assurance

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