NINCH >> NINCH Programs
>> Copyright
>> 2001 Town
Meeting
COPYRIGHT TOWN
MEETING: Chicago, March 3, 2001
Licensing Initiatives for Scholars and Teachers: Contributions
from the Copyright Industry and Other Resources College Art
Association Conference
Meeting Report
AGENDA:
Robert Baron and David Green, Introductions
Renate Wiedenhoeft, Saskia:
Licensing Digital Art Images for the Educational Community
Jennifer Trant, AMICO:
Providing Educators Access to Museum Documentation
Carol Ann Hughes, Questia
Robert Panzer, Visual
Artists and Galleries Association (VAGA)
Thomas W. Bower, A
User Friendly Image Publication Use Request Form.
Discussion
Introduction Robert
Baron (see Complete
Introduction)
Mr. Baron welcomed the participants to the fifth annual NINCH/CAA
Copyright Town Meeting and the first of the 2001 Copyright and Fair
Use Town Meeting Series.
One effect of the Digital Millennium Copyright Act (DMCA), Baron
noted, will be that digital content of importance to the CAA
community will likely be delivered under the mantle of licenses.
Rather than investigate an issue from multiple viewpoints, as many
town meetings have done, this town meeting would investigate in some
depth the products and distribution mechanisms established by
several agents in providing access to copyrighted cultural heritage
materials, specifically for educational and scholarly use. Rather
than critiquing licensing as an economic instrument for
distribution, the meeting would give several producers the
opportunity to describe their products. Baron proposed the question:
do the new products and distribution mechanisms offer benefits to
the community, or do they inhibit the realization of our goals?
David Green
David Green placed the meeting in the context of the ongoing
series of NINCH Copyright & Fair Use Town Meetings and referred
participants to the summary report of the 2000
series. Copyright is key to NINCH's mission; without an
intellectual property regime that "allows us to do what we need to
do lawfully and economically," he said, efforts at building a
networked cultural heritage will be in vain. NINCH members represent
the wide spectrum of creators and users of cultural property.
Questions of ownership, guardianship, access, use, revenue, and
theft will continue to be sources of heated debate within the
community. This arena is about law and economics, but perhaps
fundamentally it is about practice or how we behave. Does practice
abide by law or do laws follow evolving practice?
Many suggest that before rewriting the laws, practitioners need
time to analyze the range of new, alternative practice. A seminal
National Academies report, The Digital Dilemma,1 noted that the same
technology that is making information available more quickly and
completely also has the potential to destroy the delicate balance
between public good and private gain that emerged from the evolution
of intellectual property law started in the U.S. Constitution. Thus,
in addition to imparting basic knowledge about copyright law and
suggesting practical short-term solutions, organizers and
participants of Town Meetings also strive to be a part of the
long-range exploration of solutions to the digital dilemma.
Essentially, the meetings have been about devising strategies and
combining resources to help us create the immense digital
exploratorium at the heart of our mission.
PRESENTATIONS
Renate
Wiedenhoeft, Saskia: Licensing Digital Art Images for the
Educational Community
Saskia has been a pioneer provider of art history slides since
1966. It first introduced site-licensing agreements for digital
works to the educational community in 1994. While several
institutions resisted the notion that they should pay to use images
they considered to be within their definition of fair use, Saskia
pushed ahead, signing up universities one at a time. According to
Wiedenhoeft, many signed on because they decided the benefits of
providing students with high quality digital images outweighed the
"discomfort of agreeing to some restrictions." This dispute recalled
the issue of Saskia's introduction of color slides: while some
museums feared the competition, others preferred having the very
best reproductions of their works available; and while some scholars
maintained they weren't interested in images, others used them
avidly.
The Saskia site license agreement was carefully drafted to strike
a reasonable balance between the rights of museums and those of
educators. It has been scrutinized and revised through comments by
faculty, visual resource professionals and legal council on various
campuses. Use of digital images ranges from small individual
projects to "empowering students at 74 state institutions in Ohio to
work and study with digital images". The agreement was designed for
networked use on campuses, and images licensed from Saskia can be
integrated with images from other sources as long as the site is
password protected. In the early days, art and art history faculty
and visual resource curators dealt with licensing procedures, but
increasingly, library and electronic acquisitions staffs initiate
the process, thus expanding access to digital images to the entire
campus.
