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2003 Town
Meeting
COPYRIGHT
TOWN MEETING: New York, February 22, 2003
Digital Publishing: the Rights Issues
Speaker
Biographies | Resources
| Summary Report
Meeting
Report
Welcome and Introductions Robert A.
Baron Welcome
and General Introduction David
Green The
Copyright Town Meetings Robert
Clarida Fair Use
Is Still Alive
Publishing Online: The
Rights Issues Susan Chun, The
State of Play of Publishing Art History & Criticism Online or
"What is e-publishing?" Jeffrey Cunard,
Getting
an Art Journal Online: J-STOR & The Art
Bulletin Petra Chu and Peter Trippi, Starting
an Art History e-journal: the rights issues for
Nineteenth-Century Art Worldwide
Rights, Permissions & Risk Management Christine
Sundt Permission
Denied… Questions Desperately Seeking Answers Siva Vaidhyanathan Give
Us Some Breathing Room Kenneth Crews The
TEACH Act: its relevance to e-publishing.
WELCOME AND INTRODUCTIONS Robert Baron, Welcome and General
Introduction Robert Baron, outgoing chair of the CAA
Committee on Intellectual Property, welcomed participants to the
program by noting that it represented the sixth copyright town
meeting jointly sponsored by NINCH and the College Art
Association.
It all began,
Baron said, at the February 1997 CAA Conference, when
the first joint Town Meeting was convened on a Sunday at Cooper
Union College. The topic was the fair use of copyrighted work in
education and the hall was filled on only a day’s notice. “After all
these years, with so much legislation and tribulation,” Baron said,
“here we are, still tackling fair use, though it seems imperiled,
one way or another.”
Throughout these
years, David Green, as “one of the few people who can connect the
dots” has acted “as mentor and sometimes task master” to the
Copyright Town Meetings–not just the ones jointly sponsored with CAA
but with many other intellectual organizations, including the
American Association of Museums, the Art Library Association, the
New York Public Library, and many others.
Explaining that
he would soon turn over chairmanship of the CAA Committee on
Intellectual Property to Patricia Failing, Baron thanked Green for
the extraordinary spectrum of views he had presented in the NINCH
Town Meetings.
David Green, The Copyright Town
Meetings David Green began his introduction to the 21st NINCH
Copyright Town Meeting by explaining the nature and purpose of the
National Initiative for a Networked Cultural Heritage, a coalition
of more than 100 organizations and institutions drawn from across
the cultural community. As these very different entities produce,
describe, collect, and catalogue cultural materials differently,
NINCH’s goal is to bring the parts of the community together in the
collaborative project of producing a more cohesive body of online
cultural resources.
Green described
NINCH’s vision for an online world rich in cultural material in all
media, including representations of “prehistoric artifacts,
manuscripts, painted, drawn, and photographed images, moving images,
3-D objects you can touch, spaces you can move through, and
buildings and cities you can follow as they age and grow though
time.”
Building such a
rich treasury for learning, creation, and discovery and making it
available, affordable, and useable for all is an “enormous task,”
Green admitted, requiring all kinds of people to work together
across the globe. But for many, copyright law is “the key that can
allow or deny the richness of such a space.”
The NINCH
Copyright Town Meetings were established to bring together the
relevant stakeholders in creating and using intellectual property to
begin to develop practical solutions to the questions of copyright
law that will make possible the networking of cultural heritage
material.
The New York
copyright town meeting, Green said, would focus on electronic
publishing—what do we mean by publication in a digital age? What are
the rights issues? The control and access issues?
The first part
of the meeting, he explained, would cover the “landscape” of
e-publishing–the activities of artists, scholars, editors,
researchers, and others which can be considered e-publication, and
the practical issues of getting an established scholarly journal
on-line and creating an entirely new on-line journal in art history.
The second part
of the meeting would deal with strategies–what recourse you might
have if your request to publish is denied or if you are unable to
locate a rights holder. Finally, the meeting would deal with the
impact of last year’s distance education legislation, the TEACH Act,
on e-publishing efforts.
