Fair Use or Foul Play? The Digital Debate for Visual Resources Collections
Virginia M.G. Hall, Johns Hopkins University
The following paper was given at the Association of College and Research Libraries, New England Chapter conference "Wired and Wary: Legal Issues for Librarians in the Digital World" held at Boston University on November 7, 1997.
It is quite astonishing to think that a mere five years ago most of us were just beginning to glimpse the possibilities offered by emerging digital technologies. Many of us in the academic world were utilizing e-mail, OPACs, and Gophers, but the marvels of the Internet via the World Wide Web were still on the horizon. We weren't in Kansas anymore and Cyberspace was looking pretty good. If the naive wonderment lasted only microseconds, perhaps we should not have been too surprised. It is an era of rapid change. Suddenly the exciting prospects of Cyberspace were tempered by the development of Cyberlaw. The razzle-dazzle became fraught with legal implications and intellectual property law took on a new dimension.
In September of 1994, public hearings were held on the Green Paper entitled "Intellectual Property Rights and the National Information Infrastructure." This was part of a larger effort of the Information Infrastructure Task Force formed by President Clinton in February 1993, and essentially represented an effort to amend the Copyright Act of 1976 in order to cover certain Internet issues. As there was widespread concern that the proposed amendment did not adequately address the concept of fair use, the Patent and Trademark Office convened the Conference on Fair Use, a.k.a. CONFU.
The CONFU meetings began in October 1994. Attending the conference were representatives from more than sixty different interest groups: commercial, public and educational. During the initial discussions it was apparent to all that librarians, educators and scholars were feeling an acute need for legal direction in the new digital environment. Five areas were identified with a view towards developing guidelines for educational use of electronic/digital media: Image Archives, Multimedia, Interlibrary Loan, Electronic Reserves, and Distance Learning. Working in groups over a period of more than two years, conference representatives eventually produced three sets of proposed guidelines. At a final CONFU meeting this past May, only the Guidelines for Educational Multimedia had received significant endorsement and the support for these was much debated.
The Proposed CONFU Guidelines for Fair Use of Digital Images were widely held by Visual Resources professionals to be overly restrictive and generally unworkable. One of the reasons why these CONFU guidelines wonðt work for the constituency for whom they are intended has to do with the issue of copy photography. The guidelines permit digitization of "lawfully acquired" slides. The use of this term came about in the following way.
Early in the CONFU process, scenarios were developed for use of digital image archives based on existing analog slide collections. The issue of copy photography soon came to the fore. The representatives of publishing concerns and other rights holders groups, were quick to characterize this as an illegal activity and refused to recognize a fair use argument. In the working group for digital images, which had representatives from various camps, the argument over the legality of copy photography threatened to bring the process to a stalemate. The use of the term "lawfully acquired" appeased the rights holders because they felt it precluded using slides made from copy photography. The users group felt that the term was vague enough to allow a fair use defense. At the time it seemed a brilliant means of side stepping the problem. However, the reality is that it leaves the curator/librarian/educator who is developing a digital image project using slides as the analog image back at square one, without a clue as to whether it is safe to digitize the slides in the archive which were produced by means of copy photography.
The issue of copy photography as a fair use in the teaching of courses which require the use of images is complex. I will try to touch on the salient points in order to give an overview of the problems.
For those of you who may not be familiar with the world of the academic visual resources curator/librarian, copy photography is the practice of making slides from pictures in books, exhibition catalogues, journals, etc. The practice is long standing; the collection I manage at Johns Hopkins University dates back to the early 1940s and I have found slides made from copy photography which appear to date from those early years. The use of copy photography evolved for several reasons. Although one can purchase slides from vendors, the quality of those slides may vary considerably and the selection of those slides is based upon market demand. While all of us may need a slide of the Mona Lisa in our collections, I may be one of only two curators in the world who needs an extensive selection of slides of the Early Christian fresco fragments found in the church of San Felice in Ceri, Italy.
