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Intellectual Property Rights in the Digital Age: An Overview
by Macie Hall, Johns Hopkins University
Introduction
Six months ago when Kathe and I were in the heat of the discussions in the working group for the image archive guidelines, she mentioned that she was planning a fall event for the Mid-Atlantic chapter of the VRA. "Would you be willing to do a short report on the subject at hand?" she asked. For those of you who have ever been in a similar situation, you know that six months seems like a lifetime away. Even six weeks...it's not until one hits about the six days mark that the reality strikes. "An overview of intellectual property rights in the digital age? What was I thinking? This is a topic for a book, at least! What can I say in twenty-some minutes that will be meaningful?"
And this is a real dilemma. We have a final version of a set of proposed guidelines for digital image archives which will be presented at the last meeting of CONFU (Conference on Fair Use) at the end of this month. The guidelines are in the form of a ten page, single spaced document. It seems a fairly daunting task to try to cover all the points and issues at this time. So instead, I will try to briefly summarize the events which have led us to this final draft, discuss what happens next, try to place the guidelines into a more general legal context, and examine the criticism of these guidelines and the consequences for our professional organizations of endorsement or non-endorsement.
Background - How We Got Here
The Fair Use Conference was convened in September of 1994, at the time public hearings were held on the Green Paper entitled Intellectual Property Rights and the National Information Infrastructure. The Green Paper was produced in the summer of 1994 by the Working Group on Intellectual Property Rights, chaired by Assistant Secretary of Commerce and Commissioner of Patents and Trademarks, Bruce A. Lehman. This was part of a larger effort of the Information Infrastructure Task Force formed by President Clinton in February 1993. Sandra Walker, then President of the Visual Resources Association, attended both the public hearings and the first conference meeting and presented statements. After these initial meetings, I was asked to attend the subsequent meetings of the Fair Use Conference in her place.
The CONFU meetings began in October 1994 and the final meeting has been set for the end of this month. Attending the conference are representatives from more than sixty different interest groups, commercial, public and educational. At the initial meetings we identified issues that we felt should be considered. Working in small groups, we subsequently developed issue statements and scenarios. Eventually five areas were identified for developing guidelines: Image Archives, Multimedia, Interlibrary Loan, Electronic Reserves, and Distance Learning. Until last February much of the work was presented to and debated by the entire CONFU group. Progress was slow and many representatives became discouraged. Finally, a decision was made to put the focus on the working groups. These groups began to meet more frequently--several times a month; and reported to CONFU after intervals of two to three months. (It was at this point that Kathe Albrecht got involved with the process.) The smaller groups were much more conducive to the process of writing guidelines as the members of each working group had direct interest in the particular subject. The group working on Image Archives issues went from a position of total stalemate in February to anarchy in March to a set of guidelines in mid-April which were agreeable as a starting point to members of the group.
Where We Are Now
Since then we have refined, reworked, restructured our way through at least twenty different drafts of the guidelines and as of Tuesday, we have a final version. The copy of the draft in your packets is not the final version, but the penultimate one. I believe that the final version will be posted to the VRA-List, to the VRA Web Site, and made available in some way to those VRA members who do not have electronic access.
Kathe and I would like to thank all of you who took the time to read through various drafts and make comments. Your questions and concerns provided valuable input during the negotiations. I will say that it was not our expectation that there would be great rejoicing when this document was make public. We have been in a process for almost two years now, so for us it is easy to see how far we've come and what this document represents in terms of compromise on both sides. We understand that for our constituents it may not be so clear.
What Happens Next?
During the course of the past several CONFU meetings the general sentiment has been that this process needs to come to an end. The last meeting of the Conference on Fair Use has been set for Monday November 25, 1996. Working groups may continue to develop guidelines, but the work of the Conference as a group is finished. Having reached a consensus on this, the group discussed the logistics of reporting on the process and on the mechanism of the endorsement procedures for guidelines that have reached a completed state. It was decided that Peter N. Fowler, who is the Chair of CONFU for the United States Patent and Trademark Office, would write the report. This report is to be an account of the process which began in October 1994. It will be presented to Congress and read into the Congressional Record.
