Fair Use and the Disappearing Public Domain: What Art Information Specialists
are Doing and What You Need to Know
Libraries Society of North America 29th Annual Conference, Los
C. Ferrari, Florida Atlantic University
C. Ferrari, Florida Atlantic University
Library Division, Visual Resources Division
Library Division, Visual Resources Division
Besser, UCLA School of Education and Information Studies
Farb, UCLA, Coordinator for Digital Acquisitions
Robertson, LACMA, Rights & Reproductions
three presenters gave valuable insight into the complex issues of copyright and
public domain, especially as they affect visual resource collections.
In addition they each gave us real world common sense strategies for
understanding and coping with copyright and license issues.
Besser, UCLA, School of Education and Information Studies
Disappearing Public Domain: What this means for Art & Creativity"
The session began with Howard Besser's energetic discourse on the increasing and real loss of public domain and with it a public place for human interaction. Besser compared the loss of public domain to the gradual loss of public space over time. Agoras, public baths, and the grand concourses of urban train stations, where people from all walks of life and ethnic persuasions intermingled, have been replaced with a world of increasingly private spaces. The decay of public transit, the lack of a center in many of our urban environments (the fact that we use terms like "urban environment"), and the rise of what Besser calls "pseudo-public spaces," mark our current culture as one in which we separate ourselves more and more from each other. He cites the example of the use of the cell phone, which brings private space uncomfortably into the public realm and destroys the shared nature of public space.
sees a parallel to the loss of public space in the loss of public domain in the
digital world. He began his talk by
reminding us what copyright is -- limited rights held by an author or inventor
as an incentive for further creation and sharing of knowledge.
It was intended to provide a balance between the creators and the users
for the public good. The public domain is the realm of information that includes
facts and ideas: those things that are freely available to all for any use (no
permissions, no fees, no tracking). Besser
argues that public domain allows for a common heritage, allows for progress
(building of ideas on ideas), and for social commentary.
Most threats to public domain come from the content industry that works
to protect that content by returning out-of-copyright material to copyright, by
extending terms of copyright, by requiring licensing (that exceeds the bounds of
copyright), and by imposing other forms of contract law.
In addition to these tactics, content industry is trying to change the
definition of what belongs in public domain.
Facts used not to be copyrightable, but recent database extraction
legislation says that someone can assert copyright over an entire database even
if they don't have copyright of the data content (e.g., phone numbers). This erosion of the definition and access to public domain is
paralleled by the changing interpretations of fair use.
Increasingly fair use is curtailed or entirely pre-empted by licenses and
contracts. The public space created
by the notion of fair use and public domain is being eroded.
what does this mean for art and creativity?
What does this mean for our digital world, our digital spaces?
Besser argues that the control of ideas by license and contract limits
the artistic process in that derivative works (often the nature of artistic
creation) are disallowed, experimentation with and exploration of other's ideas
are diminished, public discovery is limited and core democratic values are
denied. Art does build on earlier
art and, as we know, art doesn't follow business models in that money is not
(usually) the primary incentive. The
artistic process will not be served by the clamping down of rights regarding the
access to and use of ideas.
suggests that it is absolutely crucial that we, as art and visual resource
librarians, be aware of and work to protect the notion of public domain and the
practice of fair use. While
industry may make libraries out to be the enemy of their cause, we in fact
provide the necessary balance. Artists
lack the financial resources to defend their rights, but we, as libraries, have
much of the content and we have the knowledge to know how to protect access to
it. The public domain is ours to
protect and fair use is ours to use. If
we're not aware then these will be taken without our realizing it.
Howard's copyright page -- all the links you could imagine to copyright sources and to Howard's publications.
paper presented to us can be found at:
Farb, UCLA, Coordinator for Digital Collections
While Besser told us why we should be active participants in the copyright and fair use arena, Sharon Farb gave us advice about how to do that. Her main message was of the necessity and power of negotiation. Licensing of digital collections is a complex, but fluid environment. Though it is an often-confusing environment, it is one in which we must realize our own position and potential for power. Farb pointed out that with the increasing commodification of information, intellectual property is the highest value export. As with any negotiation, it's as important to understand the position, needs, and demands of those with whom you are negotiating as it is to understand your own objectives. Libraries and museums are in a unique position in that we are on both sides of the licensing issue; we license materials that we hold and we purchase/subscribe to copyrighted materials.
