Repository policies
Abstract:
This chapter examines the importance of creating a policy infrastructure for an institutional repository. A comprehensive policy framework requires the creation of a collection management policy, deposit agreements, terms-of-use policies, and policies to ensure compliance with applicable laws, such as the Digital Millennium Copyright Act and the Americans with Disabilities Act. The chapter discusses each of these, with special attention to defining the various relationships between content creators, end users, and the repository’s institution.
An appropriate policy infrastructure is necessary to ensure sustainability, limit liability, and consistently communicate the legal and ethical foundations of an institutional repository program. There are two primary factors that determine what policies are necessary for any given repository program: the content that the repository holds and the individuals or groups who have a stake in the repository. The former should itself be determined by policy – a collection management policy – and will help identify most precisely the repository’s stakeholders. However, as should be evident from the preceding chapters, all institutional repositories are generally responsible (legally, ethically, or both) to four primary constituencies: content creators who deposit in the repository (e.g., faculty and students); third parties with interests in deposited content (e.g., publishers or research subjects); the institutional home of the repository; and, finally, the end users of repository content (Anderson, 2006; Friend, 2006; McKee, 2008). The policies and procedures that guide an institutional repository must take into account these various responsibilities and make every effort to ensure that the relationships between these constituents and the repository are as transparent as possible.
Within the broader framework of considering both repository content and repository stakeholders, there are four categories into which policies may be placed: collection management, deposit agreements, terms of use, and legal compliance. It should be noted that not all possible – or necessary – policies are discussed here. In keeping with the scope of this text, only those with direct legal or ethical implications are included; other operational policies (e.g., relating to metadata, submission formatting requirements, or digital preservation) are relevant for repository programs, but are not directly germane to this discussion.
Collection management policies
In general, collection management policies are not considered to be legal or ethical guideposts. However, within a policy’s delineation of what content may be appropriately included in a repository and how that content is to be managed, there is ample opportunity to move beyond simply providing guidance to library staff and potential contributors. A sound repository collection management policy should also demonstrate a commitment to legal and ethical collection practices and should provide a clear description of the library’s editorial role (or lack thereof) in distributing repository content. It should be noted that though it is discussed as a single comprehensive policy here, it is conceivable that some institutions may choose to develop separate policies to address some of the same issues.
It is assumed that all collection management policies will include information related to the mission/purpose of the repository; the scope of content that is included in the repository; responsibilities for identifying and selecting content; format and size issues; and responsibilities for the migration, preservation, and persistence of content. Beyond these core elements, however, it is also advisable to address the following topics within the policy:
Editorial responsibility
Most institutional repositories follow the prescription recommended by Clifford Lynch, who argued that employing “practices from traditional scholarly publication such as the use of peer review” were unnecessary and ran counter to the intended function of such repositories (Lynch, 2003). This means that, while the repository’s collection management policy may describe specific categories of content that are appropriate for deposit (usually those that derive from the scholarly, creative, or administrative life of the institution), the repository manager generally does not exercise any type of editorial authority over individual works that are submitted. Though this is common practice, it should not be left as an unstated assumption, but should be included explicitly as part of the repository’s policy.
Beyond providing a realistic expectation to potential contributors as to what level of review is provided for work in the repository, codifying this in policy demonstrates that the library (and repository manager) should be considered a distributor – and not “publisher” – of submitted content. If, in fact, the library does use the repository as a publishing venue (Royster, 2008), the policy should clearly delineate what categories of content receive any special review or editorial management. The importance of including this language in the policy is twofold. First, it establishes that the repository is an extension of the library’s traditional role as a distributor of content published (in the broadest sense of the term) by others, which is a role that sometimes holds less liability in legal actions such as defamation claims (CMLP, 2011a). And second, even if the library’s use of the repository is considered to move it into the role of publisher, it will be obvious that the library does not go farther than any of the basic editorial functions allowed to interactive computer service providers under Section 230 of the Communications Decency Act (CMLP, 2011a).
Intellectual property
The collection management policy should address the ownership and use of intellectual property rights within all works deposited in the repository. Though the type of intellectual property right that is most relevant for institutional repositories is copyright, it may be advisable to address other rights, such as trademarks and patents, within the policy as well. For example, if faculty research is regularly conducted in areas that produce patentable work, an institution could decide that original research findings (in which the institution has a legal interest) must be approved for deposit in the repository prior to submission so that future patent applications are not jeopardized (Anderson, 2006). Such a policy would need to be carefully prescribed, however, so that it was limited to only work in which the institution had legal rights and did not needlessly limit researchers’ abilities to freely share their work.
With respect to copyright, the policy should (a) state explicitly that no transfer of copyright to the library is required for deposit; (b) describe the nonexclusive license that must be granted to the library as a condition of deposit for the purposes of distributing and preserving the work; (c) address the deposit by students and faculty of materials in which a third party (e.g., a publisher) owns copyright; (d) describe the extent of the institution’s support for the fair use of copyrighted materials in submitted work; and (e) as necessary and applicable, connect the repository policy to the institution’s intellectual property policy.
Human subject research
The treatment of human subject research ethics within the collections policy does not need to be overly detailed, but it should outline the conditions under which unpublished research (i.e., that not already accepted for publication or presentation in an external peer-reviewed venue) will be accepted for inclusion in the repository. The policy should describe the information that will be required from depositors in relation to relevant submissions, and should also provide for communication with the Institutional Review Board to confirm appropriate ethical review when necessary.
Datasets and databases
With relation to data products (datasets and databases), the policy should (in addition to issues of format, size, etc.) address the general attributes of data that may be deposited, the different levels of access the repository can provide, and any pertinent legal and ethical issues. Though the collection management policy should also address intellectual property, human subjects, and privacy more generally, it is advisable to include a brief discussion of these issues within the data context.
Privacy
It is important to distinguish the privacy concerns of those who use the repository (either to submit or access content) from the potential privacy issues within the submitted works themselves. The collection management policy is the appropriate forum in which to address the latter; the former should be included in the privacy policy/terms of use of the repository website (discussed later in this chapter). Within the collection policy, it is important to affirm the repository’s commitment to preserving individuals’ rights to privacy, to not disseminating content that contains private information privileged by law, and to upholding the institution’s own privacy policies.
