>>Intellectual Property Subject Area: RIGHTS AND PERMISSIONS Kathe Albrecht Sanford Thatcher Diane Zorich 1. INITIAL STATEMENT Many in the nonprofit "user community" (I'm sorry I need some suggestions to replace this term) feel stymied in their efforts to use material in teaching and scholarly work through the immense and cumbersome process of obtaining permission to reproduce work, as well as by their inability to retain usage rights for the long term in their developed "product" so it can be used in teaching again and again. Faculty feel . deservedly so . that they often can't justify the hours spent developing thee materials when they can only be used for one course or one semester. The need long.term usage rights specifcally for uses involving course material development. This was one of the big MESL concerns. The issues here include: Discovery & Response .. finding the copyright owner (if any) to seek permission .. getting timely response .. negotiating terms and conditions on a one.off basis time and again Fees ...getting recognition that nonprofit educational use (as opposed to commercial educational use) requires a separate fee structure, a fee structure that is responsive to the type of use. On the other hand, those nonprofit institutions that own the copyright (or those who do not own the copyright but who receive permission ) on material are frequently overwhelmed by the number of requests, often as a result of internet exposure. Multimedia: While the issue is often bad for those seeking permissions to reproduce texts and worse for those seeking to reproduce images, it is intolerable for those seeking to use audio and visual clips from commercial film and audio material. Non.copyright union issues with using filmed performances .. can we even think of going there? Possible areas for solutions: .more and more advanced online copyright clearance centers for this community (possibly broken down into specialized sub.sets) ..development of automatic clearing of rights through advanced technology; ..other ideas for automating, streamlining or making more efficient the system of seeking and granting permission to reproduce material (see, eg Tom Bowers proposed "Image Publication Use Evaluation Form" produced for National Museum of American History) 2. SECOND STATEMENT The Community The cultural community is actively engaged in making digital materials available for educational purposes. Those sectors with an interest in exploring the paths to digital access may include the academic publishing industry, the visual arts community, museums, libraries, academic institutions, performing arts groups, and various associations involved in the ownership and distribution of cultural materials. In the course of making materials available to scholars, instructors, students, and the general public, there are rights and permissions issues that must be carefully addressed. Unfortunately, many of those interested in using networked information feel stymied in their efforts to use these materials for educational purposes in large part because of the immense and cumbersome process of obtaining permission to reproduce such work, as well as by their inability to retain usage rights for the long-term educational purposes. What are the specific issues that surround this rights and permissions conundrum? The Problems One major factor is the problem inherent to the rights discovery and response process. Finding the copyright owner of a specific work in order to seek permission is difficult. Often, even after a great deal of due diligence, a copyright owner cannot be identified, and the organization may remove a work from consideration in their educational plans. When a copyright owner has been located, getting a timely response may be difficult. Even if the discovery and response issue can finally be resolved, the thorny issue of fee and usage structures remains. Negotiating terms and conditions on a continual basis can be both time-consuming and inefficient. Different fee structures for short-term use and long-term use is an artificial barrier for those organizations and institutions with non-commercial education missions. Often, faculty in cultural and research organizations feel that they cannot justify the hours spent developing these materials and the digital delivery system. Their primary focus is on their particular field of study and not on methods of information delivery. They may then give up on the entire concept and fall back on traditional delivery. By stymying organizations and individual faculty in such a manner, these fee structures become an impediment to the advancement of education in the digital arena. In examining the problem of fees, it is important to note that non-profit educational use (as opposed to commercial educational use) will require a separate fee structure, one that is responsive to the type of use. This fee structure must acknowledge the dichotomy between a cultural organization’s small budget line for such fees and the importance of its educational mission. The development of educational multimedia applications carries its own set of unique problems that are largely related to scale. The use of audio and visual clips from commercial film and audio materials can require literally hundreds of copyright clearances, most of which must be identified and negotiated individually. The sheer volume of such clearances is daunting enough make many cultural and academic organizations withdraw from projects they would otherwise wholeheartedly pursue. Furthermore, there is little incentive among commercial entities who own content to streamline the process: the commercial sector can sustain the necessary staff and infrastructure to pursue the onerous rights clearance process because it profits so highly from it. A sizable number of cultural organizations are themselves copyright owners of various creative works, and may be overwhelmed with requests for usage of these works as a result of Internet exposure. While the increased visibility is welcomed, it is tempered by the knowledge that these organizations, with their perpetually limited resources, can never fully or adequately accommodate the increasing demand. Those cultural and academic organizations that do actively (through in-house rights and reproductions departments) license their copyrighted works find that the process for doing so is just as cumbersome for a rightsholder as it is for a user. Possible Solutions There may be varied outcomes that successfully address issues arising from the use of copyrighted digital materials. It may be that more and more advanced online copyright clearance centers for this community will materialize. These clearance centers may be broken into specialized sub-sets or serve a broad clientele. Further advances in technologies may allow the development of automatic clearing of some types of rights. And other ideas may arise for automating, streamlining or making more efficient the system of seeking and granting permission to reproduce material. In order to discover solutions to problems stemming from rights and permissions-seeking, one must survey the existing landscape by examining the traditional practices of permissions seeking, recognizing the emerging problems with such a process in the digital arena, and revealing the roadblocks along the way from stories “in the trenches.” Such a survey would be an important contribution to solving the rights and permissions conundrum for future educational use of networked cultural information. We recommend commissioning such a survey of the cultural landscape to better address the specific weaknesses and strengths in this important area.