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>> Copyright >> 2002
Town Meeting
 COPYRIGHT
TOWN MEETING: St. Louis, March 23, 2002
The Changing Research and Collections Environment:
The Information Commons Today
Hosted by the First Joint Conference of the
Visual Resources Association and the
Art Libraries Society of North America
Meeting Report
WELCOME AND INTRODUCTIONS
Kathe Albrecht, Welcome from VRA
Roger Lawson, Welcome from ARLIS
David Green, The Meeting in Context
THE INFORMATION COMMONS TODAY
Michael Shapiro, Imagining the Public Domain
Jeffrey Cohen, Implementing Public Domain Collections
Online
Robert Baron: Response
Discussion
LICENSING CULTURAL RESOURCES
Mary Case, Trends in Licensing Models
Robert Clarida, Fair Use
Tony Gill, Licensing RLG Cultural Materials
Discussion
Resources
Speakers' Biographical Sketches
WELCOME AND INTRODUCTIONS
Kathe Albrecht,
Welcome from VRA
Albrecht welcomed the 250 participants to the 18th NINCH Copyright
Town Meeting on behalf of the Visual Resources Association. She
suggested that in this period of change information specialists
are working with new media, traditional media, and often a combination
of both. Because of this changing environment, she said, the history
and status of the public domain becomes ever more important to visual
resource professionals. She thanked NINCH for five years of these
copyright town meetings and added a few words on what she called
the fruitful collaboration between NINCH and VRA.
Roger
Lawson, Welcome
from ARLIS
Lawson, the ARLIS NINCH liaison, followed Albrecht’s welcome
with his own and with thanks to NINCH for providing a forum for informed
public discussion. He declared that information professionals were
facing “a vast frontier of unknown territory” and that NINCH
was assisting both VRA and ARLIS members in charting this unknown
territory.
David Green, The Meeting in Context
Green placed this Copyright Town Meeting in the context of the series
as a whole. He added his welcome and his thanks for the close collaboration
between VRA and ARLIS that made this meeting possible. He thanked
the other members of the local planning committee: Kathe Albrecht,
Roger Lawson, Barbara Rockenbach, and Maryly Snow,
He described NINCH as a diverse coalition of users,
producers, and distributors of cultural materials that are part
of the broad effort to build a networked cultural heritage. He expressed
the need to create what he called a “dynamic digital exploratorium”
involving libraries, archives, universities and museums where different
kinds of users could do very different things with a wide range
of high quality digital materials and be assured of their veracity
and longevity. Copyright is the keystone to this construction and
without an intellectual property regime, legal frameworks, and community
buy-in that enables the community to do what its members need to
do lawfully and economically, there is little prospect of that exploratorium
becoming a reality.
The NINCH copyright program is rooted in the Conference
on Fair Use (CONFU), 1994-98, which attempted to fashion practical
fair use guidelines. The outcome of those meetings was disappointing
in that the proposed guidelines that could have been platforms for
what the community could do, ended up as low ceilings, and they
were generally not accepted nor endorsed by the community. However,
said Green, in the process of engaging with CONFU, many realized
that there was widespread misunderstanding of fair use in particular
and copyright in general. NINCH joined with many of its members
to initiate a series of these copyright town meetings that sought
to educate the community on copyright and to begin to strategize
for legal solutions to the intellectual property quandaries that
were facing the community as it entered the digital world.
In conclusion, Green discussed the National Academies
report, The
Digital Dilemma : Intellectual Property in the Information Age.
The report suggested that the same technology making current information
more available quickly and completely has the potential to demolish
the careful balance of public good and private interests represented
in Copyright Law and in the U.S. Constitution. He concluded with
comments on the Copyright Term Extension Act, which had removed
a large portion of the public domain and which would be the subject
of a Supreme Court decision in October 2002.
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THE INFORMATION COMMONS TODAY
Michael Shapiro began by quoting former Register
of Copyrights Ralph Oman, describing an earnest visitor to the Library
of Congress looking for items in the public domain. “Where
can I find the public domain?” the visitor asked. Register
Oman responded: “I don’t know, but it must be very deep.