Quite simply put, the number of slides available commercially represents only a tiny percentage of the works of art and architecture in the world. Scholarship in the discipline demands the use of images; lots of images. It is conservatively estimated that a semester long art history course may use two thousand slides. It doesn't take a rocket scientist to do the math. At a mid-size institution where there are ten art history courses being taught each semester, professors will use forty thousand slides a year. The second reason we slide curators/librarians make use of copy photography has to do with money. Generally speaking it is more cost effective to produce a slide in house than to purchase it from a vendor, and for most of us, budgets are tight. The third reason has to do with time. I can have a slide made in less than twenty-four hours in house; ordering from a vendor will take several weeks at least.
Although there is little documentation on the history of academic slide collections in this country, anecdotal evidence suggests that at least through the 1960s no one thought twice about the practice of copy photography. The collection at Hopkins is not atypical. We have approximately 310,000 slides. Records for numbers 1 to 150,000 are non-existent. Record keeping began in 1963, but seems to be primarily with the intent that it would make replacement of lost and damaged slides easier. It is my suspicion that no one worried much about the practice of copy photography until the advent of the 1976 Copyright Act.
I believe it is important to understand that the Copyright Act of 1976 does not adequately address issues for materials which I will loosely label "the visual arts." What works for text based materials simply does not translate for painting, sculpture and other art media. Take the process of registration for example. It requires depositing two examples of the work. There are exceptions, and it becomes immediately evident that if an artist creates a unique painting, sculpture or other non-multiple artwork, she cannot very well deposit it. Some form of reproduction is therefore acceptable. So from the beginning, we are dealing not with the work itself, but a surrogate. There are other issues as well. An author typically writes a book every few years, while a visual artist may create hundreds of works in the same time period. Registration of all these works becomes a complicated process. Notwithstanding that all works are protected from the point of creation, a work must be registered in order to bring a complaint of infringement. It is my understanding that almost all published texts are registered for copyright protection, however the same is true for only a relatively few works of visual arts.
With the passage of the Copyright Act of 1976, concerns about new technologies, specifically photocopying, suddenly put the practice of copy photography in a new light. What happened next was that CONTU (the National Commission on New Technological Uses of Copyrighted Works) formulated guidelines on photocopying for inter-library loan use, and The Ad Hoc Committee on Copyright Law Revision developed the Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions. Suddenly slide curators and librarians found that guidelines intended for photocopying of text materials were being interpreted as applicable to their visual resources collections. In short, to quote my colleague Loy Zimmerman from California State University "...we are forced to adapt to our circumstances a set of guidelines which were developed for a different educational setting, governing copying into a different medium, by a different reproductive process, and for use in very different ways." 1
The four factors to be considered in determining if a use is a fair use are: (1) purpose and character of the use; (2) nature of the copyrighted work; (3) amount and substantiality of the material used; and (4) the effect on the market.
The classroom and CONTU guidelines interpreted the fair use factor of "amount and substantiality" in terms of percentages, and that of "purpose and character" of use to insist on spontaneity. The "effect on the market" was construed to mean that after an initial use, permission must be sought. Following are examples of situations which slide curators/librarians face on a daily basis. A professor is teaching a course based primarily on the works of a single artist. There are only a few slides of this artistðs works available commercially, and only two books published which document her work. If I limit the number of images we use from the books to conform to a "fair use percentage factor" it will prohibit the professor from adequately teaching the course. In fact, it is not unusual for a single publication to be the only source available for images that are needed.
There are also issues of duplication-when a professor needs to show a slide more than once during the course of a lecture, when a slide is damaged, when two professors need the same slide at the same time. How do we determine the number of copies we can make? Here again, the classroom guidelines for photocopies do not provide a useful analogy.
Spontaneity is problematic given the amount of time it takes to prepare the hundreds of slides that may be needed to teach a new course. Not many of us have the budgets or the time to even think about throwing away the slides we make at the end of the semester. The slides are not in fact a substitute for a marketed product, as repeated use of photocopies in a classroom might be seen to substitute for the sale of a text book. The images are used independently with no direct reference to the source from which they were taken.