Farb's experience, she's found that there are recurring perils in the licensing
of digital materials (visual resources included). She reminds us that while seeking licenses, to keep in mind
that everything (that's Everything)
is negotiable. In addition, until
negotiated, there are no guarantees of fair use rights, first sale rights,
archiving rights, preservation rights, perpetual access rights, or completeness
or integrity of content.
suggested four maxims to follow in the negotiation process.
The practice of negotiating is one in which past practice heavily
influences current negotiations so keep in mind that current negotiations
quickly become past practice. Each negotiation is different and should be approached that
way. Always negotiate for the ideal
license. Take everything back
three times before giving up. When
one request is denied, rephrase it and try again.
roles as educators require that we also educate the vendor about why the issues
we raise are important. For
instance, explain why access is necessary to the entire .edu domain of the
institution (and not to a building or campus address).
At this dawning of the digital era, education of the publisher/vendor is
pivotal to cultivating and maintaining a long-standing relationship.
Licenses are legally binding to the institution, so we will be asked to
protect the institution's interests as well.
spoke briefly about the constraints imposed by the UCITA (Uniform Computer
Information Transaction Act) legislation. Though
conflicting with much intellectual property law, UCITA puts controls in place to
regulate all information transactions. To
counter that control, we need to add clauses to nullify its effect.
She offers this clause: If
UCITA becomes the law of (STATE name here) for purposes of this License, the law
of (STATE name here) existing prior to the effective date of UCITA shall be
items (with appropriate clauses) for negotiation (excerpted from Farb's
shall use reasonable efforts to ensure that online content is equivalent to
print versions of Licensed Materials, represents complete, faithful and timely
reproductions of the print versions of such Materials, and will cooperate with
Licensee to identify and correct errors and omissions.
Licensor shall fully disclose to Licensee and Authorized Users all known
(fill in Publisher name here) grants Licensee permanent rights to use the
information that is included in the subscription (or database -- fill in name of
Product) that have been paid for even in the event the licensed resource is
subsequently cancelled or removed. Licensor
agrees to cooperate with Licensee to provide mutually acceptable means for
ongoing access to permanently licensed content.
(insert name of Publisher here) agrees to allow Licensee to copy the (insert
name of Product here) data for purposes of preservation and the creation of a
usable archival copy.
term or provision of this contract shall be interpreted to limit or restrict the
fair use rights of licensee and its Authorized Users provided by US Copyright
Law, Title 17 U.S.C..
online resources (of particular note) for licensing issues:
Digital Library Licensing Toolkit (guidelines, procedures, etc. for CDL)
Site on Licensing Issues (note upcoming workshop: Aug. 13-14, 2001)
University Copyright and Fair Use Site
Robertson, LACMA, Rights & Reproductions
Copyright: Implementation for You and Your Institution"
Although as librarians, we're most typically working to gain access to digital materials, Cheryle Robertson provided valuable insight into the complexities and difficulties of recognizing and working with the rights of the artists. At LACMA, Robertson works with artists and curators to acquire license agreements (generally for digital display of artwork). According to Robertson, artists are becoming more aware of their rights and more astute at asserting and protecting them. Increasingly artists are finding that revenue from licensing can be greater than that from sales, which brings them to demand clearance for all uses of their work. Institutions, which rely on good relationships with contemporary artists, feel the need to tread lightly between the artist's copyright of a work of art and the museum's mission to educate with it. While one could argue Fair Use supports the educational purposes of the museum, the cost to defend that use is usually seen by the museum as too high. Interestingly museums are also caught on the other side, in that they raise revenue by holding rights to photographs of their collections.
argues that better clearance policies need to be developed.
Creation dates and publication dates are rarely coincident, which raises
difficulties for Rights & Reproductions departments.
LACMA, like many museums, has taken a relatively conservative stance.
This has required more staff and the charging of fees (for reproduction)
but results in a decrease in liability. She
argues that were an institution to take a more aggressive stance and argue Fair
Use (educational use), it would open itself up to suits from artists.
