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Who’s the Owner: A White Paper on “Improving…

The U.S. Copyright Office came to Stanford Law School yesterday to conduct a roundtable on Recordation Reengineering,  The Stanford Law School Law and Policy Lab submitted comments and a thoughtful White Paper, and live tweeted the proceeding along with us (see @slspolicylab and @fairlyused). The Law and Policy Lab was represented at the roundtable by Peter Holm, third year law student.  We interviewed Peter to get the essence of the issue and the White Paper, which is available as document 23 on the Copyright Office comments page.

The roundtable was conducted by Robert Brauneis, Abraham L. Kaminstein Scholar in Residence, U.S. Copyright Office.

Robert Brauneis, Abraham L. Kaminstein Scholar in Residence, U.S. Copyright Office

Robert Brauneis, Abraham L. Kaminstein Scholar in Residence, U.S. Copyright Office

The White Paper was submitted to Brauneis by Ariel Green, Sean Harb, Peter Holm, Kingdar Prussien, Kasonni Scales, and Juliana Yee, Copyright Policy Lab Practicum

Mary Minow: What was the impetus that led Stanford to research and write this White Paper?

Peter Holm:  The Copyright Office contacted Stanford initially and Professor Paul Goldstein contacted us.  I took a copyright class in the Fall of 2012 with Professor Goldstein. He emailed a few of us over the summer to see if we were interested. He described it as a chance to offer concrete suggestions to modernize the Copyright Office operations.

Minow: That sounds broad.  When did the focus narrow to copyright document recordations?

Holm:  That narrower focus developed in the Fall as we spoke with Maria Pallante, Register of Copyrights; Jacqueline Charlesworth, General Counsel, United States Copyright Office, and then with Professor Bob Brauneis who is there as a scholar in residence on these issues.

Minow:  Why does this matter?

Holm:  To have economic value, an owner of copyrighted works has to be able to sell and make his works available. If you don’t know who the owner is, you can’t make those transactions and the works lose value, so availability of this information is integral.

Minow: How do people find out now about who owns what copyrights?

Holm: It varies by industry.  Neither registration of copyrights nor recordation of copyright transfers are required, but both have benefits to the owner. Because taking these steps is voluntary, the amount of information available for any given work varies considerably.  So for example, in the music industry, there is extensive ownership information and licensing availability through ASCAP, BMI and the Harry Fox agency.  So if I want to play Elton John at a party open to all Stanford students, I can get a license from those collecting societies and not worry about who owns the rights.

Whereas if I find a book in the library, published in 1955 and I want to use it, it’s harder to find information.  There are probably records at the Copyright Office for the initial owner, as registration used to be required, but subsequent transfers might not have been recorded, so many questions remain. Did he transfer the copyright at some point? If not, is the author still alive? Did it go to his heirs, and who are they?

There is a substantial cost to investigating this, and often one doesn’t know who to talk to.

Minow: What’s the gist of your proposal?

Holm: It’s not a proposal per se. It’s really a list of options and tradeoffs.  We look at the role of the copyright office. Should it hold a giant database, partner with third parties?  Really it comes down to how do we best provide access to the public and get the information they need without overly burdening authors with unnecessary requirements?  We don’t want to make it too hard for them to exercise their rights to transfer works, since transfers are potentially beneficial.

Minow: What are the benefits of recording transfer documents, since it’s not required?

Holm:  It gives constructive notice of the transfer.  Also, if you record a transfer document there is a presumption of validity for that document over subsequent instruments of transfer of the same title.

Minow: Thanks for talking with us today.

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Peter Holm is a third year law student at Stanford Law School.

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

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Behind the Scenes With Winston Tabb, Representing Libraries…

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.

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Copyright Case Summaries: Interview with Cicely Wilson and…

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.

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Rich StimRich Stim is corporate counsel for Nolo. Rich is the author of several Nolo intellectual property books including:

Patent, Copyright & Trademark: An Intellectual Property Desk Reference
Patent Pending in 24 Hours

Music Law: How to Run Your Band’s Business

Rich also writes two blogs for Nolo, What Price Justice and Nolo’s Patent, Copyright & Trademark Blog, and provides information about trade secrets and nondisclosure agreements at NDAs For Free. He lives in San Francisco and has been without cable TV since 2006.

Nolo has published a new edition of the volume Getting Permission, a comprehensive, up-to-the-minute book on securing the use of copyrighted images, text, music and more. Moreover, Nolo has granted permission to the Stanford Copyright & Fair Use to provide free and open access to salient chapters dealing with copyright, fair use, and web-based content. Fair Use’s Executive Editor Mary Minow has a brief interview with Rich Stim about the new edition of the book, and what’s new in fair use law.

