Copyright Issues for Community Digital Archives

We are pleased to welcome this guest post from Orla Egan, PhD Candidate in Digital Arts and Humanities at University College Cork.

Cork has a long and rich history of LGBT (Lesbian, Gay, Bisexual, Transgender) activism and community formation and development. Since at least the 1970s the Cork LGBT community has established organisations, set up services, reached out to others and campaigned for social and legal change.  Yet this community, like many other LGBT communities worldwide, has been largely invisible in historical accounts and its contribution to social and political change and developments largely unacknowledged.

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This exclusion and invisibility has motivated me to develop a Cork LGBT Digital Archive to begin to document and acknowledge this rich and important history.  This community digital archive seeks to make available information and artefacts in relation to the history of the LGBT communities in Cork, including digitised copies of newsletters, leaflets, posters etc. produced by various LGBT organisations and activists.  The initial source of items for the digital archive comes from a private collection, the Arthur Leahy collection, and this will be added to with items from other community members.  Oral histories will also be recorded and added to the digital archive.

Given the nature of this work, it is important to give some consideration to copyright issues that may be relevant to this work.[1]   However, as I began to explore this issue, I found that very little work has been published in relation to copyright issues for community digital archive projects, particularly in the Irish context.

In Ireland Copyright and Intellectual Property rights are covered by the Copyright and Related Rights Act 2000 and the 2012 Statutory Instrument that updated the 2000 Act. The prime focus of this legislation is on the protection of ownership and any accruing economic rights and benefits.  The “author” of a work is seen as the first owner of copyright for that work and people can pay the author or copyright owner for the right to use, reproduce or distribute their work.  Section 38, for example, discusses this in relation to paying to play sound recordings.

The main focus then is on protecting ownership and economic rights and benefits. This emphasis can also be seen in the case law in the area (EMI v Eircom [2005] IEHC 233 and EMI v UPC [2013] IEHC 274), where most file sharing copyright cases in Ireland have been taken by record companies who have been trying to get Internet Service Providers (ISPs) to intervene to prevent illegal (and free) downloading of music.

The question arises then as to how well this legislation can apply to not-for-profit community activities and organisations, where there is no clear economic benefits to be gained from works produced?

The Cork LGBT Digital Archive that I am developing is a community-based and community-motivated project whose aim is to make the history of this community more visible and accessible and to acknowledge the community’s contribution to social and political change in Ireland.  The organisations whose materials I am digitising and sharing have a similar altruistic motivation and purpose i.e. to improve the experiences of LGBT people through service provision, political activism and community formation. It is challenging to fit this work into a legislative framework that is primarily designed to cover private ownership of profitable products.  If there is no profit to be made, what is being protected?

As copyright arises automatically, and does not have to be applied for, it must be assumed that there is copyright attaching to all the data and documents in the Arthur Leahy collection and other materials which will be included in the Digital Archive.   Who owns this copyright, and where it rightly resides, is complex and unclear, given the nature of materials and how they were produced.

Chapter 6 of Part II of the 2000 Copyright and Related Rights Act  covers Acts Permitted in Relation to Works Protected by Copyright. Section 50, subsection 4 of this Chapter is of particular relevance for my work.  It states:

“(4) In this Part, “fair dealing” means the making use of a literary, dramatic, musical or artistic work, film, sound recording, broadcast, cable programme, non-electronic original database or typographical arrangement of a published edition which has already been lawfully made available to the public, for a purpose and to an extent which will not unreasonably prejudice the interests of the owner of the copyright.”

The emphasis here is on use which “will not unreasonably prejudice the interests of the owner of the copyright.”

The Cork LGBT Digital Archive  is digitising, displaying and disseminating information in relation to the history of the Cork LGBT community, including a wide range of data and documents produced by various LGBT activists and organisations over the years.  These items were explicitly designed to be in the public domain, to highlight issues of concern to the LGBT community and to inform the public about activities and campaigns.  They were produced through collective endeavour with the explicit intention of creating community works.  They were not intended to be individual products produced for personal financial gain.

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The posters, newsletters, leaflets etc. were produced to provide public information and to increase awareness.  It is abundantly clear that there was never any intention by those who produced them, and therefore own the copyright, to prevent public access or to prevent the public dissemination of the information contained within.

I would argue therefore that enabling public access to these documents and artefacts, through inclusion in the Cork LGBT Digital Archive, is fair dealing and reasonable use as it does not in any way “unreasonably prejudice the interests of the owner of the copyright.”  By facilitating public access and the dissemination of information about the Cork LGBT community, through the Cork LGBT Digital Archive, my actions are in keeping with the ethos in which the artefacts were produced.   My work can be seen as a continuation of the same ethos and agenda of the individuals and organisations that produced the materials I am digitising and disseminating.

It should also be noted that, in digitising the materials, I am not modifying the content, only changing how it is displayed and made available.

Digitising these community resources in a publicly accessible digital archive can be seen as fair dealing and reasonable use of these materials and in keeping with the ethos and purpose with which they were produced (as defined in Section 50, Subsection 4 of Chapter 6, Part II of the 2000 Copyright and Related Rights Act).

It can be argued therefore, that I have the right to digitise these materials and have no need to seek permission to use them.  Despite this, however, I am also striving to take all reasonable steps to seek consent to use these materials, in as far as it is possible to do so.  I plan to use a permissions-based model, similar to that adopted by the Digital Library of the Caribbean (dLOC).

In addition to seeking permission to use the materials, I would seek to attach proper accreditation for those who produced the works.  This is what the dLOC refers to as respect for moral rights, which differs from copyright: “dLOC supports moral rights by ensuring proper attribution is included for materials, for their creators and the partner institution that contributing materials.”

The owner of the private collection, Arthur Leahy, has granted me the right to digitise, store and disseminate copies of the materials contained in his collection.   As well as owning the collection, he was also centrally involved in many of organisations that produced the items in the collection and is therefore one of the key people able to grant the right to use them.

In addition to obtaining the permission of the owner of the Arthur Leahy Collection, I am seeking permission from the LGBT organisations that produced some of the materials in the collection.  Two different paths are to be taken here, depending on whether the organisation still exists or not.

For organisations which still exist today, for example the Quay Co-Op and the UCC Gay Society (LGBT Society), I am seeking the permission of the current members of these groups to digitise and disseminate documents and artefacts in relation to their organisations.

A number of Cork LGBT organisations established in the 1970s, 1980s and 1990s no longer exist, so it is not possible to take the same approach as that taken with the still existing organisations. Where possible I will seek permission from people who were involved in these organisations. I am also taking an approach of establishing a lineage between these organisations and current LGBT organisations in Cork.  I would argue that there is a clear line of continuity, development and sometimes overlap between the earlier organisations and the current LGBT organisations. Therefore I am seeking permission from the current Cork LGBT organisations, LINC and the Cork Gay Project, to digitise and display information in relation to earlier organisations.

Exploring copyright issues in relation to such a community based and motivated project is complex.  It is often unclear as to who owns the copyright in relation to the various items to be included in the digital archive.   It can be strongly argued that there is no need to seek permission from the copyright holders as the inclusion of these items in the digital archive can be seen as fair dealing and reasonable use, as outlined above.  Despite this, however, I have taken all reasonable steps to ensure that I have the right to use, digitise, display and disseminate this important information in relation to the rich and vibrant history of the Cork LGBT community.

[1] I am grateful to Dr. Louise Crowley, School of Law, UCC for advice in relation to these issues.