ARL Policy Notes
CCUMC Endorses #Librarianscode, Retires Guidelines

Today the Consortium of College and University Media Centers has announced two very important moves to empower its members and the many constituencies that look to them for guidance about proper use of copyrighted media. First, they’ve endorsed the Code of Best Practices in Fair Use for Academic and Research Libraries as a vision of fair use practice that reflects where their membership currently stands on fair use. In endorsing the #librarianscode CCUMC joins a formidable group of library associations and allied groups:

  • The American Library Association

  • The Association of College and Research Libraries

  • The Music Library Association

  • The Art Libraries Society of North America

  • The College Art Association

  • The Visual Resources Association

Like any document reflecting community norms, the Code will grow and thrive as it is embraced by the practitioners on the front lines whom it is intended to help. The CCUMC’s support makes the Code that much stronger as a tool for libraries facing fair use questions.

The second thing CCUMC did was officially retire its 1996 Fair Use Guidelines for Educational Multimedia. If you work with multimedia in an educational context, you’ve probably encountered some of the fair use rules of thumb from the guidelines, like “Up to 10% or 3 minutes, whichever is less” for “motion media,” or “[u]p to 10%, but in no event more than 30 seconds, of the music and lyrics from an individual musical work.”

If you look up fair use in the Copyright Act, you’ll find an expansive provision with no mention of counting words or percentages. In the aftermath of the passage of the 1976 Copyright Act, many practitioners worried that there was perhaps not enough information in the law to guide practitioners who must apply the doctrine frequently. Over the years many communities have promulgated rules of thumb to mitigate this uncertainty, but over time those rules have not kept pace with case law. If you peruse the scholarly literature, you’ll see that fair use has blossomed into a robust protection for transformative and educational uses that can happily accommodate uses that exceed any particular numerical limits often associated with it, and that the case law and the various codes of best practice have provided reliable guidance without imposing numerical boundaries. It’s wonderful to see CCUMC’s guidance grow and evolve along with the relevant law and practice. This is big news for media professionals in higher education, and for all the students and professors who rely on their wise counsel as they work to achieve their missions.

Library Copyright Alliance Comments on Orphan Works and Mass Digitization

On Monday, January 14, 2013, the Library Copyright Alliance (LCA) (whose members are the American Library Association, Association of Research Libraries and Association of College and Research Libraries) filed comments (PDF) with the U.S. Copyright Office in response to their October 22, 2012, Notice of Inquiry about the current state of play with orphan works and mass digitization.

If only it were this easy…

The Office is seeking comments regarding “what has changed in the legal and business environments during the past few years that might be relevant to a resolution of the problem and what additional legislative, regulatory, or voluntary solutions deserve deliberation.”

In its comments, LCA explains that “significant changes in the copyright landscape over the past seven years convince us that libraries no longer need legislative reform in order to make appropriate uses of orphan works.” Specifically, two key developments make it possible for libraries to engage in mass digitization and other projects that involve orphan works:

  • Court decisions (and the #librarianscode!) have further solidified libraries’ rights under fair use; and

  • Libraries have successfully engaged in a range of projects involving orphan works and mass digitization.

While other communities may prefer greater certainty concerning what steps they would need to take to fall within a safe harbor, libraries can rely on their existing rights, including fair use. If Congress does consider legislation, LCA suggests that Congress abandon the overly complex arrangement it arrived at in 2008 and instead make a simple one sentence amendment to the Copyright Act giving courts the discretion to reduce or remit statutory damages in appropriate circumstances.

LCA also submitted to the Copyright Office a stand-alone policy statement on the kind of copyright reform that could benefit libraries. Originally published by LCA in May 2011, the statement emphasizes the same fundamental principles as the LCA comments: confident reliance on fair use and related rights together with the suggestion of simple reform focused on limiting remedies against libraries acting in good faith.

LCA encourages librarians and libraries to submit comments, which are due February 4, 2013, and can be submitted online here.

UC Berkeley Takes Historic Photos of California Landscape Online

UC Berkeley’s University Librarian Tom Leonard is a little self-effacing as he describes a project that might not have been possible before the Code, making historic California photographs available online in a beautiful digital exhibit of the Fritz-Metcalf Photograph Collection.