Defamation
Similar to the treatment of privacy, it is important to (a) remind potential repository contributors that defamatory content will not be included in the repository, (b) to demonstrate the institution’s good-faith efforts at preventing such materials from being distributed, and (c) to outline the process through which such materials may be removed from the repository. Including this language in the policy is, admittedly, a departure from general library collection management policies. Usually, such policies are used in defense of community claims that library collections contain inappropriate materials. Through an online institutional repository, however, the library could be viewed as a publisher of defamatory content. This potential risk of liability and the library’s responsibility to the institution outweighs what could otherwise be seen as an affront to intellectual freedom. At the same time that it is important to address this issue within policy, though, it is equally important to be clear that the library and repository manager will play no role in making a priori determinations as to whether submitted content is defamatory.
Collaborative works
Research and scholarship in many fields is an inherently collaborative process that may take place between students and faculty, between departments at the same institution, or between colleagues at different institutions. While including such work in the repository is vital to demonstrating the potential of such collaborations, it also raises potential issues when co-creators are subject to different policies or jurisdictions. For example, institutional policy may dictate that student research assistants’ names may not be disseminated through the repository without their express permission. Or, in the case of the deposit of a database produced in collaboration with a European colleague, E.U. or national data protection regulations may apply. However, regardless of the varied contexts surrounding individual submissions, it should not be the repository manager’s responsibility to ensure that the submission conforms to all applicable law and policy. Rather, responsibility should rest with the depositor – much in the same way that scholarly journals require one corresponding author to provide certain assurances. This responsibility should be clearly outlined in submission agreements, but it is also appropriate to include it in policy.
Withdrawals and corrections
Institutional repositories contain a unique mix of content that generally falls into two broad categories: content published and available elsewhere or content that has never been formally published and which is only available through the repository. These content types lead to four scenarios in which withdrawal of a work from the repository may be requested: (a) an author requests that a work (published or unpublished) be withdrawn; (b) posting of a published work is found to have violated a publisher’s policy or rights in the work; (c) a claim of copyright infringement or other legal or ethical violation arises in an unpublished work; or (d) a previously published work is retracted from its initial place of publication. In addition to addressing these situations in repository policy, the specific populations served by the repository give rise to two other scenarios that should be addressed: faculty members who leave the institution and wish to have their work removed and students or alumni who request that their old work be removed because it doesn’t represent their current abilities. These varying issues may be addressed individually, or with one general policy statement that applies to all withdrawal requests.
While both published and unpublished repository content are equally susceptible to simple withdrawal requests, previously unpublished content also presents the possibility that an author will seek to have a correction made to posted content. As the sole distribution point for otherwise unpublished work, this places the repository in an analogous position to scholarly journals who have long dealt with corrections and issuing errata. Adopting similar policies, which allow for errors to be noted while preserving the version of record, should be considered the best practice for repositories as well. (Note: Correction and retraction policies for journals will be discussed in Chapter 9.)
Regardless of the scope of a request to amend currently posted content, a repository’s policy on withdrawals and corrections is an opportunity to emphasize the repository program’s commitment to the principles of preservation and access, as well as its role in protecting the integrity of the scholarly record.
Access restrictions
Given the varied nature of scholarship across disciplines, and the varying stakeholders with interests in the products of research, it is almost inevitable that an institutional repository will need to accommodate these stakeholders (and their associated rights) by offering different levels of access for deposited works. This reality of access restrictions, however, comes into direct conflict with libraries’ ethic of access (Anderson, 2006) – and repository managers should not hesitate to use repository policy to emphasize that open access (gratis, at a minimum) is the default and desirable option for all works in the repository. Depending on the institution, and its specific aims for the repository, it may even be appropriate to decide – and codify in policy – that only openly accessible works will be included in the repository.
Box 5.9
Access restrictions: sample policy language
All items in DSpace will have a version of the complete content for free TO THE MIT COMMUNITY, WITH STRONG ENCOURAGEMENT FOR FREE TO ALL, with the following exceptions:
By default, items in IDEALS have no access restrictions, that is, they are openly and freely available via the World Wide Web. Open access to deposited items encourages a primary mission of IDEALS: the distribution, dissemination, promotion, and use of research and scholarship produced at UIUC. The University Library and CITES strongly encourage depositors not to place access restrictions on deposited items.
However, there may be some situations when depositors need to restrict access to items in IDEALS. For example, a publisher may allow deposit of published articles into an institutional repository (such as IDEALS), but require an embargo of six months before the article may be made publicly accessible. Such a postprint might be deposited into IDEALS, but no access would be allowed for a period of six months.
IDEALS allows access restrictions to be imposed at the collection or item level. The individual depositor or the IDEALS community (the group responsible for a set of collections in IDEALS) is responsible for the decision to impose access restrictions.
Access restrictions on an item may be set to one of the following levels:
Level 1: Restricted to University of Illinois community members with a NetID and password only. Theses and dissertations with this restriction may be requested by outside users via interlibrary loan only; this is not true for other material restricted to the University of Illinois;
Level 2: Restricted to a specific group defined and maintained within IDEALS; or
Level 3: Embargoed, i.e. closed access (i.e. accessible to no one via the web) for a specific period of time. These are not visible except to an IDEALS administrator.
Access restrictions on a collection may be set to one of the following levels:
Level 1: Restricted to University of Illinois community members with a NetID and password only; or
Level 2: Restricted to a specific group defined and maintained within IDEALS.
However, individual items within a collection may be assigned a different access restriction level, including Level 3, regardless of the level of restriction assigned to the whole collection.
If an individual depositor or IDEALS Community decides to limit access to items, or an entire collection, to a specific group (Level 2), the individual depositor or the IDEALS Community must take responsibility for the continued maintenance of this access restriction level – particularly the group membership – for the items or collection. IDEALS staff takes responsibility for the continued maintenance of Level 1 and Level 3 access restrictions.
Access restrictions may be set to never expire or may be set to expire after a specified period of time. If access restrictions are necessary, we urge depositors to only put in place the minimum level of restriction necessary.
