Tag Archives: preservation

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.

 

Supplemental Testimony of James G. Neal on Preservation and Reuse Endorsed by Library Copyright Alliance (LCA)

One week after testifying before the House Committee on the Judiciary Subcommittee on Courts, Intellectual Property and the Internet during the Hearing on Preservation and Reuse of Copyrighted Works, James G. Neal of Columbia University in New York City submitted supplemental testimony to address questions raised during the hearing and expand on his earlier written statement. The supplemental testimony addresses five issues: collective licensing, contractual restrictions on copyright exceptions, preservation of born-digital materials, the cost of preservation, and community fair use best practices. The Library Copyright Alliance has endorsed the supplemental statement.

Collective Licensing

The supplemental testimony noted that collective rights’ organizations (CROs) often represent problematic models that fail to pay artists and authors the revenues they earned and cautions against relying on such models as solutions, particularly with respect to preservation, mass digitization and orphan works. CROs have had a history of corruption, mismanagement, lack of transparency, among other issues. The statement pointed to two specific examples of problematic behavior of CROs. The first example is that the Copyright Clearance Center (CCC) has used fees it collected from research and academic libraries to sue Georgia State University over the use of books written by academics in an e-reserves case. The second example is the Educational Rights Collective Canada that, in fifteen years of operation, has failed to distribute any royalties to authors but is $830,000 in debt.

Contractual Restrictions on Copyright Exceptions

The supplemental testimony expanded on Neal’s oral testimony with respect to ensuring that contractual provisions do not circumvent the exceptions in the Copyright Act. The testimony noted that in licensing electronic resources, publishers often include terms that restrict the fair use right, library exceptions and first sale doctrine. It also pointed out that restricting such contractual provisions exists in numerous areas, both domestically and in foreign jurisdictions. Neal concluded “As part of its review of the Copyright Act, the Subcommittee should assess the adverse impact of the potential replacement of the public law of copyright with the private law of contract, both on libraries and the public at large. I believe that Congress should adopt restrictions on the enforcement of contractual terms that attempt to limit exceptions in the Copyright Act such as first sale, fair use or interlibrary loan under Section 108.”

Preservation of Born-Digital Materials

Neal’s supplemental testimony expanded on his oral testimony regarding the need to preserve born-digital materials. The supplemental statement pointed to studies that reveal that digital materials are also subject to risk of loss, corruption and destruction. It noted also the issue of website archiving and importance of digital preservation in order to address the problem of “link rot” and preserve the cultural heritage expressed through websites. Neal asserted that it is “essential” to rely on fair use to preserve linked references.

Cost of Preservation

Responding to a question from a member of the Judiciary Committee concerning the cost of preservation and access, Neal expanded on creative solutions to address preservation efforts, noting that HathiTrust and the Digital Preservation Network represent cooperative, shared infrastructure models that avoid unnecessary duplication and can reduce overall costs of preservation. The supplemental statement also noted that while it would have taken the University of Michigan 1,000 years to digitize its collection of books, Google’s assistance has allowed it to already largely complete the digitization effort.

Community Fair Use Best Practices

The final section of Neal’s supplemental testimony endorsed the development of fair use best practices and includes a copy of ARL’s Code of Best Practices in Fair Use for Academic and Research Libraries.

House Judiciary Subcommittee Hearing on Preservation and Reuse of Copyrighted Works; Testimony of James Neal, Endorsed by LCA

On Wednesday, April 2, 2014, the House Committee on the Judiciary, Subcommittee on Courts, Intellectual Property and the Internet continued its copyright review. This hearing focused on “Preservation and Reuse of Copyrighted Works” with six panelists: Mr. Gregory Lukow (Chief, Packard Campus for Audio Visual Conservation, Library of Congress); Mr. Richard Rudick (Co-Chair, Section 108 Study Group); Mr. James Neal (Vice President for Information Services and University Librarian, Columbia University); Ms. Jan Constantine (General Counsel, The Authors Guild); Mr. Michael C. Donaldson (Partner, Donaldson + Callif, LLP, on behalf of Film Independent and International Documentary Association); and Mr. Jeffry Sedlik (President and Chief Executive Officer, PLUS Coalition). Written testimony from each witness is available here.

Neal’s statement, endorsed by the Library Copyright Alliance (LCA), provides that the “overarching point is that the existing statutory framework, which combines the specific library exceptions in Section 108 with the flexible fair use right, works well for libraries, and does not require amendment.” In reaching this point, the written statement goes through four issues: 1) the importance of library preservation; 2) how the library exceptions under Section 108 supplement rather than supplant fair use; 3) the diminished need for orphan works legislation; and 4) perspective on the HathiTrust case.

