The Importance of Fair Use and Standardized Rights Statements for Digital Cultural Heritage

In honor of Fair Use Week 2018, the following is a guest post from Digital Projects and Services Librarian Rachel Appel and Bibliographic Assistant III for Digital Projects Gabriel Galson. At the Libraries, Appel and Galson work on the PA Digital project. PA Digital is a statewide partnership that collects materials from Pennsylvania cultural heritage organizations and transmits them to the Digital Public Library of America (DPLA). The DPLA aggregates digital collections (images, photographs, text, maps, audio and video) shared by libraries and archives’ special collections all across the United States.

Fair use is a US legal doctrine that allows limited reuse of copyrighted materials. It is an invitation to the sort of intellectual/artistic exchange that keeps our culture vibrant, and a counterbalance against the the US’s increasingly strict copyright laws. Sampling, artistic appropriation, creative or educational quotation, parody, and text mining/textual analysis are all activities that flourish under fair use’s protection, shielded –to a degree at least– from the threat of litigation. Likewise, libraries, archives and museums around the country have been able to digitize their archival objects and make them freely accessible online because of the fair use doctrine. Many digital collections that are available through PA Digital and the Digital Public Library of America, for example, are in copyright; digitizing and making them publicly discoverable through a database platform is considered fair use. However, it is important to communicate clearly to users, such as scholars and researchers, that such works remain in copyright and have use restrictions and limitations. Fair use is a key concept that enables both digitization and reuse of digital facsimiles and is the rationale for making cultural heritage collections available online, in local repositories as well as the DPLA.

That’s where RightsStatements.org comes in. The site provides 12 normalized, standardized statements that cultural heritage institutions can use to describe the copyright status of online cultural heritage materials. A joint global project of Digital Public Library of America, Europeana, New York Public Library, University of Michigan, and other institutions, Rightsstatements.org went live in 2016. It creates three categories of statements (with four statements in each) to be used with cultural heritage materials, including some terms for use in the EU. The goal is to provide cultural heritage institutions with simple and standardized terms to summarize the copyright status of works in their collection and how those works may be used.

There are three overall categories with four specific rights statements within each: In Copyright, No Copyright, and Other. Rights Statements and Licenses are critical for digitization and data reuse. A normalized rights statement or Creative Commons license makes it so much easier for a member of the public to understand how that item can be used. The Digital Public Library of America has incorporated RightsStatements.org statements into their portal to function as a facet for searching because they are all machine readable and normalized. A similar metaphor is shopping through an online retailer – when we buy from online retailers what do we look for? Ideally, items with Free Shipping. This makes it easy for scholars to look for works that can be used in their publications and research.

 

Beyond traditional scholarship, normalized rights statements can also encourage creative reuse of works if people know what they can and can’t do. For example, DPLA’s annual GIF IT UP campaign, where users make images into gifs, and the #ColorOurCollections nationwide promotion by galleries, libraries, archives and museums, where end users are encouraged to reuse digital objects as coloring pages.

Gif made by Michael Carroll for GIF IT UP 2017. Drawing (Two Birds on Flowers) from the Free Library of Philadelphia.

 

Rightsstatements.org is still getting off the ground, but it promises to make the process of identifying usable works far simpler and less time-consuming for researchers, scholars, and students. Take a look at the Europeana aggregator’s eight million plus ‘free reuse’ results for an example of what’s possible via machine-readable statements. Go forth and reuse!

More resources:

Ballinger, Linda, et al. “Providing Quality Rights Metadata for Digital Collections Through RightsStatements.org.” Pennsylvania Libraries: Research & Practice, vol. 5, no. 2, 2017, pp. 144–158. http://palrap.pitt.edu/ojs/index.php/palrap/article/view/157

Fair Use Checklist: http://copyright.psu.edu/checklist/

RightsStatement.org Resources: http://rightsstatements.org/en/

PA Digital webinars:

Menand, Louis. (2014). Crooner in Rights Spat. The New Yorker. Retrieved from https://www.newyorker.com/magazine/2014/10/20/crooner-rights-spat

Fair Use Week Recap

Librarian Greg McKinney talks to a student about fair use during Fair Use Week. Photo courtesy of Steven Bell.