If a depositor wishes to set access restrictions on an item, they may do so during the deposit process. If a depositor wishes to restrict access to a specific group (Level 2), the IDEALS staff will be notified upon deposit of the item and will work with the depositor on the initial set-up of that group. Restricting access to the University of Illinois community (Level 1) or establishing an embargo period (Level 3) will require no further action on the part of the depositor.
An IDEALS Community who wishes to restrict access to all material in a specific collection must contact IDEALS staff who will assist them in establishing these restrictions.
If a depositor or an IDEALS Community wishes to restrict access, change the level or time period of restrictions, or lift restrictions to an item after it has been deposited, they must contact the IDEALS staff in order to make these changes. At this point, it is not possible for a depositor or an IDEALS Community to make changes to access restrictions on an item(s) after it has been deposited.
If an item has access restrictions this will be indicated to users of IDEALS in the metadata as well as by a lock icon next to the download link. A [lock icon] indicates a Level 2 restriction. A [IDEALS logo] indicates a Level 1 restriction. If an item is embargoed (Level 3), the only reference until the embargo period ends will be a page, accessible only via the item’s persistent URL or handle, stating that the item has been embargoed and giving its release date.
Source: MIT, DSpace Access Policy, DSpace@MIT, http://libraries.mit.edu/dspace-mit/build/policies/access.htmlSource: University of Illinois, IDEALS Access Restriction Policy (March 2008), http://hdl.handle.net/2142/3743 Used with permission.
From policy to workflow
Even if a library makes its repository collection management policy publicly available on its website (as it should), there is no guarantee that faculty or students who submit work to the repository will read the complete policy. However, the repository policy can be used as the foundation and reference point for more concise submission checklists and submission agreements. Submission checklists, such as that recommended by Jisc (formerly JISC) (Madhavan, 2007), provide concise reminders of potential legal and ethical issues for both repository staff and repository contributors. These checklists can be used as informal adjuncts to the submission process, or they can be formally incorporated into workflows for staff (e.g., by requiring a checklist to be completed before the repository platform will allow a queued submission to be posted) or integrated into the submission agreements that contributors are required to complete.
Repository submission agreements
Submission (or deposit) agreements – sometimes referred to as license agreements – are the second core component of a repository’s policy infrastructure. Where the collection management policy defines the accepted parameters of content that may be included in the repository, the submission agreement defines the relationship between the individual submitting the content and the institution that is operating the repository.
To a certain extent, a submission agreement should echo the collection management policy – offering contributors a reminder that they are responsible for ensuring that their content conforms to the policy’s requirements. But the submission agreement, unlike the collection management policy, is a legal document. As such, careful attention should be paid to the agreement’s construction. While examples of language are shared here, each institution should review its proposed agreement with its legal counsel to ensure that all relevant language and topics included are appropriate for the institution’s context.
In general, a repository submission agreement should include, at minimum, language that addresses the following three areas:
the contributor’s right to enter into the agreement;
the grant of a license to the institution; and
assurances from the contributor regarding the legality of the content.
Contributor’s right to enter into the agreement
Put simply, you can’t contribute what isn’t yours to give. In other words, a contributor cannot enter into an agreement that grants the institution the right to include a work in the repository if the contributor does not own the work or has not been authorized to enter into the agreement by the owner(s) of the work. There are two elements to this concept that are typically addressed in submission agreements. First, the contributor must provide assurances (in legal terms, a representation or a representation and warranty – see “Assurances from the contributor” on p. 132 for more discussion of these concepts) that he or she holds the copyright to the work in question. If copyright is held jointly with others, the contributor will usually be asked to represent that the other owners approve of submitting the work to the repository and the terms of the agreement.2 Second, the contributor must represent that if the work in question contains others’ intellectual property (depending on the type of submission, this could extend beyond copyrights to trademarks or patents), the contributor has obtained their permission for such inclusion – and that the terms of that permission allows deposit of the contributor’s work in the repository.
Grant of license to the institution
Assuming that the contributor has the right to enter into the agreement, he or she is asked to grant the institution a license to use the work in question. It is this license that allows the institution (and by extension the library and repository staff, as agents of the institution) to distribute the work through the repository, as well as to exercise other exclusive rights provided to the owner under copyright law. Beyond allowing simple distribution of the work, obtaining other rights is necessary to allow the library to properly preserve the work over time.
It is important to note that, in all cases, this grant of rights should be nonexclusive. In other words, the contributor does not transfer the rights to the repository’s institution, but simply lets the institution exercise the rights. The contributor – or other owner(s) (e.g., a publisher) – still owns the copyright in the work.
Assurances from the contributor
Much in the same way that a contributor must provide an assurance that he or she has the right to enter into the agreement, it is also advisable to receive other assurances that the content of the work in question doesn’t violate other individuals’ intellectual property rights or privacy rights, or other relevant laws. As mentioned earlier, these assurances are known as representations or representations and warranties. Within the context of a legal contract, a representation is a statement of fact (Garner, 2009); by “representing” something, the contributor is stating that it is true. A warranty is an “express or implied promise” that a statement of fact is true; in essence, the contributor is guaranteeing that a representation is accurate (Garner, 2009, p. 1725). By requiring representations from a contributor, the institution receives a legally binding assurance that the contributor can be held liable (for breach of the submission agreement and, potentially, for damages resulting from the breach) if any of the represented statements are found to be false (DuBoff, 2008).
With relation to institutional repository submissions, the most important representations to require from the contributor (beyond the fact that he or she has the right to make the submission) are related to the content of the work in question. More specifically, it is advisable to obtain representations that the content of the work (a) does not infringe on others’ intellectual property rights, (b) does not infringe on others’ privacy rights, (c) does not contain defamatory language, and (d) does not violate any other laws relevant to the submission (e.g., data protection regulations, etc.).
