BEHIND THE SCENES WITH WINSTON TABB, REPRESENTING LIBRARIES AT THE WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO)

Mary Minow:  Good morning. I understand that international treaty discussions concerning libraries, archives and copyright are scheduled in Geneva in November 2011.  How did that come to be?

 

Winston Tabb:  Really, where we began was at the International Federation of Library Associations and Instititutions (IFLA) World Congress in Oslo in 2005. We didn't start with the idea of a treaty at all, but with an interest in finding real-life, detailed examples from our colleagues from all parts of the world about what issues they were facing with copyright and managing their libraries. So, we planned a program session in which we organized people into discussion groups based on regions, both because of linguistic affinities and because typically regional differences may matter a lot in the challenges faced by libraries in dealing with intellectual property.   Through this session we came up with a list of very specific problems that our library colleagues face in different parts of the world, and that became the basis of our thinking.

I should add that we were led to plan this session in the first place because a group of Latin American countries had strongly suggested at WIPO in 2004 that the Standing Committee on Copyright and Related rights (SCCR) should focus in the need for limitations and exceptions, and we as a library community wanted to be prepared to say which L&Es were most critical to our mission.

Next, we said, if these are the problems we need to solve, then what is the best way to proceed with that?   Around the same time, we and several other library groups were asked by the World Blind Union to join in the drafting of the treaty for the visually impaired that was introduced about three years ago, and we very happy to do so since service to print-disabled patrons was one of the issues that had surfaced in our dialogue with other librarians.  We realized, in the course of that work, not only that it’s a really important issue, but that it was good to come first because it was easily definable, relatively easy to describe exactly what the applicable universe was.  But this treaty solved only one of the issues that libraries have.  So then we decided that we needed to  move more toward crafting our own, broader instrument on libraries and archives.  That process began with a workshop at the British Library in 2009 where a group of librarians, law professors, and civil society representatives (including the World Blind Union) met to develop a set of principles that would undergird the treaty we eventually drafted.

 

We also wanted to get archives engaged with us, and now they are. Someone from the International Council on Archives (ICA) has been part of our working group as well. So that's it, a short summary of how we got from thinking about what the library problems are to a document that presents possible solutions to those problems.

Minow: That's great! And then how did you get on the agenda at WIPO?

Tabb: The way we got on the agenda was by going and going and going!  This is one of those situations where if you're not present, you can just forget about having any impact.  You can go to many of these meetings and maybe very little happens, but if you don't appear, it is definite that nothing good is going to happen for libraries.   So, to back up, when I was appointed Chair of the Committee on Copyright and other Legal Matters (CLM) of IFLA in 2003, the committee had existed for just six years.  It had focused more on programs for the IFLA conferences and general awareness raising  than on really active representation and engagement at the international level. There was, at that time, a Swiss who would go to WIPO meetings and report about what happened, but that was really quite different from our being formally accredited and regularly sending a delegation. So after I went to the WIPO General Assemblies and the meeting of the Standing Committee on Copyright and Related Rights in the fall of 2003, I realized that really we needed to be much more active. We needed to be present on a more regular basis and with more force, ideally with broad geographic representation. When you're at WIPO, there's a lot of time that's not spent in plenary, but in hallway conversations and caucuses. The more people that we could have there, who could speak particularly to their own delegations, the greater our impact could be.  When I could speak to the US delegation, [Victoria Owen] to Canada, etc. the easier it was to have access and impact, because delegates often naturally tend to listen more carefully to people who are their constituents, so that having a diverse delegation was important. 

 

As it turned out, it was also a wonderful coincidence of timing that we began to appear just at the time that WIPO itself began to be more open to non-governmental agencies (NGOs) and NGO interventions. The very first time I went to the Standing Committee on Copyrights was the first time in anyone's memory when the chair of the session without prior warning suddenly asked, "Are there any NGOs that would like to make an intervention?" We were all caught so by surprise that we hardly knew what to do so.  As I recall, Jamie Love, representing Knowledge Ecology International, took the microphone and made an off-the-cuff statement and then a few more people followed, and that was that.  But that episode really started the trend, so that from that point forward, routinely, time has been set aside for all of the accredited NGOs to make interventions.  In fact, at the last SSCR (June 2011), several Member States insisted that the Chair permit NGOs to speak early on concerning L&Es for the print-disabled because they really wanted to hear our reactions to recommendations that had been tabled on this hot issue.  Quite often, we are limited to no more than three minutes, or sometimes even two minutes depending on how many NGOs are there.  So it became obvious that not only was it good to have people from different parts of the world there so that we could discuss issues with representatives from our own countries or regions, but also that the more library organizations that were present, the more “air time” we actually got to do interventions. So  IFLA was joined first by eIFL and after that came the Library Copyright Alliance of the United States; now we also have the Italian Library Association, and the Canadian Library Association. So we now have five library organizations that are accredited plus the International Council of Archives. We coordinate our statement so that if we only have two minutes each, that’s 10 minutes total for the libraries. We discuss whether we all want to say more or less the same thing because it's so important we want people to hear about it five times; or whether there are multiple issues that need to be addressed.   If so, we each take one so that we can maximize the benefit of having multiple delegations. That's been a very, very big change at WIPO, this idea that the NGOs are not only permitted to be present but are expected to be heard from. Time is set aside and then WIPO takes our statements and publish them as part of the record.  It's been a very important way of our doing education for the people who are from the member states.

Minow: Are there NGOs then that also appeared that take positions opposing yours?

