Tuesday, July 15, 2008

RBMS Plenary Session 2: Permissions Limbo: Intellectual Property and Licensing Issues

Continuing my coverage of the Rare Books and Manuscript Division (RBMS of ACRL), here are my notes from the second plenary session, held on Wednesday, June 25, 2008. It was a talk given by Maureen Whalen Esq., Associate Counsel for the J. Paul Getty Trust.

I suppose this talk will be published in a future issue of RBM or perhaps a Getty publication. Nevertheless, I take full responsibility for any errors in transcripts. Unlike the first talk, there was so much that was new to me here that I didn't really get more than just notes. So this will read more like bullet points instead of logical prose. Yet I hope some of the links may be new and useful.
We're dealing here with four things:
  • rights & permissions
  • confirming the institution has rights to digitize and distribute rare books and manuscripts
  • beware the quit claim [?]
  • obtaining permission to do so when required

Question of licensing rights to 3rd parties - do you have the right to outsource digital projects?

Let's clarify the term "rare books and manuscripts": We don't not mean necessarily "old" (as in the public domain). Some institutions place restrictions on the use of digital copies of public domain works.

One of the bulwarks of acceptance in the library digital world is the decision Bridgeman Art Library vs. Corel Corporation:
"This is one of the most relevant copyright decisions for museums in years. A Federal district court in New York in November held that photographic reproductions of two-dimensional works, which themselves are in the public domain, do not have the requisite amount of originality to be protected by copyright." [from http://www.panix.com/~squigle/rarin/corel2.html]

The Bridgeman case raises dilemmas: Should we restrict digital copies? Why? How? Is there "click-thru licensing"? Are there technical protection measures? Cease-and-desist policies?

Welcome to Permissions Limbo.

The question of thumbnail images: the law is moving in direction of considering thumbnails to be fair use. (They're not too big, not too small, but just right).

Section 108 has serves more as guidelines on preservation rather than other uses. More work needs to be done on it. Similarly the issue of outsourcing is unclear.

Concerning pending legislation considering orphan works (and for future copyright issues), we need to document efforts to reach or contact unknown rights holders. We need to do much better job of getting rights info in order to show that we're tracing rights holders with "due diligence." We need to capture knowledge of public and scholars on how to obtain info on holders of rights. It's everybody's job.

The more pro-active you can be with lawyers, the better.

Keep track of all your permissions info. The more organized your notes, the better off you'll be.

Concerning the use of web 2.0 at the Getty Center: We consider it the individual staff member's responsibility, not of the lawyers. Don't forget to read the fine print.

Important question to ask yourself on digital projects: Is the project sustainable?

If you outsource digital projects you must understand: What rights does the vendor want, what rights can the institution grant, and what rights does the institution retain?

See report prepared by intelligent tv for RLG projects. [Probably this: http://www.dlib.org/dlib/november07/kaufman/11kaufman.html ]

Is access granted by the vendor, and if so, what are the service level agreements? What are the enforcement procedures? Also: Where does digitization take place? Concerning the metadata and catalog records: Who creates them and who owns them?

Who owns the digital materials? What rights does vendor want and for how long? How much investment by vendor? What is vendor saying about its needs for return on investment? And ask: are these statements reasonable?

If you take advantage of web 2.0 opportunities- read the small print and make sure you understand it. (Some people had problems with a chat program, not realizing that originally, the software corporation claimed ownership of all conversations.)

Whoever you work with, make sure that all rights to digital files and subscriber lists revert to the institution. Everything should come back to you.

Q. (from Peter Hirtle): What should Special Collection librarians learn from Google Books?
A. Google Books has helped sharpen our thinking about searching. Charles W. Bailley Jr. put together a bibliography of Google Book search which is worth looking at.

Criticisms of the Google Book project abound: its legality, confidentiality, image quality, metadata (how does Google link?), and proprietary nature.

Proprietary nature. Vaidhyanathan - critical of Google books. Is "privitizing" a public good?

Brewster Kahle says that the idea that only one company can control access to a digital copy is ridiculous.

Google licenses "ask" that users use material for personal non-commercial use only.

(See the Boing Boing website). Just because you can scan a public domain book does not mean it belongs to you.

What is our professional standard? see LRTS (Library Resources Technical Services) 38 (Jan. 1994) article on Guidelines for microreproduction. There is no mention of perpetual public access at that time!

Library practices, and not Google, should be the focus of the critics of Google. Are we making available material for all time?
Why it matters: 1. expense - proprietary means more expensive

($400,000 for historical newspapers - is it worth it for a public domain source?)

Stewart Brand: information wants to be free, but also information also wants to be expensive.

The changing nature of how information can be used. data mining, mashups.

The Bamboo project - any faculty members can reuse content for them. content must be freely available and open.

What about Microsoft's Photosynth - (demo) creating a (3-dimensional) image from multiple images (e.g. Flickr collection) - what are the rights issues?

Another example: Harvard University Library's Open Collections Project.

SCOAP - Sponsoring Consortium for Open Access Publishing in particle physics.
Their purpose: redirect subscription funds to open access; so that "funding bodies and libraries contribute to the consortium, which pays centrally for the peer-review service. Articles are free to read for everyone." This is a form of open access publoishing in high energy physics.

Cornell: Cornell's program [? Perhaps their Open Access program]. Their attitude is: we can't control content but can think of ways of giving better services. Also the agreement between NARA and Ancestry.com: After 5 years NARA gets files back and can do whatever they want with them (hopefully they'll make them available for free).

Good Terms: Improving Commercial-Noncommercial Paternships for Mass Digitization: A Report Prepared by Intelligent Television for RLG Programs, OCLC Programs and Research by Peter B. Kaufman and Jeff Ubois.

Their recommendations: more open access, less restricted distribution, limited duration and survivability.

You must decide where you want to be when approached by a vendor - do you want to work with other libraries, or work with vendors?

Q. Few newspapers were copyrighted before 1960 (The NY Times is one of the few exceptions).

While at the University of Virginia, Christian Dupont was able to get them to drop the fee. Should we be making money from public domain materials? Does a library have legal right to charge licensing fee for public domain materials? (Open ended question)

(Although there is a rational for charging a licensing fee. The commercial should take some participation in preservation.)

Peter Hirtle: With a public domain image, you can charge whatever you want (depending what people will pay). Where you get into problems is in putting additional terms on the item (since you won't be able to enforce them). Whether that is legal is a question.

Maureen: The issue of charging is an institutional one. but restrictions on use of image are of questionable legality. I get upset when people put a copyright notice on public domain material. Even a credit notice, yet. The lawyer Simon Frankel of San Francisco talks about such fraudulent licenses.

The Library of Congress doesn't charge, since it's funded by taxpayer money.

What are the "standards" for republication of an artifact?

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