Wednesday, November 26, 2014

RAO Hot Topics Blog Series:

What's the Risk? Helping users understand real-life archives-and-copyright concerns

Matt Herbison, Drexel University College of Medicine, SAA RAO Steering Committee Member

As archivists, how can we truly help users address copyright considerations when they are using material from our collections?  Most of us have Title 17 warnings (aka, "photocopy signs") prominently displayed in reading rooms, on research/request forms, our websites, etc.  While this might be the most common mention of copyright that our users see, this is more for covering ourselves than for the benefit of users -- and its language generates more questions than answers.

The most effective moment to educate users is when they come to us with specific questions about specific items in our collections, at other repositories, found online, etc.  These are the teachable moments when copyright stops being abstract and starts being applied, with real ramifications.  Effective education for users comes from a combination of (1) helping them understand the specifics of their situation and (2) discussing tools that can help them carry out the work themselves.  Understanding the application of pertinent tools is a precept of many educational situations, certainly not just copyright issues.  There are some great tools out there that work well during conversations with users (see some below).

When it comes to real users' real copyright concerns, we can help users understand that copyright is about the law, but applying copyright is about gauging risk and deciding what a particular user might want to do based on that risk.  For items that are obviously still in copyright, unauthorized use of such items without permission is clearly illegal, so most -- but not all -- people perceive this as "high risk" and don't do it.  For items in the public domain, copyright is (by definition) "no risk" -- yet it's strangely common for publishers who should know better to ask unnecessary permission for public domain items.  In these two "easy" cases, the focus on risk is usually comprehensible even for users who haven't had to worry about copyright before.  But what about those messy orphan works that make up such a large part of so many archival collections?  Now for the gray-area discussion...
Orphan Works: For archives and users, this is a huge area of hard-to-determine risk -- items of uncertain copyright status or where rights owners are unknown or hard to locate.  If it takes you more than three minutes to figure out which Hirtle/Cornell Copyright Table category something falls into, there's a decent chance that it's an orphan work and will require further research simply to try to identify the copyright status or holder.  What can a user do to minimize the risk for use of orphan works?  I recommend the SAA: Orphan Works, Statement of Best Practices -- check it out.  One recommendation is to document one's diligent searches in order to show a good-faith effort that a copyright holder was identified (or not) and contacted (or the hunt failed).

As archivists, two big motivations we try to balance are (1) advocating for easy and wide use and (2) respecting the rights of copyright owners.  For orphan works, this balance is indeterminate and shifts shakily depending on the user and their level of risk-aversion.  How worthwhile is it for a user to spend unsuccessful hours trying to find a copyright holder who wouldn't give a rat-rump that they're using something?  I feel completely morally bankrupt saying this -- damn you Catholic upbringing -- but with copyright, I don't think it's worth "doing the right thing by someone" when that someone in all likelihood couldn't care less.  Is it defensible that I feel I'm trying to do right by the user rather than by an unknown, non-existent, or disinterested copyright holder?

So while working with users, I recommend best practices for orphan works.  But I don't presume that more than a handful of users will follow these guidelines even to the "minimum search" level.  With this in mind, I do my best to try to advise users, case by case, based on my professional experience and opinion.

What is our responsibility as archivists in these situations?  I often find myself talking with users, saying something like, "Understand that the burden is on you as the end-user to either verify the image's public domain status or take on the risk in using the image -- the risk that it is still under copyright and the owner will come after you for using it without permission.  I can recommend these tools to help you identify and gauge the risk.  My own gut feeling is that the risk of using the image is [low,high,etc]."  Am I opening myself up to liability just by sharing my gut feeling?  I am to some degree, so in a sense I'm also implicitly staking my job on my professional opinion.  I haven't always done this, but after too many cases where I felt like I was not truly helping a user, I started doing it a couple years ago.  Since then, I've received a number of comments thanking me, for example, for "making my work that much easier."  I could be pessimistic and say that this user was thanking me for giving her license to infringe, but I don't think that's what she meant.
Note: This discussion ignores big issues like fair use, copyfraud, contractual agreements with users, unenforceable click-through licenses, best orphan works practices for repositories (not users), and several others.


Copyright Term and the Public Domain in the United States
Peter Hirtle, Cornell University Library
{100% indispensable in my day-to-day work}

Copyright and Fair Use Tools
Stanford University Libraries

SAA Orphan Works: Statement of Best Practices

Book: Complete copyright : an everyday guide for librarians, Carrie Russell, 2005

{As copyright guru Peter Hirtle says, "the single best overview of the copyright policy issues facing libraries and archives today."  Granted, "today" was 2005, but I've continually found it to be the comprehensive resource with the most clarity.}