Copyright and Mass Digitization
Fair Use, Orphan Works, and the Public Domain: Copyright for Mass Digitization in Information Institutions
Annotations by Lauren Aquilina
Definition of Project
This annotated bibliography explores the considerations toward copyright law which must be made by information institutions planning a mass digitization project. The bibliography covers types of copyright restrictions an institution may face, and the options which they may explore to comply with (or potentially circumvent) these restrictions. Proposals for reducing the time and cost restrictive practice of reaching out to copyright holders to obtain permissions such as outsourcing, crowd sourcing, and claiming fair use are explored. Journals were searched within the fields of library and information science and law, with preference given to articles and studies published after 2007 as the issue is continually evolving.
Annotations
Akmon, D. (2010). Only with your permission: How rights holders respond (or don't respond) to requests to display archival materials online. Archival Science, 10(1), 45-64. https://doi.org/10.1007/s10502-010-9116-z
Akmon presents a clear analysis of the costs of the University of Michigan’s attempts to identify and contact the copyright holders for still in copyright items of the Jon Cohen AIDS Research Collection. The University used an outside vendor to complete the actual digitization and in turn, focuses their analysis more directly on the costs, time, and staff required to attempt to receive permissions. In doing so, they are able to show that the costs associated with contacting the copyright holders far surpassed any of the other tasks completed for the collection. An analysis of the costs as well as the calculated likelihood of various sorts of copyright holders to reply could be very useful to an information institution considering undertaking a similar project. This stands as a more successful attempt to contact copyright holders, as the team eventually received explicit permission to display 64% of the in copyright items of the collection.
Borghi, M., Erickson, K., Favale, M. (2016). With enough eyeballs all searches are diligent: Mobilizing the crowd in copyright clearance for mass digitization. Chicago-Kent Journal of Intellectual Property 16(1), 135-166. https://doi.org/10.2139/ssrn.2806145
This article explores the possibility of crowd sourcing attempts to contact copyright holders of suspected orphan works before digitization occurs. It presents a potential solution to institutions that are looking to meet the “diligent search” requirement of defining orphan works without dedicating extensive budget, timeline, and personnel to the matter. It does focus primarily on EU law, but the idea is novel enough to be considered in other countries currently grappling with the copyright issues of digitization within information institutions. It presents a summary of the costs associated with such a search before defining crowd sourcing and presenting a clear argument as to how the “efficiencies of scale and scope” (p. 159) could outweigh the difficulties of getting started and incentivizing the process.
Currier, B., Gilliland, A., & Hansen, D. R. (2016). Copyright and digitization and preservation of state government documents: A detailed analysis. Journal of Copyright in Education and Librarianship, 1(1), 1-10. https://doi.org/10.17161/jcel.v1i1.5915
In this paper, Currier and Hansen remind readers that state government documents are not automatically in the public domain in the same way documents created by the federal government are, and thus must be treated with caution when considering digitization. This is an important point for information institutions to remember since books and information relating to local government is often of interest to public library patrons. The article addresses specific opportunities and limitations which may affect the copyright of local government documents. For example, readers are reminded that works produced by the government can still be orphan works and thus can fall into similar traps as other collections, but many states have dismissed their copyright claims for government documents. These points are presented in small sections and would be simple to use as a starting point for any institution assessing the copyright status of state government documents.
Dickson, M. (2010). Due diligence, futile effort: Copyright and the digitization of the Thomas E. Watson papers. The American Archivist, 73(2), 626-636. https://doi.org/10.17723/aarc.73.2.16rh811120280434
Dickson explores attempts to assess copyright for the digitization of a manuscript collection from the late eighteenth and nineteenth century. This case study presents the process, costs, and conclusion of what was considered an unsuccessful attempt to gain direct permission to present items from the collection (only 4 of the items received the go-ahead from rights holders). The case study can be looked upon by those considering similar projects as what to avoid. The paper goes on to present an argument for claiming fair use to avoid the “futile” effort. The project does unfortunately avoid addressing government documents as they felt the potential copyright concerns were outside the limitations of their project.
