In the following is a list of frequently asked questions aimed at alerting web resource authors/creators/developers to various issues concerning web resource design & development, IPR & Copyright, author's and owner's rights etc.
These guidelines for sustainable web resources follow standard web resource creation principles and also draw on practical experiences of restoring ESRC-funded online resources in the ReStore web repository project. It includes specific recommendations for social science researchers who are about to create a web resource having secured ESRC funding or who are considering options for the preservation of their online resources following the end of the initial project funding. Such researchers may include postgraduate students, research assistants/associates, teachers, project investigators, authors and co-authors. There are issues here which are (or should be) important to anyone who contributes to the creation of online
content- if for no other reason because they are contributing intellectual property, the ownership of which will be an issue for anyone who attempts to work with the resources after they have moved on. Having gone through the relevant sections of this document, the reader should be able to:
Find the information required to plan and create a variety of types of web resource
Understand the major issues impacting on the sustainability of web resource development
Understand the basic principles governing intellectual property in web resource creation
Plan in advance the actions necessary for subsequent restoration of their own web resources
Add value to their work from the outset by planning for its long-term availability to other researchers
ReStore considers that a web resource becomes "restorable" following completion of the initial funding period but whiles the core contents remain valuable to the wider research community. At this stage there is still an opportunity to keep the resource updated and maintained by transferring into a suitable repository such as ReStore, thus preserving the effectiveness of the resource. ReStore adhere to the policy of restoring the content, appearance and behaviour of a typical web resource. We have developed a set of questions, attached at Appendix 1, which help the original author of the resource to assess the readiness of their material for ongoing preservation in this way.
To properly assess a web resource for potential inclusion in ReStore, we have developed a review process involving author, academic and technical reviews. These reviews are all implemented online. The process begins with a review request to the original author who is encouraged to reflect n the strengths and weaknesses of the resource and details of its construction. A typical author review form can be accessed at http://www.restore.ac.uk/guidance/downloads/Author_Reviewer_For
m.pdf. Further reviews are sent to external academic reviewers and a technical assessment undertaken directly by the ReStore team. Academic reviews focus on content quality, scope, beneficiaries, usability and potential ongoing value of the site. A typical academic reviewer form is available at http://www.restore.ac.uk/guidance/downloads/Academic_Reviewer_F
orm.pdf. Authors of new web resources may find it helpful to consider these review forms during resource development, in much the same way as a journal paper author will want to consider the journal's review criteria and instructions for authors.
The term intellectual property (IP) describes a variety of concepts including copyright, database rights, patents, trade marks and designs. The rights of the owner and/or creator in such intellectual property are known as IPR and generally enable them to prevent third parties from using the IP without their consent.
When you create an online resource, you are creating IP for which there will be associated copyrights. Just in the building of the website you are likely to be using third party software, code or tools under licence which you may have paid for or obtained for free (such as open source software or freeware). Understanding the licence terms that apply is important as some are more permissive than others. You may even have developed code yourself, or had a consultant do it for you, if your project needed some specific functionality not readily catered for in existing software scripts. So copyright will exist in all of this.
Then there is the whole design of the site to establish its look, feel and navigation. Here is another stage when you should be careful as copying the design of another site could take you close to copyright infringement. It may depend on the extent to which what is copied was original, the degree to which you copy it or even the site's web terms and conditions. So using a distinctive colour scheme, your own branding, making the layout, menus and content different should be something to consider when putting a resource together.
All this comes before you start populating the website with words, explanations, tools, papers, presentations, links and any other content. It is highly likely that at this stage you will make use of materials and content created by others and brands of partners in which IPR will exist. It is sensible to make sure that you have the rights to do so and far easier if you get this sorted up front.
It is now fairly normal for research to be carried out in collaboration between institutions and when this happens it is advisable for a collaboration agreement to be put in place. Indeed, most research councils now make it a condition of award and some even insist on seeing the signed agreement before releasing funding. Talk this through with your research support office (or equivalent) and explain that you will be creating a web resource as it could be very sensible to have specific agreement on what can happen to the resource after the end of the project.
You should also make sure you have a contract in place with any consultant or subcontractor you engage on the project specifying what will happen to the IPR they generate as under law you will not automatically get rights to it. You can decide whether you think you need assignment of the copyright or whether a licence is sufficient but if only getting a licence, make sure you can sub-licence otherwise you won't be able to transfer the site to someone else to host.
