LibraryLaw Blog

New tool: Risk Management Calculator

(by Peter Hirtle)

Those of you who have made it through Copyright and Cultural Institutions know that I am a big believer in the importance of risk assessment when digitizing materials.  The number of instances where we can know with certainty that we can digitize with impunity is very small.  If we limited ourselves to those instances, our digitized collections might consist of nothing but published books issued before 1800.  Risk assessment must be part of every librarian's and archivist's skill set. 

A tool recently released in the UK can help us think in terms of risk.  The Risk Management Calculator was developed to help projects that are building open educational resources (OER) understand the types of factors that might determine specific levels of risk when they include copyrighted items in the resources without the permission of the copyright owner.  The tool asks questions about the material you want to use and how you want to use it, and then generates a numerical score and the level of risk associated with that use.  You can learn more about the tool and its background in this JISC podcast.

The tool was clearly developed with UK law in mind.  For example, it seems to place a higher weight on privacy considerations than would a US repository, and doesn't seem to account for whether the subject whose privacy might be invaded is alive or dead. I tried as a test case a letter not created with commercial intent that you wish to make available for non-commercial research or private study and whose author is both high-profile and traceable, but who doesn’t respond to a permission request.  The tool gives that a level of 20 (out of 150) and suggests this is low risk.  But let’s put in some names: J.D. Salinger, sending a private, noncommercial letter to a 3rd party, and whose estate doesn’t respond to your request to publish it.  I would think that is about the highest risk you could have for a lawsuit (even if the monetary damages are likely to be low).

But even if the analysis it presents is not perfect under US law, the tool is still helpful in organizing our thoughts as we try to assess and weigh risk.  It reminds us that how we make material available can affect our risk in doing so.  And it may help institutions think about how risk-adverse they want to be.

 

 

C&CI Update: Student Papers and FERPA

(by Peter Hirtle)

In Section 12.9 of Copyright & Cultural Institutions, I discuss briefly whether FERPA, the Family Educational Rights and Privacy Act of 1974, governs the digitization of student papers and theses.  I concluded “In order to digitize and distribute papers from its students, therefore, the cultural heritage institution will need to secure the student’s permission.”

A much more thorough discussion of the issue was recently published in D-Lib Magazine.  In “FERPA and Student Work: Considerations for Electronic Theses and Dissertations,” Marisa Ramirez and Gail McMillan share several campus approaches to FERPA and electronic student work.  I was particularly pleased to learn about a 1993 opinion from the FERPA office that suggested that if the normal practice at a school was to make student papers available through the library, no change in practice was required (so long as students were made aware of this policy).  Some of the examples given in the article of how to notify students that their papers will be available online are also very useful. 

This article will be required reading for anyone who wishes to digitize student work.

Free access to a documentary edition

Almost two years ago, I wrote complaining about a report from NARA that seemingly gave up on open access to the papers of the Founding Fathers and endorsed instead a subscription delivery model.  I suggested that other models that encouraged free access to the content could be followed instead.

I was therefore delighted to learn a few weeks ago about the Ulysses S. Grant Digital Collection hosted by Mississippi State University.  The project has made the 31 published volumes of the Grant papers freely available as PDF downloads.  In addition, they are adding an assortment of digitized cartoons, sheet music, and other material that is also freely available.

Is the system as powerful and useful as the Rotunda delivery platform that is being used by the University of Virginia to deliver the papers of the American Founding Era?  No – though in the you can do searches in the Grant collection for words, and the search terms will appear highlighted in the page images on which they appear.  The big difference is that Mississippi State is making a usable version of the page images of the printed volumes available for free.  Wouldn’t it be wonderful if UVA also provided a basic level of free access to the printed Founding Fathers volumes so that everyone could have access to at least one form of the content?  The subscriptions could remain available to those institutions that needed the more sophisticated search and display functions of Rotunda.

Congratulations to Mississippi State for their important contribution to American history.

