Copyright & digitization workflows: a journey at the MIT Libraries Ellen Finnie Duranceau Program Manager, Scholarly Publishing, Copyright & Licensing MIT Libraries June 2015 Perceptual Form of the City: Boston Public Library, Courtyard, Fountain and Arches from Above, 12:30 P.M. to 2:30 P.M.

What could possibly go wrong? Circa 2009/2010 No clearly recognized central copyright support No standard copyright statements for digital objects No widespread training on copyright No recognized workflow for digitization and sharing

What did go wrong Thousands of donated images from an architectural collection were posted onto open web with incorrect copyright statement and incorrect access statement – And without complete investigation of copyright ownership Library director wanted a process established that would prevent this from happening again

Digitization infrastructure: human resources & processes Gaps No clearly recognized central copyright support No standard copyright or access statements No widespread training on copyright No recognized workflow for digitization and sharing What filled the gaps Scholarly communications role explicitly expanded to include central copyright support for staff; committee created for rights review Standard copyright and access statements created Core librarian trained (and expansion from there) Workflow and processes developed

Digitization & sharing workflow

Making decisions: Rights Working Group Copyright ownership research Fair use analysis / other exceptions Risk assessment Donor agreement review Privacy and sensitivity assessments Consultation with attorneys if needed Assign standard metadata to document decisions

9 digitized collections reviewed All required corrections to copyright or access statements

When trying to be helpful is not so helpful We were labeling digitized images with phrases like: “restricted to educational and scholarly uses” – This is an affirmative license – must have copyright or sufficient rights to grant We were labeling some items as “public domain” – Affirmative statement should not be made unless certain; difficult to be certain unless one is copyright owner and relinquished copyright

Copyright statement principles Created in consultation with office of general counsel “Avoid affirmative statement that suggests you are granting a license such as ‘restricted to educational and scholarly uses’ since this suggests you are granting a license for educational and scholarly use” “Stating something is in the public domain is an affirmative statement; when you remain silent…the user is responsible for the determination.”

Standard Copyright & Access Statements

Ex: Putting restrictions on works in public domain Vail Collection of Prints, Broadsides and clippings -- Mislabeled as cMIT and ‘all rights reserved.’ Analysis determined: Published circa 1720 to 1880s, with some printings of earlier originals appearing up through The 20th century printings do not create new copyright we have to be concerned with, as they are just straight reprintings, occurring for example in an auction catalog. Corrected statements (using new standards): collection/topics/animal-magnetism/ collection/topics/animal-magnetism/ W. Davey The Illustrated Practical Mesmerist, 1854

Ex: Appropriate license & access statements for commercially licensed works Alex MacLean Aerial photography MIT only access Rights: © Alex S. MacLean / Landslides Rights Statement: Licensed for educational and research use by the MIT community only [language as reflected in license terms] Alberta Oil Sands Mines

Ex: Getting copyright ownership right Donated historical architectural images – Donor agreement indicated photographer should be credited, but photographer was included as copyright holder – Investigation involved review of donor agreement, 1909 work for hire law, human resources practices of MIT in 1950s, copyright status of published exhibit book based on photos, all in collaboration with OGC South Facades, Boylston Street, Walpole Brothers Inc. c should have beenMIT

Newer reviews under new processes

Ex: Privacy concerns Dorm Rumors, Publication of MIT students, published anonymously, – contains rumors about the east quad dorm, including names of the students involved. – in the public domain because it was published without copyright notice during a period ( ) when notice was required. – sensitivity about the information contained in the publication -- by definition, rumors. – because of the sensitive and potentially nonfactual nature of the content, limit the access to East Quad dorm.

Ex: restricted access for privacy/ sensitivity issues Dorm Rumors

Ex: Cultural sensitivity Faculty gift: photographic portraits of indigenous people in the Amazon region from the 1960s taken during research – photographer believes that she in good faith received necessary permissions from the subjects in the photos, but internet did not exist and she was well outside US copyright context Standard copyright review not particularly applicable Sensitivity assessment -- nudity Sensitivity statement needed & devised: "Users of the collection should be aware that certain images, words, terms or descriptions may be culturally sensitive and may be considered inappropriate today, but may reflect attitudes of the period or context in which they were created.“ Access: MIT only; selected images made public; some images will not be digitized

Ex: Cultural sensitivity

Ex: Risk assessments and complex collections Boston Suburbs Project general view, curbstone and sidewalk, 1988http://dome.mit.edu/handle/1721.3/161726

High risk 3 rd party content -- closed to MIT only (e.g. Harvard UP) Collection contains photos taken by faculty, students, and staff; 3 rd party content, commercially licensed material, donor videos

Ex: Fair Use --Herb Pomeroy collection Donated collection of nationally renowned jazz performer and educator Reel to reel, audiocassette, VHS, LPs, paper manuscripts Will make widely accessible Based largely on fair use approach Photo: L. Barry Hetherington

ARL best practices in fair use It is fair use to create digital versions of a library’s special collections and archives and make these versions electronically accessible in appropriate contexts – Careful consideration for published works available in unused copies on commercial market – Reasonable steps to limit access to material likely to contain damaging or sensitive private info – Full attribution as possible – Technological steps to prevent downloading or limit quality of files to what is appropriate to use – Offer copyright owners tool for registering objections and respond promptly From: ARL Code of Best Practices in Fair Use for Academic and Research Libraries

Copyright holders notice page

Music Oral Histories Ex: Modeling what we want to see in the world --Using CC when possible Librarian interviewer: work for hire so copyrighted to MIT Interviewees: signed waivers giving rights to MIT Prepared web page explaining CC BY NC and why we were using it

Music Oral Histories: Explanation of CC BY NC License

Lessons learned FOCUSED EXPERT: Copyright support needs a central focus / resource TRAINING: Copyright understanding needs to be widespread among staff WORKFLOWS: Digitization efforts require detailed copyright reviews – Workflows/ pipelines that consistently intersect with copyright – Knowledgeable staff making reviews and conferring with attorneys as needed METADATA: Rights decisions need to be documented and rights metadata stored with objects REASONABLE, RESPONSIBLE RISKS: you won’t get digitization or sharing accomplished if you wait for certainty

Tensions Ensuring reasonable accuracy while maintaining throughput Relying on imperfect /incomplete information while needing to act decisively Balancing risk while acting as role model Finding “Not too loose / not too tight” – & match for campus / organizational culture …..Need staff who can embrace the ambiguity in the law and in these tensions

Resources Peter Hirtle. Copyright Term and the Public Domain in the United StatesCopyright Term and the Public Domain in the United States Kenneth D. Crews. “Copyright Law for Librarians and Educators.” 2 nd ed., 2006, ALA. Kevin Smith. Owning and Using Scholarship: An IP Handbook for Teachers and Researchers. 2014, ACRL.Owning and Using Scholarship ARL Code of Best Practices in Fair Use for Academic and Research Libraries. ARL Code of Best Practices in Fair Use for Academic and Research Libraries Your local Office of General Counsel or outside legal counsel