Sharing content online is a great way to engage your audiences – and to attract new ones. A good online presence can help you reach visitors and researchers who couldn’t otherwise view your collections – addressing some of the limits of opening hours, geographical distance and accessibility.
This guide will explain some of the legal and ethical issues which may affect sharing your collections online, whether that is on your own website, on social media, or in live online events.
Here are some of the main legal and ethical considerations to think about whilst planning online access to collection items – be sure to check out the resources at the bottom of this article for more details.
Copyright can be a daunting and confusing area of the law, especially if you don’t have to think about it very often. Copyright exists in most collection items, for example in works of art, films, books, letters, photographs etc. Copyright also exists in performances, for example in recordings of songs, dramatic works or speeches. The physical item and the copyright are different, e.g., your institution may own a physical painting, but not the copyright in the painting itself.
Copyright owners have both economic and moral rights in the works they create. Economic rights allow people to monetise their works and to stop others from reproducing and sharing their works without permission. Moral rights protect the integrity of the work itself, and the creator’s connection to their work, including protecting their right to object to derogatory use of their works. More information about the different economic and moral rights can be found on the UK government’s Intellectual Property Office (IPO) website.
When you are publishing someone else’s work, you should always acknowledge the copyright owner with a credit line, for example © Stephanie Ashcroft, Naomi Korn Ltd.
Check who owns the copyright
Copyright usually belongs to the person that creates the work, but it can be sold, transferred or passed down in a will after the creator passes away. Some works, like films and sound recordings, can have layers of rights, and numerous rights holders. For example, a song might have lyrics, a musical composition, performances by the singers and musicians, and the sound recording itself. All of these elements are protected by copyright, and might have different owners.
Sometimes copyright owners are easy to identify – for example famous artists or writers often have easily contactable agents or estates. Sometimes you need to do a little more investigative work, particularly when looking for members of the public. Naomi Korn Associates has a checklist for locating rights holders on our website, and a longer list can be found on the IPO website.
Check if you need permission
Your institution may own the copyright in the work you want to publish, or may have a licence or permission to use the work already.
If the work is out of copyright, you will not need permission to publish the work. Check the resources above to see if the works you are publishing are likely to be out of copyright.
Copyright law does include some exceptions that allow cultural heritage institutions to use some copyright works without gaining permission, however these exceptions do not typically cover most online publication activities. One exception allows you to publish quotations or clips of some works in order to provide criticism or review, which can be useful for blogs and some social media posts.
Contact the rights holder and negotiate permission
If the work is in copyright, you cannot use an exception, and if you do not already have permission to use it, you will need to ask the copyright owner for permission.
Some rights holders, especially commercial creators and their estates, may ask for payment or a licence fee to publish their work. Don’t be afraid to try to negotiate a lower fee, or indeed no fee at all, especially if your online output is non-commercial.
It is good practice to have pre-made, standardised permission documents for your institution. Naomi Korn Associates has a free template, which covers both copyright transfer and licensing options, which can be tailored to your use.
Think about ‘orphan works’
If you know an item is in copyright but you are not able to identify or find contact details for the copyright owner, this is known as an ‘orphan work’. Orphan works are very common in our heritage collections, particularly in archives.
Publishing orphan works online will need some degree of risk management. You can learn more about orphan works and risk management here.
Data protection is an entirely separate part of the law, but can cause similar restrictions to copyright. While most collection items are likely to contain someone’s copyright, which is protected by intellectual property laws, some types of work may also contain information which is protected by data protection laws.
Data protection law covers personal information about living people, including identifying information and sensitive information about things like their political or religious beliefs, their sexuality and their health. This could include medical records, diaries, private letters and photographs of people. For more information about current data protection law check out the Information Commissioner’s Office website.
Check your legal basis
You must have a good reason, or a ‘legal basis’ to use someone’s personal data, which are set out in the law. There are a number of legal bases that allow cultural heritage institutions to use and share some protected data in their collection items without gaining consent from the person that data is about. Check with your organisation’s Data Protection Officer to see how this applies to you.
Safeguard your data subjects
Cultural heritage institutions can often make personal data available to the public, for example in order to provide accurate catalogue records, and by allowing the public to access original or digital copies of the items. However, you can only do this if you have taken appropriate steps to make sure that, by publishing this data, you will not cause substantial harm or upset.