Books, plays, music, and other works are always falling into it,
but it never seems to fill up!”
In the 1976 Copyright Act, Shapiro noted, Congress
could draw a map of the public domain with reasonable confidence.
The public domain was a place where users could find creative works,
or parts of creative works, which could be used without the need
to seek permission from or compensate the author. The public domain
also included ideas, facts, methods, titles, short phrases, and
works of the federal government. Nonetheless, while Congress could
describe the public domain, it could not explain it.
Until quite recently, the public domain was more
a legal conclusion than a coherent theory. During the nineteenth
century, judges often denied copyright protection to works that
were deemed “undeserving protection.” For example, foreign
works frequently fell into the public domain because the authors
failed to comply with the formalities of U.S. law. In the last two
decades, however, a new interest in developing a general theory
of the public domain emerged as part of a larger reinvigoration
of legal studies. Armed with new cultural theories, legal scholars
have developed a rich, new understanding of such fundamental copyright
principles as authorship and originality. The latest candidate for
re-examination is the public domain.
In a seminal law review article, “Recognizing
the Public Domain,” Law & Contemporary Problems (1981),
Professor David Lange initiated the modern study of the public domain.
He thought that remarkably little attention had been paid to it
and that it was “something of a dark star in the realm of intellectual
property.” Although Lange felt that copyright law was then
in a “state of equilibrium,” he worried that the reckless
expansion of publicity rights might upset the careful balance set
forth in the 1976 Copyright Act, posing a threat to the public domain.
“As access to the public domain is choked off or even closed
altogether,” he wrote, “the public loses too; loses the
rich heritage and its culture, and the rich presence of new works
derived from culture, and the promise of new works.”
A decade later, Professor Jessica Litman, in an
article simply entitled “The Public Domain,” observed
that copyright law (far from being in a state of equilibrium) was
in a state of conceptual disarray. Copyright’s fundamental
principles – originality and authorship – had devolved
into “dangerous conceits.” Moreover, such legal fictions
had unfortunate real world consequences. Professor Litman argued
that plaintiffs face the “impossible and unwelcome” task
of proving the originality of all elements of their works, while
defendants run the risk of incurring liability through otherwise
unavoidable copying.
To “rescue us” from the inflated claims
of originality and authorship, Litman argued for a revitalized notion
of the public domain. “The public domain should be understood
not as a realm of material that is undeserving of protection, but
as a device that permits the rest of the system to work by leaving
the raw material of authorship available for authors to use.”
Thus the notion of a public domain is the conceptual missing piece
in the copyright puzzle, which permits copyright law “to avoid
a confrontation with the poverty of some of the assumptions on which
it is based.”
Nonetheless, some scholars remain skeptical about
the usefulness of a general theory of the public domain. Professor
Edward Samuels, for example, questions whether such a theory would
provide helpful guidance for courts or lawmakers. The Constitution
teaches that copyright must be of limited duration. But how long
is long enough? Samuels asks how a general theory of the public
domain will advance this discussion. More significantly, Samuels
asks: “What is gained by reifying the negative, and imagining
a theory of the public domain?” If the purpose of a general
theory of the public domain is to create a “rallying cry”
and add a moral overtone to counter balance the morally charged
principles evoked by those seeking copyright protections, a general
theory may be of use.
Two decades after Lange formulated his ideas on
the public domain, the territory has been dramatically reshaped.
As a result of international trade agreements, copyright has been
restored to certain foreign works that entered the public domain.
The Copyright Term Extension Act of 1998 serves as a virtual dam
blocking the flow of creative works into the public domain for a
twenty-year period. In response to these challenges, some commentators
have called for a new activism. Taking Samuels’ challenge seriously,
Professor James Boyle argues that a revitalized notion of the public
domain indeed may serve as a “rallying cry” for a grassroots
intellectual property movement, much as the concept of the “environment”
served as the early environmental movement. In a similar vein, Lawrence
Lessig in The Future of Ideas calls for a robust “information
commons,” a territory where resources are available without
the need to obtain permissions and which would serve as a spur to
innovation and creativity.
