Volunteers and Copyright factsheet

This document was written and licensed for publication by Naomi Korn and Bernard Horrocks for the Collections Trust

Introduction

This factsheet provides an overview of the relationship between copyright and the work created and used by volunteers. It offers advice on how copyright ownership, in works created by volunteers and staff, is different for both parties. It also suggests practical ways forward for volunteers and their collections, to ensure the legitimate use of volunteer created work. Finally, it provides an overview of roles and responsibilities regarding volunteers' use of other copyright-protected material.

The factsheet is for:

Sole volunteers looking after collections
Volunteers working as part of a voluntary team
Staffed organisations that include volunteers

It also aims to guide you through copyright and volunteer issues that may arise according to:

How your collection is run
How your collection is constituted
What kind of internal policies are at play

What is copyright?

Copyright is the exclusive legal right to control copying of certain kinds of work for a limited time (see www.collectionslink.org.uk/get_to_grips_with_copyright and www.collectionstrust.org.uk/copyright for more details and further guidance).

It applies to: original literary, dramatic, musical and artistic works as well as films, sound recordings, broadcasts and typographical arrangements.

Normally, copyright belongs to the author of these types of works, and then subsequent rights holders, apart from work created by employees in works created for or on behalf of their employer, or where there is a contract in place.

Reproduction
Distribution
Rental
Performance
Communication
Adaptation

It usually lasts for the creator's lifetime plus 70 years after the end of the year they die.

The current applicable law is the Copyright, Designs and Patents Act, 1988 (as amended), often referred to as the ‘CDPA'.

Copyright is part of the intellectual property right (IPR) family (see www.collectionstrust.org.uk/spectrum for guidance on Intellectual Property Rights issues), which also includes:

Designs
Database rights
Trademarks

What volunteers need to know?

General

Volunteers, like paid members of staff, need to have a responsible attitude towards copyright, as a volunteer could be personally liable if they breach copyright, even if unwittingly.

Essential point: Volunteers' status differs substantially from that of employees.

The legal position is that, in the absence of any agreement to the contrary, copyright in work done by volunteers rests with the volunteer.

Copyright needs to be considered at every instance of reproduction of works, sometimes even when copyright in the original underlying work may have expired. This is because there may be copyright in the photograph of an historical work, or because of possible contractual restrictions on loaned works ie there may be more than one layer of rights.

Always check if in doubt!

You can seek further advice, and a template for getting permission from third parties, at www.collectionslink.org.uk/get_to_grips_with_copyright

Volunteers are accountable for their own copying activities.

The following are the ‘fair dealing' guidelines for photocopying from CILIP (Chartered Institute of Library and Information Professionals www.cilip.org.uk) (these are only a guide and do not form part of any statutory or case law):

From journals or periodicals – you may photocopy one article per issue
From published books – one chapter or extracts totalling no more than 5% of the book
Single copies only may be made
No scanning or electronic storage may be undertaken
All sources must be acknowledged except where impractical

The Society of Authors guidelines suggest that extracts might be considered ‘fair dealing' if they totalled no more than:

Up to 400 words in a single quotation
Up to a total of 800 words in a series of short quotation, none of which is longer than 300 words (see Tim Padfield's Copyright for Archivists and Records Managers, Facet, 2007, section 5.2.7)

Specific points for sole volunteers or if your organisation is entirely volunteer run

If you are a sole volunteer the situation is clear:

If you are part of a voluntary team that collectively runs the organisation, or if you are an ‘unincorporated association' (ie a group of individuals who have formally agreed to come together for a particular purpose), the situation is more complex.

Such associations, in legal terms, cannot own property collectively (including intellectual property). Instead it rests with the individuals. There needs to be a clear understanding and agreement between the volunteers that each volunteer may copy, reproduce and otherwise make use of the others' contributions for a given purpose.

Notice of this agreement could be included in your general policy or on your website, so that potential volunteers know from the outset what is expected of them.

Volunteers should also make sure that there is an agreement in place between all the volunteers to allow the use of each other's content.

Specific points for volunteers within a staffed organisation

1. Volunteers often find themselves in the position of working under the organisation's name.

You need to be aware that the organisation's ‘goodwill' is another intangible asset often of considerable value and which needs to be handled sensitively. If in doubt, volunteers need to agree with the parent organisation the extent to which they represent it. Misrepresentation of the collection's goodwill, trademarks or other intellectual property could land several parties in trouble!

2. Licences issued by Copyright Licensing Agency (CLA), www.cla.co.uk, do not extend their cover to volunteers – volunteers are accountable for their own copying activities.

These licences only cover:

Employees
Workers
Consultants

Corporate liability or indemnity policies may not necessarily extend to volunteers.

Awareness and caution need to be exercised here!

