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Minow:  Tell us about the new Orphan Works: Statement of Best Practices by the Society of American Archivists.

Briston:  Our goal was to empower archivists and give them a framework and described a reasonable effort for investigating the ownership of items under copyright. We also set it within the larger context of other legal rationales, such as fair use and public domain. Also, as archivists we view ourselves as advocates for use and access to unpublished materials, and thus the statement focuses there. However, we do feel that many of our techniques could also be used for published materials.

The statement was a collaboration of the members of the Society of American Archivists’ Council’s Working Group on Intellectual Property, archivists with expertise in literary manuscript collections, and the valuable assistance of Peter Jaszi, director of the Glushko-Samuleson Intellectual Property Law Clinic and Professor of Law at American University. Financial and administrative support was provided by RLG Programs, OCLC Research and the RLG Partnership. The idea for the statement came out of SAA’s earlier participation in the Orphaned Works Roundtables held by the Copyright Office, and the subsequent report and proposed legislation coming out of those Roundtables.

Minow:  What were some of the toughest issues your group faced in coming to consensus?

Briston:  Our biggest challenge was to create a statement on a complex issue, with multiple facets and shades of grey, when we know that our audience wants as much certainty as possible. The diversity of an archival collection complicates the already complicated issue of determining copyright status. To address these challenges we strove for clarity, although we could not simplify, using examples, diagrams, and providing a framework.

Minow:  How do you hope it will be used?

Briston:  We hope archivists and others with unpublished materials will use it as a framework to think about an orphaned works analysis, and make their own informed judgments about reasonableness and risk relating to various types of use of materials in collections. Archival materials are collected and preserved so that they can ultimately be used, often that includes publication, possibly this will encourage review of some materials in collections for potential use and wider access.

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Heather Briston is the Corrigan Solari University Historian and Archivist at University of Oregon. She chairs the Society of American Archivists’ Council’s Working Group on Intellectual Property which was part of the committee that drafted the Orphan Works: Statement of Best Practices

Mary Minow is the Content Editor for the Stanford Copyright & Fair Use site, which links to the Best Practices in its Charts and Tools page.

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Minow: By the time copyright expires in a book, the book is often forgotten.  The University of Michigan , however, just inked a deal with Amazon to bring some 400,000 old titles back to life.  How does the library determine that a book is out of copyright?

Bonn:  First, we are really excited about this special opportunity to extend access to our collections and to connect our users with the information that they need. Since 2004, we have had about 10,000 19th and early 20th century books in reprint, and we know that they are widely appreciated. While our digitization efforts are intended to create greater online access, it’s a happy by-product that it also enables greater print access.

But to answer your question about copyright: On determining copyright status:  right now we are being fairly conservative in our copyright judgments. Keep in mind that these volumes are only for sale in the United States, so we are guided by U.S. copyright law. We run an automated analysis on the MARC records to identify all volumes published prior to 1923 and most U.S. government publications. After this analysis, he bibliographic information is sorted by publication date and undergoes a quick manual review to check for obvious errors or bibliographic oddities (such as a record for a book that asserted it had been published in 1099). These volumes are removed from the POD (Print On Demand) stream. There is a wealth of material that is relatively easy for us to identify as public domain, and these are the books that we are currently working on getting out into the world. There are many other books that are probably also public domain but we’ll need to do a more nuanced analysis in order to make that determination.

If we extend our arrangements with POD printers and distributors to allow for sale of books in other countries (we already have that option for the U.K and Germany, but have not acted on it), we will need to construct a similar process of analysis taking into account the copyright laws of the countries in which we are selling the books.

We are also in the midst of an effort funded by the Institute for Museum and Library Services (IMLS) to develop an efficient way to check the copyright renewal records for books published between 1923 and 1963.  As we identify books that have risen into the public domain, we will add them to our reprint program.

Minow: Readers can purchase the reprints directly from University of Michigan or from Amazon.  How does the revenue sharing model compare with the proposed Books Rights Registry that would be created if the Google settlement goes through? Does UM make a profit?

Bonn: I don’t know enough of the details of the settlement to say exactly how it compares. It is different in that the settlement is intended to address in-copyright works and we are only selling public domain materials.  

