Copyright Clearance and Labelling Works: a primer

About 

Before deciding how to label and publish works in your collection (whether with a Rights Statements or a Creative Commons tool), you need to conduct some rights research over your collection. What is in the public domain? What is in-copyright? What are the unknowns, and how much risk can we take? In this webinar, the panel speaks about the different strategies that GLAMs follow to conduct rights research, and existing tools that can support this. 

This webinar was organised by Open GLAM, the Special Interest Group on Intellectual Property at the Museum Computer Network, and the Copyright Community at Europeana. It took place on 25th of June 2020, 16.00 CET. 

Speakers

• Annabelle Shaw is the Copyright and Rights Systems Manager at the British Film Institute (BFI) and leads on the rights work for archive digitisation and access projects.
• Victoria Stobo is a Lecturer in Record-Keeping in the Liverpool University Centre for Archive Studies. She has worked in a variety of archives, museums, libraries and galleries since 2008. Her PhD examines the ways in which copyright law affects the digitisation of archive collections in the UK.
• Melissa Levine is the Director of the Copyright Office at the University of Michigan. Melissa was responsible for the Copyright Review Management System (CRMS), an initiative to learn more about the copyright status of books in HathiTrust. She is also a member the DPLA's working group to promote Rights Statements.

Resources

• Join the Europeana Copyright Community to find out more about copyright and the cultural heritage sector, network with peers and hear about relevant events, resources and opportunities.
• The text below offers an edited version of the conversation at this webinar; it was originally posted in the OpenGlam Medium by Scann. 

What is the work that you do around rights clearance? What projects and in what way have you been involved in projects around rights clearance, from either a research perspective or a practitioners perspective?

Annabelle: I work at the British Film Institute and the projects and things that I’ve been involved with over the years focused around the archive digitization project. We started in 2012 with something that was called “Unlocking Film Heritage”. It was a five-year project to digitize 10,000 films from our collection and the collections of the national and regional archives of the UK. These were films dating from around 1895 up to around 2012 as the most recent. They were digitized and put into our digital preservation infrastructure at the BFI National Archive, and then published on our video on-demand platform, BFI player, which is available in the UK and Ireland. It is accessible through a searchable map, so all these films were pinned to locations where they are filmed in the UK.

My work for that project was devising the overarching approach to how we would tackle copyright research, rights research, negotiations and some risk management. Also how we dealt with orphan works, seeing as they came midway through that project. Currently we’re now working on a much larger project to digitize our videotape collections. There’s about a hundred thousand videotapes from our collection and those of the regional and national Archives. A lot of it is television, so it’s more complicated from the rights point of view. Our main access ambition for that is to make available as many as possible, we don’t really know how many. We want to make them available on a new service we’re developing for UK public libraries. That’s the work I’m involved in at the moment.

Victoria: I’ve been involved in rights more from the research side of things. My PhD is with the digitization of archive collections in the UK and how copyright law affects that, so I talked to a lot of our cultural heritage institutions like the British Library, Glasgow School of Art and the British Film Institute. And also through some other projects that I have been involved in, we looked at some approaches taken by institutions in the Netherlands, for example, Stadsarchief Rotterdam, and also the National Library of the Netherlands. I don’t do a huge amount of rights clearance myself, I’m interested in how other people do rights clearance, and particularly how they manage their risks and how they are making archival material available online.

Melissa: Victoria, now I can’t wait to read your dissertation. So to understand how I approach rights statements and rights clearance you have to understand that I have worked in this field for twenty or thirty years, and where I am right now is the result of great frustration.

So how do I approach these things? Basically I always start with: “what is the material?, how did we get it?, what are the conditions associated with it?, do we know anything about it?”, and much of the time is “meh”. You know a little or something, you know what’s on the surface, but even as a lawyer immersed in libraries, archives and museums, it’s still really important to work with subject matter specialists, whether they’re cataloger or metadata specialists, people who know about the material and how it got where it is as best as we can put it together. I’m a big fan of record-keeping, which I guess it’s appropriate with our field explaining what the logic is of how we’re approaching something. I also have a career history, and I occasionally hear from people who come across a file I put together 25 years ago and it’s actually helpful to them for whatever preservation project they’re doing or what they’re trying to do anew. It is worth the time to invest in record-keeping and having it in human language.