1940 4H Club

Courtesy of the Marian Koshland Bioscience and Natural Resources Library, University of California, Berkeley: lib.berkeley.edu/BIOS/

At first glance these photos may be ‘mostly trees and brush,’ but (as Leonard points out) they are a rich source of ecological data as well as of emotional connection to California’s past, and they are emblematic of the kinds of unique and valuable collections in held by research libraries. Here’s Tom Leonard describing the collection and how the Code came into play as the library decided whether and how to share the photos online.

Perhaps my favorite part of the exhibit is the page about use of images from the collection, which has this wonderful exhortation:

The University encourages the use of these images under the fair use clause of the 1976 Copyright Act.

This is the fifth blog post in a series highlighting some of the fair use success stories we’re beginning to hear from librarians using the Code to move past fear and uncertainty and into positive action using their fair use rights. As with every Code of Best Practices, the #librarianscode can, will, and should be applied differently by different people and institutions in different situations. It is not one-size-fits-all. Some will be more conservative than the consensus described in the Code, while others may go further, depending on local circumstances. These stories are not meant to highlight ideal or best applications of the Code, as there is really no single right way to use the document. Rather, these stories show libraries moving from inaction to action thanks to the encouragement and support that the Code provides. How will you use the Code? If you have a story to share, please email socialmedia@american.edu.

An Art Historian Uses the #LibrariansCode to Advocate for Open Access

Laurie Monahan is a professor on a mission. She’s an art historian at the University of California, Santa Barbara, and for years she’s been working with colleagues to develop an open access policy for the entire University of California system. Monahan compares UC faculty negotiating publishing contracts to the classic pop artists exploited by record labels in the 1950s and ‘60s: they sign away their rights because they are alone and intimidated by exotic legal contracts. By joining together to create a system-wide OA policy, faculty present a united front and ensure wider access to their scholarly work. It’s a powerful image, and one that’s taking hold on campuses around the country.

Part of the proposed UC policy is depositing all UC-generated scholarship in an open institutional repository (IR) to make scholarly work available to the public, but that raised a red flag for some of Laurie’s art history colleagues. Their scholarship often involves embedded images that are subject to copyright, and they wondered, reasonably, whether those images could be used in an article that’s freely available to the public online. This concern should sound familiar to any librarian who administers an IR. Concerns about embedded third-party content can even cause graduate students and professors to change their research plans, focusing on subjects that raise fewer copyright concerns.

Laurie took those concerns seriously, and used the Code of Best Practices in Fair Use for Academic and Research Libraries to defend the use of third-party content in publicly available research. Principle Six of the Code states that it is fair use for a library to receive material for its IR, and to make deposited works publicly available in unredacted form, including items that contain copyrighted material incorporated on the basis of fair use. The kinds of uses made by art history scholars, who need images in order to explain, illustrate, and support their theses, are likely to be supported by a strong fair use rationale, and Principle Six simply affirms that this rationale will be sufficient to allow publication in an IR. Her email explaining how fair use applies to the IR has made the rounds in the UC community, and hopefully Principle Six will help UC move closer to effective collective action to correct the dysfunctions in scholarly publishing.

This is the fourth blog post in a series highlighting some of the fair use success stories we’re beginning to hear from librarians using the Code to move past fear and uncertainty and into positive action using their fair use rights. As with every Code of Best Practices, the #librarianscode can, will, and should be applied differently by different people and institutions in different situations. It is not one-size-fits-all. Some will be more conservative than the consensus described in the Code, while others may go further, depending on local circumstances. These stories are not meant to highlight ideal or best applications of the Code, as there is really no single right way to use the document. Rather, these stories show libraries moving from inaction to action thanks to the encouragement and support that the Code provides. How will you use the Code? If you have a story to share, please email socialmedia@american.edu.

