Keeping your repository legal
About managing the copyright for content being added to repositories
One of the most common queries through the NHS Copyright First Responders service is around the storing of articles. Mostly this is for ad hoc usage or integration into systems. How do you manage content being added to repositories? Who owns the copyright?
You might just want to keep a repository of institute publications based on citations rather than full text content. This is OK. Under UK copyright law, if the material is published in a journal, you can make copies of the abstract available to the public.
When you work in the NHS, your contract transfers the ownership of your work to your employing organisation.
If working with multiple organisations, the question of copyright ownership should be ironed out in any group terms of reference or service level agreements. Most commonly it is the project sponsor e.g. Commercial Model Clinical Trial Agreements (mCTA January 2021) under section 11. Intellectual Property.
There may be greater uncertainty if the publication is grey literature or a review. When I began my work with Library & Archive Copyright Alliance (LACA), we sought legal permission from our organisation that any work I do for LACA is the property of LACA and not the Trust I work for. Making it clear at the start of the process, saves a lot of time and potential legal challenges in the future.
If you submit your article for external publication, check the publisher’s terms and conditions. Copyright will usually transfer across to the publisher, but that doesn’t mean you can’t include in your repository.
First port of call is Sherpa RomEO Service to check the publisher’s policy on deposits. If the publisher is not there, then you would need to gain permission from the copyright holder before adding to your repository.
Some material may allow you to use without permission. Look out for schemes like the Open Government Licence, Creative Commons.
If you think the material is out of copyright (check regulations here), you can use the Public Domain Mark attribution. These schemes clearly state permissions without the need to contact the copyright holder.
If looking to use clinical measuring scales it is worth checking out NCCR Tools & Measures Library, where permission has already been sought for use, but you need to register with the site to access.
What happens if you are unable to trace the copyright holder, due to time or the organisation no longer exists? This is called an orphan work. If you have done your due diligence to locate, and have had no luck, then you can apply for a licence to use the content. It is worth using this scheme and making sure there is a continuation of the licensing process for orphan works.
These tips are also true for other types of copyrighted content e.g., images, music and videos. Some items may need multiple permissions e.g., posters in the background of films.
Please ensure that copyright permission is in order and also the correct consent forms have been signed to ensure a clear understanding of how the content can be re-used and shared either internally or externally to your organisation. Try to make the re-use of content explicit within your repository. Some useful notices can be found at Rights Statements.
The NHS Copyright Licence Plus, allows for the saving of items on a secure Trust network (section 7.1). This can be an Intranet, secure group e.g. Teams or a clinical system. It doesn’t however allow the systematic collection of content to form a library (7.2), which is what a repository creates. There is also the additional risk that a subscription is cancelled, and the terms of licence would require the removal of the content (7.3). These clauses mean that the licence cannot be used to manage a repository.
When dealing with copyright many decisions are based on risk calculation i.e., who owns the material, are they going to lose money by its use, are they likely to find out and are they likely to take legal action.
Internal only repositories are lower risk but consider if at some point in the future the repository is made public or merged. It is always worth making sure that content has the appropriate copyright clearance and consent, with correct re-use and attribution details from the start. Get it right and reduce the risk.
As technology develops, you may wish to do more with your repository content. Can you use it for data mining or integrate into larger systems to improve discoverability? It is useful to check if your repository has standards which allow for transfer. ISO 14721:2003 reference model for an open archival information system (OAIS) is the key standard.
One day will local repositories be integrated into the Knowledge & Library Hub or services such as Core which will open up the potential of the collections through the use of AI. It is worth considering how ready you are for integration and changes for the future where the “right to read is the right to mine”.
Alongside the greater ability to re-use traditional collections is also the ability to develop commercialised products. In cash strapped services the ability to income generate from collections and services is tempting. It should however be noted that the act of digitisation does not create copyright for out of copyright works. There is a culture of Galleries, Libraries, Archives and Museums (GLAMs) licensing the reproduction of materials to create perpetual copyright.
There is also a need to further education librarians around copyright as we are more likely to say ‘no’ to the re-use of material, before considering how it can be re-used. Evidence indicates that it is more expensive to generate income from these developments, than to set the information free.
It is therefore recommended that when considering re-use of repository output, you should consider CC0 for non-original reproduced media and CC BY for original content to gain the widest possible use. Librarians need to be the advocates for a digital future where we can do more with the information we store.
Susan Smith
Library Manager
Mid Cheshire Hospitals NHS Foundation Trust