Last week was Fair Use Week, a five-day celebration of the fair use doctrine. Libraries across the United States and Canada held events to raise awareness about the important role fair use plays in the lives in students and scholars. Here at Temple, we organized several events.

We kicked the week off with a fair use quiz. Students who passed by the first floor of Paley Library last Monday were asked to test their knowledge of fair use by looking at four well-known court cases and deciding whether or not the use in question was fair. All students who took the quiz were entered to win a $25 Barnes & Noble gift card. In the end, 47 students took the quiz. Overall, our students did an excellent job distinguishing between fair and infringing use.

On Tuesday, we held an event for our library staff. We watched the ACRL webinar, “Using Fair Use to Preserve and Share Disappearing Government Information: A Guide for Rogue Librarians.” This webinar was particularly timely for us, as a number of our librarians are involved with the Data Refuge Project which was started at the University of Pennsylvania. Despite the webinar’s title, the librarians who are working to preserve government information are not “going rogue,” as this action clearly falls within the bounds of fair use.

On Wednesday, Resident Librarian Anastasia Chui led a workshop on copyright and fair use for undergraduates. This Jeopardy-style workshop asked participants a series of questions about different fair use situations they might encounter.

Finally, we interviewed Nikki Miller, Rights and Contracts Coordinator at Temple University Press, about “Fair Use from a Scholarly Publisher’s Perspective,” for this blog.

It was a great week and we look forward to participating again next year.

Are you interested in learning more about fair use? Check out the following resources:

Fair Use Week Evaluator Tool

Thinking Through Fair Use (University of Minnesota)

The Fair Use App

Stanford Copyright and Fair Use

Copyright for Educators

Fair Use from a Scholarly Publisher’s Perspective

This week we’re celebrating Fair Use Week at the Libraries. To find out more about the role of fair use in scholarly book publishing, we interviewed Nikki Miller, Rights and Contracts Coordinator at Temple University Press.

Why is fair use important to the Press?
Fair use is important to the Press for a few reasons. From a practical standpoint, obtaining permissions tends to be costly and time-consuming, so fair use allows authors to build upon others’ ideas without the added cost and time expense of gaining permission. Our mission at the Press is to participate in the dissemination of academic discourse, and without fair use, it would make this a lot harder to accomplish.

Authors are generally required to tell their publisher what third party materials they want to use in their book. They are also usually responsible for obtaining permissions. Is this how it works at the Press?
Yes, we have a clause in our standard contracts that states it is the author’s responsibility to gain permission for any copyrighted materials. Though I am always happy to discuss with our authors what material needs permission and offer to help him/her to find the appropriate rights’ holder. It is not always easy to find the rights’ holder so having more than one person searching can make the process quicker and easier.

Do you double-check every single article/image/table authors use to make sure they really have gotten permission?
I do. As soon as an image or text is deemed to be not fair use, I flag it and discuss options with the author. The Press has a standard permission form that we send to authors to send to the rights’ holders; this form grants us all the rights we need to move forward including others that we like to have, such as promotional use. If the rights’ holder has its own permission form, I read it to make sure it gives us all of the rights we need to include it in the author’s publication.

Would you accept a fair use argument from an author? Under what circumstances?
I would only accept a fair use argument for the inclusion of text, never for an image or table. Unless the author uses data from an original figure to create his/her own table, as that qualifies as transformative use. However, I have had authors argue that their usage of copyrighted material is fair use when I think it is not. When this happens, I listen to the author’s argument, and we usually reach a compromise with what to do next. Most of the time this occurs when the ratio of quoted material to analysis is too low, so I ask the author to both cut some of the quote and to add additional analysis to his/her argument.