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Jeffrey Cohen, Implementing Public Domain Collections Online
See PowerPoint presentation (Acrobat PDF): see References
and Resources
Having helped develop a project that shares online teaching images
of key architectural landmarks, Cohen imagined an information commons
that includes both licensed image collections and free images for
educational and non-profit use. The free images should include not
only those works already in the public domain but also photographs
taken by educators who are willing to share them for non-profit,
educational uses. Some key images may be closely held and available,
by their very nature, only in a part of the commons that is fenced
and gated - accessible only through subscriptions that will enable
rights-holders to recover their costs, and/or to enable the development
of software for the high-end delivery of such materials. But Cohen
argued that it is our responsibility to ensure that the complementary
free landscape of images becomes a reality by working to ensure
the robustness of the public domain and by actively collaborating
to build a shared resource rich in such content.
Looking forward to the “tipping point,” after which the educational
community will have access to a critical mass of high quality digital
images of predictable and dependable coverage necessary for teaching
purposes, Cohen declared that the current hybrid period of co-existence
between slides and digital images would last for the next five to
ten years. The advantages of using digital images are many, including
the ability to easily share them, to save lecture sequences, to
make image sets available beyond the classroom, to be able to make
ad hoc points in a lecture rather than stick to a predetermined
sequence and not to have to re-file slides after a presentation.
The tipping point will be defined by:
- richer access to images than is currently available in local slide collections
- a certain level of comfort and functionality provided for the user (e.g.,
virtual light tables), and
- a budgetary administrative push once the digital possibility is perceived
as more cost effective.
Before this tipping point, Cohen declared that we should have two goals
: 1) to take advantage of and to develop the potential of digital
technologies in order to build accessible open collection of images,
and 2) to work towards shared cataloging of resources. Through a
combination of copy cataloging and local cataloging, we should be
able to decrease redundancy and share resources. This shared environment
would bring together data and images from multiple institutions
and permit free access for educational non-profit uses. It would
focus on teaching while respecting rights, would be flexibly accessible,
and would ultimately save time and money.
What might a shared digital teaching resource offer? It should clearly
expand access to materials beyond what is currently available on
slides and it should avoid duplication of effort. It should be defined
around teaching requirements rather than around collection availability.
Images should also be untethered from particular narrative structures,
so they can be easily re-used by educators. It should be free for
educational, non-profit use and it should respect and protect the
intellectual property rights of contributors.
Cohen's area of specialization is the built environment and, showing
how images are used differently in this area, he continued by illustrating
the viability of such an undertaking. Buildings require multiple
views from different vantage points. Educators use what they call
“pointed images” to make specific points in teaching:
many architectural historians have thousands of pointed images they
have photographed themselves and which they are often very willing
to share with others. Collectively, this is a massive body of material
that could be aggregated for a broader benefit (see Cohen’s
resource list for some
examples of these collections). These pointed images and image collections
are often idiosyncratic - not the kind of material a vendor is likely
to provide. One model project for this type of resource sharing
is the Image Exchange
project of the Society of Architectural Historians.
Broadly speaking, Cohen commented, “There’s a whole lot of
scanning going on.” Low image quality and a lack of real standards
may characterize much of this activity, but he suggested we not
discourage or stop this activity. He proposed we should be flexible
with quality and standards, with an eye towards immediate utility
and ultimately replacing the good with the better. The urgency,
he said, is to provide free access to images now; higher functionality
and quality can come later.
Cohen also talked about the split between the local and national allegiance
of VR professionals and Art Librarians. Most serve at both a national
and a local level and their work for each is valuable. The time
and resources contributed to the national image projects will ultimately
benefit the local clientele. Cohen also imagines fruitful collaboration
with subscription databases such as AMICO and ArtSTOR, where content
could be offered and exchanged for its integration into their libraries.
To build an image bank to meet the majority of scholarly needs we
need to draw on public collections, archival collections, and those
willing to contribute copyrighted content. While some parts of the
realm of teaching images may have to be fenced to respect the prerogatives
of rights-holders, a complementary landscape must be built to accommodate
the needs of educators. Ulitmately, we must also enable sharing
across the fence with the high-end licensed-image products in order
to address the access desires of scholars and teachers and the wider
range of economic resources at institutions of varied stripe.