While I’m a lawyer, and there’s a set of terms of art and language, I’m really interested in these as records to the file, so that normal people, “the future me” as I call it, can understand what we were thinking when we made a statement, especially if the law changes or there need to be adjustments or maybe there are more liberal approaches. So what I do is very immersed in my interest and love and knowledge of the institutions themselves and the people that work in them and their expertise.

The framework varies by organization and by project. There’s a lot more work to be made across our fields, to be more interoperable, to have more consistent standards, but that is still an ongoing struggle, and I started to understand this very early in my career. There was a project that I think ICOM did to standardize the ways damage was described for couriers, for example, a crack or a cut. And even something that seems as simple as a crack was not an easy thing to define or discuss in those contexts, and that was important for insurance purposes, if you were lending exhibits and moving things around. So that difference in language, even within the same language, is complicated and also exciting. So whether you keep your information in a spreadsheet, whatever system it is that you use, on that front I’m a little bit more agnostic about, and I tend to work with whatever the expertise in the organization might be. I could go on but I’ll stop there.

How do you define a framework, or do you base your approach in a standardised framework that you define or someone else defines?

Victoria: The projects I looked at, some were quite early digitization projects, they were taking place in the ’90s, early ’00s, and the archivists involved really didn’t have any other examples of large-scale rights clearance that they could follow. They were starting from scratch in terms of developing a framework. A lot of those frameworks by their nature are internal documents or internal procedures. And what I’ve noticed is that a lot of the projects that have come after that have been either like reinventing the wheel or also starting from scratch. In the last couple of years as more information and more resources are being made available, more people are publishing their frameworks. That’s really useful for all of the other institutions that maybe don’t have the same resources to tackle rights clearance as other institutions. One of the ones that I’ve seen that’s been used fairly widely is the Wellcome Library’s approach to rights clearance. I’ve also seen recently that the National Library of Scotland have published their risk management framework for rights clearance, as well as obviously Melissa’s work with the Hathitrust, looking at copyright as a design problem, which I think Melissa you’re gonna talk about a bit later on, and the work that Annie has done at the BFI. I think as more of that information percolates out to the cultural heritage sector, archivists, curators, everyone, will be a bit more confident in approaching and developing their own frameworks that are appropriate for their own institutional context.

Annabelle: The Wellcome Trust work on the “Codebreakers” and the report you did Victoria with Christy Henshaw from Wellcome was really influential and important for when we started working on Unlocking Film Heritage project. I was scouring to see if there was any information out there that was going to help me. It was the first time we took this proactive approach to actually formulate a framework internally about how we were going to manage this, and lots of things came up to the surface really early on. For example, key things like the discrepancy across the organization about how people understood some fundamentals of copyright; ownership; authorship; duration; duration for film in the UK is particularly mind-boggling, and there were so many different rules that somebody had picked up from somewhere, lots of anecdotal basis for saying why something was in copyright or out of copyright. That was also the first time we really started to build a proper framework for establishing risk, and that’s an ever-evolving thing as well. We’re constantly adding to it, what things you need to consider, how you might judge something as being a high risk or low risk.

It still feels like I’m a newbie in many ways. It has been now eight years almost, but for each project you do, you have to look at it sometimes afresh. Because obviously you might be looking at very particular kinds of material, and also what your end use is going to be, will also determine quite a lot in terms of that risk of whether you’re going for relatively low risk uses around non-commercial public access, or whether you’re hoping to commercialize things as well. Also if you have touch points with colleagues in other departments along that workflow, and how you’re trying to fit in your rights workflow with the technical work, the curatorial work, the end product publication work. There’s all those things to make sure you’re doing the right bit of work at the right time, as far as possible, to make sure that everything’s running smoothly as much as possible.

Melissa: Again, I would completely validate everything that Victoria and Annabelle just said. A couple of things. Victoria mentioned that feeling of “reinventing the wheel” about processes. Partly in her context I think she was referring to something like a lack of transparency early on in these projects. It’s hard to say, but that may be due to, just like professional practice, or people were thinking that the internet was as big as it might be. It was different, I mean. I started in this area around 1995, and at that time the Library of Congress, where I was working, wasn’t sure whether to go with laser discs and CD-ROM copies of the collections, or provide access through the Internet, because this was just the cusp of when the web existed. So you still had to have to dial up and dial up didn’t work very well and it wasn’t very widespread. So technology shifts our social assumptions about what’s possible, what’s necessary.