Real life risk assessment

In the new book on Copyright and Cultural Institutions, I argue that libraries, archives, and museums need to engage in informed risk assessment when approaching digitization projects.  This is especially true when it comes to sound recordings because the the legal status of sound recordings is a mess.  Peter Jaszi’s new CLIR report, Protection for Pre-1972 Sound Recordings under State Law and Its Impact on Use by Nonprofit Institutions: A 10-State Analysis, is a terrific introduction to the problem.  As Deanna Marcum’s introduction notes, “…in an environment where there are virtually no public domain sound recordings and where, as discussed in this study, the laws controlling early sound recordings are complex and vast, copyright-related issues present a formidable challenge.”

I’ve been thinking about sound recordings because I am currently serving on a task force of the National Recorded Sound Preservation Plan that is looking at copyright issues in recorded sound preservation.  The experience has confirmed what we all know – namely, that any institution that wants to act in this space is going to have to assume a certain amount of risk.

I was interested, therefore, to read in the Chronicle of Higher Education about Judaica Sound Archives at Florida Atlantic University.  In spite of the fact that little in their collection is in the public domain, it has still digitized about 45% of its holdings.  Much of the material is made available through stand-alone Judaica Sound Archives Research Stations that are distributed to other universities and research centers and which may include copyrighted sound recordings for which permission has not been secured. 

A risk-adverse copyright lawyer, after looking at the Archives’ digitization and distribution activities as well as the web site’s possibly incorrect characterization of pre-1923 recordings as being in the public domain (I couldn’t find the metadata that provided information on place of publication), would shut the whole thing down.  What I like about the Judaica Sound Archives is that it is seemingly willing to accept the risk in order to preserve and make accessible an important part of our culture.  The absence of legal action against it is evidence that it is taking a reasonable risk, even if the law does not explicitly authorize its actions that are undertaken without the permission of the copyright owner. 

Libraries, archives, and museums should know when they are taking risks and what the extent of that risk might be.  The mere presence of slight risk, however, should not paralyze them from doing things that are socially desirable.

Google book settlement should drop "Most Favored Nation" clause - interview with Tim Barton and Barbara Cohen, Oxford University Press

From Google Book Search Settlement: A Publisher's Viewpoint with Tim Barton and Barbara Cohen - Oxford University Press interview at Stanford Fair Use & Copyright site

September 2009

Tim Barton: I also think that Google should drop the "most favored nations" clause in the agreement.

Barbara Cohen: I agree, if only because the MFN's meaning seems almost uniformly to be misunderstood. I keep reading concerns expressed by people who mistakenly read the MFN as broadly prohibiting the Book Rights Registry from giving any firm other than Google a better deal in any respect than Google has with respect to exploiting any of the books in the database. But in fact the MFN is an extremely narrow clause and is being misread. Only if, during the next 10 years, there is another class action and settlement involving a "significant amount" of the orphan works in the Google database could this clause be invoked. But, narrow though the MFN is, I agree with Tim that Google should eliminate it, if only to ease public concerns. The mere presence of this clause has been read by many as showing Google's monopolistic desires and this has cast a long shadow. It would be a shame if fears based on a misunderstood clause came to overshadow the settlement's remarkable potential to do good. If there are steps that Google and the other parties can take now to eliminate these concerns and ensure the settlement's approval, I hope that they do so.

When is it in the public domain?

(Posted by Peter Hirtle)

There is an interesting post over at Rich Stim's blog, Dear Rich, on whether Nuremburg Trial transcripts are in the public domain.  Stim is responsible for much of the copyright overview text available through Stanford's Fair Use web site, and his blog is a light-hearted but knowledgeable look at copyright, patent, and trademark issues. 

I was interested in this post for a number reasons.  First, early in my career while I was employed at the National Library of Medicine, I worked with its collection of transcripts and documents from the medical trials.  And I have had a very slight connection with the Cornell Law Library's project to digitize its collection of transcripts, which consists of the personal copies in the possession of William "Wild Bill" Donovan, the father of the CIA.