Wash. U. St. Louis Gets Double Exposure for Its Graphic History Library

When museum curator Sky Lacerte saw a conference session about how some archives use photo overlays to show how landscapes and buildings have changed over time, she was inspired to try a twist on that idea at her own library, the Modern Graphic History Library at Washington University in St. Louis. Using digital technology, Lacerte could show how mid-century illustrator Al Parker took his own photographs to use as the basis for realistic illustrations, and then how those illustrations were used by the magazine stories that incorporated his work.

The library was confident they had the rights they needed to display Parker’s original works on the web. The final magazine pages, however, were another story. Taken from publications like Ladies’ Home Journal and Good Housekeeping, the copyright in the pages was probably owned by the magazine publisher (or whatever corporate parent had since acquired it), and getting permission could be difficult, impossible, and in any case needlessly expensive. And without the final image showing the illustration in context, the story would be incomplete. The project was put on hold pending a settlement of the copyright issue.

Luckily, Lacerte was able to collaborate with her library’s Copyright Coordinator, who was aware of the Code of Best Practices in Fair Use for Academic and Research Libraries, to design the exhibit in a way that reflected her community’s consensus around fair use. The resulting exhibit, Double Exposure: Al Parker’s Illustrations, from Model to Magazine, tells the full story of how a mid-century illustrator used staged photography as an essential step in his creative process.

A quick look at the exhibit makes it easy to see how Lacerte applied Principle Two of the #librarianscode, which describes how to use copyrighted works fairly in the creation and support of exhibits, both physical and virtual. The exhibit fits the description of Principle Two perfectly: it is an exhibit to publicize the library’s excellent collection of illustrations and photographs, and to generate knowledge and interest around the collection. It includes full attribution so that viewers can determine the provenance of the original magazine images. The images were carefully chosen and displayed at a level of resolution appropriate to the illustrative purpose, i.e., the magazine images are clear and crisp enough to convey the important connection to the original photographs and illustrations, but not so crisp or complete that they can be useful for other, non-transformative purposes (such as reading the associated magazine articles). Lacerte used technological measures to prevent downloading of the images, further enhancing her fair use case. The curation of the exhibit is obvious, as is the appropriate contact person for anyone interested in expressing concern over the exhibit. All in all, it’s a powerful fair use, and the kind of project that might easily have been scrapped or delayed indefinitely without support from a community consensus document like the Code.

This is the third blog post in a series highlighting some of the fair use success stories we’re beginning to hear from librarians using the Code to move past fear and uncertainty and into positive action using their fair use rights. As with every Code of Best Practices, the #librarianscode can, will, and should be applied differently by different people and institutions in different situations. It is not one-size-fits-all. Some will be more conservative than the consensus described in the Code, while others may go further, depending on local circumstances. These stories are not meant to highlight ideal or best applications of the Code, as there is really no single right way to use the document. Rather, these stories show libraries moving from inaction to action thanks to the encouragement and support that the Code provides. How will you use the Code? If you have a story to share, please email socialmedia@american.edu.

Starting a Copyright Conversation at Yale

As a participant in early meetings with the Andrew W. Mellon Foundation about worthwhile projects in support of libraries, Yale University Librarian Susan Gibbons was there at the inception of the ARL Code of Best Practices in Fair Use for Academic and Research Libraries. We spoke with Susan recently at the ARL Membership Meeting in Washington, DC, and were delighted to hear that the Code has started a wide-ranging series of conversations and strategy sessions on her campus:

The full video of our discussion with Susan Gibbons is available here.

This is the second blog post in a series highlighting some of the fair use success stories we’re beginning to hear from librarians using the Code to move past fear and uncertainty and into positive action using their fair use rights. As with every Code of Best Practices, the #librarianscode can, will, and should be applied differently by different people and institutions in different situations. It is not one-size-fits-all. Some will be more conservative than the consensus described in the Code, while others may go further, depending on local circumstances. These stories are not meant to highlight ideal or best applications of the Code, as there is really no single right way to use the document. Rather, these stories show libraries moving from inaction to action thanks to the encouragement and support that the Code provides. How will you use the Code? If you have a story to share, please email socialmedia@american.edu.

