The emergence of new technologies in the information and knowledge society has revolutionized the ways in which content is created, disseminated, accessed, and shared. Intellectual property regulations applicable to analog environments have been forced to adapt to the new digital landscape.
What digital aspects are expressly covered by intellectual property legislation?
The most prominent ones could be: digitization as an act of reproduction, compensation for private copying through the so-called "digital levy", making content available to the public through the Internet or intranets as an act of public communication, and technological measures and DRMS.
What is digitization and what can be digitized?
Digitizing is the process of converting content into a series of bits and storing them on tangible electronic media (CD-ROMs, DVDs, USB drives, etc.) or intangible media (computer memory). An example of digitization is scanning printed documents.
Digitization results in a new copy of the content and is therefore an act of reproduction in the sense of the Intellectual Property Law, which in turn means that it is an act of exploitation that belongs exclusively to its owner and cannot be carried out by other people except with legal or express authorization from the same.
What allows digitizing the law without having to ask permission from copyright holders?
The legal exception in favor of libraries, museums and archives allows these institutions to make reproductions (whether analog or digital) on a non-profit basis and for research or conservation purposes.
The legal exception for copying for private use allows the user to reproduce, although it requires that access to the work is legal and that the copy is not used collectively or for profit.
What is the digital levy?
Technically, this is compensation for private copying, which the law permits for personal use. Such copying is considered to result in an economic loss for the copyright holder. In return, a levy is established on the equipment, devices, and media that can be used to make reproductions. This compensatory remuneration has existed in our legislation since 1987. The novelty lies in its extension to the digital realm.
If a digital copy is made and sent by email, does that infringe any rights?
Sending copyrighted content via email to multiple recipients may be considered "making it available to the public" in the legal sense and require authorization from the copyright holder. If the content is sent individually and the digital copy was made lawfully, it may be considered an extension or delivery of the reproduction, which does not constitute a new act of exploitation, and is therefore also lawful.
Can content be hosted freely on the Internet?
Not always. Only if the person uploading the content is the rights holder or has authorization to do so. Otherwise, copyright must be respected.
Uploading protected content to a server connected to an open broadcast network constitutes an act of exploitation of intellectual property rights; to be exact, it is a case of “interactive making available” contemplated by law as an act of public communication (one of the four basic exploitation rights that belong exclusively to its owner).
What content can be hosted in a virtual classroom?
A virtual classroom is not usually an open, public network but rather a restricted-access network or intranet. However, the content uploaded to it still qualifies as interactive dissemination and therefore constitutes "public communication" for legal purposes. Consequently, and without prejudice to legal exceptions, it requires authorization from the owner.
The teaching resources that teachers make available to students in their virtual classroom are subject to copyright, just like any other content belonging to intellectual property.
Can content accessible on the Internet be used freely?
Simply browsing and skimming content on the internet does not usually constitute an infringement of intellectual property rights. However, any subsequent use of such content, even if freely accessible, must respect the rights holder's stipulations. If the content is protected by the copyright symbol © accompanied by the phrase "all rights reserved," it may not be used in any way other than that permitted by law.
However, content with more permissive usage licenses, known as free or open licenses, is becoming increasingly common. In these cases, the rights holder's wishes regarding permitted uses and established conditions must be respected.
Examples of this are Creative Commons licenses.
How does the protection of technological measures affect intellectual property rights?
The regulations protecting technological measures aim to give the rights holder control over the exploitation rights of their work. They extend to both technical devices and rights management mechanisms. The law establishes legal actions against acts of suppression or circumvention of either.
DRMS stands for Digital Copyright Management Systems.
Are there usage restrictions for the electronic resources subscribed to by the Library?
Electronic resources (journals, databases, e-books) accessible to ULL members through the Library's website are governed by a private contract with the publisher or provider. These licenses contain terms of use that are mandatory for all users. For example, they may prohibit bulk downloads of data or records. Please consult the publishers' usage policies, which are usually available on their websites, and if you have any questions, ask the Library's specialized staff.
Are there any restrictions on the content that can be provided to personal websites?
Personal websites are platforms for accessing digital content and are treated the same as any public website. From an intellectual property perspective, the general rules of protection and exclusivity apply.
In this context, the question often arises as to what the owner of a personal website can and cannot do with the results of their research, especially if they have already been published as articles in a journal. The answer depends on the agreement signed with the publication's publisher, the rights that have been assigned, and the rights that have been reserved.
If in doubt, you can consult the website of SHERPA/RoMEO, where the copyright policy of the main foreign magazine publishers is made explicit.
In the case of published works, is it possible to also make them public in an institutional digital archive?
It also depends on the copyright agreement signed with the publisher. An increasing number of scientific publishers allow the deposit of work in an institutional repository, although they may establish embargo periods and/or authorized versions. If in doubt, consult the website of SHERPA/RoMEO.
For non-scientific publications and Spanish publishers, in the absence of a contract, the management of authorizations necessarily involves, for the time being, direct contact with the publisher involved.
See also the Tutorial: «Control your rights, facilitate open access»
Content adapted from Property and new technologies, Carlos III University of Madrid