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Baron’s response to the first two speakers
focused on the metaphors used to describe the public domain and
copyright. He spoke about the negative implications of the commonly
used term, “to fall into the public domain.” To him, this
phrasing suggests that works in the public domain communicate a
compromised moral status. Other terms used to describe the public
domain, such as “no man’s land,” “dark-star”
and “black hole” certify that this negative interpretation
of the public domain is tantamount to a loss of control and opportunity
– not as a valuable public resource.
Baron suggested this language and sentiment is symptomatic
of what he calls “copyright colonialism.” He suggested
that a better way to imagine the public domain is to give it a territorial
existence, just as we do with copyright. The public domain should
have a corresponding bundle of rights, ensuring that it be treated
like a crucial cultural resource that needs to be protected. In
addition, our educational and cultural organizations need to become
advocates for the public domain, feeding it, and helping to guarantee
that it remains a protected area that we and the rest of society
have a moral and legal right to use.
Since the conference, Baron has elaborated these
ideas in a paper entitled, “Reconstructing
the Public Domain.”
Comments, Questions and Discussion
The first section of the meeting was followed by
15 minutes of questions moderated by Kathe Albrecht.
A question was asked about why the Center for the
Public Domain no longer exists. Baron responded by saying he had
no hard facts, but that he believes with the collapse of the dot.com
economy, the center lost its funding.
A comment was made about the fact that teachers
often use textbooks in the arts based on the images rather than
on the text because students want the same images in their textbook
as they see in class. The commentator suggested that if the text
does not matter then a body of images on the web could allow faculty
to create their own textbooks based on images of their choosing.
Cohen thought the loss of textbooks and the opening up of digital
image collections for teaching would not necessarily be a bad thing.
He believes textbooks have constrained teaching to key monuments
while teachers have desired more flexibility. Digital images may
provide this flexibility.
A discussion started about the role of digital projects
in the tenure process. An audience member observed that Cohen referred
to many digital projects as “free” and yet much faculty
and staff time was volunteered to create these collections. Are
faculty digital projects taken into account in the tenure process?
Cohen responded that creating a digital resource is generally not
considered a scholarly activity to be included in a tenure package.
Another audience member followed up on the question
about digital image collections and textbooks, but suggesting that
digital image collections are similar to the University Prints collections
used in the past. Like digital images, the prints were not part
of a larger scholarly work and could be used in many different contexts.
Cohen suggested that digital images are much better than the university
prints because it is much easier to share images and contribute
to larger collections in the digital realm.
An audience member suggested that one way to ensure
that works pass into the public domain is to persuade donors to
dedicate their images and documents to the public domain when they
give to a university. Baron responded by saying that this is a good
gesture, but one that may not hold up in court if the heirs decide
they still have rights to the materials. A better arrangement might
be a licensed agreement that is admissible in a court of law.
Finally, an audience member expressed concern about
her son ‘stealing’ images from the web and the future
implications of children who take these stolen images for granted.
Shapiro began his answer by explaining that the same copyright and
intellectual property laws that have always applied to creative
works still apply to protected works disseminated on the web. This
means we have the same rights and responsibilities that we have
always had under copyright laws. Within this general framework,
images transmitted over the Internet present especially difficult
problems (such as the copying of “thumb nail images” and
the use of search engines to gather images into databases). Artists
require protection, but certain uses of images may be fair uses.
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LICENSING CULTURAL RESOURCES
Mary Case, Trends
in Licensing Models
See PowerPoint presentation (PowerPoint download); see References
and Resouces
Mary Case began her talk by displaying a license
agreement that opened an October
2001 article by Jeff Howe in Wired magazine. The license agreement
outlines the acceptable uses of the article ending with “your
license to read the article expires 30 days after acceptance of
the Reader License Agreement, as indicated by tearing the perforated
seal, after which the printed ink may fade in such a way that the
words may cease to be legible.” Case pointed out, this license
may be humorous but it does illustrate the tendency of content owner
to want to control as many uses and users as possible and the impermanence
of the licensing model.
