Use Agreements for Public Domain Materials: Economic and Policy Considerations Aprille C. McKay Inter-University Consortium for Political and Social Research (ICPSR) University of Michigan

What we’re talking about Use agreements or licenses Contract made with each person who uses archival material – as a condition of access or reuse Does not bind third parties – individuals who copy from your user, for example Terms of these agreements can vary by: – Status of user (student, academic, professional) – Type of use (number of copies in print run, image size, cover, homepage, “for research and analysis”) Can be a one-time fee, or impose other conditions (one use only, geographical or temporal limitations)

What we’re NOT talking about Falsely asserting copyright Copyright = legally enforceable privilege good against everyone, whether they agreed or not Copyfraud: Falsely asserting copyright in a public domain work. (Jason Mazzone) Results in users seeking copyright licenses and paying fees to use public domain works, or altering their creative projects to excise the uncopyrighted material.

The difficult questions What does “public domain” mean for unique, single copy works, where access is critical? Should archives, museums, and other holders of public domain works have to grant access to them? Preserving cultural assets is expensive. Who should pay for it?

The Archivist’s Dilemma Sustainability? Access?

Sustainability of Collections Ithaka: Sustainability and Revenue Models for Online Academic Resources ( 2008) Sustainability: having a mechanism in place for generating, or gaining access to, the economic resources necessary to keep the intellectual property or the service available on an ongoing basis

Sustainability of Collections cont. Many funders now require a sustainability plan as a condition of receiving a grant Models can require that users pay, or their sponsors pay, or that the content itself is sponsored.

Use Agreements: What materials? Any kind of material, but less impact on reuse of textual works, where owners are more willing to tolerate quoting without compensation Bigger impact on users of images, and structured data (because users want to use the whole thing, not a piece). Museums – holders of huge amounts of public domain visual materials – have been debating usage and reproduction fees

Museums Some museum curators are reluctant to allow public distribution of high quality digital images of public domain works – Perceived need to protect museums’ merchandising revenues – Seen as inconsistent with museum’s mission as custodian—protectors—of works But generational shift away from gatekeeping

Advocates for the Public Domain Kenneth Hamma at the J. Paul Getty Museum: "… placing these visual reproductions in the public domain and clearly removing all questions about their availability for use and reuse would likely cause no harm to the finances or reputation of any collecting institution, and would demonstrably contribute to the public good".

Advocates for the Public Domain Susan Bielstein (University of Chicago Press) “museums operate in the perceived breach between private and public interests and...are singularly qualified to help craft new ways of thinking about the management of intellectual property.”

Museums Reconsidering Trend for museums to see distribution of high quality images as part of mission—at least to some extent – First step when considering a revenue stream for a business plan – is it compatible with the mission of the organization? – Insuring proper attribution becomes more important than fees when what you’re seeking is promotion of the institution.

Museums Reconsidering, cont. Business plans can value wider distribution of images – Licensing can be expensive to administer – Revenue often less than hoped – Museums’ access systems not optimized for discovery of images on searchers criteria (not competitive with image services) – Exposure of images can make them more valuable, and provides promotional value back to the museum.

Example of Sponsored Access (1) Victoria & Albert Museum: Dropped charges for reproduction of 25,000 images for scholarly books, catalogues, and journals – £250,000 a year from licensing, half for scholarly works, but the overhead costs associated with administering fees rendered their profits much less – Surmise that promotional value seen as exceeding profits – TAKEAWAY – How much do you actually make from use agreements? Is it worth what you forgo?

Example of Sponsored Access (2) Inter-university Consortium for Political and Social Research (ICPSR) Surveys and other quantitative social science datasets 600 member institutions – annual membership fee. Access restricted.

Example of Sponsored Access (2) Separately sponsored data: – National Archive of Criminal Justice Data – Substance Abuse and Mental Health Data Archive – International Archive of Education Data – Health and Medical Care Archive – Child Care and Early Education Research Connections

ICPSR Annual Report

Example of Sponsored Access (2) TAKEAWAY – Combinations of different models are possible, which can sustain the long-term health of your organization.

Peter Hirtle’s Presidential Address (2003) [W]hen making copies of public domain material, I would encourage all repositories to charge whatever the market will bear and their mission... will tolerate. You should not impose restrictions on further use of those reproductions, and so someone might elect to compete with you by offering copies of your reproductions for less than you charge.

If you do charge use fees Avoid additional terms such as one-time copy limit, or geographical or temporal restrictions Be clear that it is a use fee, and not an assertion of copyright. – Avoid muddying waters about rights any more than they already are. – Best practices emerging

NYPL Digital Collection “As the physical rights holder of this material, most of which is in the public domain for copyright purposes, the Library charges a usage fee to license an image for commercial use. The usage fee is not a copyright fee. You are free to obtain a copy of these images from a source other than NYPL. Usage fees help ensure that the Library is able to continue to acquire, preserve and provide access to its collections.”

Smithsonian “As the physical rights holder of this material, most of which is in the public domain for copyright purposes, Smithsonian Libraries charges a usage fee if images are to be used in any nonprofit or commercial publication, broadcast, website, exhibition, promotional material, etc. The usage fee is not a copyright fee. You are free to obtain a copy of these images from a source other than Smithsonian Institution Libraries. Licensing and imaging fees directly support our collections and projects.”

Thank you Aprille McKay, JD, MSI Digital Preservation Specialist ICPSR, University of Michigan