When including representations in the submission agreement, the institution needs to decide whether it is appropriate for the contributor to be liable only for misrepresentations of which he or she is aware (i.e., made intentionally), or to be liable for all misrepresentations. If the former is desired, the representations can be couched with the phrase regarding “the best knowledge” (e.g., “To the best of my knowledge, this submission does not infringe on the intellectual property rights of others …”) (DuBoff, 2008). However, from an institutional perspective, it may be preferable for the contributor to be liable for all misrepresentations – that way, the institution does not have to prove the author’s knowledge/willful misrepresentation when determining who (the author or institution) is liable for damages (DuBoff, 2008).
Beyond representations: indemnification
Including representations and warranties from the contributor in a submission agreement should sufficiently minimize an institution’s liability related to the content of the contributed work. However, legal counsel at some institutions may recommend that the submission agreement go one step further and include an indemnification clause. In legal terms, to indemnify another party is to “reimburse (another) for a loss suffered because of a third party’s or one’s own act or default; hold harmless” or to “promise to reimburse (another) for such a loss” (Garner, 2009, p. 837). An indemnification clause in a submission agreement might include language such as “Party A agrees to indemnify and hold harmless Party B, and the employees and agents thereof, from any claims, losses, damages or legal actions incurred by Party B that arise from the content or dissemination of the content through the repository.”1
The practical implication of an indemnification clause in a submission agreement is this: if a contributor indemnifies an institution, that institution will be able to seek compensation from the contributor if the institution has to pay fees or damages from a legal claim related to dissemination of the contributor’s work through the repository. Usually, such an indemnification by a contributor should be limited to any claims, losses, or damages that result from the contributor breaching any of the representations and warranties made in the submission agreement. For example: “I agree […] to indemnify and to hold SMU harmless from any and all claims of copyright violation resulting from the use of my Content […]” (SMU Digital Repository, 2011).
The reason that institutions seek indemnification by contributors is similar to the reason that publishers often seek it from authors. The publisher’s (institution’s) stance is well articulated in this statement from the University of California, Berkeley:
“The Regents’ standing orders allow the University to make promises in agreements that are related to acts (or failures to act) under the University’s control.
At a simple level, indemnification means that one party agrees to protect the other party from financial loss that might arise out of the agreement, based on a claim or demand by someone who isn’t part of the agreement (a third party). In the copyright assignment agreement, the author’s indemnification of the University is related to the breach of any (Author) warranty enumerated in the Agreement.
As an example, one of the author’s warranties is that the manuscript doesn’t infringe another party’s copyright. The University didn’t write the manuscript (an act not under the control of the University), so the University doesn’t want to assume the financial liability of defending an allegation of copyright infringement.”
While it is understandable that an institution may wish to minimize financial risk by seeking indemnification by repository contributors, library administrators should strongly advocate for language that does not place undue liability or risk on contributors. The submission agreement should encourage responsible behavior, but it should also not be constructed in such a way that an institution offers no support for its scholars. For example, if an institution elects to support its students and faculty in their fair use of copyrighted materials in repository contributions, the submission agreement should reflect that support – not require a blanket indemnification for any and all copyright infringement claims.
Other elements
Establishing the contributor’s right to deposit the work in the repository, receiving a license from the contributor to use that work, and obtaining assurances from the contributor about the content of the work are the core elements of a submission agreement. However, it is also important to include other language that further describes the role, rights, and responsibilities of the library/institution with regard to the submitted work. In other words, the agreement should address the promises (consideration) that the library offers to the contributor, as well as the rights the library is asserting – for example, with regard to the library’s responsibility for preserving the work, or in relation to the withdrawal and review of content:
“UBC may remove access to the Submission from cIRcle if it is found to violate any copyright, trade-mark, patent or other rights whatsoever of any person, or in accordance with cIRcle withdrawal policies. The bibliographic reference to the Submission will be retained in cIRcle, but the Submission will no longer be publicly accessible. Notwithstanding the above, you acknowledge that UBC has not independently assessed intellectual property rights with respect to the Submission and is relying upon your representations in this License.”
In addition to addressing the relationship of the institution to the content, institutions may also wish to consider adding language to the submission agreement that:
prescribes how amendments or revisions to the agreement may be made (usually, in writing);
addresses the jurisdiction in which legal claims arising from the agreement will be handled;
acknowledges that the content may constitute an educational record under FERPA and provides consent for its disclosure (specific to student coursework); and
assigns responsibility to the contributor for providing current contact information to the institution to facilitate permissions requests or other communications related to the work.
As in other legal matters, each institution’s legal counsel (or, in this case, contracts office) will be best suited to provide guidance on the appropriate content and language of the agreement for that institution’s repository.
Beyond single submissions: memoranda of understanding
A submission agreement is the ideal instrument to use when an institution needs to define its relationship with an individual student or faculty member who contributes content to the repository. However, a submission agreement is less appropriate when defining a relationship with a department, academic unit, or external partner for the purposes of establishing a collection of content within the repository. In this instance, a memorandum of understanding should be used instead. A memorandum of understanding (MOU) is a document that can be used to formally describe the roles and relationships between two or more entities; for example, MOUs are commonly used within the context of library consortia to document agreements (Kopp, 1999). An MOU may or may not be legally binding; the parties to the agreement may choose to construct the MOU so that some – or all – of the provisions are binding (USAID, n.d.).
The use of an MOU should be considered best practice any time a library creates a repository collection for content from an entity that is external to the institution. For example, if a professional association wishes to partner with the library and use the repository to disseminate a series of the association’s white papers or reports, an MOU should be used to govern that partnership. It is also appropriate to use an MOU to prescribe the relationship between the library and other intra-institutional departments or units (e.g., if a center on campus wants to make transcripts of its colloquia available through the repository). Regardless of whether there is an external or internal partner, or whether content will be contributed only once or on an ongoing basis, an MOU can help establish clear expectations and responsibilities for all parties involved (Barton and Waters, 2004).
As with an individual submission agreement, the primary goals in drafting an MOU should be to (a) define the contributors’ responsibilities and (b) establish the library’s role and responsibilities with regard to the contributed content. These are general areas that should be addressed in an MOU governing a repository collection: purpose, roles and responsibilities, content, preservation, term and termination, and authority.
Purpose. Indicate who is entering into the agreement, and why. This is a good opportunity to indicate why this particular content is being included in the repository, and how disseminating the content addresses the shared goals of the organizations.