I do share, I have a certain frustration with the amount of new material that I see coming out that’s not really new, that’s maybe not very informed by past knowledge. I think we spend more time on certain things that we maybe don’t need to worry about quite as much, or that there’s somebody’s already stepped through that before so you could get to the next thing. One of the tools that we have at the University of Michigan Library, on our website, is a Digital Project Proposal Process, or DPP. It’s actually fairly simple in terms of what it asks. It tries to gather a certain range of information from a curator, an archivist, an historian, or a librarian, or to whoever is proposing a collection. Most of it is not legal information per se, and the process gives a framework for decision making about what is possible, what’s not possible, how to make priorities within an organization. I’m sure there are many tools like that that are available, but I would encourage, even if you take any one of them and tailor it to your own administrative framework, you get consistent results and consistent record-keeping.

I did have a question for Annabelle. You mentioned that some of the projects that you were dealing with are only available in the UK and Ireland, and they sound amazing. I’d love to see them. We have questions like that, there are times where we have things that are in the public domain in the US but they’re not abroad, or we have rights reversions issues. We do have users who express some frustration. One of the things I would love to see is a larger library exceptions for access more broadly, among our collections globally, even if it were limited to us qualified institutions, meaning that you had to go to the library, COVID aside. I’m just curious about that access piece, if you can explain it more.

Annabelle: There are decisions that are not necessarily copyright, but definitely copyright plays a part in the decisions of the terms in which we are making our platforms available. Part of it has to do with the focus of the mission of the British Film Institute as an UK publicly funded body. The idea is that we are publicly funded, therefore the UK public should be able to see their national collection, and that’s our core aim. We do make subsets of what we digitize available on our YouTube channel.

But it’s an interesting point in terms of the approach we took for the “Unlocking Film Heritage” project, which was quite a limited set of rights, and we were deliberately quite conservative in that ask, because we weren’t offering any fees or royalties to rights holders. In some respects with hindsight we should have asked for more, particularly from those rights holders who aren’t in the business of distributing films themselves. Lots of those companies that because of whichever history have ended up with rights to certain collections, they may or may not have deposited directly with us, they’re not doing anything with them, they may not fit anymore with their brand or their priorities. So it seems we’ve slightly missed an opportunity that we didn’t take on wider rights back then at the time. But for the purposes of the ultimate objectives, this is one of the things around project management, is you have this deadline and this volume of work that you have to try and clear in a certain way. So you want to devise it so you’re going to get the most positive answers from right holders to clear it.

Thinking further ahead, I’m also a member of the Libraries and Archives Corporate Alliance and there’s lots of discussion, quite a lot of it prompted by COVID-19, about the major issues for access for education and cultural heritage organizations, who right now can’t provide any kind of access because they can’t actually get into their buildings. Obviously looking at what could possibly happen in terms of a new exception, expanding the current exceptions, to make providing that access easier for the cultural heritage sector, libraries, archives and museums, the big question is around the national scope of these exceptions.

While we’re happy to make things available in a certain way, there is always this question. Do you have to consider an additional risk if you’re going to make things available globally? We don’t necessarily know the ins and outs of the worldwide jurisdiction. Maybe there’s some sort of MOU or there’s certainly drivers that could be done through organizations, international organizations, that can help push this. A lot of the time we sort of look across the Atlantic and go “why don’t we have fair use! and help us all out”. It’s a mixture of organizational priorities about why we make things available in a certain way. I would love it for us to make more things available, much more widely, given the differences around domestic laws. The public domain issue, the shorter term rule, all that kind of thing comes into it. We quite often get people who say, “well it’s in the public domain”, and we go “yes, that’s over there, it’s not here necessarily”. There’s probably more learning to do on that as well, about how all that really functions.

In terms of timing, when to do the right bit of work at the right time, at your respective institutions, when does the rights assessment happen? Is it based on project funding, is it at the beginning or at the end, are there conditions regarding rights clearance before even imagining a digitization project?