Mary Minow: thanks so much for sharing the rich Nolo content with the Fair Use site. What have been some of the recent changes worth pointing out?

Rich Stim: The mix of recent fair use case hasn’t been too surprising. For example, we learned it’s not a fair use to create a Harry Potter lexicon or to create a postage stamp from a sculpture. And it’s not a fair use/parody to create a sequel to Catcher in the Rye. It is a fair use, however, to reproduce movie monster magazine covers in a book about the cover artist. No surprises with any of these decisions.

The most important fair use ruling may have been Lenz v. Universal Music Corp. In that case, Universal Music issued a takedown notice for a video of a child dancing to the song, ‘Let’s Go Crazy,’ by Prince. The owner of the video claimed that since Universal didn’t consider the issue of fair use, Universal could have not had a “good faith belief” they were entitled to a takedown. Faced with this novel issue, a district court agreed that the failure to consider fair use when sending a DMCA notice could give rise to a claim of failing to act in good faith. That may have an effect on the trend towards automated mass DMCA notices. Let’s hope so.

Minow: What’s your assessment of these changes with regards to the big picture of copyright law, especially as it affects the higher education community?

Stim: I’m not sure much has happened recently will affect the higher education community. It’s all been business as usual although we’ll see what happens as a result of this recent ruling regarding the Google book archive. That may have a profound effect on the ability to access orphaned works.

There was a recent case that may, by analogy, effect the ability to claim fair use when copying electronic texts. In Capitol Records Inc. v. Alaujan, a defendant in a music file sharing case was prohibited from claiming fair use because he had failed to provide evidence that his copying of music files involved any transformative use. The court held that “In the end, fair use is not a referendum on fairness in the abstract …” In other words, making a copy of a digital file and using that file for the purpose for which it was intended (in the case of purloined MP3s, that means copying it to listen to) can not be a fair use. To some people that may seem to chip away at the underpinnings of the Betamax case in which time-shifting of television shows for the purpose of later viewing was permitted as a fair use.

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A new twist — securing authors’ rights when…

Conducted by Mary Minow and Eli Edwards, at ALA Midwinter Meeting in San Diego, California

Minow: Tell us about this major new step forward in the quest for open access.

Julia Blixrud: A part of the background for this effort was an author rights addendum that came out of work several years ago by SPARC, the Scholarly Publishing and Academic Resources Coalition. We worked with lawyers to develop a legal instrument that modifies the publisher’s agreement and allows authors to keep key rights to their articles.  How could authors amend their agreements to allow them to use their own work in the way they wanted to?

Ivy Anderson: That was for an individual author, which is different from content licensing.

Blixrud: At the time, we thought the best way to be able to get our authors’ content made freely accessible in libraries was for authors to say, “oh, wait I ought to retain some of my rights in order to be able to deposit and use my work in my environment.”

You see, a lot of authors get an agreement from a publisher and they just automatically sign it without reading it. The agreement basically says, we the publisher have all rights to do whatever we want with this article in perpetuity.

Which means that if you’re the author, and you want to reuse your own work, you may have to get permission.

Blixrud: Get permission, or pay some fees … and no one at your institution can do anything with your stuff either, unless they bought it and paid fees and so on.

The author addendum was the first attempt to get that content opened up and made available to the author herself as well as to the institution.

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Open Access Scholarship, Part II: An Interview with…

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.

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

Nearly two years ago, the Harvard University Faculty of Arts and Sciences unanimously voted to grant the university a non-exclusive, irrevocable, worldwide license to distribute faculty’s scholarly articles, with an opt-out mechanism for instance in the case of incompatible rights assignment to a publisher.

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.

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

Guest interviewer: Eli Edwards

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The latest round of Digital Millennium Copyright Act exemptions, granted by the Librarian of Congress, has received a lot of press, partly for an exemption for bypassing DRM on DVDs and partly for the 2 exemptions that allow “jailbreaking” of smartphone operating systems (such as the iPhone) to allow non-authorized software and applications to run on the phone, or use the phone on a non-authorized wireless network.
The most recent DVD exemption is as follows:

(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

To find out more about the DVD exemption and what it means for the educational community, we talked to three people who advocated for the DVD exemptions at the DMCA rulemaking hearing held at Stanford Law School by the Copyright Office last year. Professor Abigail (“Gail”) De Kosnik, Gary Handman and Mark Kaiser are all educators at the University of California, Berkeley and all three addressed the copyright panel on the importance of being able to make high-quality film clips for their teaching and researching activities (transcript of the Stanford hearing here).

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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.