When analyzing if borrowed material is fair use, I tend to be stricter on the analysis of poetry and song lyrics. This is because a lot of the times poetry and songs are carefully kept under copyright and are usually shorter as works. However, there are times that I deem poetry lines as fair use. In those instances, a very short piece of the poem is included and has a lot of analysis to accompany it. Additional factors I consider with poetry include whether the author is using it as ornamental text in the body of the work and if the author needs the exact language for his/her argument. If it is used for ornamental purposes in the body of the work then I ask the author to remove the poetry.

How do you evaluate whether use of Press content constitutes fair use?
When we receive permission requests from authors to include material from Temple University Press titles in their works, I consider the same four fair use factors as when I evaluate our own authors’ manuscripts and whether the borrowed material they include is fair use or not (purpose and character of the use, nature of the copyrighted work, amount and substantiality of the portion used, and the effect of the use on the market). If the requested material does not fall under fair use, I grant permission (if TUP has permission to do so) to the requestor. I have received permission requests before for material that will qualify as fair use, and in those situations, I let the requestor know and ask that a proper citation is included in the work.

What do you wish more authors knew about fair use?
I get a lot of notes from authors who think that because they cited borrowed material appropriately that the citation automatically deems material fair use and makes gaining permission unnecessary. Citing has no role in deciding whether the inclusion of borrowed material qualifies as fair use or not. Plagiarism and copyright infringement are not the same thing. Citing protects an author form plagiarizing, and only granted permission or fair use protects an author from infringing on copyright.

Thank you Nikki!

Google Books and Fair Use

GoogleBooksScanning

“Google Scanning @ AAEL” by Dave Carter is licensed under CC BY-NC-SA 2.0.

The big news in scholarly communication last week came from the Supreme Court, which declined to hear an appeal from the Authors Guild over Google Books. The Supreme Court’s decision puts an end to a legal battle that has been going on since 2005. This is great news for scholars, students, and the public, all of whom have come to rely on Google Books for their research. But the case is also significant because it reaffirms the doctrine of fair use. Fair use is an established part of U.S. copyright law, however, it’s not always clear what does or does not constitute fair use. Generally, courts rely on four factors to determine fair use: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use upon the potential market for of value of the copyrighted work. The Authors Guild tried to argue that Google’s actions are not protected under fair use, because Google is a for-profit company (as opposed to an educational institution), and because Google is scanning entire books (not just parts of books). However, the courts ultimately ruled that Google has to copy books in their entirely for the project to be useful. In addition, they ruled that Google’s use of the texts is transformative (another key indicator for fair use).

Google’s book scanning project began back in 2004. The company partnered with several major libraries, including Stanford University, the University of Michigan, the University of California, Harvard, Oxford University, Columbia University, Princeton University, and the New York Public Library. The libraries selected books from their collections (focusing primarily on books published before 1923), and then Google did the digitization work for free. Google did not ask permission from any authors before they started scanning the library books. In order to obtain new and recently published books, Google also signed contracts with publishers which allowed them to scan and show parts of in-copyright books. All books (whether from libraries or publishers) are made available through Google’s search engine, which enables users to look for a particular word or phrase across texts. For most books that are still under copyright, however, users can only see a “snippet” of text based on their search term.

In 2005, a group of publishers, along with the Authors Guild and several individual authors, sued Google for copyright infringement. Both publishers and authors worried that they would not be properly compensated for the use of their content. They also worried that hackers would be able to get digital copies of the books and share them widely. In the years that followed, these groups tried to work out a compromise with Google. But in 2011, a federal judge rejected a proposed settlement. Then, in 2013, a district court ruled that Google’s treatment of the books was transformative and that its actions constituted fair use. The Authors Guild then appealed this decision. In 2015, a Second Circuit Court of Appeals agreed that Google Books was legal. The appeal to the Supreme Court was the Authors Guild’s last chance.

According to one source, Google has now scanned around 30 million volumes. In addition, they currently have over 40 Library Partners. Although the scans are not always perfect, Google Books remains a rich, free resource for people around the world. It is just another example of why fair use is so important.

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