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Copyright >> 2001
TOWN MEETING: Denver, June 28, 2001
Copyright & Primary Source Materials
Colorado Digitization Project
University of Denver, Denver
Draft Meeting Report
Nancy Allen, James Williams, Welcome and Introductions
Peter Jaszi, An Introduction to the Issues
Bernard Reilly, Intellectual Capital and Building
Panel: Issues Encountered, Questions Asked, Decisions Made
James Williams, Copyright and the University
of Colorados Digital Future
Kevin Anderson, Giving Credit: the Permissions
Speakers' Biographical Sketches
Nancy Allen, James
Williams, Welcome and Introductions
Some 70 participants were welcomed to the Town Meeting by Nancy
Allen, Dean and Director of Penrose Library at the University of
Denver, and by James Williams, Dean of Libraries at the University
of Colorado at Boulder.
Peter Jaszi, An Introduction
to the Issues
Peter Jaszi opened by referencing the recent Tasini
v New York Times case (decided June 25, 2001), in which the
National Writers Union sued publishers for reproducing authors
works in electronic databases without seeking permission. In this
case, Jaszi said, the Supreme Court effectively ruled that there
was a new electronic right and that a publisher had no right to
publish material electronically, without seeking the authors
permission. Jaszi thought the Tasini case had relevance to museums
as it shows traditional copyright law and its underpinning value
structure colliding with the realities of the digital environment.
His theme was how the old rules work in the new environment and
what decisions museums and archives need to make as the proprietors
of intellectual property.
Since the 1991 Feist decision (that determined that the compilation
of facts into a database, such as the phone book, through sweat
of the brow, does not qualify for copyright protection), one
of the essential definitions of copyrightable work is its originality.
Its still a low threshold said Jaszi but it remains a question,
especially in the context of derivative works works based
on or derived from an original work (http://www.loc.gov/copyright/circs/circ14.pdf).
So, if a museum owns an object and wants to photograph and digitize
it, assuming the object is in the public domain, what is the result
and does the nature of the original affect this? The 1999 Bridgeman
v Corel decision offers a little guidance, but its not
much. In that case, Judge Kaplan ruled that simple documentary photographs
of two-dimensional objects do not qualify for copyright protection
because of the lack of originality involved. Jaszi noted that Judge
Kaplan might have been clearer and that this might or might not
be the right rule, or a good general rule, but could serve as an
important warning: that the application of traditional principles
in the new environment might not always favor would-be copyright
Sticking with the theme of originality, Jaszi pointed out that when
a museum organizes an original exhibition, even if it does not own
any rights to any of the individual items, or their digital surrogates,
it would own the compilation right of that exact patterning of works.
Again though this right is of limited efficacy.
Publication of Unpublished Work
Many museum works are presumed to be in the public domain, but we
shouldnt assume this. The 1976 Copyright Act gives unpublished
historical materials federal protection until 2003, if not published
before midnight December 31, 2002. If they are published prior to
this date, they are protected under the new Copyright Term Extension
Act, until 2047. One question is whether artworks are covered by
this; and, what exactly publication is. However, the question here
is what factors should influence a museums decision to publish
such an unpublished item in their collection.
When a museum does have rights to work that it places online, what
would constitute infringement of those rights. Would the Ticketmaster
deep linking case against Microsoft apply (where customers
were delivered to ticket order forms deep inside the Ticketmaster
site, avoiding many layers of pages containing advertising)? Or,
he surmised, suppose a practitioner downloaded material from a museum
web site without authorization. The museum may or may not have rights
and there are fair use issues, but if Tasini is any indication,
Jaszi thought this an area that courts might revisit.
Summarizing, Jaszi said that museums, like other proprietors, are
finding in the digital environment that rights they might expect
are being limited by various traditional doctrines that exist to
encourage information sharing and the development of new knowledge
out of old.
But not all the news is bad for museum properties and those who
want to strengthen their hold on digital assets.
Which road forward?
