Copyright and Humanities Research: A Global Perspective

Despite the fact that the first copyright acts were written “for the Encouragement of Learning” (Statute of Anne) or “to promote the progress of Science” (Constitution of the United States, Art I, 8, 8), the research community regards today’s copyright law as a foe, rather than as a friend. In the digital world (where every use of a digital work necessitates its reproduction), copyright has evolved into a framework regulating access and re-use of all sorts of contents. This evolution did not spare the research community whose activities were, even until quite recently, regarded as de minimis from the point of view of copyright. As copyright is within the scope of national legislation, international cooperations to carry out research in a digital environment have to deal with a highly complex legal situations.
Largely based at universities, cultural heritage institutions or other public research institutions, humanities research is usually non-commercial and based on a public mandate for education. Open (and free) access to sources and results of this research gains further importance because most national funding agencies demand open access to research publications and data as a requirement for funding. On the other hand, researchers themselves have a keen interest in defending their own intellectual property rights, in part due to economic concerns but also in terms of academic credit. This conflict of interest is summarized in the Universal Declaration on Human Rights, which sets the premise that “(everyone has) the right freely […] to share in scientific advancement and its benefits” (Art 27, 1), but goes on to say that “everyone has the right to protection of the moral and material interests resulting from any scientific, literary or artistic production of which he [sic] is the author” (Art 27, 2).
For digital humanities scholars, this axiomatic situation combined with recently developing trends towards open licensing has created an urgent necessity to educate themselves on legal issues and discuss how copyright legislations impact and shape what we (are able to) do; “[t]he rapid worldwide expansion of digital humanities work demands that we begin to deal with the complex tangle of rights around digital humanities knowledge production before others do it for us.” (Zafrin et al. 2017) One of the most important reasons for the necessity to deal with copyright issues from the scholars’ perspective is that copyright laws are the framework within which we have to negotiate our research ethics, especially with regards to questions of the possibility of access to our work for all (Faull et al. 2016). For this reason, Zafrin et al. began the discussion of copyright issues for DH in a global context with their panel session at the 2017 DH conference in Montréal.
At this year’s DH conference, we would like to build on Zafrin et al.’s work and continue the discussion in the framework of a full-day workshop. Zafrin et al. presented perspectives on copyright from Mexico, India, and the USA. We would like to broaden the scope and discuss the topic on a global scale, as the concept of copyright has developed in manifold ways in different areas of the world for historical reasons (see Ng 2012). The continuation of this discussion is especially important for the digital humanities community because the transcending of national borders is inherent to the nature of digital research.
In most countries across the globe - today also in the USA, which was not always the case -, “authors don’t need to apply for copyright protection because it ‘follows the author’s pen across the page’”. (Stodden 2009, 36 quoting von Hippel 2005, 85) This might sound reasonable in principle, especially for cultural works. However, it has been argued that “copyright is an unsuitable legal structure for scientific works [because] scientific norms guide scientists to reproduce and build on others’ research, and default copyright law by its very purpose runs counter to these goals” (Stodden 2009, 35), the de facto situation of copyright legislations requires us to consider them when developing our research, both in a national context and from a global perspective.
However, copyright legislations by nature stop at national borders. While international agreements can smoothen this contrariety to some extent, it is still vital to know and understand the different concepts of copyright in the diverse legal traditions across the world. The European Union has taken a first step in the direction of copyright law harmonization by accepting the Copyright in a Digital Single Market Directive (COD) proposal, by means of which copyright is supposed to be modernized and adapted to the realities of the digital world throughout the EU. From the point of view of the research community, the proposal has its upsides and downsides; while it does aim to implement a general permission of text and data mining in a scientific context (Art 3), the articles on “Protection of press publications concerning digital uses” (Art 11, “link tax article”) and “Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users” (Art 13, “upload filter article”) are being discussed controversially. As the directive proposal was approved by the EU Parliament in September 2018, but has not yet been formalized, the effects on the legal conditions of research in Europe are not yet clear.
Another example of the harmonization lack discussed by Darling (2012, 486f.) is the possibility to grant rights to unknown uses, a topic of interest in the context of open licensing: “[c]onsistent with notions of freedom of contract, United States copyright law allows authors to grant publishers the rights to all known or unknown uses of a work. Despite the ostensible clarity of this norm, courts have struggled considerably with cases where the scope of rights transferred is uncertain. New media developments have generally prompted litigation and the issue of which exclusive rights can and should be implicitly licensed has never been resolved with consistency. [...] Looking across borders, it is apparent that other countries have been dealing with similar issues within their copyright systems. Many countries, however, have chosen a different approach to the problem.” This diagnosis is true for many aspects of copyright legislations. The problem of different approaches to intellectual property is not only true on a global scale, but can even be an issue within a relatively harmonized area such as the EU: “As IP law in the European Union is merely harmonized and not unified, the exact scope of copyright and similar rights may differ between Member States (e.g. some Member States recognize an exclusive right for ‘scientific and critical editions’, while others don’t).” (Kamocki et al. 2016, 2534) It is thus vital to foster exchange between scholars coming from different national situations in order to better understand the situation we are dealing with in the borderless land that is the internet.
Therefore, a call for contributions to the workshop will be issued, inviting scholars from all over the globe with expertise in handling copyright issues in the context of digital research to discuss the following questions:

What are the specific benefits and pitfalls of the copyright legislation in your country for digital scholarship?
Are the existing international copyright-related agreements (Berne Convention, TRIPS agreement) sufficient?
What aspects of digital scholarship do current copyright legislations and agreements (in your country and beyond) not cover or even actively hinder?
Does the copyright legislation in your country facilitate or hinder the attribution of free licenses or certain types of free licenses in any way (e.g. in the Germanic legislative tradition, authors cannot waive their right to attribution)?
What exceptions for research purposes (e.g. data mining exceptions) does the copyright legislation in your country foresee? Are they sufficient?

Contributors can address one or more questions from this non-comprehensive list of issues. Discussion of further aspects is welcome, especially relating to data privacy issues, licensing questions, and new challenges arising from emerging trends towards open science.
Workshop leaders
Vanessa Hannesschläger
ACDH-OeAW - Austrian Centre for Digital Humanities (Austrian Academy of Sciences)

E-mail:

Vanessa.Hannesschlaeger@oeaw.ac.at

Vanessa Hannesschläger is a researcher at the Austrian Centre for Digital Humanities of the Austrian Academy of Sciences (ACDH-OeAW). She is the leader of the ACDH-OeAW’s task force on legal issues, co-chair of the DARIAH working group on ethical and legal issues (ELDAH), member of the CLARIN legal issues committee (CLIC), and co-chair of the Open Science Network Austria’s working group “Legal Aspects of Open Science”. Her interest in legal aspects of humanities scholarship and cultural heritage was initially sparked during a project dealing with archival material carried out at the Austrian National Library. In the course of her Wikimedia Germany Open Science Fellowship (2017/18), she has gained further expertise in the area of legal and licensing issues relating to open knowledge. Her research interests include legal frameworks of digital research, data modelling, and contemporary developments of gender issues in society.
Pawel Kamocki
ELDA - European Language Resources Distribution Agency