Most of all, I was struck by Stim's honest answer:  "The good news is that you can use the transcripts. The bad news is that we're not 100% sure why."  I agree entirely with Stim, though I might quibble over some of his analysis.  For example, he notes that the court stenographers who made the transcripts would not have a copyright in the US in their work.  He does not address, however, whether the people who testified may have had a common law copyright in their testimony.  If we assume that the speakers authorized the stenographers to "fix" their words in the transcript, that common law copyright could have been turned into a statutory copyright by the 1976 Copyright Act.  As for the  documents included in the trial material, one might assume that the copyright in most of them would have belonged either to the Nazi Party or to the German government.  While 104A(a)(2) was passed in part to make sure that Nazi publications do not receive copyright protection in the U.S., this would apply only to published items.  (And the recent lawsuit over a UK's publisher plans to reprint Nazi newspapers as part of a source material collection on World War II demonstrates that even the copyright status of published Nazi materials can be problematic.)  Stim correctly points out that the translators could have a theoretical copyright in their work product, but assumes that the translators were all government employees which would mean that their work is in the public domain.  My vague sense is that some German contractors were hired to do some of this work, and so the government might own the copyright they produced (as work for hire).  Further complicating the issue is the fact that the trials were actually conducted under the auspices of an International Military Tribunal.  Their published proceedings may actually have had copyright restored.

The bottom line is that, as in this case, it is often very difficult to establish with certainty what is the copyright status of a particular work.  Uncertainty over the copyright status has not stopped numerous publishers from reprinting the works, however, nor has it stopped the Library of Congress from digitizing and making available all 42 volumes in the Official Series.  We often want legal certainty when we think about digitization projects.  What we should be asking instead is whether what we want to do useful, and how likely it is that anyone would object.

The Google Book Settlement and the Public Domain

Shortly after the Google Book Settlement was announced, a colleague wrote to ask what I thought of its procedures for identifying public domain books.  I gave a quick response, but promised a more detailed analysis.  Here it is, months later. 

My quick assessment: the settlement specifies procedures that are likely to identify most public domain works published in the United States.  It is less helpful for foreign publications that may have entered the public domain; they are largely absent from the process.  Unfortunately, because this is part of litigation rather than legislation, no one else can take advantage of the results of the process - it moves us no closer to having a growing public domain.  What is unknown is to what extent Google will want to remove titles from the licensed products and make them freely available to the public.

Califa posted presentations/handouts from its recent digitization symposium

Lots of good presentations at the Califa Digitization Symposium January 2009

• Imaging/Tech Issues: John Sarnowski
• Primary and Archival Resources: Adrian Turner of the California Digital Library
• Newspapers - creation/access: Christine Guenther of OCLC
• Rich Media: A Corporate View: Chris Orr: consultant, Librarian and digital archivist
• Local History Digital Resource Projects/State funding: Ira Bray of the California State Library.
• Creating a Management Plan: Trudy Levy
• Aren’t Those Plaid Bell-bottoms Groovy? Thea Blair of Mission Viejo Public Library
• The Good, The Bad, & the Ugly: Digitizing on a Shoestring: Susan Goldstein of San Francisco Public Library: Slides
• The Good, The Bad, & the Ugly: Digitizing on a Shoestring: Susan Goldstein(SFPL): Word Document

Can Darnton live the Enlightenment dream?

Robert Darnton's long, reflective piece on "Google & the Future of Books" in the New York Review of Books is justifiably generating a lot of buzz.  There is much I can admire in the piece.  For example, Darnton stresses the importance of having an open cultural heritage:

Yes, we must digitize. But more important, we must democratize. We must open access to our cultural heritage. How? By rewriting the rules of the game, by subordinating private interests to the public good, and by taking inspiration from the early republic in order to create a Digital Republic of Learning.

In a passing comment, he suggests that he thinks the original 28 year maximum term for copyright may be better than our current term of life + 70:

I acknowledge the importance of copyright, although I think that Congress got it better in 1790 than in 1998.

These are inspiring sentiments with which I generally agree.  But while they are easy to espouse, they are much harder to implement.  To illustrate this, we need only look at Robert Darnton's own works.

If we assume a 28 year copyright term, all books published by Darnton prior to 1981 should be in the public domain (or at a minimum freely available).  Yet according to the records in WorldCat, of the books that Darnton authored before 1981, only one (The Business of the Enlightenment) is available in electronic form, and that is only available through the subscription product ACLS Humanities E-Books.  Other important works, such as Mesmerism and the End of the Enlightenment in France, are totally inaccessible electronically.