 

Tabb: Oh, of course. One of the most obvious ones, particularly in the context of the treaty for the visually impaired, is the International Publishers Association (IPA) which has said in its interventions said that it will never support a treaty. That was two or three sessions ago I think. And the other major one opposing a treaty is the International Federation of Reproduction Rights Organizations (IFRRO). Both of them have said that they will oppose our treaty in principle, that our issues should be dealt with at the national level, so they are opposed to a treaty in principle. In fact, we had been hoping for some more progressive collaboration because we've had fairly close relationships between IFLA and the IPA over the years.  I've been a member of the IFLA IPA Steering Committee for the last eight years and we've issued joint statements on topics of mutual interest like retraction of articles and data-driven policies.  IFLA hoped to get into a constructive dialogue about the library L&E instrument itself , focused on the substance of various articles  - maybe some were ok, others weren't, and yet others needed to be tweaked; but instead both IPA and IFRRO just basically said that in principle they opposed an international instrument so there was nothing substantive to discuss. That's discouraging.

 

Minow: That is discouraging. And so do you expect the same, more of the same, when it comes to the library exceptions and limitations?

 

Tabb: Absolutely, I mean there's no question about it. As a courtesy, it was extremely important to us to share our drafts because we want to be transparent. We were hoping we could agree on that some portions that should be relatively uncontroversial, like preservation.  Perhaps they worry about the “slippery slope,” that if they start talking about an instrument at all there'll just be no stopping it.  I really don't know the reasons, but it has been disappointing.  Those are the two NGOs that probably have the most interaction with libraries generally – we are major customers! -  but certainly the people representing the motion picture industry, the recording industry and others are not likely to be very supportive either. We just haven't engaged with them as much as we have IPA and IFRO.

 

Minow: You don't expect the motion picture industry et cetera to show up... or do you?

 

Tabb: Yes, they're often there.

 

Minow: Okay, all right.

 

Tabb: I can't remember all the different NGOs now engaged at WIPO.  There are people who represent actors – especially when rights in audio-visual performances are being discussed -  and people who represent music producers, broadcasters... really all these international associations for the various rights holders as well as the NGOs like Knowledge Ecology, Public Knowledge, the Electronic Frontier Foundation that represent the public interest.

 

Minow: Okay. Are you hopeful, then, about a treaty going forward?

 

Tabb: Yes, I think we have to be. Who knows what will happen or when.  We have to be  patient and willing to persevere.  As I mentioned the treaty for the visually impaired looks from certain points of view like it should've been a “slam dunk,”  but it's actually been on the table for several years now. At the session that we'll be going to next week, actually, starting on the 15th of June, three full days are to be devoted to discussions just about the treaty for the visually impaired.   It is gaining some traction.  Libraries are the second in line by level of "maturity”.  I'm putting that in quotation marks because that's the term that's often used at WIPO to determine how to proceed on certain issues. The SCCR agreed at its last meeting to a multi-year work plan, with three days devoted to the treaty for the print-disabled now in June, and then for libraries/archives to have three days at the SCCR in November, and then education will probably be taken up at the session of SCCR in May or June of 2012. At least that's the current plan that's a matter of record, part of the conclusions of the last SCCR. What we don't know yet is what will actually happen either at the three days next week relating to the treaty for the blind or what will happen in November. We're very interested to get there next week and see how WIPO or the member states deal with these three-day windows that have been set aside for focus on a very particular issues and instruments. One of the important directions from the member states as stated in the conclusions is that these three-day sessions should be “text-based.”  The working assumption is that there has to be some text, so that people aren’t just talking in general about an issue but are focused on the current draft treaty for the visually impaired; and then the same thing should be true in November on the treaty for libraries.   The library text would include the document that's been produced by the African group, which is at this point the only one formally on the table at WIPO that talks about libraries. Our draft treaty has not yet been introduced by a member state.

Minow: Tell me about the African draft treaty.

 

Tabb: The African Group is very focused on what they call the holistic approach. They have one instrument that would cover the visually impaired and other disabled individuals, libraries and archives, and education.  Probably the biggest controversy at the last SCCR session was whether the African group would accede to the idea that there should be separate, sequential discussions over a two-year period breaking the elements of their proposal into various pieces. I think it's clear that one reason that the African group has been so adamant about the holistic approach is that they really believe that they will have more leverage if all of them are taken together. Particularly, they are concerned about education, which may drive the African group more than any of the other issues.  The dispute about whether to sequence or bundle these issues literally brought us up to the midnight hour at the last SCCR.  Finally there was agreement that these issues – visually impaired, libraries/archives, and education – would be taken up in sequence by level of maturity.

 

Minow: I see, okay.

Tabb: We have worked with the African group; we've explained our library concerns, and  attended workshops with the Africa group in Geneva to talk about their proposals. They made quite a number of changes in their document relating to libraries based on the discussions we had – more detail, more clarity about real-life issues that need to be addressed through the treaty for libraries particularly.

 

Minow: Tell me about the IFLA draft treaty.

Tabb: It was drafted by IFLA and eIFL together. I was directed by the governing board of IFLA at the World Congress in Milan to appoint a drafting committee, which I did. The committee has six or seven people, and is chaired  by Teresa Hackett who is a member of IFLA’s CLM but of course is also the head of the IP program for eIFL.  The draft is considered to be jointly produced by IFLA and eIFL.  The American NGO, the LCA, Library Copyright Alliance, has commented and offered suggestions, and we've taken some of them on board; but it has not formally signed on.   I am very conscious when I'm working on these issues about functioning at the international level, not as an American librarian.  Because there are national differences, I think it's possible that the LCA – or other national library associations - would not endorse the entire draft that we have because they're obliged to looking at issues primarily through a national lens whereas IFLA and eIFL represent an international constituency, and in eIFL’s case one that especially focuses on developing countries.

 

Minow: Interesting. I just re-read it and it's hard for me to imagine what that would be because it seems like it covered everything the way we would want it but ...

Tabb: Yes. Well the debate may come to focus not so much on the substance but the modality. I think what we're seeing now, what's happening with the treaty for the blind, is that  there are various approaches. One would be the full treaty approach, and others more “soft law” approaches, a joint recommendation perhaps; there are different ways of coming at this.  But IFLA – and the World Blind Union – remains convinced that a treaty will ultimately be the most efficacious way of achieving our mission.