E-mail:

pawel.kamocki@gmail.com

Pawel Kamocki received university training in both law (PhD, Dr. iur.) and linguistics (MA) in France, Germany and Poland. Currently a Project Manager at ELDA (European Language Resources Distribution Agency), he worked with many European and international projects, including CLARIN, EUDAT and Research Data Alliance. His main field of interest are legal issues affecting data-intensive science, including copyright and data protection. He is a corresponding member of the editorial team of the Multimedia und Recht law review.
Walter Scholger
ZIM-ACDH - Centre for Information Modelling, Austrian Centre for Digital Humanities (University of Graz)
E-Mail:

walter.scholger@uni-graz.at

Walter Scholger studied history and applied cultural studies in Graz and Maynooth and has been the deputy director of the Centre for Information Modelling - Austrian Centre for Digital Humanities at the University of Graz since 2008.
Having been active in several Working Groups in the context of DARIAH-EU and the DH umbrella organisation of the German-speaking countries (DHd) for years, he is currently co-chair of the DARIAH-EU working group on "Ethics and Legality in Digital Arts and Humanities", member of the CLARIN legal issues committee (CLIC), and convenor of the DHd working group on "Digital Publishing".
He has been dealing with legal aspects of digitisation - with a focus on cultural heritage (e.g. in the Creative Europe project "CO:OP"), research and teaching - and Open Science in projects, international workshops and university courses.  In addition, he works on on aspects of DH teaching and training like OER, reference curricula and the international exchangeability of academic credit systems.

Andreas Witt
Leibniz-Institut für Deutsche Sprache Mannheim, Mannheim University, Heidelberg University & University of Cologne

E-mail:

witt@ids-mannheim.de

Andreas Witt (

http://www1.ids-mannheim.de/zfo/personal/witt.html

) is professor for Computational Humanities and Text Technologies at the University of Mannheim and heads of the department of Digital Linguistics at the Leibniz-Institute for the German Language in Mannheim. His research is situated in the field of annotation science. Andreas Witt is an active member of standards bodies, viz. chair of an ISO working group on linguistic annotation and, together with Piotr Bański, co-chair of the TEI Special Interest Group, TEI for Linguists. Since many years he is involved in research on the legal situation linguists have to deal with.

Bibliography

Darling, K. “Contracting About the Future: Copyright and New Media.”
Northwestern Journal of Technology and Intellectual Property
10/7 (2012): 485–530.

http://scholarlycommons.law.northwestern.edu/njtip/vol10/iss7/3

Faull, K., Jakacki, D., O'Sullivan, J., Earhart, A., Kaufman, M. Access, Ownership, Protection: The Ethics of Digital Scholarship.
Digital Humanities 2016: Conference Abstracts
. Jagiellonian University & Pedagogical University, Kraków (2016): 66-68.

http://dh2016.adho.org/abstracts/6

von Hippel, Eric.
Democratizing Innovation
. Cambridge / London: MIT Press, 2005.

http://bibliotecadigital.org:8080/bitstream/001/183/7/0-262-00274-4.pdf

Ng, A. “Literary Property and Copyright.”
Northwestern Journal of Technology and Intellectual Property
10/7 (2012): 531–577.

http://scholarlycommons.law.northwestern.edu/njtip/vol10/iss7/4

“Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market COM/2016/0593” (Copyright Directive / COD).

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016PC0593

Stodden, V. “The legal framework for reproducible scientific research: Licensing and copyright.”
IEEE Computing in Science and Engineering
11/1 (2009): 35–40.

https://web.stanford.edu/~vcs/papers/Legal-STODDEN2009.pdf

United Nations General Assembly (UN GA). “Universal Declaration of Human Rights (UDHR).”

http://www.un.org/en/universal-declaration-human-rights/

World Intellectual Property Organisation (WIPO). “Berne Convention for the Protection of Literary and Artistic Works.”

http://www.wipo.int/treaties/en/ip/berne/

World Intellectual Property Organisation (WIPO). “WIPO Copyright Treaty (WCT).”

http://www.wipo.int/treaties/en/ip/wct/

Zafrin, V., Galina Russell, I., Gil, A., Ray Murray, P. Copyright, Digital Humanities, and Global Geographies of Knowledge.
Digital Humanities 2017: Conference Abstracts. McGill University, Montreal (2017).

https://dh2017.adho.org/abstracts/278/278.pdf