Tag Archives: access

ICYMI: New Advocacy and Public Policy Update

On May 19, 2017, ARL released its latest Advocacy and Public Policy Update. The topics covered in this update include various copyright issues (Register of Copyrights bill, Copyright Office study on moral rights, Copyright Office rulemaking on modernizing copyright recordation, and numerous amicus briefs filed), LSU v. Elsevier, appropriations, access to and preservation of government data, net neutrality, developments on trade agreements, and issues related to immigration and border control.  The full update is available here.

 

ICYMI: Library Copyright Alliance Files Comments Regarding Mandatory Deposit

On August 18, 2016, the Library Copyright Alliance (LCA) filed a response to the Copyright Office’s Notice of Inquiry regarding mandatory deposit of online-only books and sound recordings.  LCA’s comments support expansion of the 2010 interim rule, which applied to mandatory deposit of online-only electronic serials (newspapers, journals, etc.), to books and sound recordings.

The comments point out the critical role mandatory deposit plays in the Library’s mission to collect, preserve and provide access to all types of works, regardless of publication type.  LCA’s comments point out:

Without mandatory deposit, works created in the digital age could be lost forever. We have seen this loss happen in the film industry. Approximately half of all films made before 1950, and most silent films, are unavailable because no effective mechanism existed at the national level to preserve these important pieces of our cultural heritage and history. The Library is actively and commendably trying to ensure that such enormous permanent losses are not replicated in the digital era. Mandatory deposit of online-only works is the necessary and appropriate solution. Although the present Notice of Inquiry presents only the issue of extending the interim rule to online-only books and sound recordings, serious consideration also should be given to applying the rule to other categories of works, such as photographs and films, to ensure that all types of works are adequately preserved and included in our national Library.

The comments also support expanding access to works collected through mandatory deposit and:

limiting simultaneous access to two on-site users at dedicated terminals is too restrictive and not in accord with current practices in the library community. Access is an essential component of the Library’s mission and such a limited policy hampers the spread of knowledge and culture. Extension of the applicability of the interim rule should involve reconsideration of the current, overly conservative limitation of accessing materials to two on-site terminals at the Library.

In total, there were fifteen submissions to the Copyright Office with respect to this notice of inquiry.  Libraries submitting comments include the University of Michigan, University of California Los Angeles, and University of Virginia.

Best Practices for Orphan Works and Relationship to ARL’s Code of Best Practices

The Center for Media & Social Impact (CMSi) recently released its Statement of Best Practices in Fair Use of Collections Containing Orphan Works for Libraries, Archives, and Other Memory Institutions. This best practices document addresses fair use in collections that appear to contain a significant number of orphan works—works where it is difficult or impossible to identify or locate the rightsholder—focusing on digital preservation of and access to these collections. In reading the Orphan Works Best Practices, it is important to keep in mind that the document addresses collections that are likely to contain a significant volume of orphan works rather than necessarily about orphan works themselves.

The Orphan Works Best Practices can complement ARL’s Code of Best Practices in Fair Use for Academic and Research Libraries. The ARL Code of Best Practices focuses on fair use where the use is transformative, essentially justifying fair use with regard to particular uses. It does not focus on whether a work is an orphan or not; the orphan work status may enhance the case for fair use under some circumstances as noted in the document. The Orphan Works Best Practices, while noting in its introduction and description of fair use that the use of collections with orphan works is often transformative, the recommendations tend to focuses on fair use regarding preservation and access to collections containing orphan works, focusing less on the transformativeness of the use. Despite these differences, there are some areas of overlap between the documents.

The Orphan Works Best Practices notes in its first principle:

Fair use supports the digital preservation of materials in archival and special collections, without regard to their status as orphan works.

This principle is similar to the third principle of the ARL Code of Best Practices, which provides:

It is fair use to make digital copies of collection items that are likely to deteriorate, or that exist only in difficult-to-access formats, for purposes of preservation, and to make those copies available as surrogates for fragile or otherwise inaccessible materials.

The ARL Code of Best Practices also includes several limitations and enhancements to strengthen the case for fair use in preservation.

With respect to access, the Orphan Works Best Practices states:

Fair use supports professionals’ efforts to provide on-premises and online public access to archival and special collections that can reasonably be expected to contain significant numbers of orphan works, including collections that include other copyrighted materials. [. . .]