Minow: Oh, I see.

Tabb:  Some parties think the solution is always a “stakeholders' platform,” like an agreement involving “trusted intermediaries” that was one venue used for a time as an approach to resolving issues for the visually impaired.  I think the best summary of where we are may be that people are more likely to agree, in many respects, about what they would like the outcome to be than about the method of getting there.

Minow: Yes.

 

Tabb: For lots of people it’s easier not to think about a treaty.  From IFLA’s point of view, we are more interested in results for libraries than in the process.  We are focused on the needs of libraries in about 185 countries, many of which, we know from Kenny Crews’ WIPO study, have no provision whatsoever in their national law for libraries, or such a general exception that it is practically useless. The chance of achieving our objectives either through national approaches or through soft law is less likely to be fully productive for all the countries that are members of IFLA than a treaty would be.   Of course I could see that from the LCA point of view, a different approach might be more appealing - because really, American libraries have it better than any in the whole world, with our Section 107 and 108 provisions. We are really the envy of our colleagues in every other country.  While there are changes that need to be made in our copyright law - none of us are totally satisfied, as we saw in the result of the 108 study group – American librarians might feel that they can get farther by some tweaks in US law, and that an international treaty is not as important to them as it would be to some of these countries, particularly in Africa or Latin America, that have no provisions for libraries at all. 

 

Minow: I see. And what about the US delegation? What is their position? Support for the IFLA/eIFL draft treaty?

Tabb: Interestingly, I convened a panel at the Association of Research Libraries (ARL) meeting in Montreal in May and I invited Justin Hughes, who is the current head of the US delegation to SCCR, to come and speak along with Jonathan Band [LCA] and Paul Whitney, who is a Canadian librarian and a member of the IFLA governing board. They talked not so much about the library treaty per se but about the way things work in Geneva in general, and so I don't really know exactly what the U.S. position is going to be.  Also, we have the recent appointment of Maria Pallante as the new U.S. Register of Copyrights, and that could have an effect on the U.S. position.  The U.S. delegation comprises many agencies and interests and individuals.  Currently the U.S. Patent and Trademark Office (USPTO), as part of the executive branch, is playing the lead role, with support from the Copyright Office, Department of State and the Institute for Museum and Library Services (IMLS). When I was working in the Copyright Office in the 1980s, our delegations to WIPO were almost always led by someone from the State Department or Copyright Office.  So you know, these things change over time. It's a little bit hard to know what's going to happen next because we do have some new players.

Minow: Right, right.

 

Tabb: So I don't really know. I'll be curious to see how this plays out.

 

Minow: When you talk about nontreaty options, soft law, what do you mean?

Tabb: Well, there could conceivably be a consensus of the signatories to the Berne Convention, that aspects of certain substantive provisions of our treaty are to be assumed under Berne.  I think looking at the comments from both the US and the EU on the treaty for the visually impaired gives some examples of how non-treaty approaches might play out.  Some argue that it might be wise to use these “soft” approaches to get half a loaf now, and work on the treaty later on.  Another alternative is to say we want it all, and we're willing to wait x years. Some argue it would be better to have something now than nothing, and others feel that if you start compromising, you'll only get something and never get the whole thing, which is I think the point of view of the World Blind Union.

 

Minow: I'm not familiar with the consensus... is that something in writing that everyone agrees to but it doesn't come back to be enacted into national law or what?

Tabb: Let me send you as an example a copy of the document from the US delegation relating to the visually impaired.

 

Minow: Thank you. How would you summarize where we are now?

Tabb: It's a very exciting development to have come as far as we have,  from 2003 and not really being present, not permitted to speak at WIPO  - to being where we are now where people expect us to be there, in force, and to be making substantive  interventions.  People are expecting our treaty because it really follows on directly from those studies that the WIPO secretariat itself commissioned. The first one focused on the visually impaired and then the 2006 Crews study focused on libraries.  We consider that we're really just building on the WIPO-commissioned studies like the one done by Kenny Crews.  The results of the data revealed in that study, like that fact that so few countries have provisions for libraries, made preparation of an actionable instrument inevitable.

 

Minow: I thought the orphan works provision was particularly elegant.

Tabb: Well thank you for that, we're interested to see what will happen because orphan works present one of our biggest frustrations as librarians.  At the very time when technology makes it possible to share information easily and widely, the incessant (and unconscionable) extension of copyright term combined with the elimination of registration and renewal formalities has effectively prevented the sharing of millions of publications that have little if any commercial value.  We’re watching very closely what’s going on at the EU and at what decisions might be taken in the US under the new Register of Copyrights about how to proceed, if at all, on new orphan works legislation.  A lot of people are afraid that opening things up could be more dangerous than living with what we have now through our Section 107 and 108.  But clearly the orphan works issue has got to be resolved somehow, because it's really locking up so much information that's giving no value to anyone, including the theoretical owner.

 

Minow: The orphan works language was simple and well written. Why haven’t we just used similar language in U.S. legislation?

Tabb: Well, in the draft treaty, what we tried to do in several of the provisions was to focus on what the result should be, not on the modality.  And we took a similar approach in articles where moral rights issues might arise. We don’t really think about moral rights in the U.S.  But there are countries where that's a very important issue. So we focused not on prescribing exactly how things should be done or how they should be embodied in the national law if the treaty were to be adopted and ratified, but on what the outcome ought to be for libraries and our users. We realize that there can't be a one-size-fits-all approach to how these exceptions or limitations would be implemented.

 

Minow: That's right, I wasn't thinking about the moral rights for orphan works, of course that would be an issue elsewhere.