Why license digital images from Saskia? Wiedenhoeft posited three
reasons: quality, availability, and service. Quality is essential in
supplying digital images, although the range in demand for quality
across the community is wide. Many users simply want subject matter
without high image quality, while others want to see high-resolution
detail and accurate documentation. Saskia now captures 18-megabyte
digital files and is introducing digital slides. By early 2001,
Saskia made available 12,000 digital images (about half of its
archive) with a maximum resolution of 2,000 x 3,000 pixels. Many of
its images have been scanned and re-scanned five or six times since
1994, to keep up with new scanner technologies and to meet demand.
Saskia plans to re-scan all photo-CD slides and will provide them
for users who renew their site license from the initial five-year
term to a perpetual term.
A new fee structure is based on four factors:
- the maximum image resolution desired,
- number of campuses covered under the site license agreement,
- the total number of students at those campuses, and
- the number of images ordered at one time.
- Images are offered in three formats: JPEG files (in multiple
resolutions), MrSID files (in a master resolution, as well as JPEG
derivatives if desired), or a TIFF master image file.
Saskia is working to improve its website to make it a useful tool
for its clients and towards direct downloading of digital images.
According to Wiedenhoeft, Saskia sees itself as the mediator
between the artist and the scholar who interprets the artist's work.
The work of art , according to Berenson, is the "event" and
technology is merely the tool that presents the work accurately.
Free images of doubtful quality on the Internet can be informative,
but there will always be a need for high quality images that reflect
true colors, and approximate the experience of the museum, because
clear and accurate visual evidence leads to insightful and inspiring
interpretation.
Back
to top
Jennifer
Trant, AMICO: Providing Educators Access to Museum
Documentation (See presentation slides)
The Art Museum Image Consortium (AMICO) was created in 1997 as an
independent, not-for-profit consortium of organizations with
collections of art collaborating to enable the educational use of
museum multimedia documentation. The AMICO Library is being built as
a centralized digital educational resource that is licensed, under
subscription, to universities and colleges, public libraries,
elementary and secondary schools, museums and galleries. The
consortium enables educational use of digital museum documentation
(much of which was previously unavailable beyond the walls of the
museum) and encourages educators to use museum collections that they
rarely had access to in the past.
In outlining the rationale for this museum collaboration, Trant
said that AMICO is committed to streamlining educational rights
administration. Rather than requiring licensing of individual works,
AMICO administers standard educational licenses to the entire AMICO
Library. University license agreements were developed based on the
principles articulated in the Museum Educational Site Licensing
Project (MESL) and tested and refined during a University Testbed
Project in the 1998-99 academic year. Distinct licenses for primary
and secondary schools, for museums and for public libraries have
been developed, to ensure that each community can make the uses it
requires of works in The AMICO Library. (All AMICO Members are also
licensed users of the Library.)
AMICO subscribers are institutions, not individuals, so access is
free at the point of use, and no limits are placed on the amount of
use. Agreements are not strictly speaking site licenses as material
can be used at any physical location. Trant reported that, so far,
one million undergraduates at 140 schools in North America have
access to The AMICO Library. A consortial subscription through the
JISC covers an additional 1.4 million students at UK universities.
Such licensing of a growing digital collection is possible
because AMICO obtains necessary rights for all content in its
Library. As part of their membership agreement, museums provide
AMICO with a non-exclusive right to license their digital
documentation for a prescribed range of educational uses. AMICO
clears other rights prior to making the Library available. It has
developed an agreement with the Artists Rights Society (ARS) that
allows the inclusion of a groundbreaking number of modern works of
art, and is working with groups like Antenna Audio to include other
material (see, for example, the press release on an agreement with
Antenna Audio).
Trant declared that AMICO has been firm in its commitment to
offer all subscribers and members the same license terms. Success as
a consortium, she said, depends on equal treatment of all
participants, and the resources otherwise devoted to wrangling over
legal language can be used more productively. The full text of
AMICO's licenses and membership agreements, can be found on AMICO's
web site, along with detailed documentation about access and use of
its Library.