It then notes that this general principle should be applied together with best practices related to issues of acquisition, clearances, selective exclusions from access, curation, conditions on availability, dialogue with the public, and providing copies to members of the public.

On the issue of seeking permissions before providing access to digital collections of special and archival collection materials, the Orphan Works Best Practices recommends seeking permissions under certain special cases:

Memory institution professionals strongly believed that seeking permissions to provide access to materials was desirable in some particular cases. As a matter of legal doctrine, a fair user never is required to obtain a rightholder’s prior consent, but under some circumstances seeking such consent may be advisable to document the absence of market harm. Indeed, in order to sustain the strength of memory institutions’ fair use claims generally, many professionals believed it was desirable in certain special cases to seek permission before providing digital access. They believed that in particular instances they should refer to the best professional judgment of the community, reflected in the best practices below, to determine whether clearances should be sought. In the event that the institution decides to seek permissions, they can wisely use the Society of American Archivists’ 2009 “Orphan Works: Statement of Best Practices” as a guide to ways and means of doing so.

Seeking permissions for use: Make attempts to secure copyright clearance in certain situations where this is reasonable, especially those characterized by the significant presence in the collection of the following types of works:

  1. Significant clusters of items traceable to a known or easily identifiable copyright owner (or groups of related owners);
  2. Significant clusters where contacting rights owners can be automated;
  3. Individual items representing works that have readily identifiable and significant market value, including material related to high-profile individuals;
  4. A predominance in the collection of materials created within 25 years.

It is important to note that the Orphan Works Best Practices document does not suggest that clearances be sought in all circumstances or even most. The document repeatedly notes that it may be advisable in “certain special cases” or “particular instances” or “particular cases.” While seeking permissions for an orphan work itself is obviously difficult since the rightsholder may be difficult or impossible to locate, this section seems to address circumstances where a collection may have a large number of orphan works, but also a large number of works where the rightsholder is traceable.

The ARL Code of Best Practices overlaps in some ways with this portion of the Orphan Works Best Practices. The ARL Code addresses the creation of and access to digital collections, stating (in relevant part) that:

PRINCIPLE:

It is fair use to create digital versions of a library’s special collections and archives and to make these versions electronically accessible in appropriate contexts.

LIMITATIONS:

  • Providing access to published works that are available in unused copies on the commercial market at reasonable prices should be undertaken only with careful consideration, if at all. To the extent that the copy of such a work in a particular collection is unique (e.g., contains marginalia or other unique markings or characteristics), access to unique aspects of the copy will be supportable under fair use. The presence of non-unique copies in a special collection can be indicated by descriptive entries without implicating copyright.

[. . .]

ENHANCEMENTS:

  • The fair use case will be even stronger where items to be digitized consist largely of works, such as personal photographs, correspondence, or ephemera, whose owners are not exploiting the material commercially and likely could not be located to seek permission for new uses.

[. . .]

The ARL Code of Best Practices supports providing access to digital versions of special and archival collections “in appropriate circumstances.” Where the collections include works likely to be orphan works, the case for fair use is enhanced. The ARL Code also provides a limitation that cautions against providing access to works that are available on the commercial market at a reasonable price. The ARL Code of Best Practices does not address seeking permissions, but the recommendation in the Orphan Works Best Practices to seek clearances were significant clusters of items are traceable to a known rightsholder may be appropriate where, for example, these works are available on the commercial market.

Of course, where the use is sufficiently transformative and is a fair use, even where a rightsholder may be readily traceable permissions need not be sought. Fair use is a right and permission from the rightsholder is unnecessary. Librarians must determine in each unique circumstance whether the use meets the standards of fair use and whether foregoing clearances is appropriate.

While both the Orphan Works Best Practices and ARL Code of Best Practices serve as important guidance, fair use decisions must be determined on a case-by-case basis. Thus, while the Orphan Works Best Practices may recommend that professionals seek permissions to provide access under some circumstances, at the end of the day memory institution professionals are the ones who must ultimately make the decision as to whether a use is fair and whether permissions should be sought.

 

ICYMI: President Obama on IP

President Obama made the following comment on intellectual property during a town hall meeting in Los Angeles on October 9, 2014:

“I think the basic concept is that you want to have sufficient IP, and–whether patents or copyrights–that you are continually encouraging and rewarding innovation and creativity. But you don’t want those structures so tight, in terms of protecting that intellectual property, that that ends up being actually an inhibitor to people getting good information, folks coming up with new uses for existing information.” (emphasis added)