Tabb: Well it came up very explicitly when I launched the treaty at the IFLA President's meeting at the Hague in April.   Take the idea of retraction of articles from databases. This is a very controversial issue.  Most librarians, myself included, feel strongly that the record is the record and shouldn’t be expunged.  Records can be annotated to explain why retraction might be sought; but it’s part of the historic, scholarly record and it doesn't disappear.   However, there are others who feel, particularly if they're from a country where moral rights are prized, that if the owner or author wishes to withdraw his or her work, it simply must be done, period.  There are various, strong differences of opinion on some issues like this; so we knew from the beginning that we had to leave certain matters more open to national interpretation.

 

Minow: So that provision says, I'm not looking at it now, it says "but subject to national law" or something like that?

Tabb: Right. And that's the reason for that.

 

Minow: I see.

Tabb: That's the pragmatic approach, which you have to have if you're ever going to get this treated adopted.  I wasn't at all surprised when I got asked that question about moral rights from one of the students who had been invited to come to the IFLA president's meeting. He was just appalled at the idea that the author couldn't withdraw or destroy something that he or she had created. To a librarian, thinking about the national record, that's an anathema.

 

Minow: It seems like when things are withdrawn, it's not usually the author... but it could be.

Tabb: Usually it is the publisher, and more often in the area of science where things were really wrong and someone could be killed because there was a wrong formula or prescription...

 

Minow: Right ...

Tabb: Something of that sort. So there really are good reasons why retraction could be sought.  About six years ago, the IFLA/IPA steering committee did issue a joint statement on retraction.  As I recall, the agreement there with the international publishers was that yes, the publisher should be able to withdraw an article, but taking notice of the importance of legal deposit, we also agreed that the item should remain as part of the legal deposit, properly annotated to indicate that the publisher has withdrawn x publication on x date for the following reason.   That's the approach librarians would prefer because we think that really is necessary for the historical record.

Minow: Oh, absolutely.

 

Tabb: There are a lot of people, including some colleagues from other countries, who see that in a different way;  so our own drafting compromise was to say that this situation would be handled according to national law, knowing that means that it would be treated differently in different countries.

 

Minow: Well, thank you so much for your time, I know it's a busy time for you.

Tabb: Oh, yes, I've enjoyed it so much. 

 

Winston Tabb is Chair, Committee on Copyright and other Legal Matters (CLM), International Federation of Library Associations and Sheridan Dean of University Libraries and Museums and Vice Provost for the Arts, Johns Hopkins University.

 

Mary Minow is Executive Editor, Stanford Copyright & Fair Use website.

Above: Cicely Wilson and Courtney Minick of Justia, holding Sheba and Belle, respectively

The Stanford Copyright and Fair Use site is pleased to announce a new feature to aid readers in keeping up and understanding copyright cases in a timely manner: copyright case summaries. To explain this new feature, Mary Minow talks to two editors of Justia, Cicely Wilson and Courtney Minick.

Mary Minow: Tell us about the copyright case summaries that the Stanford Fair Use site will be offering to readers.

Cicely Wilson and Courtney Minick: We will send a feed of summaries for cases that involve copyright issues to the Fair Use site. The summaries themselves are short blurbs that describe the key issues and holdings of a particular case. They are designed to give the reader a sense of whether they need or want to read the case in its entirety. The summaries link to the full text of the opinion on the Justia site, and they are also displayed on the same page as the opinion. This way someone browsing or searching for caselaw on our site gets the benefit of the overview as well.

As the number of opinion summaries grow in this feed, it serves as a survey of sorts for copyright and fair use law -- something that we hope will provide a lot of value as a free tool.

Minow: Who is writing the summaries?

Wilson and Minick: We have hired a team of experienced writers, all of whom are licensed attorneys, to write the summaries. They summarize the cases in a concise manner and tag the cases with relevant areas of law.

Minow: You're saying that a private company has hired a team of attorneys to write case law summaries, and then make those summaries available to the public for free? Why would you do that?

Wilson and Minick: Great question, Mary. At Justia we believe we all "do well by doing good."  To that end, one part of our core mission is to advance the availability of free legal resources on the web. The newsletter summaries fit in as a part of this by expanding access to the law and add value to the free primary law on our portal.

Minow: Any last words?

Wilson and Minick: Thanks Mary! We are very excited about this new product, and hope it will provide a lot value to lawyers, law librarians, and others who need to stay on top of legal developments. We are also looking forward to the addition of editorial information to our database of free legal opinions, as a way to help organize and contextualize the material.

Minow: By the way, who are the pugs?

Wilson and Minick: The pugs are our co-workers, Sheba and Belle!  You can see more of there Justia office adventures on their Facebook page.

A New Twist -- Securing Authors' Rights When Negotiating Content Licenses: an interview with Julia Blixrud, ARL and Ivy Anderson, University of California

Part I of Open Access Scholarship was an interview of Michelle Pearse, conducted by Executive Editor Mary Minow.  As promised, here is part II, which will specifically address law reviews and legal scholarship.

Eli Edwards: Nearly two years ago, a group of academic law library directors promulgated the Durham Statement on Open Access to Legal Scholarship. It called for (1) open access publication of law school-published journals, and (2) an end to print publication of law journals, coupled with a commitment to keeping the electronic versions available in 'stable, open, digital formats."

Recently, we talked with Richard A. Danner, Rufty Research Professor of Law and Senior Associate Dean for Information Services at Duke Law School.

Danner: Duke University adopted an open access policy in March 2010. The policy, which is available here [PDF] has not to my knowledge ever been published in final form. The policy is very similar to those adopted at schools and other entities at Harvard; the main difference being that Duke's policy is university-wide. It is also stated as a mandatory policy, but the legislative history, such as it is, indicates it is not.

