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Put it on your Bucket List: Navigating Copyright to Expose Digital AV Collections at Scale

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Presentation given at the 2017 Association of Moving Image Archivists (AMIA) conference in New Orleans. Panelists included Jay Fialkov, Deputy General Counsel at WGBH Educational Foundation, Hope O'Keeffe, Senior Associate General Counsel at the Library of Congress, and Casey Davis Kaufman, Associate Director at WGBH Media Library and Archives and Project Manager at the American Archive of Public Broadcasting

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Put it on your Bucket List: Navigating Copyright to Expose Digital AV Collections at Scale

  1. 1. Put it on your Bucket List: Navigating Copyright to Expose Digital AV Collections at Scale Hope O’Keeffe Associate General Counsel Library of Congress Jay Fialkov Deputy General Counsel WGBH Educational Foundation Casey Davis Kaufman Associate Director/ Project Manager WGBH/AAPB
  2. 2. WGBH Educational Foundation
  3. 3. AAPB Mission • Be a focal point for discoverability of historical public media content; • Coordinate a national effort to preserve and make accessible historical public media content; • Provide content creators with standards and best practices, guidance, training, and advice for storing, processing, preserving, and making accessible their historical content, and for raising funds in order to accomplish these tasks; • Disseminate content widely by facilitating the use of archival public media content by scholars, educators, students, journalists, media producers, researchers, and the public, for the purpose of learning, informing, and teaching; • Increase public awareness of the significance of historical public media and the need to preserve and make accessible significant public broadcasting programs; and • Ensure the perpetuation of the archive by working toward financial sustainability
  4. 4. • More than 50,000 hours of digitized and born digital material from over 100 public broadcasting stations and organizations • >2.5 million inventory records from 120 stations • Public access to the full collection of video and audio on-site at WGBH and the Library of Congress • Website at www.americanarchive.org – Launched October 2015 – Features complete inventory records and >23,000 streaming video and audio files in an Online Reading Room (31% of full collection) The AAPB Collection
  5. 5. Copyright Law The Constitution: “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries...” • provide an economic incentive to authors to create original works • protect the public’s interest in having access to creative works • Balance: broad exclusive rights to the copyright owner, subject to specified limitation “Publication without easy access would defeat the social purpose of copyright.” Judge Benjamin Kaplan, An Unhurried View of Copyright
  6. 6. Exclusive Rights of Copyright Owner • Reproduce the work (includes digitizing) • Prepare derivative works • Distribute copies of the work (including making available online) • Perform the work publicly – Sound recordings: only exclusive right to publicly perform the recording is “by means of a digital audio transmission,” such as on the internet. • Display the work (includes displaying the work on a computer screen)
  7. 7. Why Access Is a Challenge for AAPB • Unclear copyright: Little rights documentation about the materials in the collection – Rights research is time-consuming and resource-intensive; we don’t have a budget for clearances – Very few broadcasts in the public domain • Stations donated materials produced by third parties in addition to materials produced in-house – Deed of Gift from the donating station may not convey sufficient rights to make the material accessible online • Section 108 exception applicable to physical archives does not explicitly extend to archives accessible through the internet – Allows for on-site access only • Personal rights apply: privacy, defamation
  8. 8. Copyright Issue for Broadcasts: Public Domain • First test: is it copyrighted? • Pre-1964, published works needed to be registered for copyright or they’d be in the public domain • Publication: distribution or offer of copies to the public – Not public performance or display • Unregistered pre-1976 broadcasts are unpublished and under copyright • Possible exception: copies distributed for syndication – Now looking at distribution of pre-1964 broadcasts for potential public domain