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Robert Clarida, Fair Use Is Still
Alive Robert Clarida of the law firm, Cowan, Liebowitz &
Latman, PC, sponsor of the Town Meeting, briefly addressed fair use
from the point of view of the copyright lawyer. Fair use, Clarida
said, is increasingly hospitable to scholarship—especially visual
arts scholarship— on the Internet.
Clarida pointed
to several recent legal decisions, including one that held that
posting thumbnail-sized images in so-called virtual search engines
on the Internet is “fair use.” Thumbnails posed no “market harm” for
rights holders because their use was “functional” and they had “no
aesthetic quality” that could be converted into commercial
products.
In another case,
a Beanie Babies guidebook was allowed to publish Beanie Baby images
as fair use, even though they offered only minimal information. They
were not a market substitute but an informative publication. The
documentary use of clips from old Hollywood films was also declared
fair use because it did not hurt the market for selling such clips.
In fact, by increasing public visibility of the original films,
documentary use would increase, not restrict, the market.
Fair use,
Clarida concluded, is always “something of an act of faith.” Still,
he maintained, fair use was still a very robust affirmative defense
in nonprofit and scholarly use of copyrighted materials. In fact,
since the Supreme Court first addressed fair use, virtually every
high profile case has come out in favor of the fair use advocate and
against the copyright holder.
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PUBLISHING ONLINE: THE RIGHTS ISSUES
Susan
Chun, The State of Play of Publishing Art History and Criticism
Online or “What is E-publishing?”
Susan Chun began
by pointing out that museums occupy a very interesting place in the
discussion of intellectual property rights. Museums are, at the same
time, rights holders and administrators, authors, scholars,
librarians, and publishers. As General Manager for Electronic
Information Planning at the Metropolitan Museum of Art, she plays
roles in several of these areas.
Museums thus
experience intellectual property issues from several sides and
understand, from the inside, the frustrations of authors at the same
time as they formulate their own policy for working with authors.
Museums, Chun stressed, live in the same confusing, changing,
uncertain world of intellectual property concerns as everyone
else.
Chun explained
that she would limit her remarks on e-publishing to three
questions:
-
What exactly
is e-publishing in a museum?
-
What are the
specific effects of these new publishing models on authors and
their rights?
-
What are the
latest developments in museum intellectual property policy that
might affect the work of scholars and art
historians?
What is
museum e-publishing? Chun said that just as traditional print
publishing at the museum encompasses anything produced for the
public, including wall labels and brochures as well as journals and
books, so e-publishing has a broad definition. The earliest
e-publications in art history were those converted from print or
were types of publication–like bibliographies and abstracts– where
e-publishing was more economical or efficient than analog
publishing.
Early examples
of art history e-publishing include book reviews, such as the CAA on-line reviews, the Getty
Vocabularies, the on-line edition of the Grove Dictionary of
Art, dissertations and theses, electronic library projects,
e-journals, CD-ROMS, and DVDs. In most cases, these e-publications
went beyond the book model to add special features, including the
ability to conduct searches, to continually update material, and to
link and integrate resources with other e-publications.
Later
developments included increasingly rich and complex museum websites,
electronic lesson plans, museum databases that made available large
sections of museum collections, and image databases published under
new kinds of licensing arrangements, including encyclopedic
databases like AMICO and the Index of Christian
Art.
Effects on
Authors What impact has this e-publication environment had on
authors? It has meant, in most cases, a second round of permissions
in order to secure rights to images licensed for an earlier print
publication. Rights holders are often difficult to track down.
Licensing term lengths have become variable and terms are often
different from rights holder to rights holder, little
standardization. There are many new players in rights licensing,
including consortia like AMICO, and many different models, all
making it more difficult to sort through who holds which
rights.
Developments
in Museum IP Policy Chun concluded by touching on recent
developments in intellectual property policy at museums. She
explained that, at museums, images and other material were
originally created as by-products of museum exhibitions,
publications, and other programs. These activities rarely operated
at a profit. The advent of electronic publishing had changed that
environment, creating new demands—including commercial demands—and
new outlets for museum intellectual property.