Roles and responsibilities. Clearly delineate the responsibilities of both the contributor and the library with regard to the content in question. It is advisable to receive assurances from the contributor similar to those received in individual submission agreements – and it may be advisable for some of these assurances to be legally binding.
Content. Describe the nature of the content to which the terms of the MOU apply. In addition, indicate ownership of the content. For example, “All SSO:USA content ingested into CommonKnowledge shall remain the property of SSO:USA.”
Preservation. Describe the preservation measures, if any, which will be used with the content. The contributing entity should be provided a clear description of what backup and/or preservation options the library is prepared to offer.
Term and termination. There should be a clear description of when the agreement begins and when it ends (or whether it will continue in perpetuity, unless terminated by either party). This should include an explicit description of what actions or events will cause the MOU to be automatically terminated, and the dispensation of content in the repository at that point.
Authority. Indicate who, for each party to the agreement, has the authority to enter into the agreement and negotiate changes to the agreement.
If there are any elements of the MOU that all parties wish to be legally binding, these should be specifically noted within the agreement. Alternately, it is advisable to indicate if the MOU (or any parts of it) are not intended to be legally binding. If any part of the MOU is legally binding, it would also be appropriate to indicate the jurisdiction in which legal claims will be addressed, as well as to ensure that all appropriate elements required by contract law are present.
Repository-related MOUs may vary greatly in length and complexity based on whether partners are internal/external and the nature of the content in question. However, all MOUs offer the same benefit for the library and the repository manager: documentation that will guide workflows, provide a reference point for partnerships, and ensure sustainability over time.
Addressing end users: terms of use, privacy, and disclaimers
Collection management policies, submission agreements, and memoranda of understanding are all primarily concerned with addressing the relationship between content contributors and the repository (and by extension, the repository’s institutional home). However, the very purpose of institutional repositories – to openly disseminate the scholarship and culture of an institution – creates another relationship: that between repository content and those who access it. (It should be noted that that those who contribute content to the repository and those who access content are not mutually exclusive groups; contributors are bound both by submissions agreements and by the general terms of use for the repository site.)
As with the users of any other online website or service, the library has a responsibility to communicate the terms under which individuals may access and use the repository. There are two levels on which this communication commonly takes place: at the site level and at the collection or item level. The former will usually take the form of general “terms of use” and privacy policies, while the latter may include specific terms of use, licenses, or disclaimers that are unique to certain collections and items within the repository.
Terms of use: content
In the same way that a submission agreement creates a legally binding contract between a contributor and the repository’s institution, the terms of use for the repository site creates a legal relationship between the institution and anyone who uses the repository or its contents (Bowman, 2011). However, unlike a submission agreement – which can conceivably be altered through negotiation between the contributor and the institution – the terms of use constitute a “standard-form” contract (Chiu, 2011, p. 168). The individual who uses the repository has no choice but to accept the “unalterable terms” (Chiu, 2011, p. 168) if he or she wishes to use the repository site or its contents. While the use of such contracts is standard practice for websites and online service providers, and may seem better addressed by an institution’s webmaster or IT staff, institutional repository managers need to understand the utility and implications of terms-of-use agreements. Even if an institution has a general terms-of-use statement that is intended to cover all institutional web content, the repository may wish to consider using different terms or types of agreements to govern content within its subdomain or directory.
The terms of use for an institutional repository should include language that addresses, at minimum (a) users’ rights related to repository content, (b) the responsibility, if any, that the institution assumes for others’ use of the repository content, and (c) the jurisdiction for any claims related to use of the repository or its content. It is also advisable to include language that addresses under what conditions the terms of use may be changed by the institution and under what conditions the terms-of-use agreement may be terminated.
Users’ rights related to repository content
When software or digital content is purchased online, the use of those products is governed by an end user license agreement (EULA) (Warner, 2010). In much the same way, the terms of use for a repository provides a license that describes how users may utilize the content within the repository. In some repositories, this description of rights/acceptable uses may also be highlighted separately under the heading of “Copyright Policy”.
It is important to note that the rights that an institution grants to repository users in the license/terms of use are limited by the rights that the institution is granted by contributors in the repository submission agreement (Milstein, 2007). To rephrase an earlier statement, an institution can’t grant rights that it doesn’t have. If an institution only receives a license from the contributor to distribute a work, then it may do just that – but it may not grant users who access that work any expanded rights to use the work beyond those afforded to them under copyright law. This limitation is illustrated clearly in the difference between two versions of Harvard University’s repository submission agreement (Box 5.17).
In the first version of the agreement (OAP), Harvard is granted permission to “authorize others” to exercise “any and all rights under copyright”, while in the second version (Limited), Harvard is only given a license to exercise certain rights itself – but not extend them to others. Users accessing works governed by the latter agreement are restricted to uses for third parties that are allowed by copyright law (e.g., fair use of others’ work).
If users are limited to the uses of others’ work allowed under copyright law, extra attention should be paid to ensure that terms-of-use language does not further limit use. Because the terms of use constitute a legally binding contract, it is possible that the institution could include language that effectively disallows certain uses that would otherwise be legal under copyright law. The best (or worst) example of this is personal use only language. By including language that explicitly states that repository content may only be used for personal use, the repository would be denying users the rights present in U.S. copyright law for fair use (U.S.C. Title 17, Sec. 107), teaching (U.S.C. Title 17, Sec. 110), and other purposes (Abruzzi, 2010). Repositories that do include “personal use” language in their terms of use should be certain to also explicitly permit the exercise of all available rights – even when they extend beyond personal use. For example, see Box 5.18.
Box 5.18
Users’ rights to use repository content: sample language
Users are free to download, save, and print materials found here for their own use. With some exceptions (noted below), users should not re-publish, re-post, or redistribute materials without permission of the holders of copyrights.
Materials published under a Creative Commons license may be re-used, re-posted, etc., for non-commercial purposes as long as credit or attribution is given to the original authors and publications.