And here the question "Why don't you seek permission for continued use?" may be raised. While established copyright clearance mechanisms exist for use of other media such as text and music, there is no such entity for fine art images. And in the case of images, a reproduction may be several times removed from the original, underlying work of art, and rights accrue with each layer of remove. Take the case of a recently deceased artist, with a work of art in a foreign art museum, whose photographer has made a transparency for an author to use in a publication, and someone has used copy photography to make a slide from that publication for a professor to use in teaching an art history course. From whom do I seek permission? That the task becomes impossibly time consuming is illustrated by my own experience. Several years ago I did a free lance project for Michael Fried, a professor at Johns Hopkins who was working on a book on Eduoard Manet. There were to be three hundred illustrations in the book. My job was to secure the reproduction rights for the illustrations. It took two years. At that rate, even if we are adding only six thousand new slides a year, the average slide curator/librarian would need forty years to seek permissions for a single yearðs acquisitions.
Aside from the issue of spontaneity and seeking permissions, we might also ask what effect copy photography has on the market. As noted previously, only a very small percentage of the slides we need to teach are available commercially. Perhaps the publishers should realize that a book from which we make slides is a book sold. When colleagues are looking to find slides, we frequently cite books where those images might be found, which translates into more copies sold. In this case, the questionable issue is if an image is available commercially, but is of poor quality, must I purchase it when I can produce a much better image through copy photography? Along these same lines, slides sold by vendors are often only available as sets. Must I pay $500. for a set of slides when I am only in need of a single image?
The fact is that guidelines for photocopying of text simply do not provide a usable paradigm for the slide curator/librarian. Art related courses generally rely on reproductions, or surrogates of the original works of art for instruction, not on the works themselves and that fact immensely complicates the issue of fair use. As well, one might question whether a photographic reproduction of a work of art in the public domain is indeed a copyrightable entity. The Copyright Act uses the following standards to determine if a work might be copyrighted: (1) "The work must be original in the sense that the author produced it by his own intellectual efforts, as distinguished from merely copying a preexisting work." (2) Although " ...[t]here is no requirement of novelty, ingenuity, or esthetic merit, ...the work must represent an appreciable amount of creative authorship." 2 The question is whether there is sufficient creativity involved in reproducing a work of art to warrant copyright. Photographers claim that choice of materials, lighting, exposure, etc., turn the reproduction into an original work of art. That claim can be countered by the fact that techinical expertise is not necessarily creativity or a copyrightable entity.
The following situation might pose an interesting means of framing the underlying question. What happens if an artist hires a photographer to makes slides of her works of art for the purpose of copyright registration, but the photographer retains the rights to the photographic images and seeks to register them for copyright protection? Can copyright be granted to two people for two separate claims based on the same piece of registered material? It would seem that either the resulting slide or photograph is a surrogate or it is sufficiently originally piece of work to be a different entity from what it reproduces and therefore would not be an adequate document for registration. How can it be both at the same time? I will leave this dilemma to the lawyers, but certainly for the purposes of the visual resources professional, the best slide is the one that most accurately reproduces the work of art to be studied not the most creative photographic interpretation of that work. Our interest lies in maintaining the integrity of the original, underlying work.
One of my favorite moments at the Conference on Fair Use occurred when a well known champion of the publishers' interests stood up and said to me, "I don't know much about art, and I never took an art history course, but I do know that the slide collections of major academic institutions in this country do not contain large numbers of slides made from copy photography." It was probably fortunate that I was too dumbfounded to answer. Of course the fact is that we do all have large numbers of slides made from copy photography in our slide collections and that art and art history simply could not be taught without them. The bottom line is that until the issue of legality is resolved in the analog world of slides made from copy photography, we can not begin to address the fair use questions of digitizing those slides.
I would like to remind us all that although copyright law gives control to creators of works over the rights to reproduce, distribute, display or perform, and make derivative work, discussions of fair use should note that "...the primary purpose of copyright legislation is to foster the creation and dissemination of intellectual works for the public welfareS¹." 3 And as Kenneth Crews has stated, " ...[t]he doctrine of fair use evolved from a recognition that the public should be allowed a limited use of copyrighted materials in "...a socially beneficial" manner without the rights holders' permission. 4 And further that "...fair use is intrinsically aligned with the notion that education deserves preferential treatment and should not be unduly inhibited." 5
Over the past two years I have seen the future of art history weighed against the future markets of the publishing interests. It is interesting that the practice of copy photography was largely ignored for decades, until the advent of digital technology. Issues of wide dissemination, the specter of lost revenue and the interest in future product possibilities are clearly the causes of this sudden incentive to squelch fair use.
