Tag Archives: digitization

Fair Use: Building the World of Tomorrow

*This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.  

Today’s post is brought to you by guest blogger, Greg Cram, Associate Director of Copyright and Information Policy, New York Public Library.  Cross-posted to fairuseweek.org*

In 1939, the New York World’s Fair opened to great pomp and circumstance. The theme of the Fair was “Building the World of Tomorrow.” The aspirational theme reflected the country’s desire to shake off the doldrums of the Great Depression and focus on a better future. Participants included close to 60 nations, 33 states and U.S. territories, and over a thousand exhibitors. During its two seasons, the fair attracted 45 million visitors.

At the conclusion of the Fair, the corporation responsible for the Fair dissolved and donated a large amount of material to The New York Public Library. The corporation donated over 2,500 boxes of records and documents, as well 12,000 promotional photographs. These records document not only the operations of the Fair, but also present a comprehensive view of all aspects of the planning, design, execution, maintenance, and dismantling of the Fair. The photographs in particular offer a unique view of life at the time, illustrating the Fair as only visual images can do.The collection is used heavily by researchers and the public today. It supports research on a variety of subjects, including the birth of consumer society, the influence of industrial design in common objects, and the fashions of the time. For example, the collection was recently used by the New York City Parks Department to inform the commemoration of the 75th Anniversary of the Fair. The collection has served as foundational research for numerous articles, books, theses and dissertations.

Because of the popularity and importance of the collection, we wanted to make the collection as broadly accessible as possible. We began by trying to determine the copyright status for the nearly ten tons of material in the collection. The publication status of much of the material was difficult to determine. With this uncertainty, we treated the material as if it were in copyright.

We then turned to conducting a thorough, good-faith search for rights holders. We spent days combing through the legal records of the Fair to determine whether the Fair’s copyrights were ever assigned to a third party. We also tried to determine whether copyrights were assigned at the dissolution of the corporation, but could not find an answer in the collection. When the records of the Fair did not help, we searched for rights holders utilizing other methods, including searches on Google, the Copyright Office records, and other relevant sources. This search was time-consuming and, ultimately, fruitless.

Having found no copyright owner after our good-faith and reasonable search, we undertook a fair use analysis. Our analysis was informed by the development of voluntary community-driven efforts to create best practices for identifying rights holder(s), taking into account the nature of the particular material at issue, including the Society of American Archivists’ 2009 statement of best practices, as well as general guidance such as the Code of Best Practices in Fair Use for Academic and Research Libraries, developed by the Association of Research Libraries. We were also informed by various academic viewpoints, including Jennifer Urban’s article on fair use and orphan works.

Guided by our fair use analysis, we determined to move forward with digitization of portions of the collection after balancing the educational benefit of the undertaking against the risk that a rights holder might subsequently surface. Although the potential for $1.8 billion in statutory damages in the worst-case scenario was daunting, we not only digitized and posted the selections of the collection online, we also created a free iPad application to feature the digitized content. The iPad application contextualizes the content by using original essays and innovative design alongside the content created by the Fair. The application was named one of Apple’s “Top Education Apps” of 2011.

So far, no rights holder has contacted us to ask that we limit the uses of works from the Fair collection. If a rights holder wished to contact us about our uses, we have made our contact information available online and in the iPad application. We welcome any new information about the rights holder of this collection.

*Portions of this post were previously published in NYPL’s Reply Comments to Orphan Works and Mass Digitization: Notice of Inquiry.

End of the Authors Guild v. HathiTrust Saga, A Victory for Fair Use

For the past several years, the HathiTrust and five of its member universities have been engaged in litigation after being sued by the Authors Guild. On January 6, 2015, the parties entered a settlement on the sole issue remaining before the district court, ending the litigation in a victory for HathiTrust and fair use.

In its litigation, the Authors Guild alleged that HathiTrust Digital Library’s (HDL) digitization of works for the purposes of use in a full-text search database, providing access to the print disabled, and preservation, as well as the Orphan Works Project developed by the University of Michigan, constituted copyright infringement. The Orphan Works Project was abandoned and not considered ripe for adjudication, while the other issues advanced. The district court found in favor of HDL’s motions for summary judgment on the remaining three issues.