Materials that are in the public domain may be re-used in any way without limitation. These include:
works published before January 1, 1923,
works published before January 1, 1963, without copyright notice or whose copyrights were not renewed,
works whose authors have been dead for more than 75 years, unless previously copyrighted and still within term
United States government works, including US Patents and works by US government employees created in the course of their official duties
works of Florida state employees created in the course of their official duties
The doctrine of fair use permits the quotation or reproduction of excerpts from a copyrighted work without permission. The entire work, however, may not be excerpted. There is no rigid standard, but quotation of excerpts less than 1 page are generally considered allowable.
US law permits the classroom display or use of copyrighted works within the context of instruction at an accredited non-profit educational institution without further permission. This does not extend to distribution of such works, however.
Under current law, copyright is granted automatically and immediately to the author/creator of a work; there is no requirement for registration or notification.
These rules apply in the United States; foreign and international copyright rules may vary.
Source: University of Nebraska-Lincoln, copyright © of Items in This Repository, Digital Commons@University of Nebraska-Lincoln, http://digitalcommons.unl.edu/copyright.html
Responsibility assumed by the institution
In addition to establishing the rights users have to utilize the repository site and content, terms of use also need to clearly describe the responsibility that the institution is willing to assume for others’ use of the content (usually, none). These sections of the terms-of-use agreement, which usually fall under the headings of disclaimer of warranties and limitations of liability, are key components in minimizing risk and reducing liability (Milstein, 2007).
A disclaimer of warranties is a statement or series of statements that establishes that the institution makes no promises of any kind about the repository website or its contents. It usually means that the institution is making no guarantees about the accuracy, soundness, or legality of the content. Similar to a disclaimer of warranties, a limitation-of-liability statement establishes that the institution cannot be held liable for an individual’s use of the repository or its content. See Box 5.19 for examples of both.
Taken together, the cumulative effect (and intent) of these two statements is to provide a clear “buyer beware” message. Some institutions may choose to go one step further and also include an indemnification clause in the terms of use, further insulating the institution from financial risk.
Jurisdiction for claims
Though disclaimers limit the likelihood that a user will bring a legal claim against the repository’s institution, it is still advisable to dictate – to the extent possible – the terms under which a claim may be brought. Repository content is available to anyone in the world with an Internet connection, and it is impossible for repository managers to know all relevant international laws. So, while it is potentially important to specify a legal jurisdiction for claims that arise out of a submission agreement or MOU (likely to be made with domestic individuals or entities), it is extremely important to specify a governing jurisdiction for claims from users (Milstein, 2007).
Although most terms-of-use agreements are similar, it is inadvisable to simply copy language from another institution (even if permission is given) and assume that it will address the specific circumstances of one’s own institution. For example, an institution may offer the ability for users to post comments or provide open reviews for repository content; this would need to be addressed in the terms of use for that institution, while it would be irrelevant for other institutions. Although existing terms of use may provide useful guidance, each repository program should proceed thoughtfully and ensure that its own agreement reflects its repository policies, agreements with contributors, and institutional risk tolerance. Seeking review of draft terms of use by institutional legal counsel is strongly recommended to make sure that the terms are legally sound (e.g., not unconscionable or unreasonable; Chiu, 2011).
Terms of use: functionality
Though the content of a repository’s terms of use is of vital importance, if those terms are not held to constitute a binding contract because of how they are presented, the actual language will matter very little.
There are two primary ways in which online contracts (like terms of use or EULAs) are presented to users: as clickwrap agreements or as browsewrap agreements. A clickwrap agreement is one in which a user is presented with the terms of use and must indicate assent to the terms by clicking a button. A browsewrap agreement is one in which the terms of use are posted on the website and individuals’ use of the site indicates that they agree to the terms (Chiu, 2011). From a legal standpoint, some consider clickwrap agreements to be more likely to be upheld because of the action taken by the user to agree to the terms (even if the user hadn’t read them) (Hricik and Scott, 2007). However, it has also been suggested that browsewrap agreements are enforceable if their existence is obvious enough to the user (Chiu, 2011) – and recent U.S. case law bears this out: “The dispositive issue, however, is not the ‘browsewrap’ or ‘clickwrap’ label; rather it is whether Plaintiff had constructive notice of the terms of the agreement and therefore agreed to be bound by them” (Nguyen v. Barnes & Noble, Inc., 2012).
Given that sufficient notice is likely enough for terms of use to constitute a legally binding agreement with the repository user, it seems unnecessary for repository programs to consider implementing clickwrap agreements as a requirement for accessing content. Focusing instead, for example, on ensuring that the link to the terms is not “buried” in a site’s footer, but prominently displayed on the top of the site is recommended (Gross, 2012). In addition, if institutionally branded cover pages are manually or automatically added to content when it is uploaded into the repository, it would be advisable to place a prominent link to the terms of use on those cover pages. This ensures that, even if an individual item is accessed directly through a search engine (bypassing the repository site), the terms of use for the site are still visible/accessible to the user.
Though browsewrap agreements (if presented appropriately) should be adequate to address “normal” use of the repository site (e.g., browsing, downloading content, etc.), it is probable that the repository will utilize a combination of browsewrap and clickwrap agreements. Clickwrap agreements are often used as part of the content submission process (with the clicked assent tied to a user account) and may also be used in the account creation process (e.g., if an account is needed to perform certain tasks, such as making submissions or accessing restricted content). In all instances, the library should make sure that the language, location, and implications of the terms of use are clear to users.
Privacy policies
In addition to the terms of use, which are primarily concerned with appropriate use of the repository and its content, a privacy policy is also needed to outline appropriate use of users’ private information. The information that a repository site collects about users is usually limited to basic contact information (if setting up an account on the site) and browsing data (for the purposes of analyzing usage patterns). However, the library still has a responsibility (both legally and ethically) to be transparent about what information is collected and how it is used.
All libraries should have existing privacy policies that govern their use of patrons’ data, whether it is related to patron circulation activity or use of online resources. These policies, which should be tailored to appropriate state and federal laws, can likely be adapted to fit the attributes of the repository platform. In general, however, every repository’s privacy policy should address, at minimum, (a) what information is gathered about each user and (b) what is done with that information. (For more specific guidelines, it is recommended that repository managers consult the California Online Privacy Protection Act of 2003; although it is a state law, it has been cited as a standard; Milstein, 2007.)
