Rights Metadata Made Simple

Since writing this chapter for the 2008 edition of Introduction to Metadata, I have found that people are now more aware of the importance of rights metadata and the need to collect and share it. More institutions are implementing digital asset management systems and seeking ways to expand the distribution of their collections through websites and social media. Underlying all such efforts are intellectual property laws governing copyright, privacy, publicity, and trademarks. Keeping track of what rights an institution has, who the rights holders are, and what their contact information is, is essential for institutions that want to participate actively and quickly in online environments. This chapter includes some tips and insights learned through experience over the last several years, so that mistakes need not be repeated and improvements can be considered for incorporation into ongoing rights metadata efforts. In addition, more and more institutions are now including rights metadata along with other information about works in their collections and efforts to improve standardization of terms and definitions continues. The Digital Public Library of America¹ is one of several organizations seeking to help institutions find simple and flexible solutions to rights metadata challenges. It is our hope that in the next few years, rights metadata will become an expected, routine component of any metadata record about a work and that its existence will improve public online access to digital surrogates of a wide variety of cultural materials.

Introduction

There are three common reactions when the issue of rights metadata arises:

1. “It’s too complicated and overwhelming.”
2. “We don’t have the staff or the money.”
3. “It’s not the library’s [or archive’s, or museum’s] job; it’s up to users to figure out rights information if they want to publish something from our collections.”

Here are some reasoned responses:

1. Yes, rights metadata can be complicated and overwhelming, but so is knitting a cardigan sweater until one simplifies the project by mastering a few basic techniques and following the instructions step by step.
2. Your institution is probably already spending staff time and money on rights research. Capturing rights metadata in a shared information system as a routine, programmatic activity with structured data rules and values and an established workflow should not cost any more than ad hoc rights research—and it will provide longer-lasting benefits.
3. In a world where “if it’s not digital, it doesn’t exist,” libraries, archives, and museums have new roles with respect to their users as well as the creators and authors of the works in their collections. Moreover, cultural heritage institutions need rights information for their own uses of the works in their collections. Rights metadata is not just about compliance with intellectual property laws. Rights metadata is about being responsible stewards of the works in our collections and their digital surrogates—and in a digital world, it is crucial to the institution’s broader mission of collection, preservation, and access.

Rights Metadata Dictionary

A major breakthrough in rights metadata efforts for the Getty Research Institute was the creation and implementation of a rights metadata dictionary for Special Collections.² Two important improvements came from this project: (1) clarification of which work was being described in the record, and (2) the addition of terms to the drop-down menus that allow users to better understand some of the ambiguities or unknowns about the rights information provided.

Core Work

For various reasons, staff in Special Collections tended to be confused about which work was being described in the metadata record. This confusion was resolved with a clear definition that the work being described is the work in the library’s collections (neither the work depicted in a visual work nor the digital surrogate thereof), which we describe with the term core work. The core work may be a digital work.

People and Works Depicted

Frequently, the core work includes images of people or copyright-protected works. Metadata records in a digital asset management system or other information system may not provide fields for these kinds of “layers” of rights information. To ensure that rights information is collected about people or works depicted in a core work, the rights metadata dictionary instructs users to identify people and works depicted and to identify them as “potential claimants.” Detailed information for these potential claimants may be included in the rights metadata records, if known.

Unknown, Additional Research Required, and Not Researched

Not all the rights information will be available when people are creating the metadata records. Some granularity may be desired to give those using the records over time a better sense of the status of rights research. In addition, due-diligence research about rights holders for designated orphan works will be necessary to document what was done and when. For that reason, precise definitions for “unknown,” “additional research required,” and “not researched” should be used; depending on the collection, more nuanced definitions may be added to the rights metadata dictionary.

Priority Information

Usable, shareable, repurposable rights metadata can be obtained by capturing the following core information:³

1. The name of the creator of the work or image, including the nationality, date of birth, and, if applicable, death date. Ideally, this information should be copied automatically from an authority file. (Generally, the “work” is the original work in the institution’s collection and NOT a digital surrogate. If the ­institution wants to create a rights metadata record for the digital surrogate, the rights metadata approach described herein would be valid, provided the digital “work” is described and differentiated from the original work.)
2. The year the work was created. The year of creation may not be the same as the year of publication. Where two different dates exist, they should be identified separately. If the publication date is known, it should be recorded in the “publication status” field.
3. Copyright status (one of these five options can be selected from a controlled pick list by staff tasked with recording rights metadata):
   • Copyright owned by the institution means that the copyright is assumed valid and is owned by the institution that holds the work.
   • Copyright owned by a third party assumes that the copyright is valid and is owned by someone or some entity other than the institution that holds the work; if known, the name of the third party should be captured in a database field or metadata element designated for that purpose.⁴
   • Public domain. If the work is determined to be in the public domain, it is helpful to identify the year in which the work entered (or will enter) the public domain, if known. Some institutions, depending on the nature of their collections, may want more information about why the work is in the public domain—for example, if it is a work of the federal government, the copyright term has expired, or the work was published without a copyright notice before 1978 and did not qualify for copyright restoration.
   • Orphan work is a work that may be protected by copyright law but for which the copyright owner or claimant cannot be identified or located.⁵ Given the two-prong definition, it is recommended that the reason why a work is characterized as an orphan work should be included in the rights metadata. Therefore, two terms should be used: Orphan work—rights holder cannot be identified and Orphan work—rights holder identified but cannot be located.
4. Publication status (one of these four options can be selected from a controlled pick list by staff tasked with recording rights metadata):
   • Published. Include date, if known. Publication is defined in the Copyright Act as “the distribution of copies … of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” Note that the offer to distribute copies—including the original work, even if there is only one copy of it—constitutes publication.⁶ Because of different treatment of foreign works under copyright law, some institutions may want to clarify where the work was published—in the United States only, in a foreign country only, or both.
   • Unpublished. Some materials such as manuscripts and correspondence may be easily determined to be unpublished. Other works, however, such as a speech or painting that is known to the public, can still be considered “unpublished” under the Copyright Act definition.
   • Unknown. It is sometimes difficult to determine whether or not a work has been published, particularly for photographs of which there may be multiple prints or for manuscripts from which a work was later published.
5. Date that rights research was conducted (if there are multiple dates on which rights research was conducted, best practice would be to include all of those dates, along with the initials of the researcher[s]).

