7.1 Legal: IPR, Contractual


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Legal and IPR issues are potential barriers to participation because they are considered to be complex and can take time and resource (including legal advice) to resolve.
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7.1.1  Ownership and willingness to share metadata

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When considering value and ownership, the content described by the metadata is often the focus, while ownership in the metadata itself may remain undefined (although, clearly, ownership in the content may also be unclear). The VADS survey[i] found that legal and copyright issues could be a barrier for collection owners in sharing metadata, and this was a key challenge for many interviewees and survey respondents. There appears to have been some progress in this regard however as several respondents from HE institutions indicated that they have policies related to metadata that are distinct from those relating to the content described within institutional repositories. Seven collection owners who were interviewed or responded to the online survey said that the organisation whose staff had created the metadata owned it. Four survey respondents identified specific professional roles within the institution as owners of the metadata and one interviewee said that the BBC owned and had licensed the metadata to the institution for use in an online service.
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In institutions that lack policies related to metadata it seems that securing permission may take some time as the issues raised must first be explored at an institutional level, and this may mean clearing rights with many individual content creators; those responsible for the collections may be willing to share the metadata but may not, independently, have the authority to do so. Other collection owners are clear that they do not wish to share metadata unless they can exert some control over its use. Ownership of metadata may be less clear where the metadata themselves are more complex. In some instances, the metadata are works in themselves e.g. sleeve notes and a musical score may be metadata for discovering a recording but are also important original works attracting IPR.
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7.1.2  Tension between contractual responsibility and cost of agreeing the contract

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One interviewee who had previously agreed to take part in an aggregation, subsequently withdrew after receiving ‘a massive contract through the post’ which, her/his legal department said was too big to handle. Clearly, if a long contract is a deterrent to participation, it would be preferable that any agreement between the aggregator and the collection owner be kept as short and simple as possible. Unfortunately, in one project, advice received from legal experts within the UK HE/FE community and from university lawyers generated a lengthy contributor agreement which sought to protect the aggregator by securing all of the permissions required to deliver the aggregation and ensuring that the collection owner was responsible for any liability in the data. This creates a tension between the need for a simple, low-cost process for collection owners and the need for the aggregator to minimise risk. (This need is often greater for a large organisation than for a small start up; the former is more likely to be a target because it is viewed as having the financial resources to pay any penalty.) Nevertheless, there has been a move towards lightweight licensing in UK HE/FE in recent years. It would be important, when developing a licensing process, that any aggregator seek to minimise the effort required by collection owners.
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7.1.3  Metadata and licence terms for the content it describes

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One interviewee explained that because the content described in metadata is distributed, i.e. owned by different bodies and published under different licences, it can be difficult to ensure that users are aware of the terms on which that content is licensed. This is a challenge for any aggregation, including for images and time-based media. Collection owners want to be reassured that users will be directed to the terms and conditions of use before they link to the content and use it. Users want to access the content described in the aggregation via a service in as few clicks as possible. The combination of aggregator and service provider must find a way to: explain to the user the terms and conditions associated with the metadata aggregation; differentiate those from the terms of use of the content described by the metadata; direct the user to the latter; and make clear to the user that s/he is responsible for complying with it.
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[i] http://www.vads.ac.uk/picshare/report/picshare_final_report.pdf (Accessed 07/09/10)

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