Membership in AMICO is open to any institution with a collection
of art and now comprises 31 museums. Some of the additional benefits
of the consortium, Trant said, include increased awareness of
standards and their role in the preparation of quality digital
documentation; an accelerated growth in the interchange of
information across the communities represented; a new forum for
museums to discuss issues like intellectual property management; and
the building of links between museums and users, and among staff and
curators within institutions. This has helped, for example, in
enabling museums to understand the kind of products that users most
want.
AMICO does not deliver its library itself. Rather, it partners
with organizations experienced in providing information services to
specialized communities. AMICO currently has distribution agreements
with the Research Libraries Group (RLG) and the Scottish Cultural
Resource Access Network (SCRAN). See http://www.amico.org/distribute.html
for further developments.
Trant stressed the point that the AMICO Library is not simply an
image database; it contains all kinds of collection documentation in
many media including images, texts, sound bites and multimedia.
AMICO's focus has been on finding ways for museums to capture and
leverage the vast quantity of information and knowledge within their
collections. We are creating a new kind of publication that does not
have an analog corollary.
Some of the key Intellectual Property issues AMICO has worked on
include: developing common agreements with rights holders (including
AMICO Members, ARS and individual artists); defining educational
licenses that meet the needs of different user communities (primary
school uses are quite different from university uses); defining
agreements with distributors to integrate The AMICO Library in to
their digital resources.
Trant concluded by commenting that AMICO had addressed these
issues within a collaborative, not-for-profit environment, and hoped
that through working together we can create a new system for
delivering intellectual property that fits the needs of users and
providers.
Back
to top
Carol Ann
Hughes, Questia
Hughes' background in academic libraries brought a unique
perspective to the meeting and introduced Questia as "a
revolutionary online library for students to create high-quality
research papers." Unlike AMICO, Questia is an individual
subscription service, rather than an institutional licenser, that
allows users to search and utilize full texts in a collection of
60,000 books and journals (with a goal of 250,000). So far, the
collection is focused in the humanities and social sciences and the
target audience is undergraduate students in core humanities
courses, particularly those enrolled in community colleges and
schools with small libraries. Questia has created research and
organizational tools to interact with the texts that address
students' research processes from start to finish. These include
reference works (dictionary, thesaurus, and encyclopedia);
highlighter, margin note, and bookmarking; and a cut-and-paste
function with automatic bibliography and footnote creation in
students' chosen formats.
Questia has signed up several commercial and academic publishers,
including Oxford, Harvard, and Duke University Presses. Publishers
are mostly concerned that Questia's marketing be a complement to
their own sales to university libraries. They do not want Questia to
compete with them for university library purchases. Questia provides
a second revenue stream for publishers, rather than supplanting
libraries; therefore site licenses are prohibited. Students can
purchase a subscription for as brief a period as 48 hours, and as
long as one year. Then they may use the service 24 hours per day.
Royalties to publishers are calculated based upon per page use.
Every time a user looks at a page, the publisher is paid a fee.
Hughes described the central role that copyright law plays in
Questia's collection management process. Once a team of acquisitions
librarians selects a title for the collection, copyright ownership
must be identified. With its own copyright research office, Questia
makes every effort to secure digital copyright permission, either
from authors or publishers, before digitizing, XML encoding and
integrating the text into the collection.
She noted that currently images are included in texts, under
subsidiary rights agreements. Images cannot be separately reused or
currently searched.
Robert
Panzer, Visual Artists and Galleries Association
(VAGA)
VAGA is an artists membership organization and a copyright
collective, formed 25 years ago. It was the first copyright clearing
house in the United States to administer reproduction rights for
fine artists, rather than graphic or commercial artists. It now
represents over 500 artists in the US, and through international
organizations, represents 2000 foreign creators. VAGA administers
reproduction rights for its member artists, but is also an artists
rights organization that communicates information about copyright to
the public, and lobbies congress on its members' behalf.
Panzer began with a brief definition of copyright. From his
perspective, copyright is fundamentally about originality and
creativity in a work of art, although these issues are always
debatable. Who requests permission to reproduce works of art from
VAGA? Publishers, museums, film and television companies, poster
producers, and writers and scholars all come to VAGA.