Duke has had DSpace running, under the name DukeSpace, for several years, mostly for electronic theses and dissertations. In the short term it is also being used as the platform for archiving and access of faculty publications, but the longer term plans are to move toward a new repository system being developed at Duke using the Fedora Commons.

The Law School started its own Faculty Scholarship Repository in 2005, providing free access to the majority of all articles published by then members of the Duke Law faculty. The contents of that archive are now the foundation of the Duke Law Scholarship Repository on BePress, with which we have partnered through Nellco since 2009. Our repository policies do not include a mandate, but in practice nearly our faculty publishes of a scholarly nature is included. Over time, it will include: the texts of lectures delivered at Duke Law, webcasts from scholarly presentations and conferences, publications of Duke Law's research centers, Duke Law student works, and more.

Edwards: Prof. Danner, you recently presented a paper at Duke, at the workshop, "Implementing the Durham Statement: Best Practices for Open Access Law Journals" on Oct. 22, 2010. [The current draft of the paper is available here: Danner draft formatted RAD 23 Nov 2010.PDF (PDF); see below for an excerpt of the most recent draft - EE] If you were to summarize the progress made in the last two years, what would you say?

I am not sure what actually I can add to what is in the paper I sent, which my co-authors and I did revise substantially after the October conference. As Michelle [Pearse - see previous blogpost/interview] knows, student law journal editors often say that they are reluctant to move to all-electronic publishing because authors are reluctant to publish in non-print journals. [This and other issues surrounding open access legal scholarship will be part of an upcoming article in Duke Law Magazine.]

To assess these comments, my Duke colleagues, Marguerite Most and Kiril Kolev, and I have designed a brief survey to gather information about attitudes toward electronic publication of scholars who have recently published articles in leading law reviews. After pretesting the survey in December and gaining approval from University reviewers, we will administer the survey in mid-January to authors of articles in the last two completed volumes of the lead journals published at the US News top-fifteen ranked law journals.

Faculty members who frequently publish articles in the top law reviews and journals will share their attitudes towards online publications by filling out a nine-question online questionnaire. about 500 scholars will be contacted via email and invited to fill out the survey. The questions are designed to gain insight into how important print publication is to authors who publish in leading law journals.

I think this should be an interesting exercise and look forward to the results.

Edwards: As will we! Thank you so much for talking with us, Prof. Danner.

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Eli Edwards is an intern and Content Minion of the Stanford Copyright & Fair Use site.

Richard A. Danner is Senior Associate Dean for Information Services, and Archibald C. and Frances Fulk Rufty Research Professor of Law. Professor Danner has been active in the affairs of the American Association of Law Libraries, the International Association of Law Libraries, the American Bar Association Section of Legal Education and Admissions to the Bar, and the Association of American Law Schools. From 1984-94, he served as editor of AALL's Law Library Journal. He was President of AALL in 1989-90 and has chaired several AALL special committees and task forces; he served on the executive committee of the AALS from 2002-2004, and as first vice-president of the IALL from 2004-2010.

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EXCERPT: 

The Durham Statement Two Years Later: 

Open Access in the Law School Journal Environment

The Durham Statement calls for law schools to end print publication of law journals in a planned and coordinated effort led by the legal education community, focused on ensuring access to and preservation of the electronic journal literature. Without that effort, in an economic environment in which external factors are more than ever impacting libraries' collection decisions and law school budgets, what can we do to assure that electronically-published legal scholarship will remain available to future scholars?

...

1. It is time for law librarians to explore alternatives for preserving legal scholarship working in concert with the other stakeholders, including:

• Existing efforts to preserve legal information, such as the Legal Preservation Alliance (LIPA), which in 2010 established the Legal Information Archive as a collaborative digital archive . . . to preserve and ensure permanent access to vital legal information currently published in digital formats.
• Legal publishers holding extensive libraries of law journal content in electronic format -- LexisNexis and Westlaw, but perhaps primarily HeinOnline, with its extensive retrospective collections. Will their interests in preserving access to law journals for their commercial value mean they will now preserve digital content as libraries have traditionally preserved print content?
• Established preservation and electronic archiving programs such as Portico and LOCCKS, which have worked mostly with libraries and publishers outside of law.
• The Library of Congress, which already receives copies of all law journals whether published in print or electronic format under the mandatory deposit requirements of the Copyright Act, and works to establish best practices for digital preservation through the National Digital Information Infrastructure & Preservation Program (NDIIPP).
• Institutional repositories, such as Harvard University's local Digital Access to Scholarship at Harvard (DASH), or services such as the bepress Digital Commons, which hosts repositories for a number of law schools and supports law review publication.
• Printers of law journals, in order to forge the future role of print for preservation or print-on-demand services for legal scholarship.

2. It is also necessary to promote the use of common standards for formatting the files of the documents. Joe Hodnicki has noted ALA's and ACRL's calls for across-the-board format standardization, and the use of a standard mark-up language (e.g., XML) instead of PDF. Wayne Miller has proposed developing mutually-agreed upon law journal formats for archiving, preservation, and other uses.

3. It is time as well to take the initiative to create opportunities for dialogue with law school deans, law review editors, interested faculty, and legal information vendors on the need for concerted action regarding access to and preservation of electronically published law journals. These activities do not answer all of the concerns raised regarding the Durham Statement's call to end print publication of law journals, but they should at least provide a start for action toward meeting those concerns.

Mary Minow had a chance to talk with a colleague at Harvard Law School about Open Access.

Today, Mary talked with Michelle Pearse, Research Librarian for Open Access Initiatives and Scholarly Communication, Harvard Law School Library.

Minow: Michelle, now that the Open Access Policy has been in place for two years, how has it been working out?