This arrangement with Amazon is essentially an efficient and effective way of doing large-scale fulfillment. After all of our costs of producing the books are recovered, we will split what we anticipate to be modest profits with Google.  Our share of these profits will be used to support the activities of the University Library, especially our digitization efforts. We hope to make a little money along the way, but the relationship with Amazon is mainly about having a quick way to get print copies into the hands of people who want them.

I should remind everybody that all of these works are currently online for free in HathiTrust (http://www.hathitrrust.org). We already create reprints of these books on our Espresso Book Machine (http://lib.umich.edu/ebm), but this arrangement allows us to do fulfillment on a much greater scale.  

It is really rewarding seeing the way in which people connect with our books. About 26,000 titles actually became available on Amazon this week, and we see people buying copies of The Adventures of Mabel (a turn of the century children’s book), 19th century editions of Shakespeare, a guide to walking by Henry David Thoreau and Swedenborg’s ruminations on Heaven and Its Wonders. We can only speculate on why and how these books find their readers, but as you might suspect from librarians, we’re very happy to be facilitating that connection.

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Maria Bonn
is the Director of the University of Michigan’s Scholarly Publishing Office.  She is responsible for the production of electronic books and journals and for broadly developing the role of the Library in scholarly communication.

Mary Minow is the content editor for the Stanford Copyright and Fair Use website.

 

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Minow:  What prompted you to create the Fair Use Evaluator?

Brewer:  After creating the Digital Slider (on public domain & copyright terms) and the 108 Spinner (covering section 108 – the library and archive exception), it seemed like we were ready to take on creating a tool that could help people to learn more about fair use and become more comfortable making fair use evaluations. One of the primary drivers in creating this tool was to create something that not only would help individuals (or institutions) to make fair use evaluations, but which would also collect and publish for the user the information they provided in support of that use.  Because Section 504(c)(2) may provides significant protections for those users who can show they had every  reason to believe their use was fair, we felt this functionality could potentially be really useful, both to protect those who make good faith evaluations, as well as to reduce the level of fear many have asserting fair use as an exception.

Minow:  How does it work?

Brewer: The tool provides the user with two options: to learn about fair use, or to make a fair use evaluation.  Explanatory notes and other information are available as pop-ups throughout. The “educational” section describes the law and provides some of the criteria or circumstances that could be understood as supporting or opposing each of the four fair use factors – Purpose, Nature, Amount and Effect.  This is followed by a clear statement of why taking a reductive “checklist” approach to fair use (simply counting up how many criteria favor rather than oppose a fair use, or how many factors favor rather than oppose) is overly simplistic, and should not be considered determinative of the fairness of a use.  This is then balanced by detailing the 504(c)(2) protections that are given users under certain circumstances if they document their uses and make informed fair use evaluations.

The “evaluation” section offers the user the opportunity to provide detailed information about their use and how it relates to each of the four fair use factors.  If they choose, they can use the tool to pull in relevant criteria, provided in the educational section for each of the factors, and then modify those criteria as appropriate to describe their own use.  Upon completing their evaluation, the user is asked to select whether or not they’ve found the use to be a fair one, or if they’re undecided. They can then choose to have the tool create a time-stamped PDF of their evaluation, which they can save to their computer hard drive; print, sign and keep for their records, or share with a colleague or copyright specialist for feedback.

This and the other tools we’ve created (including those mentioned above, as well as the Exceptions for Instructor eTool) are available for institutions to modify (adding their own local copyright information and links; next steps, or other information for users, etc.) under a Creative Commons license.  Of course they’re also free to just link to them and use them as is. Our Google Analytics statistics show that these tools get pretty heavy use and are also having the unexpected (and welcome) consequence of steering more people to the Copyright Advisory Network, where they can get help with specific copyright questions from a cadre of specialists. 

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Michael Brewer is Team Leader for Undergraduate Services, University of Arizona Library and a member of the American Library Association Office for Information Technology Policy Copyright Advisory Subcommittee

Mary Minow is Content Editor for the Stanford Copyright & Fair Use site, which links to the Fair Use Evaluator in its Charts and Tools page