Panzer stressed that the most contentious area in granting
permission is for scholarly users because of the fees involved. VAGA
wants to make it affordable for scholars to use artists' works. He
suggested that scholars should plan on acquiring rights from the
beginning of a project, not when all of their other research is
complete, both to streamline the permission process and perhaps to
lower costs. He suggested that scholars and others first approach
VAGA, before contacting publishers or museums, as the Association
has many images in its archive and generally charges less than a
museum. If a user is trying to get permission to use contemporary or
modern art, it is important to discover who owns the rights and it
will more likely than not be the artist, not the museum. As VAGA is
a cooperative, the rights process is streamlined.
Another issue to consider when requesting rights to reproduce a
work of art is the nature of the "underlying work." Does the museum
hold the copyright to the original work or to the photograph of the
work (i.e., the derivative copyright)? If they only have the
derivative copyright, a user still has to go to the artist or
copyright holder of the underlying work. Panzer reminded the
audience also that the more copies of an image are in circulation,
the more negotiable the rights/rental fees usually are.
Finally, in assessing fees, VAGA takes individual circumstances
into account. Scholars are in the best position to negotiate fees
for rights. Panzer called for civility in the process.
Back
to top
Thomas W.
Bower, A User Friendly Image Publication Use Request
Form. (See Discussion
Document: includes "; "Image
Publication Use Evaluation Guideline"; and "Fair
Use Evaluation<"
Tom Bower oversees copyright issues as a member of the
Smithsonian Institution's Rights and Reproductions Committee (SRRC).
For many scholars, the expense of acquiring the rights to images for
publications is often more than they make on the publication.
However, some American organizations have different fees for
commercial and noncommercial projects, although many organizations
charge use fees simply to cover their own costs. The aim of the SRRC
is to balance "public service" to scholars with institutional
budgets.
To that end, the Committee on Intellectual Property of the
College Art Association has drafted a document to guide users
through the permissions process. Users often do not provide enough
information when requesting rights to justify a reasonable fee. If
they successfully demonstrated fair use, they could get fees waived
or decreased. Scholars often rely on copyright laws, and they do not
realize that the application of fair use is very much a judgment
call for rights administrators. If users would expend some
additional effort, they might see lower fees for scholarly
publications.
Bower and the IP committee are currently reviewing the document
with the goal of making it a useful tool for users. He invited
attendees to analyze the document and then to share their comments
with him at bowert@nmah.si.edu. Bower
stressed however that this was intended more as a prompt to the
permissions seeker to supply the right information rather than to
necessarily affect contracts.
Discussion
Max Marmor facilitated the question-and-answer portion of the
program. With regard to the above discussion about rights and
permissions, Brad Nugent, Assistant Director of Imaging at the Art
Institute of Chicago, volunteered that AIC had 3 full-time
professionals writing 3,000 licenses a year, involving tens of
thousands of images. Most larger museums, he said, will understand
the range of different uses and will try to accommodate. However,
few will be able to "give material away".
A graphic design teacher whose students were interested in
obtaining permission for using works said that the IP Committee's
document would be a good educational tool. If, in a distance
education scenario where the institution is a for-profit venture,
would fair use apply? According to Bower, many institutions take the
position that "if you're making money, we want part of it."
One participant spoke of her experience assisting a colleague in
gathering rights and permissions for a small book on the outdoor
sculpture on the campus of UC San Diego. She expected the job would
take a week; it took her three weeks simply to figure out the need
for a simple form such as Bower was promoting and spoke of the very
varied subsequent responses to her inquiries from museums and
galleries.
Jennifer Trant volunteered that it was important in discussing
this issue to separate out the issue of intellectual property rights
from fees for services rendered by museums. You might be accorded
the right to reproduce an image, but simply supplying the image
would entail a variety of costs for a museum. She also warned that a
comparatively small proportion of works in museums' collections has
been photographed and new photography costs are very high. She
reiterated the importance of giving as much specific information
also about the piece of work you need (an accession number or a
precise title help tremendously in reducing the amount of time a
museum staff person will have to spend with the request).