Pearse: It has been an interesting journey. We are still in the process of reaching out to and educating the faculty, trying to get them to understand the policy and get it into their personal workflows. As part of our reorganization in Summer 2009, we made publication support part of library services, so we have tried to implement and educate faculty about the policy in that context (i.e. the policy is one aspect of the publication process now). The policy is often referred to as a mandate, which is a bit of a misnomer because faculty are always free to seek a waiver. (See the Director of Harvard's Office for Scholarly Communication posting about this issue on his Occasional Pamphlet blog.)

It can be challenging implementing such a policy. It is important that we make the process as simple and straightforward as possible. While the traditional mark of repository success seems to be the number of items deposited, I think the more important metric at this point is progress in educating the faculty and cultivating relationships with them so they see the library as a partner in their publishing experience---from initial research to the disseminating the final product.

The open access policy itself applies only to scholarly journal articles, and our faculty actively publish books and other materials that do not even fall under the policy. We envision a "one-stop-shopping" system literally and figuratively. We are trying to develop workflows and technical systems that can truly realize that vision.

Minow: Since you have experience now with the journals, what has been the journal reaction to the policy?

Pearse: Overall, there is confusion about what these policies mean or are trying to do, so there is quite a bit of education with the publishers. The "teachable moment" often comes up when an author uses the addendum that the university has provided for faculty to send along with publication agreements. Most of the larger publishers of the peer-reviewed journals are already aware of the policy, and some have started asking their authors to show proof that they have submitted waivers. We have waiver language for faculty, that states that the faculty member has granted Harvard a license with respect to his or her scholarly articles, and that a waiver is requested for a particular article.

In an odd way, it actually facilitates my outreach work with faculty as it brings the issue to the forefront.

There have been some instances where even when a waiver has been submitted, in the end the publisher agrees to budge a little bit from its routine policy as a compromise.

Minow: In what way?

Pearse: For example, the publisher may authorize self-archiving of a later version than it normally permits. With some of the bigger publishers, it can be a challenge figuring out the appropriate person with whom to discuss these issues.

Minow: Law reviews are produced by the law schools, and edited by students. Do you get a different reception from law reviews than you do from other journal publishers?

Pearse: Yes. By contrast, the law school law reviews are generally more supportive of the policy (particular the ones that have their contents open or "gratis open access"), but they are not always comfortable with or understand the terms of the Harvard license. We are trying to compile a list of law journals that are expressly supportive of the policy to facilitate workflow and educate faculty when they are publishing. At some point, if more law schools adopt open access policies, it would be great to have that information incorporated into submission systems and journal web pages.

Minow: How has it been implementing it in a university environment that has different schools enacting open access (e.g. centralized vs. local practices)?

Pearse: We were only the second school after the Faculty of Arts and Sciences (FAS) to adopt the open access policy, so it has been interesting to watch the Office for Scholarly Communication (OSC) evolve over time. We now have 6 schools at Harvard with OA policies. The growth in the number of schools has provided a fabulous opportunity to meet with colleagues working on similar issues, to share thoughts and processes for workflow, experiences with implementing the policies, etc. ... especially where scholarship has become so interdisciplinary now. Over time, the OSC has also developed rich external and internal sites where we can share tools to help with the administrative aspects of implementing the policy. It also has open access student "fellows" that we have occasionally used to help populate the repository. We are also hoping that centralized discussions and negotiating with publishers will be helpful in communicating with publishers and facilitating the deposit of content.

Some of the "advantages" of centralization, however, can also create some of the biggest challenges. For example, we are fortunate to have a central office to run the repository on a technical level (it uses DSpace), but it also means we sometimes have to wait for certain developments to take place or compromise if have different ideas about the look and feel of the interface. In general, these issues tend to work themselves out. For example, delays in technical developments that are problematic for us often tend to be important to other schools as well, which can cause them to move up the priority list. The schools (and disciplines) have very different cultures, so it is interesting to see how these local cultural differences sometimes affect how we might approach certain aspects of implementing the policy like outreach and workflow. It is also interesting to see how the language of the policies themselves are slightly different and have evolved with each new school adopting a policy. (At this point, each school has its own language and responsibilities in figuring out how it wants the policy to operate in its own school.) While we can share technical resources and information and harness the synergies that exist, I think we will have to think about ways to create overlays and develop underlying workflows that can be customized to accommodate our own needs.

Minow: Thank you so much for your update!

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For part two of Open Access Scholarship, we will be discussing the Durham Statement and what has happened in the two years since its publication with Richard A. Danner, Rufty Research Professor of Law and Senior Associate Dean for Information Services at Duke Law School.

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Mary Minow is the Executive Editor of the Stanford Copyright & Fair Use site.

Michelle Pearse is the Research Librarian for Open Access Initiatives and Scholarly Communication, Harvard Law School Library. You can follow her on Twitter at @aabibliographer.

Rising Into the Public Domain: The Copyright Review Management System (CRMS) at the University of Michigan

Interview with John Wilkin, Associate University Librarian for Library Information Technology and Executive Director, HathiTrust and Principal Investigator for CRMS

Mary Minow: Where does CRMS fit into the scheme of other copyright tools, such as the Determinator?

John Wilkin: The Determinator is a good point of comparison for us. It serves as a resource for helping someone make a determination, and what we wanted to do is actually make determinations. The focus is on materials in our Collections, across the HathiTrust partnership. We are not so concerned about where a book comes from, because we think of [the corpus] as a "collective collection" ... materials from across the board.

I think we did have, early on, perhaps a naive sense that we might be able to make those determinations without the materials being in front of us, digitally or in print. We quickly concluded, though, that the only way to do the work was to have those works in hand. And we chose to have them in hand, digitally. And the digital flow of materials drives the prioritization process.

Minow: When you say digitally in hand, it sounds like researchers are allowed to look at the text, the preface, etc.

Wilkin: That's right. We have a strong authentication and authorization system, and it's tied into the Michigan CoSign system, but also it uses Shibboleth. So that gives us a lot of tools there. In this case, we use a two factor authentication for all reviewers. They have to authenticate [with a password], and they have to be, essentially, at their desk. They can't take their identities home and start looking at materials that are still in copyright. So it's very much justified by the work they're doing.