Why licenses? Case discussed the reason licensing
became more prevalent in the 1990s. As publishers began producing
electronic products, they felt that the 1976 Copyright Act was not
sufficient to protect their interests. Publishers believed that
the ease of copying electronic information threatened their economic
viability. CONFU’s failure to produce guidelines for the fair
use of digital works also contributed to the publishers’ perceived
need for licensing models. To the publishers, licenses are preferable
to copyright law because they can include specific use terms that
remove the ambiguity for both parties of assessing the four fair
use factors. Suing for breach of an unambiguous contract term is
also likely to be more successful than suing for copyright infringement.
Publishers felt that the uncertain copyright environment of the
1990s coupled with the lack of technological protection measures,
made it necessary to protect their electronic products with licenses.
They were also following the business model of software companies
that used licenses to protect their interests and to manage a complex
array of rights.
Licenses have evolved with the rapid increase of
electronic products and the resultant market pushback. Early licenses
were very restrictive but have become much more reasonable in the
last few years as librarians have learned to negotiate; as libraries
have banded together in consortia to create greater bargaining power;
and as librarians and publishers have come together to develop model
licenses. Many libraries now have a dedicated staff member or department
devoted to license issues. Whether working with colleagues within
the institution or with publishers, negotiating licenses is as much
an educational process as it is a legal transaction.
Licenses introduce new issues for libraries. One
is that the user population has to be more clearly defined than
it was in the past. Libraries need to make sure that all appropriate
users are covered by the license. Occasionally, exceptions must
be argued for. Early licenses did not include those members of the
public allowed access to academic libraries. Now, libraries have
been able to make a case for these "walk-in" users as
part of the authorized user population. Another issue is authorized
uses of electronic products. Licenses often attempt to quantify
fair use, for example, and librarians need to ensure they do not
give up rights guaranteed by copyright law. Another new front iis
liability. Librarians should be very careful not to accept liability
for the unauthorized acts of their users nor to accept responsibility
for monitoring their users' online activities.
Another important issue for the library community
is the time sensitive nature of licensed content. Every time a license
is up for renewal a library may have to renegotiate and there is
a chance that content will be lost. Since in most cases no local
copy is owned, there is no guarantee of long-term access to materials.
This raises questions about maintenance of content, technological
migration, and finally archiving issues. If content providers cannot
ensure that they will be dealing with the above issues and libraries
do not own a local copy, there is no way of knowing what content
will be available for the long term.
Progress is being made. Fair use is now often included
in licenses, along with broader use rights. Licensees, i.e., libraries,
can now also use licenses to set performance expectations for the
licensors.
What does the future bring? Case spoke about the
implications of UCITA. This is a state-based effort that would make
the terms of click-through licenses enforceable. What this means
for libraries is that content providers could circumvent negotiations
by offering only click-through licenses for their electronic products.
Some content providers may find this option attractive because it
is cost-effective and simple compared to the long negotiation process
that exists now. Libraries could lose fair use rights if this becomes
a reality.
Further implications of UCITA and the new licensed
environment are that much content may never pass into the public
domain. Libraries will not own local copies and won’t have
the right to ownership with licensed products. Therefore publicly
available copies just won’t exist. Furthermore, since copyright
terms are so long, it may not be economically feasible for content-owners
to maintain works as economic value declines. She suggests this
indicates a broken digital promise that needs to be righted—that
is, the promise embedded in copyright law that rights will be granted
to authors for a short time with the assurance that one day those
works will pass into the public domain (from The Digital Dilemma,
2000).
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See list
of references and resources
Although Robert Clarida's clients are mostly corporate
copyright owners, he declared a strong belief in fair use and finds
it wrong that the Collected Poems of Emily Dickinson, which was
not published until 1924, will not be in the public domain until
2019.