Melissa: I can speak to that. Generally speaking I’ve worked very hard in the organizations that I’ve worked with to get at least the preliminary rights review started both early on or before a project to see what they have. If you have something where everything is in copyright and everything will require permissions or a fair use assertion, does the institution want to proceed? Because that’s another kind of investment and iterative way. It is not unusual for us to ascertain fair use in certain cases; it is not unusual to make a preservation decision to scan things for access copies, even maybe in a reading room but maybe beyond. But it’s as much a part of doing the preliminary work. Let’s say you have a really fragile paper and you need particular equipment, it fits into that same early planning.

Victoria: As early as possible, ideally. A lot of the projects that I’ve looked at in my research didn’t consider rights issues until after the funding had been awarded. There are a lot of examples, anecdotally, of projects basically grinding to a halt because rights clearance wasn’t considered at the right stage in the project. As early as possible, as Melissa says, and also in terms of conditions with rights clearance, before even imagining digitization projects, there are some funders that require certain licensing conditions to be met for the digitization output. That has an effect on the types of permissions that you’ll be requesting as part of the rights clearance process. So for some funded projects it does have to be built-in very early. To be fair, most funders now recognize it as an issue and they’ll ask you to explore it during the actual funding application process now.

Annabelle: From an archive point of view, our Rights team works across the archive, and also we have a separate distribution collection, where we’re the distributor and sales agent doing more commercial work with films. But we’re very reactive, in that it’s driven by projects. The projects are usually content driven. It would be a dream if we could actually do a rights lead digitization project, where those are the overarching decisions about what you decide to invest in, but very unlikely to happen. People don’t get so excited about that as they do about interesting collections.

One of the things that I’ve certainly noticed is we put quite a lot of effort into devising these workflows and guidance for a project, but we haven’t really got to the point of transferring that into the business as usual work. Our archive collections are huge. We estimate we own rights on about 1% of them, we’ve probably done rights research on some point percent of them, just for these projects, and if we want to get to the point of really having quite a revolutionary change in terms of the access we can provide, we need to go right back to the beginning, and start a program that might work discreetly at tackling the basic copyright status of collections and works, alongside the donor to identify any donor restrictions, and provenance. But that again would be a huge undertaking to start outside of the projects at this stage and not something that would be feasible.

Melissa: There are some things that become sort of obvious, things that you suddenly realize in doing work that weren’t obvious to you before. When I started working on the Rights Statements project with colleagues who were in Europe who didn’t have fair use, and the difference between information about a work and a licence regarding a work were two very different things.

I started to realize that for me having started this in the 90s, I’m in the crowd that Victoria was talking about, we now have hundreds if not thousands of collections online globally that say something like “we think we have sufficient right, but we don’t really know; you’re on your own if you want to use or reuse”. That was really fine and even that was even really progressive for many years. But I would say 10–15 years ago we found that we are running into ourselves, creating our own orphan works problems, or exacerbating them. We’re having graduate students who aren’t confident using material from online collections in their scholarly monograph. And it’s sort of obvious, but it’s not obvious.

We’ve got this like “next meta ecosystem”. Life is short, but I would love to do a project that basically goes out and audits hundreds of these statements and just provides feedback to the group that did it. There’s one University that was an early participant in this kind of thing, that has medieval materials and they have that kind of statement. It is a common approach. For any single museum, library, or archives this may not be a priority, so I think this is a project that we need to figure out as a community.

How do you store or record your rights information and assessment data? How do you recommend documenting rights information and clearances, so people in the present and future can find cleared materials?

Annabelle: To be honest, it’s still an embryonic thing. For a very long time it was anecdotal, and there’s a lot of information kept in a lot of different places. So Excel sheets, Word documents, unscanned paperwork. We have a rights and royalties database, which does hold some information about titles that we have in active distribution. We have a collections information database that would record, say original credit information about the works in the archives. But the one thing we’ve not really had is any kind of central repository for the rights information, and that’s both across the kind of usage permissions for archive holdings, and the journey that a work goes through from a rights point of view.