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This may be the top question I get when I work with library digitization projects. Recently, a seminar was convened to address the broader issue:

Undue Diligence: Seeking Low-risk Strategies for Making Collections of Unpublished Materials More Accessible

OCLC, a nonprofit membership organization of computer, library service and research organizations, organized the seminar and coordinated the effort that resulted in a one page document to help users with a practical approach to selecting collections, making decisions, seeking permissions, recording outcomes, establishing policy and working with future donors: Well-intentioned practice for putting digitized collections of unpublished materials online.

Fairly Used sits down with Ricky Erway and Merrilee Proffitt, Senior Program Officers, OCLC Research to learn more.

Minow: What prompted you to develop the Well-Intentioned Practice Document for libraries and archives?

Proffitt: This is a follow-up to a previous activity we did with institutions to encourage them to digitize more from special collections, and do it at scale. Our original exercise (which resulted in a paper called Shifting Gears) was aimed at getting institutions to refocus from digitizing a few collection high points, to digitizing entire collections, and to do it at scale. To focus more on access and less on preservation. For those institutions who held more modern collections, concern about rights was big stumbling block.

Erway: We had ruled rights issues off-topic for that activity, but now it was time to look at the issue of rights – and to do it from a risk management perspective. I’d like to be clear that the Well-intentioned Practice document was drafted with the help of an advisory group and the speakers of the event you mentioned and had lots of review and reworking by others during and after the event. It is not an OCLC document. It is of, by, and for the community.

Minow: Is there a connection with the Society of American Archivists Orphan Works: Statement of Best Practices? See our interview with Heather Briston on that statement.

Proffitt: OCLC Research and the RLG Partnership actually funded the meetings that led up to the publication of that document, and I was privileged to participate in the discussion and also played a small role in writing the document. I think the documents are very complementary. From my viewpoint, the well intentioned practices can be used at a higher level, to help rule collections in and out of scope for digitization.

Erway: There is still an important role for guidelines (how to determine if something is still in copyright, how to balance the fair use factors, how to locate rights holders…) They should be considered on a case by case basis. It all depends on the nature of the collection and the perceived risk.

Minow: In the suggestions going forward, in working with donors, institutions are suggested to include in the deed of gift that: if content is in the public domain, ensure that no restrictions are placed if content is in the public domain, ensure that no restrictions are placed on it; if donor retains the rights, seek license to digitize the materials for unrestricted access; ensure that nothing will limit or restrict fair use rights . This seems very helpful. Do you have a sense that this is becoming standard in deeds of gift today?

Proffitt: With archival backlogs a growing concern, I think many institutions are rethinking the way they appraise and accession collections, and there is a growing interest in ensuring that collections we do take in can be put to as many uses as possible. Working more closely with donors is a growing trend, I’m happy to say, and I think that’s a good thing.

Minow: Do you think in general that the library and archive community is overly cautious in making their unpublished works available online? Is the intent of this document to help increase the efforts to share works with the public?

Proffitt: I think there are many cases were caution is appropriate. But it’s also important to take risks on behalf of serving scholarship, which is a core mission for most of our institutions. Going back to Shifting Gears, we want the community to find ways to digitize more collections. Assessing risk and consequences for collections that may have items in copyright is part of the toolkit that reasonable archivists should have at their disposal. In the end it comes down to making sound judgments based on the information at hand and I think that librarians and archivists are very capable of making judgments that will benefit scholars and not get their institutions into hot water.

Erway: Sometimes we forget that it is Counsel’s job to assess risk and advise us, but it is our job to make the ultimate decision. We’re encouraging decisions that balance risk with mission.

Minow: Are you aware of any institutions that have been threatened with a lawsuit or asked to take down works that they have digitized?

Erway: In almost any crowd, if you ask for examples of institutions that have been sued for making something accessible online, you are greeted with silence. Or an example that’s not quite on topic. Or a story about a threat that was amicably resolved. Mostly you hear about the effectiveness of gentle wording and generous take-down policies! Or about the person was so thrilled to see his stuff on your site. So if no one is being sued, why do we lose so much sleep over this? Let’s do it with good intentions, but not shirk our responsibilities as caretakers of these collections.

Minow: Where can readers get more information about these issues? This is a softball for you to add the link to the wonderful materials you made available from the seminar!

Erway/Proffitt:
The Well-Intentioned Practice document is at http://www.oclc.org/research/activities/rights/practice.pdf
The information about the Undue Diligence event is at http://www.oclc.org/research/events/2010-03-11.htm
New developments will be tracked on this page

[*] Ricky Erway and Merrliee Proffitt are both Senior Program Officers with OCLC Research.

Mary Minow is Executive Editor of the Stanford Copyright and Fair Use Website.