It is entirely up to you and your institution as to the risk you and they are prepared to take with copyright or other IPR infringement. By transferring your web resource to ReStore the University of Southampton would be vulnerable for law suits from that copyright infringement being levied at them as they would now be hosting and making available the infringing material. This is a free service to depositors wishing to keep their work sustained. All we are asking for is a due diligence check prior to transfer to help us understand the risks concerned so we can effectively manage them. We want you to work collaboratively with us to try to identify whether or not there is something that could put us at risk of copyright infringement. This is recorded in the form of a completed standard questionnaire addressed to the principal author, which is reproduced as an Annex to these guidance notes. We also ask the depositing institution(s), on the premise they are also the copyright owner(s), to confirm that everything we have been told is true and you & they don't have any other reason to believe that what is transferring would infringe another's IPR. By going through the due diligence at the reviewers stage it will make it easier for your institution to sign up to such a provision in the deposit agreement.
The alternative for doing due diligence would be to ask for a full warranty that the transferring website does not infringe another's IPR and an indemnity in the event there is a claim against us. However from our discussions so far and experience negotiating with other institutions we have found provisions such as this even more problematic. Most institutions simply will not give that type of warranty and indemnity.
All this is enshrined in a formal licence agreement with the University of Southampton as hosting organisation for ReStore. This is a formal legal document and it is extremely rare that an individual researcher would have the authority to sign such an agreement on behalf of their institution. Normally this needs to be done by or at the very least approved by the depositing University's research office, intellectual property office or legal department. The licence seeks to record the IPR status of the resource, including the members of the authorship team and any IPR policies under which it was created; the efforts made to seek permission to include any third party materials, for example software used or photographs reproduced, etc. Essentially, the licence records the efforts undertaken to observe the principles of the guidance provided here and aims to reassure the University of Southampton, who will be the new hosts, that appropriate care has been taken.
This is a commonly-held view but is not the correct position at law. By making something available, the copyright owner is simply allowing individual visitors to have access to it without charge. In the absence of any other licence (creative commons or otherwise) then all other rights of copyright would be preserved. This means that it would be an infringement to copy, publish, show, make publically available and or make an adaptation of the work. Therefore even if you clearly identify the copyright owner you would be infringing by a) copying electronically and b) making available on your website without consent. It is worth checking on the site's terms and conditions as it is possible there are greater rights afforded and it is possible they have released on a creative commons licence. Of course it is always possible that the copyright holder does want their work to be broadly disseminated but simply didn't understand copyright themselves. Where you think this is probably the case then it is easy enough to ask for the permission you want but it is unwise to presume it to be the case without asking.
The fact that no-one has sued doesn't mean there is no copyright infringement. Copyright will exist for more than 70 years in most cases (likely to be more than 100 and considerably longer if the author lives to a ripe old age!) so litigation can be instigated at any time. The fact that no-one has sued could be because a) it has not been spotted yet, b) the copyright owner doesn't see this as a threat at the moment, c) they may be concentrating on other more serious infringers and will come to you later, or d) they may not have an issue with you doing it but could have an issue with ReStore/University of Southampton. This is not an exhaustive list.
It is clearly important to ensure that the requirements of any funders of a web resource creation project are observed. Currently, ESRC does not attempt to exert rights in resources which are created as part of its funded projects, but it will expect appropriate acknowledgement in accordance with the guidance issued to award holders. In most cases, the copyright in such materials will be owned by the institution which employed the staff undertaking the work. Other funders may have specific requirements, particularly if the work is undertaken as part of a consultancy contract or other commissioned research whether with a company or government department - in these cases the contract should make it clear who will own the IPR in the resulting site and who is therefore able to maintain and preserve it into the future. Sometimes funders put blanket IPR terms in place and it is worth talking with the research support or IPR department in your institution to determine whether the contract is suitable for your planned project website: it may be possible to negotiate the inclusion of more suitable terms on a project-specific basis.
These are sometimes described as 'orphan works' and just because the author or copyright owner is not readily identifiable does not mean they do not exist. However, in practice it will make it very difficult to obtain the consent necessary to use the work if you don't know who they are. It is for this reason that you should take care to ensure that where you do copy something or change the format of a work electronically (either your own or another person's with their consent) then you should take care to make sure that copyright owner is clearly identified. It is not recommended you use a copyrighted work that does not appear to have an owner, largely because there will be one out there so alternative material should be used where possible. It is worth doing some due diligence to see if they can be identified either by looking at the site where the work originally came from or searching for similar material elsewhere. In the event there really is no alternative then you are taking a risk that they will emerge and sue for infringement.