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Copyright, Fair Use, and Image Archives & Collections
The VRA/SC was honored to present a dialog between Christine Steiner, General Counsel for the J. Paul Getty Trust, and Carol Handler, an attorney with Alschuler Grossman & Pines, who specializes in intellectual property rights. In opening remarks, Ms Steiner commented that the law is a dynamic and changing entity. She professed a preference for preventative law rather than litigation.
To lay some groundwork, Carol Handler presented a philosophical overview or the origins of copyright law. Primarily, it is for the protection of intellectual property . She described copyright as an 18th C concept that combines principles from Lockian social philosophy, Newtonian physics, and Smithian economics. Intellectual work is an extension of our being, but mere labor is not enough. There must be a unique creative expression to exercise a copyright. The Constitution and Congress intend to protect and promote creativity. The 1976 Statute does not protect the idea, but the expression of the idea. While it is not necessary to register a copyright, it is a pre-requisite to litigation. To counterbalance, the limits to copyright are as important. After a finite time, the expression of the idea moves into the public domain.
Christine Steiner offered a few observations about the concept of Fair Use. Fair use is the exception in the copyright law to foster creativity in others. Judge Pierre LaValle states that "Fair use is the counterpoint of the copyright law". The new environment of life-long learning will present challenges to the concept of copyright.
Four factors are always important to consider when trying to determine Fair Use: The nature of the use; the nature of the work; the portion to be used; and the effect on the market (& potential market). If the use is fair, it is fair irrespective of the market effect. Carol Handler pointed out that the 'transformative' use is very important. She reiterated that copyright is the 'engine of free expression'.
Ms Steiner offered several elements to consider. She suggests looking to the activity not the use. For example, a print shop making copies of materials to be used for an educational purpose is not supported by Fair Use because the shop is making money, not gaining erudition. Fair Use cannot be used as a blanket for educational institutions just because they are non-profit. They may still be infringing on the copyright holders profits. She also cautioned against the preclusion of additional or future markets. Digital images and web-sites are creating new markets. Visual resource curators migrating an image from a slide to a digital format is not considered transformative.
Next, they touched on the issues of newer technologies. Uploading from an electronic bulletin board is a clear violation of the protected rights expressed in Statue 106. The copyright holder maintains the rights to the work to display publicly, make reproductions, performance, distribution, and licensing. They warn that there will be litigation dealing with the new media.
Christine indicated that publishers are willing to provide royalty-free image use. She pointed to the MESL project supported by the Getty as a model. And also mentioned licensing from vendors such as Corbis as another legal means of obtaining images. Her most encouraging comment was that "eventually compliance should be easier than infringement".
In addressing the academic environment, Ms Steiner indicated that the classroom has always been viewed as 'a safe harbor'. But, we as visual resource curators cannot count on that line. In discussing the question of photographs from books, she noted that photographer will often require publishers to protect the copyright of their works. In litigation, the courts will look to solid business practice and procedures. While Fair Use may be used as a defense, attempt to get permissions first. We must demonstrate our efforts to acquire images within the context of supporting intellectual property rights. She warned that "inconvenience is no excuse for infringement".
It was noted that many issues on the educational use of copyrighted materials are currently being hammered out by the Conference on Fair Use (CONFU). Brief descriptions of the Green Paper and the White Paper were presented. Ms Steiner observed that copyright is a multi-layered. Ms Handler's final comment was that lawyers should facilitate what the VR person can do within the law and is not an adversary.
As the session was ending, Maureen Burns questioned whether there have been any test cases in court directly related to photographic archives and digitized images. The answer was no. The next part of the question was what are our options and what course of action should slide curators take when faculty request that existing visual resources collections be digitized? The answer was that we can digitize slides that we have shot on site ourselves or that faculty have shot of architectural monuments and art objects (not out of books); we can get permission from publishers, slide vendors, or museums for each object we want to digitize; we can wait for the model that should result from the Getty's Museum Educational Site Licensing (MESL) project; but we can't use our existing archives unless we have obtained permission from the appropriate party. Essentially, don't do it if you don't have a license or talk to the appropriate counsel at your institution anyway.