Museums thus had
begun to formulate specific plans and policies for managing and
developing intellectual property. That process, Chun said, is still
very much underway, and there was “a great deal of space at the
table” for scholars and art historians in helping to formulate new
approaches and standards. She urged scholars “to join with us in
formulating a new strategy for making our content available to
you.”
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Jeffrey
Cunard, Getting an Art Journal Online: JSTOR and The Art
Bulletin See Presentation Slides: as Powerpoint;
as PDF
Jeffrey Cunard
spoke about CAA's efforts to publish its journal, The Art
Bulletin, in electronic form as part of the JSTOR project.
Cunard described
some of the reasons why CAA decided to use JSTOR to archive The
Art Bulletin in electronic form: eliminating the need for CAA
and libraries to store printed issues; facilitating electronic
access to the entire journal contents from the desktop; and ease of
searching across many issues. With JSTOR, CAA's journals would be
joining more than 100 other scholarly journals and would be
available in quite a different way from other existing
databases.
Although the
negotiations with JSTOR seemed relatively straightforward—CAA would
grant a copyright license to J-STOR to convert issues of The Art
Bulletin and make them available online to scholars—there was a
problem in that over the history of The Art Bulletin, CAA had
never obtained e-publishing rights from contributors or image
owners.
Copyright law
specifically permits the publisher of a collective work to publish
the individual contributions to that work as part of the collective
work without getting separate permissions. E-publishing raised the
question of whether the contribution was published as part of the
work or not. Freelance contributors challenged the right to rely on
the copyright law to e-publish in the Tasini case.
In Tasini v the New York
Times, decided in 2001, the Supreme Court essentially held that
a publisher must obtain permission from each contributor to
republish a work electronically, if the user could access and
perceive each contribution as distinct and separate from the rest of
the publication. Thus, unlike earlier storage media such as
microform, classic database access to previously printed material is
infringing in the absence of contractual permission from
contributors for e-publication. A further class-action case was
filed, and is now in mediation.
For the CAA, it
would have been impossible, Cunard said, to clear permissions from
the hundreds of past contributors to The Art Bulletin. But
the nature of JSTOR— which reproduces and makes available to end
users articles in the context of the original publication— was
closer to microform and Tasini can be read to suggest that obtaining
permission from prior contributors is not required.
Looking ahead,
e-publishers are now working to obtain e-publication rights from
contributors for future issues of their publications.
Contributors to
CAA publications are now not able to publish without granting
electronic publishing rights to their material, and to clearing
e-publishing rights in third-party material, such as images, that
accompany the contributions. At the same time, however, CAA is
discovering that the rights holders to images are much more
reluctant to grant electronic rights than print rights. They
typically may want to charge higher fees and limit licenses to only
a period of years.
Cunard concluded
by suggesting that licensors of images and other third-party
material should recognize JSTOR's academic, nonprofit nature, and
its intended user base. He warned that the more assertive positions
being taken by licensors with respect to electronic rights are
having a potentially chilling effect on the use of images in
journals that will be published electronically, leaving many
unresolved questions about who pays for, administers, and monitors
electronic image rights.
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Petra Chu
and Peter
Trippi, Starting an Art History E-Journal: The Rights Issues for
“19th-Century Art Worldwide.”
Petra Chu
briefly described the history of the electronic art history journal,
19th-Century Art
Worldwide, launched at the 2002 CAA meeting in
Philadelphia.
The journal
arose over several years from the need for a journal devoted
entirely to 19th-century art. The need was felt more acutely after
the establishment, ten years ago, of the Art Historians of
19th-Century Art (AHNCA), an affiliated society of CAA, which
quickly grew to more than 500 members. A specialized journal was the
number-one need expressed by AHNCA’s membership.
After
considering a traditional print journal and exploring the
possibilities of publishers, AHNCA began to consider an electronic
journal, with the advantage of being, as Chu put it, “extremely
naïve” about electronic publishing. With a $10,000 grant, AHNCA
found an excellent web designer with good experience in designing a
journal and launched the first issue in electronic form.
Since its launch
in 2002, the journal has make headway establishing itself as a
legitimate scholarly venue, with its own index and International
Standard Serial Number (ISSN). Three issues have been published,
with a fourth about to be posted. The journal has also raised enough
money to keep the site open free of charge, allowing some 9,000 hits
per month.