Clarida framed his presentation by observing the
difference between those who stand to make a profit from expressive/authored
works and those who want to use them for creative purposes but do
not have the means or desire to pay for the materials. Copyright
law seeks to resolve or mediate this clash. Both the private commercial
interests and free access interests are good for the public. The
constitution tells us that that private interest should serve the
public, in other words copyright law should force the ideal between
public and private interests.
The fair use doctrine places a limit on exclusive
rights during the copyright term. The fair use doctrine consists
of four factors that codify common law doctrine. These factors are:
-
the purpose and character of the use, including
whether such use is of a commercial nature or is for nonprofit
educational purposes;
-
the nature of the copyrighted work;
-
the amount and substantiality of the portion
used in relation to the copyrighted work as a whole; and
-
the effect of the use upon the potential market
for or value of the copyrighted work.
These four factors are extremely fact specific,
which means that each case stands on its own. No general definition
of fair use can be applied to all cases. To date, there has been
no fair use case directly dealing with research libraries, so we
are left to reason by analogy. The fact that fair use law has not
been frozen works to our advantage because it has allowed the notion
of fair use to change over time. It has remained flexible even with
all the technological changes and new media.
The court takes into account factors beyond the
four fair use considerations. If the materials in question would
benefit the public, the court may lean towards a more open interpretation
of fair use. However, just because a work is being used by a non-profit
or educational entity, it is not automatically considered a fair
use. Clarida cited Byrne
v. British Broadcasting Corporation, a recent complex case that
resulted in a ruling against the BBC claiming that their use of
copyrighted material did not fall into the category of fair use,
even though the BBC is a non-profit.
In the Kelly v. Arriba Soft (formerly know as Ditto.com)
case of 1999 a photographer, LeslieKelly, sued Arriba Soft because
its visual search engine returned thumbnail images of his works.
Kelly makes a profit on his photographic images of California Gold
Rush country through printed publications that are sold on several
web sites. He therefore felt Arriba Soft was cutting into his profits
by providing the images free through their search engine. The court
ruled in favor of Arriba Soft: re-using thumbnail images was considered
fair use (as the quality was below acceptable commercial use). [This
case was upheld on appeal: http://netcopyrightlaw.com/pdf/0055521.pdf.]
Although encouraging, the Kelly v. Arriba ruling does not state
that all uses of thumbnails on the web are fair use. All cases need
to be decided on a case-by-case basis, with all the facts taken
into consideration.
Clarida also cited the American Geophysical Union
v. Texaco case, in which American Geophysical alleged that Texaco
scientists made infringing copies of articles from its publications.
The Texaco employees made copies of circulatedarticles they wished
to retain. Texaco claimed this was fair use, even though a license
for the journals in question was offered by the Copyright Clearance
Center and Texaco could have purchased the license to distribute
the copies. Clarida suggested that we investigate and seek licenses
whenever possible for the reasons Case stated in her talk. Licenses
protect both parties and make litigation in these cases much more
clear-cut.
Clarida ended with a political exhortation to support
the Technology Education and Copyright Harmonization (TEACH) Act
that ensures fair use in digital distance education. (See reports
on the progress of this legislation)
Tony
Gill, Licensing RLG Cultural Materials
Gill opened by outlining the difference between
what cultural materials are, and what “RLG Cultural Materials”
is. The former are primary, unique works that document culture and
are found in museums, libraries, archives and historical societies.
They are the products of human ingenuity and are increasingly used
for research and learning. The increased demand for these types
of materials sparked RLG to embark upon the Cultural
Materials Initiative, to support enhanced access to material
culture. The Cultural
Materials Alliance (CMA) is the group of 47 RLG member institutions
committed to building a collective digital resource as part of the
initiative: RLG
Cultural Materials is an integrated web-based multimedia collection
of works from Alliance member collections that document culture
and civilization. The goal of this multimedia collection is similar
to that of the “digital exploratorium” that David Green
mentioned in his introduction. RLG Cultural Materials has a rich
toolset for discovery, examination, comparison and use. It is currently
available by subscription for education and research.
Participation in the Alliance is free for RLG members.
Alliance participants sign the Alliance license agreement, contribute
digital content, and may be asked to serve on advisory committees.