The group has written a common preamble for the guidelines and devised a system to cross-reference the guidelines. The mechanisms for endorsement of guidelines is a more complex issue, in part because the guidelines are in various states of completion and agreement.
The working groups for Electronic Reserves and Interlibrary Loan have both reached a stalemate. It seems unlikely that guidelines will be forthcoming in the near future. It is possible that the working groups and/or other interested parties will continue to meet.
Although there is some controversy on the current draft guidelines for Distance Learning, the group is still moving forward. The Multimedia Guidelines have already received endorsements from a number of academic and industry groups and recognition from the Congressional Subcommittee on Courts and Intellectual Property.
As to endorsement of the Image Archive Guidelines, it will probably be recommended at the final CONFU meeting that there be a period of several months for our constituent organizations to meet and debate endorsement. The VRA Annual Meeting in New York City in February will likely be an appropriate forum for such discussion. Kathe and I will be discussing the process with the VRA Board and Intellectual Property Rights Committee.
Understanding the Guidelines
The big questions are what are the pros and cons of these guidelines and what will be the consequences of endorsing or not endorsing. In order to begin to address these questions, we need first to understand what guidelines are.
Guidelines are guides. They are not "law." They represent a consensus among parties as to what is likely to be considered a reasonable, legal practice. A variety of vantage points among the participants constructing the guidelines helps to assure a comprehensive legal perspective. While there are no guarantees if you follow a set of guidelines, generally speaking the more closely you adhere to the suggested practices, the less likely you are to run afoul of the law. While the VRA could construct its own set of guidelines, without the endorsement of the various groups representing the rights holders whose intellectual property is affected, they would be meaningless. In this case, the guidelines attempt to negotiate a consensus on what fair use of digital image archives would be.
The Conference on Fair Use was convened when amendment to the copyright law to address "Internet" issues was proposed because it was felt that fair use was not adequately addressed. CONFU was charged with dealing with fair use issues in the digital environment. In discussing fair use, it should be noted that, to quote Marybeth Peters, "...the primary purpose of copyright legislation is to foster the creation and dissemination of intellectual works for the public welfare... ." (1)
The 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 holder's permission. (2) It is, in fact, a limitation on the exclusive rights of the copyright owner. Although the concept was not encoded in law prior to the 1976 Copyright Act, it is not without historic precedent. Court cases involving the philosophy of fair use of copyrighted materials go back to the last century. As set forth in the 1976 Copyright Act, Section 107, fair use is not precisely defined in scope. Indeed, it would be difficult to set rules to cover all situations and it is generally recognized that each casemust be decided on its own merits. In guidance, the law offers that purposes such as comment, criticism, news reporting, teaching, scholarship and research may be considered fair uses and sets out four factors to be considered in determining if a use is fair. These are: 1) purpose and character of the use; 2) nature of the copyrighted work; 3) amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of use on the potential market. (3) Lack of specificity aside, it is clear that historically, to quote Kenneth Crews, "...fair use is intrinsically aligned with the notion that education deserves preferential treatment and should not be unduly inhibited." (4)
In addition to the difficulties posed by the imprecise nature of the fair use doctrine, we as slide curators and librarians are faced with the problem of determining who the rights holders are for any given image. Unlike text or music, this is seldom straightforward. A digital image, or even a slide may be several steps removed from the original, underlying work of art which itself may or may not be copyrighted. Each successive stage of reproduction may well have intellectual property rights attached. An example of the nightmarish task of sorting through these rights comes in the form of a recent question posed to me by a scholar at the Art Institute in Chicago who wants to use the picture of Velazquez's Las Menias that was the frontispiece to the first edition of E.H. Gombrich's Story of Art to illustrate an article. It must be this particular version, because it is the worst reproduction of the art work he could find and this illustrates a point for the article. I can assure you that it will not be an easy process to figure out what to do about getting permission for this one. Velazquez is long dead; the publisher may give him permission to use their version, but what of the Prado? Typically museums want one to use the best possible reproduction of an art work in a collection. A reproduction which they will provide and charge a fee for purchase and reproduction. What are the publisher's rights here? The Prado's? How far must the author or user go in obtaining rights? Do we have the right to use a "bad" reproduction? All of these issues complicate the process of obtaining rights to use images.