Another member of the audience asked why anyone should ask for
permission to use an image if they believe their intended use would
be covered by fair use? Bower replied that in obtaining a photograph
of a work for research you would usually have to sign a contract in
which you had to agree not to use the work for any other purpose. If
then you wanted to publish the photograph you would have to go back
and renegotiate the contract. If you photograph the work yourself
it's another issue. Nugent replied that an admission ticket to a
museum was usually a contract that would refer to a clause that
would prohibit any reuse of any photographic image.
Panzer then reminded everyone that property rights and contract
law were just as important, if not more so, in this arena as
copyright law. The photograph of the image (as opposed to the
underlying or original work) is a piece of property and no law
compels an organization to share its property (the reproduction),
even if the original work is in the public domain. Although the
original piece of art, the "underlying work" may be in the public
domain, scholars need the reproductive material, so they must make
agreements with those institutions for access to the material (as it
often costs a great deal for the museum to prepare). Another
participant reinforced the importance of making clear to people the
difference between copyright negotiations and contract negotiations.
Brad Nugent volunteered that any outside processing lab charges
on average $35 or more just to make a duplicate 4" x 5"
transparency. The Art Institute charges $75 to supply a 4x5 color
transparency to publish from for scholarly purposes. This fee
includes duplicating costs, administrative costs, and for scholarly
use and museums, the publication licensing fee. AIC also sells 35mm
slides for $6 each for research/reference/lecture use, but no users
would be authorized to publish from slides, only from 4x5
transparencies. He figured that when other costs are factored these
prices are close to giving away the material for free. (See the rights page at the
Art Institute for further information.)
Jennifer Trant made the point that fair use does not apply to
foreign works in foreign museums and so the fair use claim on the
proposed permissions form would not help in the majority of cases.
Rather it should be recast according to the underlying principles of
the type of use intended for the material. European museums may then
very well reply more favorably. Baron replied that in the U.S.,
However, asking for fair use is more of a strategic ploy. One should
let the institution know that you believe you have the right to use
an image, so the rights administrator will think carefully before
overcharging or charging at all.
Max Marmor stated that the form should also make a point of
asking whether or not the museum itself had the rights to give on a
work, besides asking about a reduction in reproduction fees.
One member of the audience presented a useful scenario. As a
designer of online distance learning courses, she generally uses
materials provided by the professor or institution when designing a
course. In an on-line course on the Depression, the professor wanted
to include a story about Jackson Pollock with reproductions of his
paintings. Access to the site was limited to students in the course.
Whose responsibility is it to acquire permissions? And what
resources are available for learning about the permissions process?
In reply, Panzer said that the first thing to consider is whether or
not Pollock's estate claimed copyright. If so, one would need to get
permission from them. Then, one might get the image from another
source that creates multiple reproductions and pay for their use.
However, if the course is offered within an institution that belongs
to AMICO, one could use those images without any other measures, as
this use is covered by an AMICO University Agreement.
Another participant commented that there is a need to develop and
test market distribution of digital images. Institutions ignore the
fact that they are taxpayer-funded institutions and have an
obligation to make collections available to the public. Jennifer
Trant responded that, although that was true, many museums are
privately funded, or only obtain a portion of their funding from
public sources. The reality of the cost of running cultural
institutions precludes giving things away for free if institutions
are going to survive. With many institutions this issue begins with
whether to have an admissions charge.
A VRA member asked about the future of long-standing repositories
of images. Doesn't site licensing run contrary to the ideal of
building permanent collections of slides for perpetual use by the
community? In response to this question about licensing rather than
purchasing digital objects, Trant suggested we think about what the
goal of repositories is. Is it about maintaining a body of static
(and aging) images or should it be about becoming a more dynamic
enabler of access to images and rich contextual information? Should
we not think more about the function of images as visual information
rather than as slides. This surely is one of the promises of going
digital -- service can be provided across the many parts of an
institution or many related institutions. The issue is whether deep
and broad access is more useful than ownership.
Christine Sundt stated that one needn't necessarily have to give
up ownership; that one's obligation is to discover what the new
technology does best. She saw the economic issue – of how
institutions can afford these new capabilities - as the primary one.
She pleaded for a balance between what we gain and what we lose in
licensing digital images from providers.
Note
1. Computer Science and Telecommunications Board, National
Research Council, The Digital Dilemma: Intellectual Property in
the Information Age, (Washington, DC, National Academy Press,
2000).
|