This posting concludes my summary of the symposium, The Legal and Ethical Implications of Large-Scale Digitization of Manuscript Collections. I’m sorry the postings have been so spread out, but work in real time gets in the way of the retrospective blogger. As the posting lengths reveal, there was a lot of meaty content and discussion at this meeting.
In addition to the panel on ethics, I also moderated a panel on legal issues. Again, the panelists were insightful, thoughtful, and kept to time! I couldn’t ask for better colleagues.
Peter Hirtle (Cornell University) gave an update on orphan works and Section 108. Orphan works refers to work that are in limbo because an owner cannot be located, and there is proposed legislation that covers how they are to be handled. The legislation has been tabled time and time again. And what about proposed revisions to Section 108? Orphan works were viewed as the most pressing problem (and relatively easy!), so Section 108 revisions will follow orphan works which was seen as the most pressing problem. Peter noted that Section 108 was originally an access exception, which has morphed into a preservation exception.
“Since Peter tells us it’s not a good time to go to Congress, let’s try the courts, in looking at fair use!” Before the meeting, Laura Clark Brown had posed the question, is it possible for an item in a digitized collection to be considered “transformed” by virtue of the context that the overall collection brings to it? (Recall that transformation is one of the “four factors” that are considered in assessing whether use of a work under copyright is “fair.”) Mary Minow put this question to the audience (with us serving as jury) after presenting some background on the concept of transformation and transformation use in case law. Following the discussion and vote, it turned out (not surprisingly) that many archivists took the view that the collection provides context that is transformative. I’ll just observe that archivists love their context…
Heather Briston (University of Oregon) looked at what constitutes “publication.” Heather started out by noting that where something is formally published alone does not in and of itself add up to an infringement. Frequently we are trying to look for actions that would cause something in an archival collection to be considered “published.” In Heather’s analysis, you will be sued over infringing, not over publication status. (If I’m understanding this correctly, worrying about publication status is a red herring in the context of digitizing collections.) The discussion was mostly around whether theses and dissertations are published or unpublished. This was not particularly germane to this topic of the symposium, and the conversation revealed a range of institutional opinions.
What constitutes due diligence? Sharon Farb (UCLA) started with the legal definition: “a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent person under the particular circumstances; not measured by any absolute standard but depends on the relative facts of the special case.” The definition is not very helpful, because it “depends.” Another factor that comes up in these discussions is that actions are taken in “good faith,” another concept that hinges on conditions. However, the definition of what constitutes bad fair — showing dishonest conduct — is instructive. Not making an inquiry does not necessarily constitute bad faith. How much due diligence is due is question akin to how much metadata is needed. Archivists and librarians want to have concrete rules, which is not usually practical. Some guidelines: you need to satisfy yourself (and recognize that for different institutions this level of satisfaction will be different); recognize that risk assessment is critical and needs to come first (think of it as step 0 in a multi-step process); documentation and recording rights metadata in ways that can be shared and repurposed is very important. The Watson project, for example, reveals a process that is beyond diligent. Look at tools and metadata that are available and move on. Employ sampling techniques and pull together a representative group to provide documentation on effort.
How to managing and balancing risk factors? Bill Maher (University of Illinois, Champaign-Urbana). In general, we take risks all the time — riding bicycles, investing money. These days even eating a peanut butter sandwich is a risk. Many of us take calculated risks with the law all the time (speed limits are a good example). In terms of reducing possible consequences of your actions, copyright sections 411, 412, and 504 are useful (reduced consequences for unregistered works). Online notifications can be helpful in reducing risk. Copyright law is case specific, worked out by litigation. If you reduce risk and are never sued, this does not remove the fact that what you are doing is infringing. You need to consider the messages that you are sending through your actions — to past and future donors, students, employees — that you take property rights lightly. Community guidelines, transparency, working with donors can all help to counter such perceptions. Appraisal of materials: acknowledging that different types of materials, ages of materials are all important factors in assessing risk. Another area of focus is to change the law — copyright law is bad, and we should get the message out that it’s not working. However, if we don’t take risks and digitize materials, we are taking risk of a different sort — not making materials as broadly accessible as technology allows.
Rights management – Sharon Farb. Sharon put in a very brief plug for the chapter on rights metadata written by Maureen Whalen (Getty) in the new Introduction to Metadata
. Echoing what was said earlier, it’s important to document and record what you find when investigating rights. (And while we’re plugging, I will note that OCLC’s Copyright Evidence Registry provides a place to record metadata in ways that can be shared and repurposed — it’s freely available, so check it out.)
Important to keep in mind the important role of advocacy in all of this — we’ve been discussing ethical, legal, policy issues, but advocacy issues are also important. Too bad there wasn’t a panel on creating advocacy opportunities.
Many thanks to Laura Clark Brown, the unsung heroine in my postings. Laura is the genius who pulled this whole conference together and asked me to moderate the panels on ethical and legal issues. Thanks, Laura, for including me in such a special event. My only regrets are that I didn’t have a chance to meet two people who had been invited to the symposium, but were not able to attend: Kevin Smith (author of the Scholarly Communication @ Duke blog) and Lisa Carter from North Carolina State. I hope to meet you sometime soon!