Beyond the basic categories of information collection and information use, a privacy policy may also include language about how collected information is kept securely and for how long it is retained; the schedule on which the policy is reviewed and updated; the protection of information provided by minors; references to applicable laws or other intra-institutional privacy policies; and guidance for individuals who wish to lodge a complaint about the site’s privacy practices. In determining what information to include, the ultimate goal for a repository’s privacy policy should be the same as with the terms of use – transparency and clarity about the repository program and the rights of individuals who interact with it.
Collection and item-level disclaimers
Although a clear terms-of-use agreement and privacy policy are essential elements for providing transparency to repository users, the unique contents of a repository may necessitate the provision of additional information at the collection or item level. These specific disclaimers do not necessarily need to be constructed to be legally binding, but they can play a valuable role in communicating about the nature or limitations of specific items to repository users.
One of the simplest roles for this type of disclaimer is in distinguishing between peer-reviewed and non peer-reviewed work in the repository. Though this distinction may be readily apparent to those within academia, the relative “authority” of different sources may be less obvious to the average user who finds repository content through a search engine. The importance of providing such a disclaimer will vary by discipline and content – it is probably not necessary for historical research or literary exegesis, but it becomes much more important when providing content related to law or to healthcare. For example, occupational therapy student appraisals of journal literature related to a clinical question can be useful to practitioners – but should not be considered as authoritative as published articles themselves. A brief statement on the cover page of each appraisal, like this from Pacific University’s repository, can easily inform readers of this:
This work is not a peer-reviewed publication. Though the author of this work has provided a summary of the best available evidence at the time of writing, readers are encouraged to use this CAT as a starting point for further reading and investigation, rather than as a definitive answer to the clinical question posed or as a substitute for clinical decision-making.
Student content is not the only candidate for disclaimers; faculty work may also include statements that note the “informal” nature of the content – as well as the fact that opinions expressed are the author’s own:
The views expressed in the HKS Faculty Research Working Paper Series are those of the author(s) and do not necessarily reflect those of the John F. Kennedy School of Government or of Harvard University. Faculty Research Working Papers have not undergone formal review and approval. Such papers are included in this series to elicit feedback and to encourage debate on important public policy challenges.
(Example from Harvard’s DASH repository, http://nrs.harvard.edu/urn-3:HUL.InstRepos:4448991)
There is no need to construct specific disclaimers or terms of use for each unique collection within the repository; the repository’s general terms of use should adequately address the majority of content. However, if a contributing entity (e.g., a school, department, or association) has concerns about how a specific type of content may be interpreted or used by those who access it, implementing specific language to address those concerns can be a great service both to the contributors and the ultimate users of the content. Indeed, when first creating a new collection within the repository, it is best practice to ask this question: does the nature of this collection/content give rise to any issues that aren’t already addressed by existing repository policies? If so, it may be necessary to create specific terms of use or disclaimers to guide users who access that content.
Legal compliance
Taken together, the policies and agreements discussed to this point should provide a strong infrastructure that ensures that content contributors, the repository’s institution, and repository users are all complying with relevant laws. However, in addition to the issues addressed thus far, there are two specific U.S. federal laws that merit special attention from repository managers. The first, the Digital Millennium Copyright Act, offers a “safe harbor” for service providers related to liability for copyright infringement. While an institution does not have to comply with the requirements for the safe harbor protections, it is advisable to do so. The second relevant law is the Americans with Disabilities Act, which “provide[s] […] enforceable standards addressing discrimination against individuals with disabilities” that apply not only to buildings, but to websites as well (U.S.C. Title 42, Sec. 12101). Any state or federal institution is required to comply with the Act, as are businesses and educational institutions. In other words, any institution with a repository is most likely subject to the Act.
Though the Digital Millennium Copyright Act (DMCA) and the Americans with Disabilities Act (ADA) address vastly different issues, both laws strike at the core of an institutional repository’s purpose – to provide the widest possible access to content that may be of value for others. For example, the DMCA safe harbor provisions should help dissuade repositories from being overly conservative when disseminating work that integrates others’ copyrighted material, and the ADA reminds repositories of their responsibility to ensure that that work is truly accessible to all. Therefore, proper compliance with both the Digital Millennium Copyright Act (DMCA) and the Americans with Disabilities Act (ADA) through repository policy and procedure is of vital importance – both legally and ethically.
Digital Millennium Copyright Act (DMCA)
Similar to the way that the Communications Decency Act limits the liability of service providers who publish libelous (or obscene) content authored by a third party, the DMCA limits the monetary liability of service providers who unknowingly allow third parties to post infringing materials to the provider’s system or networks. Though the limitations on liability provided by the DMCA extend to other types of activities, the following provision seems most relevant to institutional repositories:
c) Information Residing on Systems or Networks at Direction of Users.
(1) In general. – A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider –
i. does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
ii. in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
iii. upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
B does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
C upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
(U.S.C. Title 17, Sec. 512(c))
With regard to repositories, it is clear that “storage at the direction of a user of material” applies to institutional repositories, which largely rely on submissions of work from students and faculty. However, in order for an institution to be able to take advantage of this provision, two requirements (in addition to those outlined above) need to be met. First, the institution must have a publicly available copyright infringement policy that includes language about the actions taken against “repeat infringers” (U.S.C. Title 17, Sec. 512(i)). Second, the institution needs to designate an individual to “receive notifications of claimed infringement” (U.S.C. Title 17, Sec. 512(c)); contact information for this individual must be posted on the institution’s website and provided to the U.S. Copyright Office.
If a notice of claimed copyright infringement is received by the institution’s representative, the institution must act “expeditiously” to remove or block access to the content. However, it is important to note that any claim of infringement must follow a specific format – if it doesn’t, an institution is under no obligation to respond (see U.S.C. Title 17, Sec. 512(c)(3) for the guidelines). It is considered best practice to post the requirements for claims of infringement online (along with the contact person’s information) so that it is clear to users (and copyright owners) what the institution’s policy is. For example, see Box 5.21.