This brings us to the subject of copy photography, and we must realize that this is a very touchy situation. First and foremost, these guidelines were meant to address digital images not slides. The debate on the "legality" of copy photography has been tremendously heated. Archiving slides made from copy photography may be a stretch of fair use because of the use is repeated and long term. I have heard slide curators and librarians claim that time constraints were not a consideration in the fair use analysis. However, court cases and precedent in previous guidelines have made time a factor in deciding whether a use might be fair. Arguably, factor one, the purpose and character of the use, includes whether a use is short or long term. While I personally believe that a straight-on photograph of a work of art in the public domain should not be copyrightable, that is not what museums, photographers, and publishers feel. Until the issue is tested in a court case, we will have to use individual judgement, because we are not going to get a consensus on this.
Early on in the process, a CONFU representative who I would characterize as being in the "User" camp (as opposed to being a "Rights Holder" or "Commercial" party) asked me if the VRA really wanted guidelines. I said that we had been after guidelines for our slide collections for years. He replied that in the end no one would be happy because guidelines would in all likelihood restrict and limit our current practices, especially copy photography. He was right. We opened a giant can of worms.
I think our collective fantasy was that we would get a stamp of approval for our current practices and permission to do business as usual. If only "they" could understand what it is we do and how limited our budgets and personnel are. The reality is that after two years of explanation and education, as loudly as we claim "Fair Use," the rights holders and commercial interests cry out "Illegal Activity." Each side has its arguments and the guidelines represent a compromise.
To Endorse or Not to Endorse: What are the Consequences?
Perhaps it would help to put some of this in perspective. These are some of the things which the "other side" wanted which are NOT in the document because we fought and argued and won a compromise. 1) Restrictions on the numbers of works that could be used by a single artist. 2) Destruction of archived images after a time period if permission was not obtained. 3) No thumbnail images without permission. 4) Heavier restrictions on security issues. No download capabilities on terminals being used--i.e. no printers, disk drives, etc. This would have meant no broad access as only "dumb" workstations could be utilized. The wording on the security issues asked for absolute guarantees on this point. 5) Labeling information had to be included on the screen with the image. This would have precluded using the technology for exams or self-testing. 6) No transition period and no grandfathering of existing collections. 7) No digitizing of slides made from copy photography. 8) Characterizing copy photography as an "illegal activity."
In the process of rewriting the various drafts, we have polled our constituents for feedback. Following are the major criticisms. It is felt that these guidelines compromise existing projects and experiments and have the effect of restricting and controlling new technology rather than encouraging creative, innovative uses. There are no viable solutions offered to the problem of the multiple layers of rights which accrue as images are reproduced. The burden of obtaining rights is placed entirely on the user. The cost of complying with the guidelines will limit the use of digital image archives to large and wealthy institutions. The guidelines will have a disproportional impact on users as a result. Time and use restrictions are not justified under the doctrine of fair use. There is no recognition of the fact that commercial sources cannot serve our needs entirely.
If the VRA were to endorse the guidelines, we would be risking all of the above problems. It is less clear what will happen if we chose not to endorse the guidelines. There are those who feel that the technology is too new, that the uses are in a dynamic phase, that teaching within the digital environment is evolving; in short that it is just too soon to attempt to produce sets of guidelines. At the very least, non-endorsement returns us to limbo. There is also the thought that even if these guidelines fall by the wayside, they may become a kind of unofficial standard in the absence of something more concrete.