In June 2014, the Court of Appeals for the Second Circuit strongly affirmed fair use, finding that HathiTrust Digital Library’s creation of a full-text search database and providing access to the print disabled constituted fair use. On the issue of preservation, the Second Circuit remanded back to the district court – without determining the merits of whether such preservation constituted fair use – to determine whether the plaintiffs had standing to bring the claim. In its press release on the opinion, the Library Copyright Alliance applauded the decision noting that the

 Second Circuit rightly concluded that HDL’s activities are protected by fair use, ensuring the ‘safety valve’ of fair use is well-functioning and providing meaningful balance through limitations on the copyright holder’s rights. Fair use has long been relied upon to provide important protections for the public and promote new and transformative uses of copyrighted works, such as those facilitated by HDL.

Summaries and analysis of the Second Circuit’s opinion available here and here.

On January 6, 2015, the Authors Guild and HathiTrust settled the preservation issue, with the defendant libraries stipulating that they have complied with Section 108(c) of the Copyright Act and have only made replacement copies where the original was damaged, deteriorating, lost or stolen, and that an unused replacement could not be obtained at a fair price. The defendant libraries further agreed that for a period of five years, if the libraries do not comply with the stipulation, it will notify the Authors Guild, “which, although not a Remaining Plaintiff in this Action, will accept notice.”

While an appeal to the Supreme Court would still be possible, it appears from a release issued by the Authors Guild today that the Guild will not pursue this path. The Authors Guild begins its release noting that the settlement “brought to an end the Guild’s copyright infringement lawsuit against the group of research libraries known as the HathiTrust.”

Ultimately, the Authors Guild v. HathiTrust saga ended in a strong victory for fair use as the Second Circuit opinion will now stand. The library community applauded this opinion when it was released. The opinion had a number of notable implications. It strongly affirmed the use of mass digitization for purposes of facilitating fair uses (such as creation of a full-text search database or access for the print disabled). The Second Circuit also endorsed a “functional transformation” approach in conducting its fair use analysis, finding that a use is transformative if the works is used for a significantly different purpose than its original market purpose. Additionally, the Second Circuit, in a quick footnote, rejected the Authors Guild’s repeated claims that Section 108 of the Copyright Act restricts fair use.

Furthermore, while the parties settled the issue of preservation for purposes of use as a replacement copy, essentially noting that the parties will comply with Section 108(c) of the Copyright Act, practically speaking, as noted by Jonathan Band’s analysis, What Does the HathiTrust Decision Mean for Libraries?, libraries engaged in the activities of HathiTrust can make digital copies:

Because providing full-text search capability justifies the creation and maintenance of a database of text files, a library could create and maintain a database of text files if the library provided full-text search capability of those text files. Likewise, because access to the print disabled justifies the creation and maintenance of a database of image files, a library could create and maintain a database of image files if the library provided the print disabled with access to those image files. Additionally, the library could create appropriate backup copies of these databases.




In short, the HathiTrust decision indicates that a library could make digital copies of all the analog works in its collection, and store those copies as text and image files, if the library provided full text-search capability and full-text access to the disabled.

HathiTrust’s press release on the resolution of the litigation is available here.

[Searchability] is the real leap,” Stingone says. “Because what you find once you have this massive amount of text [is] that you could pretty much put in any word you could think of and find something.

For Biographers, The Past Is An Open (Electronic) Book : All Tech Considered : NPR

Stingone is talking about born-digital materials, but the power of searchability is also of at the heart of the transformativeness of digitization. Digital search is one of the most powerful tools in the hands of a 21st century researcher.


How We Digitize Now: U.Va.’s Release of Civil Rights Era Local News Archive

Work that fails to enter a canon—literary, historical, or otherwise—tends to languish on the dustier shelves of college libraries. Digitization allows a new generation of scholars to look at them with fresh regard. This represents a significant change in the way we think about scholarship. Google Books is a kind of Victorian portal that takes me into a mare magnum of out-of-print authors, many of whom helped launch disciplines. Or who wrote essays, novels, and histories that did not transcend their time. Or who anonymously produced the paperwork of emerging bureaucracies, organizations, and businesses that, because printed, has been scanned and, because scanned, is now available.

Professor Paula Findlen, a historian at Stanford, basically saying everything I’ve ever hoped would be true about digitization and research in her column,“How Google Rediscovered the 19th Century” in The Chronicle of Higher Education.

It’s really sad because a lot of really great books get lost not because nobody wants them but because people with lots of money who claim they have the rights are stopping people who have the rights from actually doing things. We hope to help these people down the road.

The lawyer for Singularity & Co., “the Brooklyn bookshop saving out-of-print sci-fi, one e-book at a time.” A heartening story of one-at-a-time rediscovery of potentially orphaned works. OTOH, I’m disheartened by the story they tell about the difficulty they had scanning an out-of-copyright book that was held in several university collections.