We do have one internal document called “the distributor history” doc which has this information built up over many years, from different colleagues, about how organisations or people’s rights have travelled around, being bought, divided up, sold, rebought, divided up, goes on and on. What we’ve noticed is that a lot of the time information is usually retained either in Excel or emails for a project, but we then struggle with how to put that information somewhere in a more structured way that then it’s available for other people to look at, so you don’t have to go back and start at the beginning.

The only thing we started to do right now is we link a person’s name or an organization name back to a record in our central collections information database, which has a unique identifier. We’re literally just adding a hyperlink to where that record is in system, and then have the name of the company, that link, and the narrative, which is basically telling the story of what information you found in the latest bit of research you’ve had to do, and then keep that updated and introducing a kind of validation, so that you can see who the last person was to update this information. At the moment that’s as far as we’ve got.

I would love it if we could actually move that into a proper database. At the moment it’s just this Excel, and to be honest we are kind of stuck. I don’t really have a recommendation other than trying to do that, where you’re building up some system. It can be an Excel where you are linking back to a structured data set that potentially could help you, so one day you might be able to then migrate all that information into that system, so it’s attached to the relevant record.

(Thanks to Annabelle who generously shared her templates “Examples Rights Research Tracker — British Film Institute” & “Example Rights Information — British Film Institute”).

Victoria: A lot of the projects that I’ve looked at range from everything, from paper files to Word documents, Excel sheets to Access databases, to using the collection management system that they have in-house. A lot of collection management databases just wouldn’t have the granularity needed for complex rights information, and that’s what a lot of the projects that I looked at found, they ended up using basically Excel sheets or Word documents to record a lot of it. And a lot of it does involve background research, going into old accession records, and donation records like paper files, and starting the research from there and then sort of building on it with whatever you find online for a lot of people.

It needs to be scalable to the institution that you work at and the resources that you have. The classic thinking about it, it’s almost from a digital preservation point of view, as long as it’s in a widely used accessible format and kept it in that format, it’s fine. You don’t want to end up in a situation where all your information is in a database that your institution decides to stop supporting.

Melissa: I started using this expression, “help your future you”, and even if that’s the equivalent of a written finding aid, like the old-fashioned statement of “this is what’s in this box” kind of thing. There’s a tendency, for institutions that are concerned with memory and material memory, we’re really not great about certain kinds of corporate records. If you’re in a museum and you have registrars, you have frequently very well organized materials, but they may or may not be connected to other parts of the organization. Same for a library, where you can have catalogers who aren’t necessarily involved in the transactional pieces.

Well-organized files that include contracts and other documentation are of extraordinary value. They simplify later research and scholarship. They reduce administrative costs. Just that marginal additional effort of that project documentation is a huge step forward as we figure out how to share that information more broadly or make it available for researchers who are trying to figure things out.

How do you define risk assessment if you’ve got a tight budget? What information do you need to know to make decisions around what to publish and what not to publish?

Annabelle: Usually I would try and break down the works that we’re looking at by certain categories, so the title. Title it’s important, if you have that. We don’t always have that, right now we’re working on tapes and it just says “tape” and then there’s a number. We don’t yet know what there’s on the tape, so title of the work. Date of production, or date made, or date released. If you can have release dates and production date that’s great. Copyright status, ownership status, which actually maybe that’s something you would look at a bit later, but hopefully you would have that, title, day, copyright, ownership status, publication status, those are probably the top five things.

Below that there are other things you could break it down. Mostly talking about film and TV, for instance, if it’s a major, if it’s for broadcast or was it a film for theatrical distribution, was it a commercially produced or non commercially produced? Fiction or nonfiction are really handy categories just in terms of alerting you to what kind of potential underlying rights there might be. Those are the key bits of information, you can then use those, talking about television works, for instance, knowing that kind of information then gives us a much clearer idea to understand under what terms of trade those programs will likely have been made. So commissioning broadcasts are likely to own rights, or the independent production company, what the underlying clearances would have been, how they would have been cleared. Usually it’s quite limited, so you always know you need to go back and re-clear everything.

So those bits of information then you overlay them with the other information you’re researching around the context of, the type of material it is, when it was produced, and for what reason it’s produced. For instance the ownership question might then lead you to right holders and establishing whether these right holders are currently active, if they’re still in the business, whether they’re quite strong enforcing rights, do you have a relationship with them.