The Titanic and Dodge City
In trying to bring these thoughts to a close today, I would like to offer to you two of my favorite quotes from the past two years. The first is from Barbara Hoffman, counsel to the College Art Association, the second is from the White Paper on Intellectual Property Rights and the National Information Infrastructure. Together they represent the opposing sides in the intellectual property rights war in the digital age.
"Amending the Copyright Act [to accommodate Internet use] is an exercise on the order of rearranging the deck chairs on the Titanic." (5)
"...there are those who argue that intellectual property laws of any country are inapplicable to works on the NII or GII because all activity using these infrastructures takes place in Cyberspace,' a sovereignty unto itself that should be self-governed by its inhabitants....such a legal free-for-all would transform the GII into a veritable copyright Dodge City." (6)
Given this gulf between the rights holders and the users, what is the bottom line? Are those of us who embark on digital image projects risking lawsuits in the absence of workable guidelines? I've heard curators and librarians claim that no one is going to bother to sue us. It is probably the case that in the past there has been no legal challenge to our practices because there has not been the likelihood of a significant monetary gain. It is also true that the constituency was small and the situation was relatively unthreatening--a few slide curators making a few slides from a few books. This may change in the digital environment. Essentially, issues involving dissemination is a major the reason that "they" are willing to ignore our analog/slide collection practices, but want assurances when it comes to digital media. It seems quite likely that the threat felt by commercial interests with the development of new technologies, a greater number of people using and potentially misusing images, and a potential for markets and thus monetary gain, may make a legal challenge not only financially feasible, but necessary. Perhaps a legal case is needed to resolve the issues.
Can we minimize our individual risks? Absolutely. Even if the Image Archive Guidelines are never approved, they give us an indication of where the rights holders stand. I believe that slide curators and librarians can give some thought to those practices which are most likely to raise a red flag, and proceed with caution.
Finally I want to say that it has been a tremendously rewarding experience representing the VRA at CONFU. Regardless of the outcome on the guidelines, I feel that the past two years will not have been wasted. The process was educational both for the VRA as a professional organization, and for the other CONFU participants. There is a greater understanding among educators and commercial interests of the process of teaching with visual materials. At the same time, we have gained some insight into the concerns of rights holders. We have achieved "name recognition" and been invited to participate in other initiatives such as the Digital Future Coalition and the National Initiative for a Networked Cultural Heritage. Having a political presence in Washington is a major step forward for the VRA. In short, we've come a long way, baby, from the dusty slide room to the digital future, and I'm proud to have been a part of it.
Notes
1. Peters, Marybeth, General Guide to the Copyright Act of 1976, Washington, D.C., Copyright Office, Library of Congress, 1977, 1:1.
2. Crews, Kenneth D., Copyright, Fair Use, and the Challenge for Universities: Promoting the Progress of Higher Education, Chicago and London, The University of Chicago Press, 1993, p. 22-23.
3. Peters, Marybeth, General Guide to the Copyright Act of 1976, Washington, D.C., Copyright Office, Library of Congress, 1977, 8:1.
4. Crews, Kenneth D., Copyright, Fair Use, and the Challenge for Universities: Promoting the Progress of Higher Education, Chicago and London, The University of Chicago Press, 1993, p. 23.
5. Barbara Hoffman, Counsel for the College Art Association, informal conversation at College Art Association Annual Meeting, February 1996.
6. Lehman, Bruce A., Chair, Intellectual Property and the National Information Infrastructure: the Report of the Working Group on Intellectual Property Rights, Washington, D.C., Department of Commerce, U.S. Patent and Trademark Office, September 1995, p. 15.
Virginia M.G. Hall, Curator
Art History Visual Resources Collection
Johns Hopkins University