It is worth noting that libraries and repository managers should not feel compelled to comply with all takedown notices they receive that claim infringement. While some (such as a request to remove a copy of a standardized psychological instrument from a thesis) will offer clear cases of infringement, other requests may involve a use of copyrighted material that is otherwise defensible:
“The failure of a service provider to qualify for any of the limitations in section 512 does not necessarily make it liable for copyright infringement. The copyright owner must still demonstrate that the provider has infringed, and the provider may still avail itself of any of the defenses, such as fair use, that are available to copyright defendants generally.”
Because the DMCA has implications for institutions beyond repositories (e.g. peer-to-peer file sharing by students), it is likely that most U.S. educational institutions will already have an institution-wide copyright infringement policy, designated contact, and takedown policy. It is recommended that the repository manager consult with institutional IT staff and/or legal counsel to determine what policies and procedures may already be in place. It is also advisable to become familiar with the complete DMCA; other provisions may be relevant for individual institutions (e.g., a provision related to linking to other infringing content on other websites).
The U.S. Copyright Office provides a summary of the DMCA on its website, and the Citizen Media Law Project also has excellent “plain language” advice regarding the DMCA (see “Protecting Yourself against Copyright Claims Based on User Content” on the Citizen Media Law Project website).
Americans with Disabilities Act (ADA)
The ADA regulations state that every public space and mode of communication must be equally accessible to all individuals, regardless of their abilities. Although the language of the regulations refers to accessibility for “places of public accommodations” and “commercial facilities” (U.S.C. Title 42, Sec. 12182), the government has made it clear that this extends to the online presence of such entities:
“Covered entities under the ADA are required to provide effective communication, regardless of whether they generally communicate through print media, audio media, or computerized media such as the Internet. Covered entities that use the Internet for communications regarding their programs, goods, or services must be prepared to offer those communications through accessible means as well.”
Because all U.S. educational institutions, public or private, must comply with ADA regulations, this means that every effort must be made to ensure that institutional repository sites – and content – are accessible to those with disabilities.
Currently, however, there are no general accessibility standards for web content within the ADA regulations, though such regulations have been proposed (DOJ, 2010). Fortunately, a separate law, Section 508 of the Rehabilitation Act (U.S.C. Title 29, Sec. 794(d)), provides specific guidance for federal agencies regarding web content. The web standards in Section 508 are derived from the voluntary standards created by the World Wide Web Consortium (Section 508 …, n.d.), which are available as part of the Web Accessibility Initiative (http://www.w3.org/WAI/Resources/). Both of these resources provide helpful guidance for institutions who wish to make their repository sites and content more accessible.
It is likely that, because most institutions use one of several common repository platforms (e.g., DSpace, Digital Commons, Fedora, Eprints, etc.), the design of the platform will already comply with relevant accessibility standards. Therefore, unless an institution creates its own repository platform, the general accessibility of its site (e.g., navigation, alternative text, etc.) will probably not need considerable attention. However, attention should be paid to the content that is disseminated through the repository. Box 5.22, an excerpt from a Department of Health and Human Services Section 508 checklist, addresses common content issues that may arise for repositories: documents and multimedia.
The most common document type within institutional repositories is Portable Document Format (PDF). Both the federal government and the World Wide Web Consortium provide guidance on how to create accessible PDF files:
Creating accessible PDFs http://www.howto.gov/web-content/accessibility/create-accessible-pdfs.
PDF Techniques for WCAG 2.0 http://www.w3.org/WAI/GL/WCAG20-TECHS/pdf.html.
PDF is the most common format in which articles, academic papers, theses, and dissertations are contributed to repositories. Institutions may find it helpful to provide guidance to repository contributors as to how to create accessible PDFs prior to submission (see Mitchell, n.d., as an example). As repositories add different types of collections (especially multimedia), libraries may also want to consider creating tutorials for other content types. However, regardless of whether contributors or repository staff are responsible for creating accessible files, there should be a systematic process in place to make certain that repository content is accessible to as many potential users as possible.
Conclusion: context changes, but ethics remain
While it is true that an institutional repository’s unique content and the identity of its stakeholders both play significant roles in determining the necessary policy and contractual framework for the repository, repository managers always need to consider a third element as well: the legal context. Although the general policy and legal issues discussed in this chapter – and in preceding chapters – should be relevant for all repository programs, the applicable laws will vary. For example, although copyright law is subject to international treaties, significant differences – such as the difference between fair use and fair dealing – do exist between countries. Defamation, obscenity, privacy, and accessibility laws also vary between countries (e.g., consider the difference between privacy rights in the U.S.A. and the E.U.’s privacy directive; Milstein, 2007), and it is important to be mindful of when contributors or users may subject a repository to another nation’s laws (CMLP, 2011b). For repository managers within the U.S.A. (the primary audience for this text), it is necessary to be aware not only of international differences, but of differences between states’ laws and in the varying applicability of laws between private and public educational institutions. And finally, the legal context for repositories extends beyond regional or national law; it is shaped also by the local institutional setting – for example, issues such as liability risk tolerance and institutional insurance coverage (Friend, 2006).
Although the legal environment of each repository will necessarily influence the substance and mechanics of that repository’s policies, repository managers should always seek to be guided by more than issues of risk and liability. The policies and contracts that undergird a repository program should also be influenced by the ethical imperatives that led to the creation of the repository in the first place: the open accessibility of useful knowledge and the empowerment of those who create that knowledge. Indeed, it is the responsibility of each institution to create a policy infrastructure that not only recognizes the law, but that embodies – rather than contradicts – these shared values. This means crafting submission agreements that are favorable to authors and contributors and creating collection management and user policies that emphasize access over restrictions whenever possible. Within the framework of laws that must be adhered to, there is ample room for libraries to develop just such policies and practices – which will ultimately contribute to more free and open scholarly communication.
2Under U.S. copyright law, a single co-author/rightsholder may grant permission for posting in a repository (permission from all co-authors/ rightsholders is not required) (University of California, 2003). However, it is advisable to recommend that an author notify any coauthors prior to posting a work in case they have objections.
1This language, as with other examples/sample language provided in this book, should not be used verbatim; all legal language should be crafted/ reviewed by local counsel.