Museums could engage in a systematic attempt to publish
all the unpublished material in their collections to which they
had copyright, to stop them entering the public domain: but should
they? Is this vision of the copyright grab necessary and appropriate?
Similarly, museums might modify the way documentary photographs
and subsequent digital images are made to increase their authorship:
but should they?
Museums could take advantage of provisions under DMCA through encryption
and password protection to curtail access to materials on web sites
and threaten or pursue lawsuits against those wanting access without
complying with the terms. Museums might also take action against
unwelcome linking or framing. They might want to join corporations
in promoting new legislation like UCITA to strengthen click-through
licenses. But to all these scenarios, there remains the question
of whether museums should follow such action.
Jaszi turned to developments to establish legislation to protect
databases that could not be protected under traditional copyright
law, with its originality requirement. Museums again might benefit
from such legislation and could line up with those supporting strong
protection or with most cultural nonprofits and scholarly
groups in resisting such legislation.
He closed by stating that these were hard questions and that organizations
were in a cultural, political and economic dilemma. But these were
questions the community had to face and what was important is that
they find the means to have the discussions within the community
and decide what is the best way forward.
Bernard Reilly, Intellectual
Capital and Building Museum-Media Relationships
Putting Jaszis political observations into a broader context,
Bernard Reilly spoke about the precarious balance that cultural
institutions have trodden, in the absence of cultural policy and
professional consensus, between responsible fiscal management and
the wide dissemination of cultural resources.
He saw the recently intensified interest in copyright issues by
cultural institutions as a by-product of the flurry of licensing
activity and its promise of new revenue streams from the digital
environment. This nicely engages an entrepreneurial flair with the
need to sustain digital projects and collections.
Beyond Content for Cash
However, Reilly saw the standard licensing model (content
for cash) as far too limiting and suggested an amplification
of both terms in the equation. "Content" should be redefined
as the full range of intellectual assets possessed by a museum,
including the knowledge and expertise of its staff and the information
and research by-products developed as part of museum work. "Cash,"
on the other hand, i.e., the monetary return on use of museum content,
is potentially not as valuable to a museum as other forms of compensation,
such as visibility and community goodwill.
As a tool, the Internet could be used by museums as more than a
one-way collection delivery system. It can very effectively gather
information about a museums digital visitors, their interests
and responses. It can also be an instrument for the internal repurposing
of digital assets, such as exhibitions, publications, marketing
Because of the way that the Internet fosters the fluidity and interchange
of information, Reilly noted the trend in museums toward a convergence
of some of the traditionally distinct activities in museums, e.g.,
between curatorial research and public programs, marketing and development,
exhibition and publication. This kind of convergence better enables
organizations to optimize the value of their intellectual or knowledge
Reilly further elaborated on what might be revealed in an audit
of an institutions intellectual capital. Assets would include:
- Collections and the objects within them
- Stock: the multimedia array of reproductions of the objects
and collections together with the body of accompanying information:
the texts, databases, interpretations, and presentations created
by staff and others and controlled by the institution;
- Intellectual Property: the copyrights, patents, and licenses
for use of the above materials owned by the organization;
- Resident Expertise: the knowledge and competencies of
the organization's staff -- curatorial, editorial, design;
- Relationships: the penumbra of goodwill resident in the
creative and local community around an institution, from publishers
to photographers to authors to the subjects of oral histories;
- Reputation: the identity of the organization and its
values (historical accuracy, authenticity, public trust).
With a broad and secure sense of its assets, an institution is
in a better position to negotiate or barter with other organizations.