Each one then takes you on to another further, drilling down as a criteria which would help you inform the level of risk. We tend to break up risk into the nature of the works themselves, so that the content, subject matter, commercial production or not, relationship with rights holders and donors, and then the other risk factor is around the actual use you’re planning for. At the moment we’ve got this thing with two columns, which each have a score gives you a total score and then you come up with a higher, low or medium risk. It sounds simple.

Melissa: Annabelle was describing sort of all the detective work. I start with the question of what are you doing and why. If you can’t articulate a good reason for whatever it is you’re doing, figuring out who all the rights holders might not necessarily be at the top of the order of operation. So if somebody says, “I’m clearing out my office, can you scan my files now that I’m an emeritus faculty?”, it depends. I may be selective, and that’s maybe a delicate conversation, but what are you doing and why can help mediate where your risk tolerances are for a particular collection.

For example, if something is from the 1940s and it’s mostly orphan works and it’s in copyright, but it has really significant scholarly or current value, in the US because we have fair use, I would lean towards making those materials available in some capacity. I don’t know if the absence of fair use in other countries is a non-starter for other kinds of institutions, who don’t have that and that’s that’s a significant thing.

I really quickly wanted to respond to a question in the comments in the chat about all the things that are not copyright, so things like sensitive materials, privacy. These are not formally in our current process, but they’re all things that I screen for, and look at, and put a few pairs of eyes if I’m having questions, because sometimes any one of us doesn’t see issues that may be apparent to someone else. I do think that this is more than copyright and it should be treated that way. Berkeley Library has a new guide on dealing with the indigenous materials question.

Victoria, I understand that as part of your research you had some findings around the outcomes of rights research, where you found that institutions that were worrying a lot about taking some risks found that rights holders were super happy that these works were being disseminated.

I want to agree with Annie and Melissa on those last points about what’s the sort of minimum that you would want going into rights clearance. I would also emphasize, probably partly because I come from an archives background, but I’m obsessed with provenance. The more you know about the circumstances of the creation of the item in question, in particular it really goes back to thinking about not just copyright but the sensitivity of the material, and whether it was created in the course of employment, or whether it was created for a creative commercial purpose, whether it was created by an indigenous community for a specific purpose, all of that. There’s thinking about these things through a rights based framework, but then there’s also thinking about these issues through a more sort of ethics of care approach, and how you would want those materials to be treated if you put yourself in the shoes of their creator.

What I would emphasize is thinking about it from the creators’ point of view, as much as it is about what we want to do with the materials, and setting or balancing the risks of doing something against the benefits, that will accrue from doing something is really important as well.

In terms of examples from my own research where archivists have gone through the process of: they’ve done a rights audit, they’re doing digitization, they’re contacting rights holders for permissions. Most of projects, where they were able to find contact details for rights holders they were very close to 100% positive responses to rights clearance requests.

The main issues with rights clearance continues to be non response and orphan works, but if you do actually manage to contact a rights holder for the kind of — for the most part — non-commercial and public good digitization that institutions are doing, most rights holders will say “yes”. They also found that, in terms of the follow-up correspondence that we had with rights holders was that they were generally really pleased to see the material being digitized and being used for public good purposes, like research or outreach and things like that, and some did actually become involved in other projects with the institutions in question.

That was a relatively small number of institutions I found through a survey of the UK that actually did third party rights clearance at scale, and that’s what they were getting back in terms of response. I think in particular in the Glasgow School of Art, when I did my research with them, they were doing their rights clearance process in the aftermath of the fire that gutted the Mackintosh building in Glasgow. So I think also depending on circumstances, depending on the timing of digitization projects as well, you’ll get very positive responses and people taking an interest and wanting to do more for the institution off the back of those projects. Particularly, it might be a donor that you haven’t been in touch with in a while, it might be a rights holder that wasn’t aware that their material was actually held by the institution in question, so it’s either renewing a relationship that may have been untended or it’s developing a new relationship with them, with individuals that didn’t realize that they were represented in the institution’s collections. There’s all sorts of unexpected goodwill and good things can happen as a result of that process.