Chu raised
several of the rights issues that had come up with running an
electronic journal. Although the journal has copyright notices
protecting itself and its authors, monitoring and enforcing this
copyright, however, has proved problematic for an organization with
limited funds. Verbatim paragraphs from the journal had been found
on another website— such piracy is of course much easier when
material is in electronic form.
The journal had
begun registering itself in the form of CDs with the Copyright
Office to ensure that its content would be preserved. More even than
copyright, Chu said, the issue of archival preservation of Internet
materials was of foremost concern to e-journal authors and
editors.
Peter Trippi
spoke of issues raised by licensing images for the new journal. He
explained that each article in the journal might have as many as 32
images, more than many paper journals can afford. One recent article
included the author’s own photographs of a previously unpublished
site and a slide show—exciting examples of what web publishing can
offer. The journal has also enjoyed positive cooperation from
museums that provide installation shots of exhibitions and thus has
been able to regularly illustrate installations more often than most
scholarly journals.
The journal
posts images, Trippi said, in a size that makes them clear enough
for readers’ understanding, but not high-quality enough to be used
by pirates making t-shirts and postcards (see example).
As with CAA publications, authors are required to obtain permission
for images and to pay reproduction fees. To help inexperienced
authors, the journal has included on its website a sample request
form and other image rights materials. Wherever possible, the
journal requests images in electronic format to avoid the costs of
shipping and express services.
The authors
themselves have photographed many of the images published in the
journal. Still others are out of copyright range. Rights holders for
other images have generally been prompt and cordial in responding to
requests, charging fees in the range of $50-200, negotiated down in
many cases.
Trippi concluded
by citing the need to deal with reproduction fees totaling as much
as $1,500 per article— a great burden for a young scholar— as well
as the need to centralize and standardize image distribution across
institutions.
Discussion Much of the discussion centered on the
limited terms often encountered in seeking permission to use images
in e-publications.
In response to
questions, Trippi and Chu explained that three years was the term
that their Journal told authors to request for image use. They said
three years was manageable for them—in five years there could be a
completely different environment. After the term expires, the
editors would take down the images or make a link, with the museum’s
permission, to a website image.
Chun said that
as author, the Metropolitan typically asks for perpetual permission,
but rarely gets it. A three-year term is typical.
Several people,
including Chu, questioned the logic in having to remove images after
a term permission expires. “The image in a book is still there,” she
said. But several rights holding participants explained that term
limits were imposed as a protection against uncertainty— because no
one could say how things might change in the future. Others
emphasized that term permissions, like everything else, were subject
to special pleading and negotiation by rights holders, and were
subject to future discussions.
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RIGHTS, PERMISSIONS AND RISK MANAGEMENT
Introduction Robert Baron introduced the
second section of the Town Meeting. He explained that the focus
would now change to a discussion of the conflicts between users of
images and copyright owners, beginning first with what happens when
permission to reproduce was refused.
Christine
Sundt, Permission Denied… Questions Desperately Seeking
Answers See complete paper:http://darkwing.uoregon.edu/~csundt/copyweb/denied.htm
Christine Sundt
discussed a series of questions that are raised when permission to
use someone else’s material is denied— either outright, by requests
for high licensing fees, or by the imposition of restrictions too
difficult to meet. What risks are involved in publishing without
permission and how can they be assessed and balanced?
Sundt pointed
out that, by legislation, granting permission is the right of the
creator, at least for “limited times.” But changes in copyright term
have stretched “limited times” from as little as 14 years to life
plus 70 years. She also pointed out the exemptions in copyright,
including fair use and the public domain, were designed to balance
the rights of copyright holders and the public. Such exemptions, she
said, should allow us to proceed to publish in some cases, even
after permission has been denied.
Why doesn’t fair
use cover our needs? Sundt asked. What else besides fair use might
apply? When does free speech protect us? What exactly is in the
public domain? Must we always be risk averse? In some cases, Sundt
said, good advice is to make full use of fair use protections or, in
other cases, not even to ask permission to publish as this implies
that the petitioner acknowledges that permission is required.