The development timeline for the licensing framework began in 1999,
and through the work of many lawyers, the Alliance agreement was
formulated by April 2000. At the center of the agreement is the
notion of fair use. Alliance participants do not receive any royalties
or license fees in return for the educational use of their contributed
content. The agreement also incorporates a statement of intent and
embodies the “spirit” of the collaborative initiative.
Additionally, the agreement includes placeholder clauses for sublicensing
and pay per view, with a revenue sharing model to be agreed upon
in the future. Of great importance is the fact that the agreement
ensures that content will remain stable throughout the academic
year with an opportunity for Alliance participants to withdraw content
on September 1st, although there is a "rapid removal"
clause in the event of rights issues.
Academic subscriptions are available to academic/research
institutions based on the existing RLG service agreement. This agreement
essentially protects U.S. Fair Use provisions. The Academic License
for RLG Cultural Materials amends and/or clarifies clauses in the
standard RLG service agreement and also offers some additional definitions
and clauses. One of the special definitions is the term “work:”
a digital surrogate and related description of a cultural artifact
from an Alliance member collection. Special terms disallow any work
from being used on a web site that is accessible to non-permitted
users, and on cessation of subscription, the subscriber must use
their best efforts to remove local copies of works. This helps to
protect Alliance member materials.
The license does allow for a wide user base, permitting
use by currently-enrolled students (including distance learners),
staff, faculty, researchers, affiliated researchers, and anyone
accessing the service from on-site. Permitted uses within access-restricted
educational sites include downloading, printing, modifying, and
storing of single copies for information, instruction, research,
or scholarship. Each work used should include a credit line to identify
the work, and a copyright notice. The following will not be permitted
under the academic agreement: use on commercial or business-related
websites; use in a website accessible to non-permitted users; storage
or use after the expiration of a subscription; and special uses
outside the permitted uses already stated without prior approval
from the work's contributor.
Gill ended with an outline of some possible future
extensions to the service and its licensing framework, to be discussed
by the Policy Advisory Group. Under consideration are an ‘individual
service’ freely available on the open web, pay-per-view and
click-through licensing, a referral mechanism for non-standard uses,
and a revenue sharing model for alliance members.
Open Forum
To a question on the place of unaffiliated independent scholars
in a licensed universe, where most licenses are negotiated with
a university or cultural institution, Gill replied that RLG is planning
a free public version of the Cultural Materials database available
on the web and is trying to build an infrastructure that is sustainable,
rather than grant funded, and which would then be able to more easily
support individual use. Case replied by that publishers might introduce
a pay-per-use model for individuals. Jennifer Trant added that AMICO
would now be available for individual use.
To a question of whether institutions, by signing
a license, sign away fair use rights, Case
stated that, if fair use rights are not already addressed in the
license, one can add language to ensure that they are protected.
Such language can be found in the Liblicense Standard Licensing
Agreement: "Nothing in this Agreement is intended to limit
in any way whatsoever Licensee's or any Authorized User's rights
under the Fair Use provisions of United States or international
law to use the Licensed Materials." She warned us to never
sign a license that restricts the fair use rights of users.
Jennifer Trant suggested an interesting model for
the public domain by drawing an analogy between our intellectual
property environment and the nature conservancy. Like the nature
conservancy, we could consider intellectual property in terms of
mutual values to producer and user and create a public intellectual
property conservancy. A legal framework would need to be created,
but it would allow intellectual property owners to donate back to
the conservancy for mutual benefit.
Finally, the open forum ended with a discussion
of risk management. Clarida stated earlier that there has been no
intellectual property case involving a research library as of yet.
An audience member asked if it was in our best interest to try to
push the limits so we will end up in court. Baron stated that our
general counsels and administrators advise those of us at universities,
to not take any risks in this area. Clarida framed his answer in
terms of cost benefit analysis. He stated that the benefit to a
non-profit organization might not outweigh the cost of such a case.
This type of risk may be better handled in a for-profit organization
with more money. He did say that in the case of intellectual property
rights, it is difficult to quantify the costs and benefits.
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