The Center for Media and Social Impact has released two important new statements of best practices in fair use. The Code of Best Practices in Fair Use for Academic and Research Libraries has, since its release in 2012, become an important guide for use of copyrighted materials by libraries. The new statements deal with Fair Use of Orphan Works by Libraries and Archives and Fair Use for the Visual Arts.
The statement on Orphan Works frames the issue:
Memory institution professionals commonly manage collections containing materials that are, practically speaking, impossible to identify and seek copyright permission for, item by item. If they fail to address copyright clearance issues, they could compromise their institutions’ public missions. Nevertheless, faithful representation of a collection in its entirety could be critical to fulfilling an institution’s missions to preserve the past and to make research materials available, including online.
These documents provide expert, well-reasoned guidance. They are also important in recording and establishing the consensus of practitioners in their fields.
The Library Copyright Alliance, a group of three national library associations representing over 100,000 United States libraries, has filed comments on the Copyright Office notice of inquiry regarding Orphan Works and Mass Digitization.
In the past the LCA has supported legislation on the issue of orphan works — works whose copyright owner cannot be readily determined or contacted for permission to digitize the work. The new comments take quite a different tack and indicate a new confidence in the strength of fair use:
LCA welcomes this opportunity to comment on the Copyright Office’s October 22, 2012, Notice of Inquiry concerning Orphan Works and Mass Digitization. LCA has a long history of involvement in this issue. It provided extensive comments to the Copyright Office during the course of the Office’s study that led to the Office’s 2006 Orphan Works Report. LCA also actively participated in the negotiations concerning the orphan works legislation introduced in the 109th and the 110th Congresses. Although LCA strongly supported enactment of these bills, 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. (emphasis added)
The Association of College and Research Libraries (ACRL) recently joined the growing ranks of signatories to the Berlin Declaration on Open Access to Knowledge in the Sciences and the Humanities. ACRL encourages college and research libraries, as well as other campus groups, to follow suit.
The declaration builds on the significant progress of the Budapest Open Access Initiative, calling for Open Access to knowledge in the humanities as well as in the sciences. It also moves beyond the scope of primary literature, indicating, “Open access contributions include original scientific research results, raw data and metadata, source materials, digital representations of pictorial and graphical materials and scholarly multimedia material.”
Signatories commit to the principle of Open Access as well as to pursuing solutions that advance the Internet “as an emerging functional medium for distributing knowledge.”
Learn more about the Berlin Declaration.
Those of you who follow Scholarly Communication issues closely know that the Author’s Guild has filed suit against HathiTrust and others over the Orphan Works Project. Here is a selection items to read to better understand the issues:
From the New York Times: Lawsuit Seeks the Removal of a Digital Book Collection
From James Grimmelman in his blog, the Laboratorium: The Orphan Wars
From Kevin Smith, Scholarly Communications @Duke: Why is adopting orphans controversial?
And his follow-up post today: Stop the internet, we want to get off!
And, finally: ARL’s Resource Packet on the issues.
In this interesting interview, Peter Hirtle, who wrote the book on Copyright and Cultural Institutions, talks about HathiTrust and the work involved in finding copyright holders of orphan works.
Available at http://youtu.be/5qp1qpw8Lus
Today’s Chronicle of Higher Education contains a series of four articles about scholars pushing back against copyright restrictions.
The article entitled The Million Book Lockup is a very good explanation of the Orphan Works problem. These issues are very familiar to those working on digitization projects.
Two interesting developments regarding orphan works in the aftermath of the latest Google Books ruling:
The University of Michigan is undertaking a project to identify copyright owners of “orphan works”.
What Michigan is doing is “detective work,” as Ms. Levine puts it. She has students probing in-copyright works from 1923 to 1963. They’re trying to determine ownership and, in the event that isn’t possible, documenting the dead ends that led them to conclude a work is orphaned.
In addition, the Library Copyright Alliance, issued a joint statement (ALA, ACRL, and ARL) indicating that a legislative solution to the orphan works issues may not be possible, and that recent rulings indicate that mass digitization projects may be better served by relying on fair use.