Gathering rights metadata and including it in an institutional information system⁷ will allow users with some basic understanding of copyright to make thoughtful judgments about how the law may affect use of the work in accordance with a legal exception.⁸ It may also help guide determinations about how easy or difficult it might be to obtain permission, if needed.

Here are some examples of how the above rights metadata elements can be applied in day-to-day decision making:⁹

• Knowing the birth and death dates of the creator, or the year(s) in which the work was created and published, will allow for some quick calculations about the copyright term for the work. To do the analysis and arithmetic, follow Peter Hirtle’s excellent chart “Copyright Term and the Public Domain in the United States.”¹⁰ Note: There are slightly different rules for works of foreign (non-US) origin, including restoration of copyrights in works of foreign origin that may have been in the public domain for a period of time before restoration; that is why it is good practice to identify the nationality of the creator, if known.
• Unpublished works tend to have longer copyright terms than published works; therefore, if the work is assumed to be unpublished, the term of copyright protection should be calculated in accordance with the formula for unpublished works.
• While the Copyright Act specifically states that unpublished works qualify for fair use, courts tend to protect the creator’s right to decide about first publication, so the standard for fair use of unpublished works is usually higher than for published materials.¹¹ If the rights metadata states that a work is unpublished, the user can assess how that status affects the fair use.
• For works published in the United States between 1923 and 1963, renewal of the original copyright registration was required.¹² Therefore, a work published in 1945 with the correct copyright notice and registration would require a renewal of the original copyright in 1973 (1945 + 28 = 1973) in order for that copyright to be valid today. One study indicates that 15 percent or fewer of the works in their original copyright terms between 1923 and 1963 were renewed.¹³ This means the majority of works initially protected by copyright during this period are now in the public domain. Of course, the more famous the work, the greater likelihood the original copyright registration was renewed. By contrast, renewals of registrations for more obscure works may be less likely.
• Creation date may determine when the copyright term begins and ends; it is especially important when the author is unknown, the work is a work made for hire, or the work is one of corporate authorship (i.e., a work created by a “corporate body” such as a movie studio or record company).
• In 2006 the US Copyright Office issued its report on orphan works.¹⁴ Hearings on orphan works were held in both the House of Representatives and the Senate, and legislation amending the Copyright Act to reduce the legal liabilities relating to use of orphan works was introduced in the House. While this legislation did not pass, many experts think that orphan-works legislation could be enacted in the next few years. Indeed, the US Copyright Office issued a Notice of Inquiry seeking updated comments about current issues relating to orphan works. If new legislation is introduced and passed, many hope that penalties and remedies for use of orphan works will be reduced or eliminated altogether. For that reason, it makes sense to identify works in institutional collections as orphan works now. Moreover, regardless of whether or not orphan-work legislation passes, it seems reasonable that if an institution attempts to identify and/or locate the copyright claimant and cannot do so despite diligent efforts, and this is explained to the court, there may be some recognition of this good-faith activity by the judge if an infringement claim is brought by the emergent copyright claimant.
• Prior to 1978 the law required that a copyright notice be affixed to published works. Failure to include a legally sufficient notice put into the public domain American works that were published in the United States (without the notice). Therefore, an institution may decide to classify works as in the public domain if they were purchased before January 1, 1978, or were believed to have been offered for sale to the public before that date, and there is no copyright notice affixed to the work.
• Obviously, if one knows a work is in the public domain or if the institution owns the copyright, permission to use of the work is not required by law, although local policy may require internal authorization.

In order for catalogers and rights metadata analysts to be able to populate the recommended metadata elements, the institution will need some basic rules or assumptions to apply when copyright and publication status may not be clear and some suggestions for resources to help locate the sought-after information. There are numerous recommendations for where to look for the information requested. Currently, there is no resource that sets forth commonly accepted practices about what is legally reasonable to assume about copyright or publication when only limited information is available, so institutions will need to draft their own guidelines.¹⁵ Of course, local policy regarding use of material presumed to be protected by copyright and the institution’s risk tolerance for infringement claims that arise in case the assumption is wrong will govern use decisions.¹⁶ With a little bit of effort, however, the basic information needed to make informed decisions about rights for many works in an institution’s collections could be easily available and accessible if the suggested rights information is captured.

Any rights metadata effort should be viewed as dynamic and ongoing. New information may come from various sources: a user, a curator, a librarian, or even the creator of the work. Rights information needs to be updated and augmented, and additional information will need to be captured for works with more complicated rights, such as audiovisual materials. Therefore it is important that staff tasked with inputting rights metadata be identified to all those involved in cataloging and digitization efforts so that when new rights information is discovered, it can be input into the appropriate information system.

Now is the time to get started and not to be overwhelmed. Rights metadata can be made simple if everyone in the institution is aware of its long-term importance and there is a concerted, coordinated effort to research it, record it according to standards and best practices, and share it in fulfillment of the institutional mission in the digital age.

Table 1. Example of Core Elements for Rights Metadata

Author’s Note

The rights metadata proposal and examples provided herein are not legal advice. To answer specific questions of law or address policy matters with legal implications, professional advice from an attorney is always recommended.