Upskilling yourself with Historic England

Historic England has relaunched its online training resources and there are a ranges of short courses of interest to readers of this blog.

  https://training.historicengland.org.uk/

It is free to register and undertake the courses; each takes 1-4 hours.

I would recommend:

KEY SKILLS

Management of Research Projects in the Historic Environment - MoRPHE

This is a detailed walkthrough of Historic England's MoRPHE project management system and its manager's guide, which was developed as an application of PRINCE2 to replace MAP2.  Organisations undertaking work for Historic England are required to use MoRPHE, and it is also used by some as standard practice regardless of funding. (and if this description is a baffling set of acronyms you should do this course!)

Research Ethics & Integrity

This is based on UKRI guidelines for (academic) research, and is focused on potential harm to living participants, although cultural heritage is also covered.  It is interesting to compare and contrast with the CIFA Ethics workshop; I don't think either provide much of a handle for those facing the small everyday ethical dilemmas (am I knowledgeable/competent enough to make a judgment call on whether this bit of heritage can be destroyed?, my client wants me to ignore part of the impact - what can I do?).

HERITAGE FOR PLANNERS: ESSENTIALS

Despite the label, this section has courses that are of interest to anyone involved in presenting heritage information to planning authorities, and cover Historic England's guidance on heritage values, e and setting.

HISTORIC ENVIRONMENT MANAGEMENT

There's an excellent course on Statements of Heritage Significance and NPPF4.

 

      

Copyright and the economics of archaeological publishing

I am not a lawyer, but I have seen and signed a lot of publishing agreements, and there is a lot of confusion out there, especially now that digitisation has given new life to old and forgotten print articles.

Whose copyright in the first place?

Copyright belongs to the creator initially, automatically, unless it is being created as part of your employment, in which case it is usually the employer's. So for most commercial archaeologists, it isn't their own perosnal property. Things may be complicated by the inclusion of otehr material (illsutrations, mps and photographs) with their own rights owners. And even more complex if the original developer was one of those who require their contractors to assign copyright to them - so that a unit and its staff may have to ask permission to publish their report.


Publishing agreements

The terms on which a publisher agrees to publish a work vary considerably. In commercial scientific publishing, it used to be standard to require authors to sign the copyright over to the publisher (this is now changing significantly as the open access movement has led to pressure to allow authors to keep copyright), while in archaeology, particularly for one-off volumes, authros were asked only for a licence. In most cases, until recently, the question as never raised: if there is no signed agreement ceding copyright to the publisher then it would still with the author (or employer or client). It is administratively convenient for publishers to hold copyright, allowing them to republish, sell in other markets, and handle incoming re-print requests without a lot of correspondence. On the other hand, it may mean that authors are (or feel) precluded from re-using their work themselves (in a book or on a website) or granting others the right to re-use it.

Authors faced with a strict demand for assignment of copyright have limited room for manouever - it may be completely non-negotiable (or said to be), or the author may be allowed to retain a licence so that they can do stuff in the future.


Economics

Aside from the question of what you might want to do (or authorise otehr to do) with your work, there is the question of who makes money out of it. The short answer is, alas, nobody. Most journals and book series riley on institutionl subscriptions from universities round the world as the main market - a few hundred at most. Although the rates may be high, these need to compensate for the high start-up costs for printing and distribution (it is only in the thousands when unit costs drop, beaing spread out over so many). So most journals do not pay their authors, editoirs or reviewers for initial publication rights. And they don't make a lot more from selling rights on, either - £50 or £100 for reprint rights. Relying on arcaheological publication fees for your pesnion is not a good plan. There is one possible route for income, though: the
CLA Sticker scheme, which collects fees from people who photocopy artciels and distribute them to regsietred authors. Unfortunately, you have to register your publications with them, and pay a small fee, to be included, and of the course this is only worthwhile if you expecte there to be a fair number of copies made (in which context it is worth pointing out that only twice in my life have I ever met anyone who has said they read on emy articles, let alone copied it, let alone paid a fee).

Copyright for archaeologists

I am still not a lawyer.


Fortunately, there is a lot of good advice on copyright from The Intellectual Property Office.



Ways of managing your Intellectual Property Rights issues


1. Head in the sand



"We don't have any IPR issues because we're just doing research"
"We redraw the OS base maps so we don't have to worry"
"We've never really thought about it"

If you're not worried about IPR then you're not paying attention.
If you are creating or using text, images or data, on paper or electronically, you have IPR issues: maybe you just don't know it yet.