Reilly then surveyed what those other organizations often bring
to the table aside from cash. These included:
- Production and marketing capabilities (to carry the institutions
assets out to a broader stage, for example, he cited the Smithsonian/History
Channel collaboration on films on the U.S. Presidency)
- Visibility and location (he cited the new relationship between
the Rochester-based George Eastman House (with a collection of
400,000 photographs and the International Center of Photography,
with exhibition space in midtown Manhattan--see their joint Photomuse
- Collections (adding richer context to objects); and
- The Goodwill of the community that strengthens the organization's
CHS Strategy: Licensing; Strong Website; Asset Management
Reilly continued by outlining the three-part strategy of the Chicago
Historical Society in this arena. First, there was an aggressive
licensing operation, with a sophisticated schedule of fees, scaled
to the nature of the use and the user (for-profits paid significantly
more). Secondly, CHS ramped up its digitization capabilities, mounting
a critical mass of materials online from its collections, available
free of charge, as a result of a commitment to public service and
an understanding of an implicit compact with the Society's funders
and the people of Chicago. Thirdly, active management of all of
the organization's resources and close collaboration with many internal
departments, such as Public Relations, Development, and Marketing.
At the Chicago Historical Society, the results have been impressive,
with web pages jumping from 350 pages to 7,000 and expenditures
rising from $165,000 to $250,000 in three years. Reilly then fleshed
out one relationship, that with the local public television station
WTTW in producing Making History, six 3-minute on-air
segments. WTTW had production and marketing capabilities and achieved
great visibility for CHS. The upshot included much stronger relationships
with the media and a considerably greater media exposure for the
Society in the Chicago area community.
In closing, Reilly emphasized that a strengthened relationship
with the community depends on those relationships being actively
managed, being managed centrally and covered by clear agreements.
Issues Encountered, Questions Asked, Decisions Made
James Williams, Copyright
and the University of Colorados Digital Future
James Williams spoke of the University
of Colorados Digital Sheet Music Project (3000 digital
images of historical sheet music with a Colorado connection) within
the Colorado Digitization Project. The source material is out of
copyright and it supports a specific research project of a faculty
member in the College of Music on socio-historical musicology.
Generally he felt pessimistic about the future of copyright law
to facilitate what needed to be done, especially for Congress to
understand the difference between the needs of higher education
and those of the entertainment industry. He felt it vital to be
vigilant, to stay the course with legislative activity, and to continue
to negotiate for the rights of users.
He then raised the array of issues, many of which intersect with
IP questions, facing UCB as it works to create a digital library
of primary source materials. Fundamental, he said was a need for
new models of how different entities could work together, in creating
the life-cycle management of digital materials and in evaluating
their impact on teaching, learning and research.
Research libraries had a lot more to learn about selecting material
for digitization, using digital primary resource materials, integrating
teaching and research resources, and supporting experimental scholarship
initiatives on campus.
Williams thought the major challenges UCB had to face included
changing organizational culture, how to incorporate innovation and
develop a clear vision and set of aspirations that accommodate to
constant change and how to act as an incubator of new scholarship
ventures in the development of new models of scholarly communication.
He felt the emergent new model will probably be strongly influenced
by primary source materials and would be built around a distributed
academic server farm involving university presses, research libraries,
academic computing centers, and communities of scholars, all serving
as equal partners in the venture. He cited BioOne, EPIC at Columbia,
the SPARC Initiative at ARL, and Highwire Press as examples of the
way forward. He noted that in many of these projects, the creator
obtains a non-exclusive, limited license for educational purposes,
so that the products may be shared freely within the educational
community, including their distribution through publicly available
web sites. This is the model that protects and fosters a true intellectual
Williams concluded that practice was needed (before more theory),
especially along the collaborative lines of the CDP, where he found
a useful adjustment to the scope of local responsibility while contributing
to other digital repositories.
Kevin Anderson, Giving
Credit: the Permissions Cycle
The best way to preserve our heritage is to share it.
The best way to share our heritage is to preserve it.
In Andersons experience at the Casper College Library in Wyoming,
digitization brings the archivists twin responsibilities
of providing access and protecting rights into sharp relief. While
researchers at are now routinely referred to Casper's digital image
database, rather than having to wait for duplicate prints to be
made, they then typically expect the entire collection to be available
publicly on the Internet: they dont understand the rights
On the other hand, he said, archives, too often left responsibility
for finding out about copyright to users, asking them, to sign a
use agreement accepting full responsibility for copyright clearance,
without giving any guidance.
Rights the library had to protect include those of: the creator,
the donor, the subjects of the works, and the institution.