There is no set way to put these safeguards in place, and it will depend on the type of sensitive data you are working with. This could include reviewing all or parts of the collection items you would like to publish online, and redacting sections that may cause distress. More information about data protection and cultural heritage collections can be found in the National Archive’s free Data Protection Toolkit.
There may be other legal issues to look out for before sharing your collections online, for example inadvertently publishing comments which could be perceived as libellous or defamatory. These types of issues are more likely to come up in collections such as oral history interviews, or private diaries and correspondence.
You may also need to consider obscenity laws, for example if you would like to publish artworks which could be considered unsuitable for younger audiences or may not adhere to social media terms and conditions.
There may be some instances in which collection items could contain evidence of wrongdoing or crimes that you may need to report internally or externally, for example archival medical records which suggest malpractice.
It is advisable to agree at an institutional level how to look out for and deal with these legal issues, and to work them into existing processes around checking for copyright and data protection issues.
Sometimes there may be additional considerations to think about before publishing your collections online, which are guided by ethical responsibilities rather than any legal obligations. Occasionally legal and ethical issues can overlap, for example you may have permission to reuse a painting which includes offensive racist imagery. Although you could legally publish the work on your website, there would be ethical considerations and implications to take into account. The Museum Association has a helpful page of case studies and scenarios of how ethics and legal issues sometimes intersect.
You may already have an ethics policy which you can consult. Many institutions publish their ethical policies, as well as mission statements which provide context around their use of their collection items, on their websites.
Check sector-specific ethical standards
As well as your own policies around ethics, it is a good idea to check sector-specific ethical standards. The Museum Association’s Code of Ethics for Museums and the Archives and Records Association’s Code of Ethics
outline principles of best practice in these sectors.
The Oral History Society has thorough legal and ethical guidance for making and publishing oral history interviews, including how copyright and data protection laws apply.
Consult relevant communities and institutions if applicable
It may also be appropriate to contact relevant communities or researchers before publishing some material. These could be local interest groups, religious groups, community leaders, academics or experts in the area, as well as colleagues from other institutions.
This type of consultation can help highlight any ethical issues, or cultural sensitivities, which you may not be aware of yourself. This approach can also help engage audiences and interested groups, and help your institution build links with some of the audiences you would like to connect with.
Once you have considered the legal and ethical issues, you can start to work out which platforms are suitable for the type of collection items you would like to publish.
Social media sites are a great way to share photographs and videos of your collection items. However, these sites come with terms and conditions, which often include allowing the social media company to re-use any content you post. This may not be suitable for copyright reasons, as well as data protection and ethical concerns.
Online events, run through services like zoom, can have the same issues. However, you can use these events to provide more contextual information around sensitive collections, and can limit who accesses the event through ticketing if necessary.
Making your collections available through your own website can give you more control over how they are presented, and means you can change or take down your resources more easily if needed. You can always use social media and online events to provide links and redirect people to your website.
With all of these factors in mind, you can have a better idea of how best to share your collections online, legally and ethically.
- Intellectual Property Office, The rights granted by copyright (2015)
- Naomi Korn Ltd, Copyright Rights Clearance Checklists (2021)
- Intellectual Property Office, Orphan works diligent search guidance (updated 2021)
- Heritage Digital, Heritage Organisations and Exceptions to Copyright (2021)
- Bosher, Hayley, ‘Quotation, criticism and review’
- Naomi Korn Ltd, Template Copyright Agreement (2021)
- Naomi Korn Ltd, ‘Orphan Works and UK GLAMs: the case for a risk managed approach’ (2021)
- Intellectual Property Office, Guide to Data Protection
- The National Archive’s Data Protection Toolkit for Archives
- Museums Association, Everyday ethics: case studies
- Museums Association, Code of Ethics for Museums
- Archives and Records Association, Code of Ethics (2020)
- Oral History Society
- Naomi Korn Ltd, Copyright and Social Media (2021)
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Please attribute as: "How do I share content ethically and legally online? (2022) by Stephanie Ashcroft, Naomi Korn Associates supported by The National Lottery Heritage Fund, licensed under CC BY 4.0