2. Hope for the best



"Nobody's ever complained"
"It's good advertising for them anyway"
"We don't sell our reports commercially"
"It's out of print"

In many ways this is a worse position than the first one: you sort of know that there is an issue and you shouldn't really be doing what you are doing, but can't be bothered to do it properly. IPR litigation is a growth industry; rights holders employ teams of lawyers whose sole job is to track down and fine hapless misusers. Do you feel lucky? Are you sure?


Some clarity about copyright

"My reports are research so I can include copies of maps" WRONG

Copyright law changed in 2003 to amend the old phrasing which allowed copying for 'private study or research': it became explicitly limited to non-commercial research.

‘Commercial’ is a broader term than ‘profit-making’. ‘Commercial’ is in practice synonymous with ‘directly or indirectly income-generating’. It is also clear that the purpose at the time the request for a copy is made is what is important and so some genuinely unforeseen income at a much later date is not relevant to the question. Your intention at the time must be unambiguously non-commercial.
When deciding whether or not something is commercial or non-commercial, is it the proposed use of the copies or the nature of the requesting organisation that is the decisive factor?
As mentioned above, the purpose for which the copies are required is the decisive factor. This will mean that non-profit institutions will need to obtain permission for some copying ...

Copyright Licensing Agency notes on changes to UK Copyright Law

You should still be able to obtain copies of maps for your own use, but if you are paid for putting the report together, by any mechanism, you will need a licence from the copyright holder to include them.

"If it's submitted as part of the planning process the report is in the public domain" HALF WRONG

There are two different meanings to the term 'public domain'. There is a general meaning of 'not confidential', 'open to public scrutiny'; this is true, of course. The planning process is a public process, and reports will be available. Even where report commissioners seek to control access, public bodies may well under FOI or the Environmenatl Information Regulations have to provide access to them. But this is access, to view and read, not to copy. The second meaning, of 'not copyright protected', is a US legal concept which has no direct application in the UK.


"Information wants to be free" DEBATABLE

Information users certainly want data to be free, but then they would say that. Users are in no position to dictate. The question that has to be asked is whether the information creators want it to be free. They have invested time and resources into creating it; they may feel that, having been paid by someone once, they can release it to the benefit of the world. Or not.

It is interesting to note that the most vociferous advocates of 'free' data are HERs wanting to collect the reports submitted to them into a digital treasure trove, yet they are the ones who are most restrictive about what people can do with their data. (see for example the recent Data Protecion Act thread on HER Forum).

It's an estate map from the 19th century: it can't be in copyright. HALF RIGHT

Old manuscript maps probably are out of copyright (although 70 years after the death of the creator might catch some young surveyor's work in the 1880s), unless they were transcribed later (in the 1930s). But if they are held in an archive, you will also need permission to reproduce the photographic image of the map, which may still be in copyright. If it has been published since 1945 it may be out of copyright: photographic copyright is complicated.

I bought an old postcard, so I own the copyright. WRONG

No you don't. It may be out of copyright, but if it's in copyright, having a copy of it confers no rights on you.


Crown copyright means it's public. WRONG

Crown copyright means that its protection runs for 50 years.


I write the report for my unit. It's my copyright HALF RIGHT

Copyright belongs in the first instance to the creator. Unless, that is, you were doing the creating as part of your employment, in which case it is automatically transferred to them (good contracts of employment say so explicitly). There is a slight grey area if you created say a popular guidebook in your own time based on data from your day job. Freelance workers would hold the copyright and would have to explicitly transfer it to the commissioner if they wanted to own it.

One unexplored complexity is that copyright duration is determined by the creator's death date, even if they no longer hold the copyright. Good record keeping long into the future is a necessity to allow rights to be managed.

It may not be my copyright, but I still have moral rights RIGHT

The main moral rights (which are inalienable and held by the creator (only)) are attribution and protection from derogatory treatment. Attribution is the right to be identified as the author; this right must be asserted. Protection from derogatory treatment provides some recourse for uses which are contrary to the creator's wishes. The case law fro this is weak and contradictory.


Joint copyright solves problems. WRONG

Joint copyright (between several authors or between an author and a publisher) makes problems, because the permission of ALL owners is needed to allow re-use.

I can use a photo from a book because it's a good advert so people will buy it WRONG

It may be a good advert. But nobody appointed you as their agent, and you will not get anywhere by arguing you did it for their benefit, when you should have been asking. Politely. With your chequebook out.

I've traced off the OS map, but the new map is mine. WRONG

If it is derived from OS data, it's still theirs. Only if you can demonstrate not only that you could create an equivalent image using no OS data, but actually did so, are you safe.

OS data is public data: I've paid already in my taxes. WRONG

The Ordnance Survey is self-funding: its survey work on behalf of the government and everybody else is paid for by its licensing and products.