The Proposed CONFU Guidelines for Fair Use of Digital Images as they stand do more to protect the future markets of commercial interests than they do to serve the educational institutions for whom they are intended. It seems in fact that it may be premature to implement guidelines. The technology is in a dynamic phase, use is experimental and guidelines may only serve to limit the creative innovation which is essential to the educational process. While the rights of creators must be recognized, respected and rewarded, it cannot be to the detriment of intellectual pursuit.
So are we to be completely paralyzed by the stalemate over the issue of copy photography? Realistically the answer is no. The visual attractions of the World Wide Web make it a perfect environment for experimentation by fine arts educators. Most of us are under pressure by faculty and students to utilize digital media. We simply are not going to stand by while legal issues catch up with the technology. Somewhere between not taking advantage of the possibilities in fear of risking a law suit and throwing all caution to the wind by distributing copyrighted materials to all users of the Internet, lies a reasonable middle ground.
At this point it seems sensible for user groups to develop their own sets of guidelines or principles for digital images, using the CONFU draft as a reference point and adapting it to their needs as those needs evolve. After all, educational interests merely seek a means to pursue their mission. The new technologies offer exciting and innovative possibilities toward this end.
The Visual Resources Association Committee on Intellectual Property Rights is working on just such a set of principles. The idea is to start with the concept of respect for the rights of the owner, but to keep in the equation the rights of the user. We seek to balance purchase of images and licensing agreements with the use of copy photography where images are not otherwise available. It is understood that access to images will be restricted in an appropriate manner if copyrighted material is used. There are specifications for attribution of images and conditions for use are outlined. There is also a section on the responsibility for overseeing the archive. We seek to keep the document short and comprehensible. In general we feel that an approach which uses broad principles rather than the bean counting method of past guidelines will be far more useful over a period of time.
As well, librarians and educators must become more politically aware. There are a number of bills before Congress at the moment which will affect our future use of electronic media. We must educate ourselves and work to support those which will further the educational process rather than suppress it.
The National Humanities Alliance's Basic Principles for Managing Intellectual Property in the Digital Environment and the bill currently being studied by the Senate Judiciary Committee introduced by Senator John Ashcroft entitled Digital Copyright Clarification and Technology Act of 1997 (S.1146) are illustrations of ways of insuring that we maintain fair use of digital materials.
The National Humanities Alliance's Basic Principles for Managing Intellectual Property in the Digital Environment offer a practical guide for librarians and educators. It is a set of ten principles which provide standards for evaluating legislative proposals. This represents a return to a clear and reasoned approach, which contrasts dramatically with the rhetoric one encounters in dialog with special interests groups. These Principles have been endorsed by a number of organizations, professional societies and institutions.
The Ashcroft bill offers a means of balancing the rights of owners of intellectual property with those of users. It clarifies the extent of liability for libraries and non-profit educational institutions for actions by their users; provides for a rapid response to copyright infringement in order to curtail piracy; provides for the use of digital technology in education, research and library archives, including updating the fair use doctrine for electronic media; and provides a standard for liability based on individual conduct, not one which constrains the use of new technolgy. 6
At the end of the day, I hope that we are not so much "Wired and Wary" as "Wired and Ready." It is our responsibility to "Just Say No!" to those who threaten to change the existing legal balance between rights holders and users incorporated in the 1976 Copyright Act. As librarians and educators it is essential that we be empowered to take full advantage of the technologies available to us. We can and must insist that fair use remains alive and well in the digital age.
1. Zimmerman, Loy. Presentation on Copy Photography for the Panel: Copyright Issues for Academic Slide Collections. Joint Session of the VRA-CAA Conferences in New York City, March 13, 1997.
2. Peters, Marybeth. General Guide to the Copyright Act of 1976. Washington, DC: Copyright Office, Library of Congress, 1977, 3:1. 3. Peters, 1:1
4. Crews, Kenneth D. Copyright, Fair Use, and the Challenge for Universities: Promoting the Progress of Higher Education. Chicago and London: University of Chicago Press, 1993, pp. 22-23.
5. Crews, p.23
6. Electronic Press Release from NINCH-ANNOUNCE. "New Balanced Copyright Legislation Introduced." September 5, 1997.