Failure to make use of fair use exemptions might even result in the
loss of those exemptions.
Sundt concluded
by listing some “unanswered questions” about use:
-
If an author
wishes to reproduce an artwork that is clearly in the public
domain, and has good material to reproduce the work from, need she
pay a reproduction fee requested by the museum owning the
work?
-
Should
publishers accept the argument that the work is in the public
domain as acceptable for publication?
-
Should the
author, believing her publication to be covered by fair use, sign
the publisher’s copyright warranty?
-
Can state
contract law trump federal law in control of the public
domain?
-
If contract
law can trump the public domain, are there any fair use provisions
within the body of that law?
-
What happens
if the contract holder goes out of business or is bought out by
another corporation?
-
How many
layers of law or claims of ownership attach to the reproduction of
an artwork?
-
Can the museum
control the method of presentation in publishing an
artwork?
-
Should we
assume that all artists’ heirs have rights to
royalties?
-
What proof
should we request from those heirs?
-
Could the
artists’ moral rights, in some cases, continue in
perpetuity?
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Siva
Vaidhyanathan, Give Us Some Breathing Room
Siva
Vaidhyanathan began his talk by citing the Supreme Court’s famous
1994 ruling on 2 Live Crew’s parody of Roy Orbison’s “Pretty Woman.”
The Supreme Court held that parody is protected from copyright
litigation by fair use [see Campbell
v. Acuff-Rose Music, 510 US 569 (1994)].
Fair use
appears, Vaidhyanathan said, from this and other cases, to be “alive
and well.” But you could still find yourself paying thousands in
court costs to prove it. So we should be more confident about making
use of fair use and breathing easy. But we are not.
Vaidhyanathan
cited a number of cases— many brought up by friends who came to him
for free advice— where fair use of material was unclear or was
challenged or where scholarly publishers were “too chicken” to
accept a fair use argument from an author.
Problems with or
questions about fair use figured, for example, in making scholarly
use of unattributed political cartoons from 1940s newspapers, in
reprinting ads from the 1930s and ‘40s in a book on African-American
culture, and in the quotation of country music songs in a cultural
history of country music. Even quoting the lyrics of 2 Live Crew’s
protected parody of “Pretty Woman” in a book or article is, he said,
too legally ambiguous and complicated for most publishers to deal
with.
Thus
Vaidhyanathan claimed fair use, as a practice, is more endangered
than ever.
When friends
call him about advice in such cases, he, as a non-lawyer, gives two
answers: what he calls the responsible one and the irresponsible
one. The responsible answer is the one typically given by copyright
lawyers: “it depends.” The irresponsible answer is: “What is your
financial risk tolerance? Are you willing to strike a blow for fair
use and academic freedom that might take about a decade?” He could
understand, he said, when these non-tenured friends decided that
publishing a scholarly book on time and in budget was more important
than fighting for the greater good.
Fair use as an
exercise in freedom is, in fact, endangered, Vaidhyanathan said— for
the following reasons:
- Fair use is
only as good as your publisher’s faith in and ability to
understand fair use.
- Copyright
holders are often impossible to find. Invisible copyright holders
can’t grant permission but they can surface later and sue.
- As more and
more copyright material is tied up in contracts— and users sign
away fair use rights in return for access— fair use becomes
irrelevant.
- As material
becomes sequestered in database schemes and copy protection
systems, publishing fair use excerpts becomes not only more
difficult but illegal.
Despised by
entities like Hollywood and the entertainment industry, fair use
depends on exercise. You must use it or lose it. If major players
act as if there is no such thing as fair use, “and the rest of us
cower,” then the experience of fair use, of education, of culture
will be “painful and cold.”
Vaidhyanathan
also cited the Supreme Court’s decision in Eldred vs. Ashcroft,
which recently held that the Sonny Bono Copyright Extension Act was
constitutional, even though it extended copyright terms beyond what
many considered to be “limited time.”
He concluded
with a brief description of the “Eric
Eldred Act,” a proposal in Congress, which would mitigate the
limits on the public domain brought about by Bono by allowing
copyright to expire after 50 years, unless renewed and re-registered
for a nominal fee.