Dryden, J. (2008). Copyright issues in the selection of archival material for internet access. Archival Science, 8(2), 123-147. https://doi.org/10.1007/s10502-009-9084-3
In this paper Dryden presents a detailed exploration of Canadian institutions’ experience in choosing which materials to digitize for internet availability. Over 100 repositories were studied and responded to a questionnaire. The findings presented cover the selection criteria for what is made available online as well as how the repositories assess risk. Overall, the study seems to show that the selected institutions prefer to digitize and make available the material which they perceive to have the lowest risk in terms of copyright difficulties. In doing so it is noted that some institutions are not making as many materials available as they likely could without running into copyright complications. The responses and consequences hereof show how copyright law can lead to fewer materials being made available online when institutions choose not to push the boundaries. This can be viewed as a cautionary tale for institutions currently determining what level or risk they are willing to take in similar digitization ventures.
Freire, N., Scipione, G., Muhr, M., & Juffinger, A. (2013). Supporting rights clearance for digitisation projects with the ARROW service. LIBER Quarterly, 22(4), 265–284. https://doi.org/10.18352/lq.8101
This article presents a new type of network to make finding rights information for digitization projects a less complex and taxing ordeal. The proposed ARROW network is aimed at information institutions trying to minimize the amount of time, money, and effort which must be put into finding copyright information before digitization can occur. This article could be useful to those looking for solutions to the excessive demands of identifying copyright owners for a mass digitization project because it presents a potential solution without claiming fair use and taking on the risk or waiting for laws to become more digitization-friendly. The proposed service is based around the copyright laws and regulations of the UK, but the breakdown of how the system would work is helpful for interested parties of any country to see how upcoming services of this type may function around the world.
Hari, P. (2015). Is scanning books really fair use: The next chapter in the Google books litigation. Charlotte Law Review 7(1), 111-133.
While the Google Books project is not similar in scope or arguably intention to the digitization project of individual information institutions, it is an important case to look at because it has prompted debate and litigation about copyright laws in mass digitization attempts. Here a summary of the project as well as the resulting litigation is presented alongside arguments against the proclaimed fair use by authors and copyright holders. It also discusses the latest ruling as of 2015 which sides with Google’s argument of fair use. Those determining how to handle copyright concerns in upcoming digitization projects may find this account and analysis useful as an example of claiming fair use and having it be contested in just about the largest such example available.
Samuelson, P. (2015). Extended collective licensing to enable mass digitization: A critique of the U.S. Copyright Office proposal. UC Berkeley Public Law Research Paper No. 2683522. Retrieved from: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2683522##
In this paper Samuelson discusses the U.S. Copyright Office’s proposal that the creation of an extended collective licensing (ECL) program, under which collective management organizations (CMOs) would represent copyright owners, could be a solution for mass digitization projects to deal with copyright concerns. She introduces several issues she sees with this proposal including the unanswered question of who owns e-book rights (publisher or author), and who will be funding the creation of CMOs. Possible alternatives are explored, including overviews of how other countries have approached this issue. This paper clearly defines the potential downsides to the U.S. Copyright Office’s proposal as well as offering other potential outcomes for how copyright may be handled in the future when it comes to mass digitization. It presents arguments through which institutions who have read the original proposal may think more critically about how, or if, the ECL program would be carried out and how it may influence them.
Society of American Archivists. (2009). Orphan works: Statement of best practices. Retrieved from: https://www2.archivists.org/groups/intellectual-property-working-group/orphan-works-statement-of-best-practices
This report by the Society of American Archivists puts forth exceptionally clear guidelines for how institutions hoping to digitize orphan works should proceed in attempts to locate copyright holders. It is helpful to an institution hoping to assess if they should bother conducting a search since it provides an overview of “legal rationales” which, if they seem to fit your project, could make an orphan works analysis unnecessary. It then goes on to clearly lay out how the search to find copyright holders should be conducted. The steps are well defined and the paper offers other resources and flow charts to help determine if an item is truly an orphan work.
United States Copyright Office. (2015). Orphan works and mass digitization. Washington, DC: U.S. Retrieved from: https://www.copyright.gov/orphan/reports/orphan-works2015.pdf
In perhaps the most thorough exploration of orphan works in digitization, the United States Copyright Office presents a helpful overview of a wide variety of topics and issues. While it can be argued that this report is a bit dense at 106 pages before appendixes, this is the document to search if you are wondering what the US government has to say about the matter. It gives a summary of previous reports put out by the office as well as examples of litigation and legislation. Within the report the office proposes and defines an ELC pilot program as a potential solution to the restrictive costs associated with navigating copyright in mass digitization. An exploration into several international examples may not be directly relevant to those wondering about current expectations in the US, but allows for a better contextual understanding of how these issues are playing out around the world. It also gives the reader an idea for where relevant laws may be heading in the United States.