UC Boulder Takes VHS Tapes Back to the Future With the #Librarianscode

This is the first blog post in a series highlighting some of the fair use success stories we’re beginning to hear from librarians using the Code to move past fear and uncertainty and into positive action using their fair use rights. As with every Code of Best Practices, the #librarianscode can, will, and should be applied differently by different people and institutions in different situations. It is not one-size-fits-all. Some will be more conservative than the consensus described in the Code, while others may go further, depending on local circumstances. These stories are not meant to highlight ideal or best applications of the Code, as there is really no single right way to use the document. Rather, these stories show libraries moving from inaction to action thanks to the encouragement and support that the Code provides. How will you use the Code? If you have a story to share, please email socialmedia@american.edu.

When we were talking to academic and research librarians about the kinds of problems they encounter in dealing with copyrighted materials, one question surfaced perhaps more than any other. Here’s how Brice Austin at UC Boulder described it to us via email:

Our campus IT department recently decided it would no longer support VHS on campus either by providing or servicing machines to play this format. While the Libraries continued to provide some VHS machines, faculty and graduate students still had a need to show VHS tapes in the classroom. Faculty also preferred DVD format for course reserves, so that students could use their laptops for individual viewing.

Section 108 (c) of the Copyright Act addresses the issue of replacing “obsolete formats,” but that term is defined so narrowly in the law that it seems to exclude VHS tapes, at least as long as someone, somewhere, is willing to sell you a VCR. If you’re going to convert those VHS tapes to DVD, or some other modern format, it helps to know your rights under fair use.

That’s why the Code of Best Practices in Fair Use for Academic and Research Libraries includes a principle about migrating formats to preserve and facilitate access to older media. The fair use doctrine exists to enable culturally beneficial uses that would be unduly curbed by copyright protection, and this is a prime example.

Skip containing discarded VHS tapes

CC BY Rob Pearce

The Code outlines a thoughtful, common sense approach to the question of when it is fair use to reformat materials, including asking whether materials can be obtained in modern formats at a reasonable price, and taking the old format out of circulation when a surrogate is added in its place. With these ideas in mind, and the Code in hand, the folks at UC Boulder were prepared to have a productive conversation with their campus counsel:

The Libraries Management Team made a case for conversion of VHS tapes to DVD format from our collections, relying heavily upon ARL’s Code of Best Practices, Principle Three: “Digitizing to Preserve at-risk items.” After some back and forth surrounding specific details, Counsel agreed to our proposal. Specifically, Counsel stated “In addition to reviewing the Libraries’ summary, I reviewed provisions of the Copyright Act, the Code of Best Practices in Fair Use of Academic and Research Libraries issued January 2012,” and noted that “It greatly assisted me in providing this response.”

Now the UC Boulder libraries are moving forward with a policy that allows them to migrate old VHS tapes in a way that supports faculty teaching while respecting copyright, thanks to the efforts of mission-driven librarians like Brice, and with a little help from the #librarianscode.

The #Librarianscode Comes to Life at UCLA, UC Berkeley, U. of Florida, Texas A&M, and Yale

Today we are very happy to debut a collection of videos with directors of ARL member libraries talking about how the Code of Best Practices in Fair Use for Academic and Research Libraries has influenced the way they and their teams approach copyright. We are so excited to see the Code bearing fruit in library policy and practice!

Go here to see the new ARL webpage that collects interviews with:

  • David Carlson, Texas A&M University
  • Susan Gibbons, Yale University
  • Tom Leonard, University Librarian at UC Berkeley
  • Judith Russell, University of Florida, and
  • Gary Strong, University Librarian at UCLA.

These videos are also collected at the ARL YouTube channel, where you’ll also find archived videos of our ARL webcasts about the Code and other hot copyright topics.

We are extremely grateful to the directors who participated in this interview project, and to Bryan Bello and Angeli Gabriel (young filmmakers working with our partners at the Center for Social Media) for their outstanding work filming and editing these clips.

We will be rolling out several more blog posts over the coming week telling some of the success stories we have heard from all over the country. We hope these will provide some inspiration and encouragement to the libraries who may be watching these developments and wondering whether and when they should take steps of their own to exercise the full extent of their fair use rights. Watch this space!