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4.3.1 Ownership and rights information must be maintained in the metadata associated with a digital record.
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Accurate and comprehensive metadata must accompany a digital record or surrogate image.
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Every digital master created as part of a digitisation program or project must be accompanied by, and be associated with a metadata record.
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The compilation of metadata records must be in agreement with internationally accepted standards for archival record metadata.
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Metadata information must be able to migrate with each record, during future migration of electronic records and information.
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The information to be included in the metadata must include the following categories:
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Descriptive Metadata
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Metadata describing the item (Cataloguing description to enable search). Metadata describing the nature of the original record’s format, dimensions, material and physical composition, and condition.
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Administrative Metadata
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Metadata about rights management such as information about ownership and internal administrative requirements such as file plan, source code and indexing information.
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Structural Metadata
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Metadata describing relationships to other files, i.e. cross referencing. Thus, describing the image’s digital file’s relationships to other files, that is, the cross referencing of files.
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Technical Metadata
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Metadata describing features of the digital file (the nature of the digital image file), i.e. resolution, dimensions, bit mapping, compression, colour contrast, greyscale, file format, etc.
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Rights Metadata
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Metadata on the ownership of the original record, describing the nature of copyright, intellectual property, and other associated rights (User rights, access rights, etc.) as they apply to the record, as well as to the collection as a whole.
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Every digital master created as part of a digitisation program or project must include rights metadata. This metadata must include information on the owner of the original archival record, as well as the rights owner of the digital record. This must include the moral rights of the original creator.
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Rights metadata must include a description of the right for each of the possible types of use, including licensing for commercial purposes.
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Rights metadata should indicate who is authorised to give permission for access and reproduction.
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Access to digital master records must respect the rights as identified within the rights metadata, and, this access should be automated within the access systems of the Provincial Digital Repository (PDR).
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Standards of digital image scanning are to be stipulated in the digitisation strategy and agreements. Foreign funded projects must adhere to the current internationally accepted archival standard of image scanning for preservation purposes for any projects. Metadata standards are to be stipulated in the contract.
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Metadata standards must also comply with the current internationally accepted archival standard for the description of records. Information that must be included in the metadata include:
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Acknowledgement of the governmental body’s assertion of ownership over the original.
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Orphaned works must be acknowledged as such. Any relevant information regarding the search for owners or heirs; as well as, an indication of how any legal rights are affected by the item’s orphan status must be included.
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The governmental body’s file numbering system, relevant to the document in the particular image or file must be included.
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Copyright and associated rights information. Including: payment for access and use of image(s) for commercial broadcast or publication purposes; depending on the institution’s access and usage policy.
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Comprehensive and correct description of the original record format.
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Comprehensive and correct description of the software and processes used to generate the digital image, and any changes created in order to promote legibility and/or view ability.
POLICY 4: Establish a clear copyright management policy and contract mechanisms
4.4.1 All governmental bodies in the Western Cape Province will establish, and maintain, a clear policy with respect to copyright matters pertaining to the records held in their custody; it will also do so regarding a contract format that allows for the licensing of images of archival records for use or distribution.
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The policy pertaining to matters of copyright will distinguish between the rights of copyright holders, the rights of owners and the rights of custodians. It will also provide mechanisms for the regulation of these rights. The provisions of current copyright legislation will be applied to the context of digital records and content.
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Asking for the transfer of copyright, or a license granting the right to represent and sub-license the work, should be considered as a fair request considering that institutions well be taking the responsibility for the ongoing preservation of the work, its digitisation and dissemination.
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If authors or owners want to retain their copyright and elect to grant the right to represent the works to the institution through a licensing agreement; then, a Creative Commons licensing agreement will be considered as an option in terms of any agreements or contracts.
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If institutions intend supplying digital publications to editorial publishing and broadcast markets, they will clearly state this in the contract.
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Unless institutions intend to digitise for preservation purposes, the institution must obtain written permission from the copyright owner prior to investing time and resources in the digitisation process. This process includes orphan works where the name and address of the maker or rights holder is not known. Obtaining such permission may involve research that should be well documented.
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Digitisation for the pure purpose of preservation can be undertaken without necessarily obtaining prior permission from the rights owners, as long as such digitised materials are not provided for access until this permission is obtained or reasonable efforts have been made to identify the rights owner and to obtain such permission. This may be done to fulfil institutional mandates and in which a change of medium from analogue to digital does not impact on the nature of these mandates.
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South African copyright law, currently, does not distinguish whether a digital copy or an original work can be considered as an original work in itself. Therefore, institutions must ensure that they have clear contracts with contracted staff and digitisation providers that state that they are being commissioned to do the digitisation work and in no way are able to claim copyright under any circumstances. Established service providers to the heritage sector are likely to already have this as part of their standard contracts.
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Funding organisations may introduce terms and conditions that require the transfer of rights in the digital funder. It is essential that the ownership of digital objects should be held in trust for the people of South Africa and remain in the hand of South Africa’s heritage public sector.
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Accordingly, sufficient access and usage rights for funders can be granted. However, the granting of these rights must in no way compromise ownership by heritage institutions or governmental bodies in the Western Cape Province, by the granting of exclusive licenses to funding organisations.
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Preferably, non-exclusive license to use the digital masters should be granted. Rights to sublicense the digital master may be granted, under certain circumstances and judged on the merits of the license application for sublicensing rights. Sublicensing agreements with funders should ideally require the payment of a fifty percent (50 %) royalties from sublicensing activity to the institution. Any licensing contracts or agreements put into place must clearly state that the presiding law is South African Law.
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Governmental bodies in the Western Cape Province must use the law of contract to ensure certain requirements are adhered to, including: acknowledgement of the institution, use of the correct reference coding; payment for access and use of image(s) for commercial broadcast or publication purposes; depending on the institution’s access and usage policy.
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Access must only be given to those who agree to the terms under which institutions grant access. However, the granting of these rights must in no way compromise ownership by heritage institutions or governmental bodies in the Western Cape Province, by the granting of exclusive licenses to funding organisations.
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As the basis for contracts for usage with rights, users may not include transfer of rights to the user. No automatic transfer of copyright or associated rights will be allowed with regard to South African records. No such agreements demanding the automatic transfer of copyright may be entered into by a South African cultural or heritage institution.
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Unless institutions intend to digitise for preservation purposes, the institution must obtain written permission from the copyright owner prior to investing time and resources in the digitisation process. This process includes orphan works where the name and address of the maker or rights holder is not known. Obtaining such permission may involve research that should be well documented.
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The Western Cape Archives and Records Service will cooperate with any national copyright clearing house or reproduction rights organisation established for digital masters, under the auspices of the Department of Arts and Culture.
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