Minow: Doesn't Google make its own determinations of what's in the Public Domain? Do they come up with different determinations? Is there duplicative work going on?

Wilkin: We're doing the 1923-1963 work.

Minow: That is, a focus on books published between 1923 and 1963. Books published in the U.S. prior to 1923 are in the Public Domain. The Copyright Renewal Act of 1992 automatically extended the copyright terms of works published in 1964 and later.

Wilkin: Right. So far as we know, Google is not doing the 23-63 work. Both Google and HathiTrust do a layer of very automatic determinations. Ours is entirely automatic, based on elements in the MARC record. They have reviewers look at materials to do some [consultation] because occasionally the bibliographic information is not reliable. That's the point at which we'll look most similar, with some exceptions.

There are important areas where we deviate. We are opening up U.S. Federal Docs, post 1922. Google is considering that now, but they have been slow to do that. They're considering what classes of materials they'll open up. HathiTrust will say that U.S. government docs are, by and large, in the Public Domain.

Then we diverge. For example, we're going to look at U.S. pre-1923 materials as in the Public Domain, and we're going to look at users outside the U.S. differently for materials that were published outside the US does that make sense?

Minow: Help me out here.

Wilkin: For the user in the U.S. or really for anybody in the world, we deem U.S. works pre-1923 as being in the Public Domain. And for the user in the U.S., we also deem non-U.S. works pre-1923 as in the Public Domain. For users outside the U.S., we are fairly conservative with non-U.S. works. I think the date we're using now is about 1870. It's a rolling wall, and essentially a best guess. It would be that date for a young author who lived a long time who published something. We use statistical probability, and we roll that wall forward every year.

Minow: How do you figure out if the work was published first outside the country?

Wilkin: We primarily use the bib record of the publication. If the place of publication is outside the U.S., we assume that it was [first published there]. Effectively we are conservative unless we get a good look at something and make an individual determination.

We ingested 700,000 volumes one month, so that gives you a sense of the scale we're working at. We're never going to have the resources needed to do individual sorts of this one should go here and that one should go there.

Minow: You mentioned that you're using the Determinator, but that's only available for Class A books. Are most of your materials Class A books?

Wilkin: They're all Class A books. The reviewers use the Determinator and other tools, they look at the book and they make an assessment. They look to see that there are not embedded rights problems in making those determinations.

Minow: Inserts - photos, stories, poems - you'd almost have to read every page.

Wilkin: Well, we look at acknowledgements, not the entire book. There are going to be some cases where the acknowledgements are not that adequate. We have an advertised takedown policy, and we've never been contacted about anything that is an insert.

Minow: It takes my breath away to look at that level.

Wilkin: The insert issue is of particular concern in Congressional materials, such as materials that are inserted into the record for hearings. We work with the assumption that these inserts are part of the public record and that they are provided or reproduced in that context.

Minow: In Section 108(h), the copyright law gives 20 years back to libraries and archives even on the web, if not subject to normal commercial exploitation. Here's a chart I made, showing that, for example, that libraries and archives may make and distribute copies of works up through 1934 this year, instead of 1922. The catch is that the works cannot be subject to an undefined "normal commercial exploitation."

Wilkin: We're not taking advantage of that at this point.

Minow: Another thought I had, after reading Melissa Levine's article, is that many authors of older works retain their digital rights, because when they signed publisher agreements, digital rights were not yet contemplated. Are you taking advantage of that? [Opening Up Content in HathiTrust: Using HathiTrust Permissions Agreements to Make Authors' Work Available, Research Library Issues, no. 269 (April 2010): Special Issue on Strategies for Opening Up Content]

Wilkin: We're not. We're just testing the waters, taking baby steps. We're only dealing with works where the rights have reverted to the author and when the author or publisher knows they own the rights. As it turns out, we've had some fairly large lump permissions. For example, in at least one case where a journal died, the journal publisher gave us permission to open up the full run of the journal. As it turns out, a few organizations have opened up a large number of publications.

Melissa's article is an early step for us. We haven't gone out to seek permissions from authors, yet. But it's most definitely something we want to do.

Minow: The University of Michigan is a player in the OCLC pilot project, the WorldCat Copyright Evidence Registry. Does that mean your determinations of copyright for the works you examine then feed into that Registry?

Wilkin: I think that effort is in limbo right now. We did set up a mechanism that we could share our determinations with them. The Registry was set up to allow institutions to identify records that need to be enhanced or annotated with information about URLs and rights, etc. In our distribution mechanism, there's one record for every volume in the repository at this point.

We think of OCLC as a central switching point for bibliographic info, so it seemed like a natural for them to have a registry of copyright evidence. We were making data available to them, but in fact we have now 6 million volumes, each identified with our either automatic or manual copyright determination, so that's more than what OCLC would have, I guess, aspired to do.

In the CRMS process, that's only been tens of thousands of volumes, but someone could start with our 6 million volumes and look for changes.

Minow: But it wouldn't be open in the sense that someone could put their own data in, right?

Wilkin: Exactly, and the Copyright Evidence Registry was intended to be that.

Minow: Is there anything you'd like to add?

Wilkin: Well, for us, the question is "what next?" The easiest "what next" is expanding to other partners. Anne's been busy as we laid out in the grant, she is training staff in Indiana, Minnesota and Wisconsin - just finished Wisconsin - the three pilots along with the Michigan staff. [Anne Karle-Zenith, Copyright Review Project Librarian]. This winter she'll probably incorporate staff at a California partner.

And as we bring more hands in, it puts more pressure on the training and reliability piece as more people are making determinations.

Minow: Do you see members of the public as becoming able to add notes or comments in the future?