Disclaimer

This is for general information purposes and is not intended to constitute legal or other professional advice. You should seek specific legal advice in relation to any particular matter.

Contract law for archaeologists

I am not a lawyer.

I am not a lawyer, but.

I am not a lawyer, but I have spent many unhappy hours drafting, negotiating and finalising contracts, and dealing with the fallout when disputes arise.

And that is the point, of course: with a healthy relationship between the parties, the contract can be signed and forgotten about. There is a temptation for people who have had problematic projects in the past to add on clauses to attempt to pre-empt issues. But there is no correlation (in my experience) between the length and complexity of the contract, the scale and nature of the project, and the eventual satifactoriness of the outcome: small simple projects with long contracts have ended in interminable correspondence and court actions, while big complex projects agreed by exchange of letters have turned out fine.

At one stage the IFA issued a model contract for archaeological work but it proved hard to implement in practice, because developers would shrink at a 30 page document of dense and complex provisions which they couldn't understand, let alone agree, which (it turned out) contained some decidedly unusual arrangements for stewardship of the finds (ownership was handed to the excavators). This model contract is no longer publicised.

It is much better for a contract to reflect the desired substance of the agreement sought. It need not be written in complex language (in fact it need not be written at all, although as Sam Goldwyn said, a verbal [meaning oral] contract isn't worth the paper it's written on). It is worth emphasising that contracts are supposed to be a tool to provide clarity and certainty, and should be drafted with that in mind.

What is a contract?

A contract is an agreement which can be enforced by the courts. Most contract law practice in the UK is covered by common law rather than statute.

There are three necessary elements to a contract:

offer and acceptance (some evidence that the parties have agreed)

consideration (the goods or services and payments to be exchanged (in UK common law a contract must involve an exchange not just a transfer from one party to the other))

an intention to create legal relations (some evidence that the parties wanted to be bound by the contract)


If one of the parties breaches the contract by failing to perform their duties, teh courts can require them to do so. Until recently it was arguable whether any interested parties who were not signatories to the contract could enforce its provisions, but they now can unless the contract explicitly prevents them (Contracts (Rights of Third Parties) Act 1999.


Whose contract?

The choice of contract has to be agreed. This can lead to long arguments if both parties have standard contracts they use; eventually somebody has to give in. Some terms (covering copyright, for example) may not be negotiable and the signatory wil have to decide whether to enter into an agreement which does not reflect their preferred arrangements.

If there is no contract, or no agreeable contract, a simple one can be devised. The disadvantage of this is that the wording may be loose and open to interpretation and some important issues may not be covered. On the other hand, interpretation will be based on what a 'reasonable man [sic]' would have understood by the terms.

Key requirements to a new contract are:

Defining the parties

Particular care is needed when delaing with agents and shell companies: in general the landowner should be the signatory.

Requirements

Define the tasks , goods and services to be supplied.

Obligations of supplier

State the delivery and acceptance arrangements and any quality thresholds.

Timetable

The programme should be described. This should be broad enough to allow the agreement to cover works even if delayed for some time; otherwise the terms of the contact may not cover them.

Payment

The payment arrangements, and any stage payments and invoice payment period should be stated (rather than included as a unilateral statement on an invoice form). VAT should be explicitly covered.

Terms and conditions

If you have standard terms, they can be written into the contract to form part of it. If both parties do this, it will be necessary to check carefully to see whether there are any provisions in conflict. Note that the Unfair Contract Terms Act 1977 provides some protection for a party who accepts the other's standard terms.

Signatures

Somebody sufficiently senior to commit the orginsiation should sign; care is needed with parties who are not landowners. There is no need to sign at the same time. Two copies should be signed, one retained by each party.

Schedules

Any documentation cited in the contract should be appended as a schedule: this eliminates any doubt about versions.


Contracts and business relationships

Having a clear contract can be seen as a form of deterrence: it shouldn't be needed because it's there. It may take some time to finalise a contract, but you should NEVER start work without some form of instruction to proceed. Archaeologists are helpful people and will want to get on with the work, especially if they have made arrangements for plant and staffing for a particular date. But if you start before the client says so, you are labelling yourself as a naif who can be exploited at will.

Similarly if the client disputes an invoice you must be prepared to suspend work until it is resolved, even if this causes you considerable inconvenience.

On a positive note, you should remember that the primary duty of care your organisation owes is to your client, who should be the first, not the last, to hear of your results (even if, according to the IFA Code of Approved Practice for the Regulation of Contractual Arrangements, your personal primary duty is to the archaeological resource).


Disclaimer
This is for general information purposes and is not intended to constitute legal or other professional advice. You should seek specific legal advice in relation to any particular matter.