Melissa: I agree with that, anecdotally, people are generally pleased that grandma’s papers exist, that there’s some connection and they’re usually just pretty happy about it. There are situations that I’ve seen where typically it’s the first generation, the children of the creator, who want to assert rights, sometimes they’re willing to do a joint arrangement, frequently after they’ve gone to a lot of trouble of asserting those rights and working after thinking that it was something that’s going to make them rich. After a decade or so they realize that’s not likely to happen, or they didn’t understand the rights that they actually had (or didn’t) themselves. They may have a product that’s, say, commercially owned by a film company and they think that, as “the children of”, they have rights that they may not even have in the first place.

The other thing we’re starting to see is current archiving practices, around recording protests and active digital humanities projects, where at one level we have people filming themselves and putting them on social media in a very very public way. So, what could be wrong about collecting that and making that available in some way? But frequently we have either children or people who are protesting and who could be targeted by their governments in a more granular way. I don’t think there’s an answer if we either have those materials or share those materials, but there’s a lot of conversation about that, and it’s a different flavor from the kinds of things that you were rightly talking about Victoria, but I think it’s timely.

Victoria: Absolutely, and there’s definitely a thread of, I think that as Eira Tansey’s says, “no one owes their trauma to archivists”. I think archives have to be very careful about how they collect material and particularly in the current situation. That’s definitely a strand of thought that’s developing at the moment.

How is BFI handling the orphan world’s with the European Union orphan works came with the forthcoming Brexit?

Annabelle: I don’t think there’s any plan for the BFI to remove any of the works registered as orphan works of the EU IPO from our player platform or from our special YouTube playlist, of about 170 of the 270 or so works that we’ve registered. Basically we are calculating it as a pretty low risk, in that they’ve been up there for quite a long time, we carried out very good due diligence when we registered them, we haven’t had claims. We might have had one person who came out and said, “oh I think this might be mine”. I don’t see that we would make any change in terms of how we’re making them available.

What’s going to happen after that I’m not sure. At the moment the BFI has never made use of the UK licensing scheme. I am involved in the EnDOW community project, which has a tool to help people do a diligent search and the current project is to try and get the public engaged in this, and helping, so crowdsourcing the diligent search. We’ve put forward a list of around 30 films and we’re waiting for people to help with that. If diligent search is carried out and if it is an orphan work, we would then probably put them through for the UK licensing scheme. I’ve never gone through that application process and obviously there are costs involved in making an application, in getting a license from the UK IPO.

It’s painful in a way, given the amount of work we invested in incorporating the orphan works into our workflows. Some of these projects actually helped raise the profile of rights research in particular, which is an area that certainly at the BFI I think is still in a sort of chrysalis phase, in terms of how it’s viewed as an important part of what the organisation does. It has yet to become the beautiful butterfly we know it can be. But we invested all that, we’ve put these things out there on the EU IPO, and then their life may be quite short, which is heartbreaking. So whether the UK itself will agree to introduce its own exception, I don’t know. I hope that something would be done to allow that for us to continue to make these things available and not necessarily push us down the route of having to go through the licensing scheme. We’ll see.

Final thoughts or comments?

Melissa: I want to encourage people to email me, because there are a lot of valuable products out there but it gets a little bit overwhelming. I am interested in writing something, but I also don’t want to reinvent the wheel. I feel like the sort of long lists of wiki style resources are super helpful but it’s a lot to dig into, and I’d like to figure out something that’s more conversational in tone for people. I’d also like to work on writing about these topics, which end up being really rarified topics, so it’s good to be with our family, or collecting GLAM family. But people beyond the profession need to understand why all this is important, and why these institutions are important to support them. So I’m thinking it through some projects, and would really welcome any thoughts about that kind of audience.

Annabelle: I can’t believe how quickly the time went! We can carry on for hours and hours on this conversation. I’m planning to share information on the work we’re doing now on the current project, hopefully to let other people see how we’re trying to deal with some of these issues.

Victoria: If people want to pull together a list of resources, there is the copyright cortex which is a database of research, tools and guidance around rights issues for cultural heritage institutions. I don’t know whether we have anything specific for rights clearance, we could probably pull together a guide of some resources that people might find useful.

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.