Let's hope that as a first step in "subordinating private interests to the public good," Professor Darnton liberates his own works. 

When is a published work not a publication?

It is easy for court decisions that are issued in December to get overlooked in the holiday crush.  Some Appeals Court rulings in the important case of Societe Civile Succession Richard Guino v Renoir are good examples.  Rebecca Tushnet has written on the trademark aspects of the decisions, but I haven't seen a discussion of the copyright decision.  This is an important ruling that has implications for many mass digitization projects.

The case concerns sculptures created in France by Pierre-Auguste Renoir and published in France no later than 1917.  Most commentators (including the Copyright Office) argue that because publication occurred before 1923, the works are now in the public domain in the U.S.  As I discuss in footnote 12 of the copyright duration chart, however, a ruling in the Twin Books v Walt Disney case in the 9th Circuit (covering the western states) contradicts what everyone else assumes.  In Twin Books, the court concluded that if a foreign work did not follow the requirements to secure copyright protection in the US, the work did not therefore enter the public domain in the US, but instead remained in effect unpublished for the purposes of US copyright law. 

The District Court opinion in the Societe Richard Guino case harshly criticized Twin Books, but then found copyright infringement because it was forced to follow the opinion of its Appeals Court.  Many of us hoped that an appeal would lead to a reversal of the Twin Books decision.  Unfortunately, in the latest decision, the Appeals Court upheld the lower court's finding of infringement.

The good news, if there is any, is that in part the decision is based on the fact that a 3 judge panel can't overturn Twin Books by itself - it requires a decision by the full court.  What is disturbing, however, is that unlike the District Court, there is no criticism of Twin Books in this decision.  Instead the Court sings the praises of Twin Book's reasoning that a book that has only been published abroad isn't really published for the purpose of US copyright law. 

What are the implications of this for digitization projects, especially those based in California (such as Google Books or the Internet Archive)?  The decision makes it much, much harder to determine whether a book published abroad is in the public domain.  I have written about how difficult it is to determine whether any individual post-1923 title had its copyright restored, but I assumed that pre-1923 works were public domain and that Twin Books would eventually be reversed.  The newest ruling makes me less certain this will happen.

So what do Google, the Internet Archive, and other western digitization projects need to do if they do not wish to risk copyright infringement?  First, the projects would need to determine if the works were ever published with a copyright notice.  For the 9th Circuit, publication occurs (and the copyright clock starts ticking) when there is publication with notice.  In the Societe Richard Guino case, copyright in the images found in the 1917 book was secured in 1984.  Copyright in those images will endure until 70 years after Guino's death in 1973, or through 2043.  Reproducing and distributing the 1917 book before 2044 would be a violation of the Societe's copyrights. 

Second, the projects would need to see if the work was published in a Berne Treaty nation after 1 March 1989, when notice requirements were abolished.

Third, for those pre-1923 works that were never republished with a copyright notice or after 1 March 1989, the projects could determine the death date(s) of the author(s).  If the authors all died before 1939, the works would be in the public domain in the 9th Circuit since, as "unpublished" works, the life+70 term would have expired.  (Actually, any foreign work that was never republished and whose author died before 1939 would be in the public domain in the 9th Circuit, regardless of death date.)

Obviously, no project will be able to conduct this sort of copyright investigation.  The safest course, therefore would be to select a date before which there is almost no chance that an author is still alive.  Some UK projects (which have a blanket life+70 term) use 1868 to 1888 as the cut-off publication date, on the assumption that authors are probably at least 20 when their books appear, and then one estimates a subsequent life span to determine when the author is sure to be dead.  (If you assume someone lives to 70, you can use the 1888 date.  If you think the author will live to 90, then the 1868 cutoff must be used.)  The problem, of course, is that this excludes much more material than the 1923 publication cut-off date that many of us use.

Bottom line: let's hope that this decision is appealed to the full Appeals Court, and that court finally replaces it's twisted logic in Twin Books with the clear certainty of copyrights restored under 104(a).