Finally, he
urged his listeners to continue to exploit fair use and to challenge
the courts to “give us some breathing room.”
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Kenneth
Crews, The TEACH Act: The Relevance of the TEACH Act to
E-publishing See Presentation Slides: as Powerpoint; as
PDF
Kenneth Crews
noted the consternation and confusion about copyright he had heard
in the first half of the Town Meeting and commented, "It's clear
that we need to break free of these things that are binding us and
keeping us locked in. It's clear that we need to move more towards
fair use." But his subject for the day, the TEACH Act, was not the
same as fair use. It had to be noted up front that the TEACH Act was
completely separate from fair use, although fair use remains alive
and well as an alternative for distance education. The TEACH Act
was ostensibly designed for the benefit of distance education. But
it also provides tremendous evidence of the interrelationship
between the rich variety of exceptions in the copyright act and the
world of publishing.
Signed into law
in November 2002, the TEACH Act creates exceptions to the rights of
copyright holders— under certain circumstances and in certain cases
and subject to certain limitations— in the service of delivering
distance education. The details of the act require educational
institutions to develop policies, make notices of copyright to
students and users, and limit access to specific persons and for
specific periods. Once this system is set up, the content is further
subject to limitations. Certain types of works can be used in full;
certain other types of works can be used only in part.
The TEACH Act is
evidence that education and the world of publishing, according to
Crews, are approaching and looking like one other. Publishing is
moving toward delivery of information and content, and looking a
little like distance education. Distance education is the delivery
of content to students wherever and whenever they might need it—much
like publishing. Congress was thus well aware that the Act would
have profound implications for publishing, or at least that
publishing would have a profound interest in the TEACH
Act.
Crews described
restrictions in the Act that were drafted specifically with the
future of publishing in mind. For example, materials created for
distance education must preserve technical measures to identify and
clarify that material. Works that are specifically marketed for
digital distance education may not be copied and included in a
course. There are restrictions on instructors and their ability to
digitize content, requiring them to check the market to see if the
material is already marketed in digital form. Only lawful copies may
be used and access to copyright materials must be circumscribed—
limiting any adverse consequences for copyright owners. There are
further restrictions on downloading and copying.
Certain types of
works, for example, Citizen Kane, can only be used in part,
in order to protect the market for the full-length version. There
are restrictions on retention of materials, further suggesting the
direction of the law in general— to reserve future markets for
copyright holders. (See Mr. Crews' article, "New Copyright Law for
Distance Education: The Meaning and Importance of the TEACH Act,"
available on the website of the American Library Association: http://www.ala.org/washoff/teach.html).
Congress gives
rights, Crews concluded, and Congress creates exceptions to those
rights, giving some concessions to copyright owners, and some to the
public. Ultimately, however, in its provisions, the Act provides
careful protection of the interests of owners. Market forces shape
the law and the law puts the burden of use on education to comply
with the many conditions in the law. Thus the TEACH act is an
opportunity for education, which should perhaps be taken advantage
of, even within its restrictions, at the same time that it offers
opportunities for new markets.
Discussion
The discussion
here centered on how stakeholders in copyright issues attracted and
held the attention of lawmakers.
Vaidhyanathan
explained that when the Sonny Bono and Digital Millennium Copyright
Acts were in consideration in Congress, both went through the
standard special interest process. Pro-fair use organizations like
the American Library Association and the Digital Futures Coalition
were “in the room,” but they didn’t have the public behind them to
get attention. Public concern is higher now— the question is not so
much one of lobbying dollars but of awareness and
support.
As fair use of
material becomes more restricted, some cultural artifacts— for
example, sampling in rap music— are disappearing. In other cases,
permissions are becoming standardized by the growth of consortia.
The common denominator position in a consortium is always “no.” So,
speaking from the least common denominator the consortia will
usually say no to a request. That answer sends the issue back to the
user, as it always does. Trademark law is also used to extend a
claim. Ironically, organizations like Disney make full use of public
domain material like Jane Austin’s novels, then declare that they
own rights that last forever.
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