  9. 9. Step One: What Do We Have? • Full cataloging by one staff person working full time would take over 30 years • Focus is on “minimum viable cataloging”: – Spend approximately 15 minutes per item, review opening and closing credits in full and clips from body of program – Add dates, titles, creators, contributors, publishers, copyright information, topic, genre (format), and copyright information – Flag any materials that raise privacy or publicity rights issues • Priorities: – Records in series – Records from stations that have indicated interest (e.g., by executing a deed of gift) • Crowdsourcing
  10. 10. Crowdsourcing Metadata: FIX IT
  11. 11. Access Levels • Online Reading Room – Materials for which the AAPB has permission, or a strong fair use argument – Terms allow private viewing for research, educational, and informational purposes – >31% of the collection (and growing!) • On-site – Materials available at the Library of Congress and WGBH’s physical archives – Some limited offsite scholarly research access by special agreement – Nearly 100% of the collection (69% not available in ORR) • Restricted – A small minority of materials that cannot be made available for viewing based on contractual restrictions or concerns about the violation of privacy or
  12. 12. Belt, Suspenders, and Clean Underwear: the AAPB Online Reading Room • At least a quitclaim from producing station • Behind firewall subject to terms of use • In a category approved by counsel as fair use • Streaming only • Subject to notice and takedown policy
  13. 13. Quitclaim In return for its agreement to include the Licensed Materials in a digital archive, I grant to WGBH and its designees the non-exclusive right to use the Licensed Materials, in whole or in part, in connection with the “American Archive of Public Broadcasting” (the “Project”), for non-commercial, research, educational and informational purposes and to promote the Project. This grant is in addition to all uses permitted by law. I represent and warrant that I have the right to make such a grant to WGBH and its designees. I make no other representation or warranty with respect to the Licensed Materials or their content. I acknowledge that WGBH is not obligated to use the Licensed Materials. I release WGBH and its designees from any claims that I have or may have relating to the Project.
  14. 14. Deed of Gift –Transfer of Ownership Subject to the terms of this Deed of Gift, (“Donor”) hereby irrevocably donates and conveys to the WGBH Educational Foundation and the Library of Congress on behalf of the American Archive of Public Broadcasting (“AAPB”) the materials described in Exhibit A to this Deed of Gift (the “Donated Materials”), all rights, title, and interest that Donor possesses therein and in all metadata related to the Donated Materials (the “Metadata”).
  15. 15. Deed of Gift – Copyright Ownership To the best of Donor’s knowledge (check one): ☐ a. Donor controls all copyrights in the Donated Materials (i.e., Donor created or acquired the copyrights in all Donated Materials). ☐ b. Donor controls some of the copyrights in the Donated Materials (i.e., Donor created or acquired the copyrights in some of the Donated Materials, but other individuals or organizations control some copyrights). ☐ c. Donor controls none of the copyrights in the Donated Materials. Donor shall include any information it may have on the ownership or control of the copyrights in the Donated Materials on Exhibit A.
  16. 16. Deed of Gift – Assignment of Rights Assignment of rights (check one): ☐ a. Donor irrevocably assigns to AAPB any and all rights, including copyrights, that Donor controls in the Donated Materials. ☐ b. Donor makes the Donated Materials available for use subject to the Creative Commons CC0 1.0 Universal License (“no rights reserved”). ☐ c. Donor grants AAPB an irrevocable, non-exclusive, royalty-free worldwide perpetual license for AAPB’s discretionary uses of the Donated Materials, in addition to all uses permitted by law. Such discretionary uses may include but are not limited to cataloging, preservation, copying and migration for preservation and access purposes, exhibition, display, and making works available for non- commercial public access (including online), in accordance with
  17. 17. Deed of Gift: Use by Patrons Re-use of Donated Materials by patrons ☐ I. Donor further authorizes AAPB to make the Donated Materials available for re-use by patrons subject to the Creative Commons Attribution license or such other license as is indicated below, if any: ___________________________________________ ☐ II. Donor does not authorize AAPB to make the Donated Materials available for re-use by patrons. Metadata Donor makes the Metadata accessible under the Creative Commons CC0 1.0 Universal License.