Library Preservation

The written testimony emphasize that providing access to collections of preserved materials is a critical part of libraries’ missions. It notes that with the digital age and new technology, new challenges for preservation have emerged to ensure that new media, which represent a substantial part of the cultural record, are adequately preserved. Neal’s statement gives several examples from his experience at Columbia emphasizing the need to format shift and preserve materials in different formats, including content that existed on short-lived websites. The statement further notes that in order to achieve this mission, libraries “require robust applications of flexible exceptions such as fair use so that copyright technicalities do not interfere with their preservation mission.”

Relationship Between Section 108 and Fair Use

The statement points to the privileged status of libraries throughout the Copyright Act, with seven specific examples. For example, the statement notes that Section 504(c)(2) shields libraries from statutory damages where the library reasonably believed their activity constituted fair use. Section 12014(b) excludes libraries from criminal liability under the DMCA. And, of course, Section 108 provides libraries and archives with a clear set of exceptions for certain activities.

The written testimony emphasizes that Section 108 does not represent the totality of exceptions and limitations from which libraries may benefit, as the Authors Guild initially argued in HathiTrust, and that fair use, amongst other exceptions, may also be relied upon. Without being able to rely on fair use and other exceptions that exist in other sections of the Copyright Act, libraries, including the Library of Congress, would be considered serial infringers. Further, Section 108(f)(4) clearly and unambiguously provides that nothing in Section 108 “in any way affects the right of fair use” and the legislative history supports the meaning of the plain language of the statute. Scholars and case law similarly support this clear reading of the interplay between Section 108 and Section 107.

Furthermore, fair use sufficiently updates Section 108 and it is therefore unnecessary to make legislative changes to Section 108. Neal notes that, as a member of the Section 108 study group, a report was issued after three contentious years, reflected only a high level agreement, and did not resolve many important issues because of the lack of agreement. The statement highlights a concern that some of the Study Group’s recommendation could limit what libraries do today. This section of the statement concludes, “The fact that Section 108 may reflect a pre-digital environment does not mean it is obsolete. It provides libraries and archives with important certainty with respect to the activities it covers. Furthermore, Section 108 provides courts with importance guidance concerning the application of Section 107.”

Orphan Works

The statement also notes that from Neal’s perspective and of LCA’s, orphan works legislation is no longer necessary because the “gatekeeper” problem has diminished due to greater certainty regarding fair use, including recent jurisprudence in this area in a wide range of cases. Furthermore, the Code of Best Practices has provided reassurances with respect to orphan works in a special collection as well as digitizing and making available materials in special collections. In addition to fair use developments, there is less likelihood that injunctions will be issued since the Supreme Court’s 2007 ruling in eBay v. MercExchange which changed the presumptions regarding injunctions in cases of infringement. Furthermore, mass digitization has become more common. In addition to these developments, the clear disagreement over an orphan works solution suggests that a legislative solution regarding orphan works, mass digitization or Section 108 will be very difficult if not impossible.

HathiTrust

The fourth section of the statement explains the HathiTrust project and discusses the litigation initiated by The Authors Guild. The statement goes into Judge Baer’s district court decision in detail and expresses the “hope that the Second Circuit will agree with Judge Baer that HDL (HathiTrust Digital Library) preserves important works, allows them to be searched, and provides access to the print disabled, without causing any economic harm to rights holders.

Analog or digital, no work will have much influence if it doesn’t stick around to be cited or argued with. The technological advances that make digital-humanities work possible also put it at risk of obsolescence, as software and hardware decay or become outmoded. Somebody—or a team of somebodies, often based in academic libraries or digital-scholarship centers—has to conduct regular inspections and make sure that today’s digital scholarship doesn’t become tomorrow’s digital junk.

Librarians know what many copyright wonks don’t: digital materials may be capable of infinite perfect copying, but that doesn’t mean they’ll last forever.

Born Digital, Projects Need Attention to Survive – Technology – The Chronicle of Higher Education

It seems likely that in any case in which an action by a library or archives would be considered a fair use under federal copyright law, it would also likely be considered permissible under state law.

The US Copyright Office, Pre-1972 Sound Recordings Report. Our favorite sentence!

Were copyright law followed to the letter, little audio preservation would be undertaken. Were the law strictly enforced, it would brand virtually all audio preservation as illegal.

CLIR and the Library of Congress in a joint report – “The State of Recorded Sound Preservation” – described here by Ars Technica.