22 July 2016

Checklists: Rights, Risks and Rewards

©Naomi Korn, 2016. Some Rights Reserved. This article may be reused and shared under the terms of a Creative Commons Attribution Share Alike Licence

Checklists are a highly rewarding way to provide clarity for you and your organisation about what you need to do regarding rights, permissions and keeping risks to a minimum. The checklists below which can provide a useful compliance framework, when backed up with the appropriate template rights clearance forms, procedures, policies and staff training. Further information can be found at:

nkcc-flipchart

www.web2rights.com/SCAIPRModule

www.web2rights.com/OERIPRSupport

Reducing Risks Checklist

Be aware of copyright material on your computer systems. This can be checked by carrying out an audit of illicit storage or transmission and unauthorised copies of copyright material should be deleted.
Awareness about rights and permissions can be incorporated within student and user guidelines when they join the library or educational establishment. Try and build copyright-know how into courses and general digital literacy, rather than “othering” copyright and alienating you and the key messages you are trying to communicate.
Copyright notices should be placed next to all photocopying and scanning machines and/or in areas where copying using hand-held personal devices are used. The copyright notices for UK libraries should be up to date www.cilip.org.uk/copying
Designate an appropriate compliance officer/expert in your team or alternatively make it clear where to go for further advice. Anectodotally, organisations who have staff who know about rights and permissions, are more likely to be able to make pragmatic and informed decisions.
Make sure that all staff are aware of, and comply with any licensing conditions associated with the use of print and/or digital resources, such as CLA licences, material they can get hold off udner Creative Commons Licences and subscribed digital material.
Managers should be informed if an infringement takes place and the matter should be dealt with quickly in accordance with an agreed organisational Notice and Take Policy and Procedure.
Set a clear copyright policy and general code of conduct for your organisation, backed up with clear procedures, tools and awareness raising amongst staff i.e. a top down, bottom up approach.
Take security precautions against further violations (firewalls; port scanning to detect peer to peer; virus protection; automatic inventories).
Train your staff so that they know what the issues are and what is expected of them.

Tracing Rights Holders Checklist

Image Recognition Software – use free sites like Tin Eye and FotoForensics as well as Advanced Google Search!
Check the acknowledgements and notes of published works/exhibition catalogues about the author.
Check the internet for information about the creator of the material and download all searches.
Check the WATCH file on the Internet for information about artists and writers (entered through http://www.lib.utexas.edu/hrc/aboutwatch.html)
Check which other organisations which might hold works by that artist/creator and contact them to see whether they can provide any information about the rights holder.
Check with the British Library www.bl.uk. For finding the copyright holder of a book (still in copyright) published by a now defunct publishing house, send a query to the British Library through their Website http://www.bl.uk/index.html
- Collecting societies can often provide useful information about rights holders: CLA (Copyright Licensing Association) www.cla.co.uk
- DACS (Design and Artists Copyright Society) www.dacs.co.uk
- Publishers Association www.publishers.org.uk
- ALCS (Rights Management Society for Authors) http://www.alcs.co.uk/
Establish whether the work been lent/bequeathed/given by the rights holder. If so, can the person who gave the material provide any contact information for the rights holder?
Google it!
If the artist or author is still living, then you maybe able to find out their contact address through the online directory enquiries or alternatively if they live abroad a similar search engine for their home country.

Is the material held in a Picture Library or stock photography agency?

Is the work by an academic, student, member of support staff or anyone else directly (or indirectly) connected with your organisation?
Place an advert in a relevant trade journal or magazine in order to trace the rights holder.

When you have found the rights holder: Negotiating Rights Checklist

Always try and use your own agreements rather that those of a third party particularly if your rights are being used.
Clearly articulate who you are, your aims and the context of your use, particularly if you are not-for-profit, carrying out activities for non commercial purposes etc
Familiarise yourself with the other party and what their aims and objectives are and try and pitch your request accordingly?
If you feel that you are being asked to compromise or give too much, walk away and reconsider your position.
Leave yourself plenty of time to negotiate rights – build it into project management and budget management.
Make sure that you stipulate what happens when the licence has expired.
Never promise to do something to which you cannot comply.
Read the contract carefully, if you don’t understand something, try and get further advice.
The inclusion of terms such as “in perpetuity” or “world-wide” rights can cost more money and these maybe more rights than you need.
Try and group all the rights that you need for your organisation into one request instead of constantly going back to re-negotiate. The effort taken in co-ordinating efforts will strengthen your hand with the rights holder.
Try and reassure the other party that you will try to protect and manage their rights (particularly in the digital environment), but be realistic in terms of what you actually can do!
Where appropriate, make sure that students, staff and any funding parties, or third parties with whom you have a relationship, are also covered for their use of the material within the licensing agreement.

When you are deciding what to do when you can’t find the rights holder or they are unknown “Orphan Works”: Risk Assessment Checklist

Consider how you might mitigate risks when considering the use of Orphan Works. These might include:
- Disclaimers
- Credit Lines
- Notice and Take Down Policies and Procedures
- Reproducing images in low resolution
- Limiting use to low risk orphan works only (see below).
- Restricting any use to “Non Commercial research or private study”
- Putting money aside in case rights holders come forward and/or taking out insurance
Decide how many attempts you will make to try and trace rights holders (see Checklist 2 – above). This should reflect your organisation’s appetite for risk and the resources available to clear rights, as well as any legislative requirements after the implementation of any orphan works solutions.
Keep records of all attempts made to contact the rights holders.
Remember that whilst proportionality and making informed judgements is crucial – it is not a finite science.
Use the Risk Management Calculator to help provide you with an indicative risk score www.web2rights.com/OERIPRSupport
If you are a cultural heritage organisation and have text and/or audio works, consider the use of the Orphan Works Exception