  18. 18. Fair Use • The nature of the use – Research, educational, informational – Transformative? • The nature of the copyrighted work – Factual or creative expression? – Previously broadcast or outtakes • The amount of the portion used in relation to the work as a whole – In AAPB, streaming the entire program • The effect of the use upon the potential market – Quitclaim – Terms prevent commercial use of clips
  19. 19. Codes of Best Practices ARL, Code of Best Practices for Fair Use in Academic and Research Libraries Presenting these unique [special] collections as a digital aggregate, especially with commentary, criticism, and other curation, can be highly transformative. Works held in these collections and archives will serve a host of transformative scholarly and educational purposes relative to their typically narrower original purposes. Materials in special collections typically include significant amounts of primary sources and artifacts… whose value as historical objects for scholarly research is significantly different from their original purpose. The new value created by aggregating related documents in a single, well-curated collection is also significant. In addition to access for scholarly purposes, digitization facilitates novel transformative uses of the collection as a whole. http://www.arl.org/storage/documents/publications/code-of-best-practices-fair-use.pdf at 19-20 Statement of Best Practices in Fair Use of Collections Containing Orphan Works for Libraries, Archives, and Other Memory Institutions http://cmsimpact.org/wp-content/uploads/2016/01/orphanworks-dec14.pdf Fair Use and Sound Recordings: Lessons from Community Practice http://cmsimpact.org/code/fair-use-sound-recordings/
  20. 20. Institutional Bucket Policy • Purpose: make decision on genre and series level rather than item level • Institutional policy: – List known genres in the collection – Define each genre – ID additional steps for access eligibility – Provide any fair use assessment – Set access determination
  21. 21. Fair Use Buckets • Make access-level determinations more efficient – no need to review fair use at item level • Assess content by genre • Determine which genres are more likely to be fair use – Is use transformative or different from original use – Is material more factual in nature – Are there other risk factors • Significant third party material • Outtakes, especially if sensitive
  22. 22. BUCKET CATEGORIES • Online Reading Room: 31% of collection – Examples: news, local talk shows and documentaries • Storage: Requires further assessment – Examples: unidentified, outtakes, arts criticism • On-Site Only: 69% of collection (includes storage) – Examples: performing arts, national sports, most national syndication, high percentage of third-party content • Restricted: <.1% – Examples: outtakes with privacy or defamation concerns
  23. 23. ORR Bucket Example: News Reports • AAPB use is transformative – Materials are valuable for the perspective they provide on a historical period rather than as a source of immediate information about current affairs • Material is more factual than expressive in nature • Less likely to contain significant third-party content
  24. 24. Buckets In Storage • Insufficient information to categorize – May experiment with crowdsourcing identification of content – Fix-it game • Categories requiring individual review by an attorney – Categories that are not a slam-dunk for fair use – Potentially defamatory material, privacy • As these materials are evaluated, rules of thumb
  25. 25. Storage Example: Arts Criticism • AAPB use is minimally transformative. – Still presented for criticism or as historical perspective? • Nature of work depends on amount of art presented, but criticism is also highly creative • Presenting whole work, but necessary for purpose • Probably no market effect for local program Therefore: Requires attorney review Risk assessment
  26. 26. On-Site Bucket Example: Entertainment • Current purpose is less likely to be transformative (still entertainment) • Content is more expressive than factual • Very likely to contain third-party content • May have implications for union agreements, etc.
  27. 27. Notice and Takedown • Register under DMCA at https://www.copyright.gov/dmca-directory/ – NOT subject to DMCA safe harbor – just best practice • “Friendly” notice – “We would love to hear from you! If you have general questions or comments about the website and collection, or want to share information on the stories you find in the collection, you can reach us at aapb_notifications@wgbh.org or by mail.”
  28. 28. Risk Increases with Level of Access • Commercial exploitation • Open Web • Passworded access to server • Researcher copies • Intranet only • Premises only • Dark archive
  29. 29. Risk Analysis • There is always a risk • Some statutory protections for archives • Know your institutional appetite: YMMV • Minimize risk without paralysis – Risk to mission from not providing access
  30. 30. americanarchive.org @amarchivepub facebook.com/amarchivepub @amarchivepub fixit.americanarchive.org

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