- Credit: Although, of course, the creator of a work has
the right to the monetary rewards from that effort, Anderson had
found that very often the copyright holder is more concerned with
receiving proper credit than in receiving financial reward.
- Citation: Citing a work correctly is crucial, as it expedites
the discovery of the copyright owner, should a user want to copy
or further use it.
- Fidelity: Archival and historical institutions have to
be particularly on guard against the publication of altered items
or must demand clear notice to the public of any alterations that
are made when historical information is presented to the public.
- Donations: Archives need to cover copyright by license
or assignment, or perhaps by negotiating extended fair use,
as well as to give credit to creator and donor.
- The Archives: Archives themselves should receive credit
for preserving and providing the materials to the public.
He warned that although any rights assigned to the institutions
should be protected, it was important to clarify the limits to those
rights (this includes clarifying the rights that donors actually
possess and can assign to the institution
While researching and acquiring images for Caspers National
Historic Trails Interpretive Center, Anderson made the following
- Time & Money: Copyright research takes time and money:
It took him two months to locate the bibliographies, acknowledgements,
and institutional policies needed simply to determine and locate
who had physical ownership and use rights to the image, and who
had copyright and other intellectual rights to the image. Copyright
clearance centers often have limited information, or charge for
access. Locating the original copyright holders heirs, or
following the path of ownership from the original publisher through
all of the subsidiaries and mergers of the past few decades, requires
a lot of information.
- Tools Needed: Most use agreements tend to distance themselves
from the details of copyright, although one institution, provided
a decision table to assist the researcher.
- Beware Production Values: Designers emphasize production
values (cropping, tinting, etc.) over historical accuracy
and dislike citations, which compounds the permissions problem
if you dont cite correctly and in full, then we are
back to why this was difficult in the first place. Contracting
out to other producers exacerbates the situation.
- If at First You Don't Succeed: Follow-up is essential
when seeking permission as staff often dont read or understand
a request letter on the first time round, which sometimes includes
requests to alter the image.
On a positive note, Anderson reported that the Trails Center is
planning an image acquisitions notebook with full information
for assisting with copyright questions.
Anderson posed some examples of good practice in this area by other
organizations. These include:
- Full citation of images, including an accession or negative
- Not allowing any alterations to images without permission and
an explanation in the credit line.
- Not allowing any alterations that would embarrass the subject
of an image.
- Not allowing digitization of images for a project by a vendor
at a resolution greater than 75 dpi (and destruction after the
project of any master files that need to be created at higher
resolutions to produce such images)
An example of actual practice at the Casper Library was the donation,
shortly before Richard Cheney was selected as George Bushs
running mate, of a large photographic collection by the Casper Star-Tribune
that included assignment of copyright. The subsequent demand for
images of Cheney caused the Casper Library to revise their use agreement
to not allow cropping or alteration of the image without permission,
nor to allow use of the image in a way that would embarrass the
subject; to place credit lines and a copyright notice on the digital
image itself; and to ask for donations rather than implement a use
fee (wanting to share its historical information, the Library also
wanted to avoid lawsuits).
The Casper Library will be experimenting with watermarking images,
software locks and password protection on its ftp site, along with
a copyright notice, published policies, and downloadable request
It will also strengthen its donor agreements (clarifying the difference
between ownership of a work and ownership of copyright); its use
agreements (clarifying which rights Casper has and how to discover
and contact other copyright owners); and the information in its
database (on the copyright status of a work; on the photographer;
original information that came with the image together with assigned
terminology, authority records, and thesaurus information and more
Caspers longer-term ambitions include: Developing a complete
in-house image database; include photographs of local homes and
other buildings; OCR indexes, tables of contents, and lists of illustrations,
in order to improve access to published items; offering the text
component of the database free online, worldwide; and altering our
permission forms to include the rights to digitize.
In conclusion, Anderson proclaimed that perhaps his greatest desire
was to see a free central clearing house for permissions to cultural
Issues To Consider When Digitizing Collections (September, 1999)
Prepared for the CDP by Jean Heilig