3. Because of a copyright's inclusive nature it is essential that there are procedures in place to allow each volunteer use of another's content, such as a licence agreement.

If an organisation's volunteer policy does not contain an agreement of this kind, or there is no policy for volunteers, it is a good idea to bring this issue to the attention of whoever is responsible for volunteers within the organisation.

Be aware that general volunteer agreements between staffed organisations and volunteers are likely to be binding in honour and will probably not constitute a legal relationship.

Volunteers need to be familiar with the organisation's general policy in this area before commencing any particular activity or relationship. However, if you sign a copyright licence or an assignment, this will constitute a legally binding agreement.

What staffed organisations need to know when working with volunteers

1. The position at law is that copyright in any work created by the volunteer on behalf of a cultural heritage organisation rests with the volunteer. This is the direct opposite for that of employees, where the employer is, at law, the first owner of copyright in work created by the employee in the course of his or her normal duties.

2. An organisation will need agreement from the volunteer to be able to make use of his or her work (otherwise the work cannot be legitimately used). ‘Implied licences' or tacit understandings should not be relied on and, although rare, disputes have arisen nonetheless.

It has been the case that volunteers have produced work (eg contributing written or artistic content to annual reports) and then – following a dispute with the organisation – have refused to allow use of the material. Likewise, if a volunteer wishes to make further use of his or her own work beyond the collection itself, this is when potential issues might arise. This might be the case if the proposal contains a commercial element.

3. There are several ways in which an organisation can ensure that it has the necessary permission to be able to use works produced by volunteers. It is important that any agreement is in writing, and that a written agreement with a volunteer would almost certainly be regarded as a contract which, if being entered into, needs to be drafted properly. A balanced and fair approach is essential.

These agreements take two forms:

Volunteers can be asked to assign their copyright to the organisation they are volunteering for. If this is the case, it should be ensured that all assignments are signed in writing, and that they should be made for ‘valuable consideration' (ie money or money's worth) to be enforceable. A simple suggestion is that they be made in exchange for £1.
Volunteers can grant the organisation permission to use their works in the form of a licence. This will mean that the volunteer retains their rights (unlike an assignment), while the organisation will be permitted to use the work for certain purposes, depending upon the extent of the permissions the organisation has requested.

This might take the form of requesting permission on a case-by-case basis, or as a catch-all licence which the volunteer might sign before they start, which is probably preferable and administratively less time consuming.

Other related issues which require consideration

Moral Rights

Particular attention should be paid to a volunteer's moral rights.

These are statutory rights (CDPA, ss 77-89) granting the creator of a work:

The right to be attributed as its creator
To object to false attribution
To object to derogatory treatment of the work

Whereas an organisation might be happy to accredit a volunteer's contribution (particularly in guidebooks, website content or photographic material etc) this might not always be practical. This might be the case if contributions need editing or adapting. The organisation might ask the volunteer to agree to waive their moral rights to allow them unhindered use of the contribution.

Thought should be given to volunteers being thanked or acknowledged collectively (if they wish to be identified), perhaps on the organisation's website or in its annual report.

In practical terms, numerous and frequent minor contributions to databases could almost certainly not be acknowledged individually, and this should be clearly communicated to volunteers in order to realistically manage expectations. An organisation needs to convey clearly that all database rights are assigned to the museum.

Volunteers (by means of the activity they undertake) on the whole do not expect:

Material reward
Accreditation
Acknowledgement
Recognition

However, some privilege of non-material value is sometimes greatly appreciated. Consider how this might be achieved, particularly for contributions of substantial copyright material.

Use of collections and collections related information by volunteers

An organisation should have a policy regarding a volunteers' use of copyright material as well as content in which rights are owned by third parties. Volunteers should be bound by the same rules of confidentiality and responsibilities as paid staff.

It will need to be important to verify whether liability and insurance policies cover potential volunteer copyright infringements in addition to those that might be carried out by paid staff.

Training and induction

Volunteers should be included in any formal or informal training relating to copyright, and induction procedures which involve information about roles and responsibilities relating to IPR. It's an opportunity for volunteers to raise any issues or concerns, and to benefit their professional development.

Volunteer's policy and copyright

An organisation should publish their volunteer policy as widely as possible (including on their website), and it should be given to all volunteers (maybe with a requirement for signed receipt) before they start volunteering with the organisation.

This is so volunteers know what is expected of them as well as the specific issues relating to copyright and other IPRs – so they can raise any issues or concerns.

Further resources

The Collections Trust provides copyright training courses such as Introduction to Copyright and Copyright Essentials. Go to www.collectionstrust.org.uk/training for further details.

For additional information on legal issues relating to copyright see Volunteers and the Law by Mark Restall www.volunteering.org.uk/Resources/publications/volunteersandthelaw.htm.

Collections Link - Just Practical Advice - 0845 838 4000