She suggests that networking it very important and advises to follow
listservs and the web as indicators of what is going on at other institutions
and within the arts community.
Summary of Question
& Answer period
of the wealth of information and insight brought by the three presenters and the
topical nature of the papers, a lively question period followed.
(for Sharon Farb)
regard to negotiating licenses with vendors, do you foresee a time (in the near
future) when there will be standard options (like Saturn car buying) coming?
and No. Farb said there's much work
being done to fashion a model license (for instance, the California Digital
Library license). But there is
still (or there perhaps will continue to be) variety in licenses.
In negotiating, you have to know what your bottom line is -- what's the
deal-breaker for you -- what can't you agree to or compromise on (just as in car
(for Farb and Robertson)
Robertson's reference to the Bridgeman vs. Corel case, have any cases come along
since then? What's the
behind-the-scenes discussion of this?
She knows of no cases after B&C.
Museums are continuing with their copyright notices on 2-dimensional
works and she sees no changes coming as a result of the Bridgeman case.
She cited the ditto.com case. She
found it interesting to read the judge's analysis of the 4 factors in this case.
He found that thumbnails were acceptable, falling under Fair Use.
He noted that the cases and the judgements are all over the map,
depending entirely on the judge's thinking about the case.
He also noted that Bridgeman vs. Corel is a Canadian case (though filed
in NY) and did not follow US law.
Sundt: Sundt added further
clarification noting that the Bridgeman case was a district case and not
federal. It does speak to the
interpretation of Fair Use in the US, but on the district level, not the federal
note: Bridgeman Art Library is a
British company with an office in New York.
Corel is a Canadian Corporation. The
case was heard in federal district court but the ruling was under British
copyright law. After the first
decision, Bridgeman requested that the court revisit its opinion, but under US
copyright law. The court reached
the same decision. For a synopsis
of the ruling see: <http://www.panix.com/%7Esquigle/rarin/corel2.html>
with excerpts from an American Assoc. of Museums presentation.]
question raised was about renegotiation of contracts. What would require renegotiation?
Sometimes a license will have an automatic renewal.
She suggests negotiating as broad a license as possible the first time
around. When necessary, renegotiate as you would a new license.
Keep what you like and renegotiate for whatever changes are necessary.
comment (Sundt) responding to Robertson's remark of LACMA's conservative stance.
Sundt reminded us that NINCH/CAA will have a town meeting this November
that will include Georgia Harper (Manager of Intellectual Property Section,
UTexas, Austin). She noted also the
recent town meeting on image copyright held in conjunction with the CAA meeting
in Chicago earlier this winter. See
Sundt argues that we need to be more aggressive regarding Fair Use.
Noted the problem with being aggressive is that legal counsel departments
are, by nature, conservative and require that we "play it safe" to
avoid litigation against our institutions.
in response, notes that counsel need to be educated on what we need as much as
the vendors do. She argues that
lawyers should be approached as one would a renegotiation.
US Copyright Office
Canada's Copyright Act
ARL Copyright & Intellectual Property
IFLA Committee on Copyright & Other Legal Matters
VRA Copyright, Intellectual Property Rights, and Fair Use
http://www.VRAweb.org (copyright page currently being updated: coming soon)
Copyright & Fair Use Resources on the Internet
Links to a variety of resources, organized by the Stanford University Libraries.
& Image Management by Georgia Harper (University of Texas System)
One of the various copyright "crash courses" offered by the UT Office of General Counsel.
Law & Graduate Research by Kenneth D. Crews
Full-text of the 2000 edition of this book available for free on the Internet.
Copyright Resources Online
An annotated list of academic and non-academic copyright policies available online.
The Copyright Website
Personal web site by Benedict O'Mahoney with descriptive examples of people who challenged infringement of copyright in the arts.
Informative web site on international copyright, digital property, and other issues by copyright lawyer Lesley Ellen Harris, editor of The ãopyright & New Media Law Newsletter.
Fair Use of Copyrighted Works
Full-text of a pamphlet published by the Consortium for Educational Technology in University Systems.
Licensing Digital Information
Everything you need to know about digital licensing by Ann Okerson at Yale.
When Works Pass into the Public Domain
Table of information created by Laura Gassaway that provides assistance to understand when works are no longer protected by copyright.