Wilkin: We have a tagging application for bib records. Probably not a day passes when someone doesn't say, "I think this is in the Public Domain" or ask, "is this in the public domain?" That's what stimulates someone to look at it. So it is user driven now. We won't take someone's assertion as fact, but it provides a good starting point to do investigation.

Minow: Do you have plans to add other materials, besides "Class A" books?

Wilkin: In HathiTrust, we have much more than "Class A," but the only ones we're pushing into the workflow right now are "Class A." So that becomes a question for you. Then. How would we go beyond "Class A"? How could we build sustainable cost effective system? Probably going to be something piece by piece, right?

Minow: I've heard that the Copyright Office is working on a retrospective conversion of the copyright registration and renewal records of rest of the material types, beyond "Class A books." If they make the records available in bulk, as they did with "Class A," then others can set up or build on databases like Stanford's "Determinator."

Wilkin: Did you know that we've found about between 55% and, 60% of our materials have been found in the public domain?

Minow: Fantastic!

Wilkin: The numbers you see out there say like, only 15% are in copyright. Some assertions are pretty wild. There was some early work done by the copyright office, but the law was in flux at the time. Best to have something so statistically sound. I'm guessing that between pre-CRMS and CRMS, we've gone through 100,000 titles and those numbers have held. I think we have another 400,000 titles to deal with in that period. One question we have, how many titles ARE there in the 23-63 period? There's just so much indeterminacy because of variation in cataloguing practice and ways of reporting things, and so.

Minow: Are the other 40% ones that you've determined are in copyright or you just can't figure them out?

Wilkin: I think early on it was about 30% in copyright and 10% in UND (undetermined or undeterminable). Anne found that as staff got more experienced, they were getting stuck on complicated problems, and we often found a lower yield of public domain determinations. So Anne encouraged staff to push things to UND rather than get some finality. So the number of UND has gone up, but the numbers in the Public Domain have stayed constant. That's really a workflow strategy kind of thing.

It's exciting to get those works opened up. The surprise has come in the titles. Because of the required renewal process, it's stunning to see what was not renewed. The first time I encountered this was with my 13 year old daughter, who was doing a book report on code breakers. We found really modern materials by living mathematicians. I thought, "oh, we're in trouble." Then, looking further, these were ones where renewal did not take place. Interesting to learn the behavioral piece ...

But the numbers, the numbers are really very interesting, the 60/40 sort of thing.

Minow: And yet, going forward, this is not going to be the case, because now there's no renewal required. An anomaly really, unless law changes again in the other direction, which doesn't seem likely.

Wilkin: That's something for us to ponder as a society, as a culture, that these works are overwhelmingly not on the market. What's happening is, without this effort, no one is able to take advantage of the information that's there, or only in a limited way.

Another surprise is the Committee on Institutional Cooperation, the CIC, the non-Michigan, non-Wisconsin CIC institutions, don't get back their in-copyright materials ... by contract with Google. I think what we ought to say is they don't get back those things that are putatively in copyright. With those numbers in mind, think about what are we not able to put online because they're assumed to be in copyright, when we know that 60% or some large percent are in the public domain.

Minow: You mean, those institutions are not getting access to the full text of their own books?

Wilkin: They stay at Google, they're embargoed. That may change with an amended agreement, but for now, Google doesn't provide them back.

Minow: I thought those were called "library copies."

Wilkin: It is important to call them "embargoed copies." Jack Bernard, our Assistant General Counsel, has asked us to use the term "rising into the public domain" instead of "falling into the public domain."

Minow: That's a good title for this interview. Thanks so much for talking with us today.

The 2010 DVD Exemption to the DMCA: An Interview with Abigail De Kosnik, Gary Handman and Mark Kaiser of University of California, Berkeley

(1)  Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:

(i) Educational uses by college and university professors and by college and university film and media studies students;

(ii) Documentary filmmaking;

(iii) Noncommercial videos

An Insider's View of the WIPO: Interview with Janice T. Pilch, Associate Professor of Library Administration and Humanities Librarian at the University of Illinois at Urbana-Champaign

An international copyright advocate for the Library Copyright Alliance, which consists of the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries, Janice has represented the interests of U.S. libraries and the public at copyright-related meetings of the World Intellectual Property Organization (WIPO) and other international fora for the past three years. As an advocate, she develops position statements to advance fair and equitable access to information, contributing to LCA's strategic effort to influence legislation and public policy governing use of copyrighted materials.

In 2009-2010 Janice also served as Visiting Program Officer on International Copyright for the Association of Research Libraries, responsible for research and policy formulation on international copyright issues relating to libraries.

At the ALA Annual Conference in June 2010 in Washington, Janice was a member of a panel co-sponsored by ACRL and the ALA Office for Information Technology Policy on "Why WIPO? Why International Copyright Matters." We thought we would invite her to share some of her insights on the important work being done by the Library Copyright Alliance at WIPO in the global IP debate.

Mary Minow: How did you find yourself before WIPO in June, representing library, and by extension, the public's interests?

Janice Pilch: When the Library Copyright Alliance launched its international copyright advocacy program in October 2007, it gained accreditation as an NGO with observer status at WIPO. We set out to cover the work of three key WIPO committees: the Standing Committee on Copyright and Related Rights (SCCR), the Committee on Development and Intellectual Property (CDIP), and the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), as well as the WIPO General Assembly.

New perspective on the proposed Google Book Search Settlement Agreement from Mimi Calter, Stanford University Libraries at:

http://fairuse.stanford.edu/commentary_and_analysis/2009_02_calter_google_settlement.html

The outcome of the hearing we previously blogged about is that the Oregon Legislative Counsel Committee will not assert copyright on the Oregon Revised Statutes.

Public.resource.org has put up video of the hearing in 6 segments.  Find out more on public.resource.org/oregon.gov/.