Can we digitise research papers bequeathed to our university, and add them to our institutional repository? (16 April 2012)

Where research papers are bequeathed to an institution copyright, data protection and freedom of information are relevant legal areas to consider, and the issues are summarised below. Further detail is available in the JISC Legal guidance paper on Bequest of Research Papers.

Copyright

Research papers will usually be protected by copyright as literary works under the Copyright, Designs and Patents Act 1988 (CDPA).  Where a research paper is created in the course of employment ownership of copyright normally lies with the employer and will continue to be owned by the employer on the researcher’s death.  If the researcher’s employer at the time the work was created was not the institution to which the papers have been bequeathed permission will be required from the employer to disseminate the research papers, including digitising the papers to make them available in a repository.

Where the original owner of copyright is the researcher, the university will need to consult the will which bequeaths the papers to determine if they contain an assignment (transfer) of copyright to the institution.  Where there is an assignment of copyright, the institution will be free to determine how it disseminates the research and whether it digitises the papers and makes them available in a repository.

If the researcher's will is silent on the issue of copyright then where a researcher who died on or after 1 August 1989 bequeaths to an institution an original document or other material thing embodying a literary work which had not been published at the time of his or her death the bequest shall be taken to include any copyright the researcher owns in the work.  Copyright will otherwise lie with the heirs and their permission will be required for dissemination of the papers including digitisation and inclusion in a repository.  If the researcher died before 1 August 1989 the rules are slightly different and guidance is provided in the JISC Legal guidance paper.

Should the research papers include copyright works, such as graphics or photographs, owned by third parties, permission from those third parties will be required to make the research papers available.

Data Protection

The Data Protection Act 1998 protects information about identifiable living individuals.  Where an institution is bequeathed research papers which include such data, consent will usually be required from any individual whose personal data forms part of the research in order to use that information for any purpose beyond that for which the information was originally provided.  Consent will usually be required from an individual to digitise a paper including their personal data and to make it available in a repository as it is unlikely that such use was in the contemplation of the individual when the information was collected.  Anonymising the research data prior to digitisation will avoid having to obtain permission.

Where research papers contain personal data then that will be information held by the institution, and an individual will therefore have a right to make a subject access request to receive that information.

Freedom of Information

The Freedom of Information Act 2000 (FOIA) gives a right of access, upon request, to information held by 'public authorities' - including most universities.  The information requested can include research data.  An institution must provide access to information requested within 20 working days unless an exemption or exception applies.  Separate FOI legislation applies to Scottish institutions, but place similar duties.

http://jiscleg.al/FAQDigitiseBequeathed

Posted on 16/04/2012