As part of the Digital Lifecycle Program, the UC Berkeley Library aims to digitize 200 million items from its special collections (rare books, manuscripts, photographs, archives, and ephemera) for the world to discover and use. But before we can digitize and publish them online for worldwide access, we have to sort out legal and ethical questions. We’ve created and released "responsible access workflows" that will benefit not only our Library’s digitization efforts, but also those of cultural heritage institutions such as museums, archives, and libraries throughout the nation. This is a presentation by members of the Digital Lifecycle Program working group to the UC Berkeley Library on August 10, 2020.

1. CAN WE DIGITIZE THIS?
UNDERSTANDING LAW, POLICY, & ETHICS
IN BRINGING OUR COLLECTIONS TO DIGITAL LIFE
“NAACP Lifetime Membership Dinner”“Letter to Miss Harriet Huggins from John F. Minier:
Feb. 17, 1912”
Therese Bonney, undated, [Aglasterhausen / United Nations
Relief and Rehabilitation Administration (UNRRA): children]
Salwa Ismail
Michael Lange
Lara Michels
Stacy Reardon
Rachael Samberg
Melissa Stoner
Timothy Vollmer
University of California, Berkeley
Unceded land of the Chochenyo Ohlone

2. ● Interlibrary Loan
● eReserves
● Google Books
● HathiTrust ETAS
Image from https://www.facebook.com/292063725064933/photos/a.292063758398263/292065665064739/

4. Responsible Access Workflows &
Community Engagement Policy
Ethics Local Practices
● Mary Elings
● Lynne Grigsby
● Michael Lange
● Rachael Samberg
● Kathryn Stine (CDL)
● Melissa Stoner
● Lara Michels
● Stacy Reardon
● Rachael Samberg
● Melissa Stoner
● Timothy Vollmer
DLP Working Groups

5. Contracts
Privacy
Ethics &
Policy
Copyright
ISSUES
Therese Bonney, undated
https://calisphere.org/item/ark:/13030/k64x5gb4/

6. HELP?
Photo by Alan Levine https://pxhere.com/en/photo/352578

7. RESPONSIBLE
ACCESS WORKFLOWS
https://news.lib.berkeley.edu/responsible-access

8. Community Engagement Policy
https://digital.lib.berkeley.edu/about

9. ● Copyright law, and we support fair use & the public domain
● Rights to privacy
● Agreements we have entered into
● Social and religious customs, and other circumstances
https://digital.lib.berkeley.edu/about
Community Engagement Policy
https://digital.lib.berkeley.edu/about

10. Contracts
Privacy
Ethics &
Policy
Copyright
ISSUES
Therese Bonney, undated
https://calisphere.org/item/ark:/13030/k64x5gb4/

11. COPYRIGHT
Focus: Unpublished Works
(1 of 3)
CONTRACTUAL ACCESS
RESTRICTIONS
PRIVACY
In the public
domain?YES NO
ETHICS
UNCLEAR /
Orphan Work
(Public domain cutoff year - 1977)
Go to Copyright-protected Works slide (3 of 3)
NO
YES
Published?
Can
author
be ID’ed
> 70 years
after
author’s
death
Author
death date
known
More than
120 years
from
creation?
YES
NO
YES
YES
YES
NO
NO
NO
Go to Published
Orphan Works Slide
(2 of 3)
Determination about whether to treat as
published orphan work (go to slide 2 of 3)
or unpublished (stay on slide 1 of 3)UNCLEAR
(data incomplete)
PUBLISHED
UNPUBLISHED
Human
(not corporate)
author?
YES
NO
Determination about
whether to treat as
>120 years
UNCLEAR
(data incomplete)
YES
NO
Therese Bonney, undated
https://calisphere.org/ite
m/ark:/13030/k64x5gb4/

12. CONTRACTUAL ACCESS
RESTRICTIONS
COPYRIGHT
Focus: Copyright-
Protected Works
(3 of 3)
PRIVACY ETHICS
Last 20 years
of copyright?
COPYRIGHT-PROTECTED
WORKS
Do UC Regents
hold copyright?
(e.g. transferred
via agreement or
Regents-
generated)
YES
NO
NO
Obtain
permission
from ©
holder?
NO YES
YES
Obtain permission or make determination to
digitize under 108(h) (e.g. consider
commercial availability) or rely on 107 (fair
use)
YES
NO
Obtain permission, revision of agreement,
or make determination to proceed based
on intent of agreement or copyright
exceptions (e.g.107 (fair use))
UNCLEAR
(e.g. data incomplete;
agreement raises questions
about validity of transfer)
YES NO
Or continue with
workflow but digitize
for dark. Set up
notification for last 20
yrs of copyright
Therese Bonney,
undated
https://calisphere.org/it
em/ark:/13030/k64x5g
b4/

13. CONTRACTUAL ACCESS
RESTRICTIONS
COPYRIGHT
PRIVACY
Gift or Purchase
Agreement or
Records Transfer?
YES NO
ETHICS
Any content
restrictions?
YES
NO
Any
reproduction
restrictions?
NO
YES
NO
Obtain amendment
or permission?
Restrictions
prevent
multiple or
digital copies?
3. Access restricted
to specific users?
YES NO
2. Donor
approval
required?
YES NO
Establish
authentication
restrictions via
DAMS or
secure
approval
or secure
approval from
donor
1. Temporal
restrictions?
YES NOBut
establish alert
for expiration, or
secure donor
approval
4. Restrictions
content specific?
Use DAMS to
serve redacted
versions or
remove from
public view
YES Determine if
agreement should be
obtained
YES
NO
YES
YES
APPROVAL SECURED
NO
NO
APPROVAL SECURED
RESTRICTIONS IN
PLACE/APPROVAL SECURED
Updated 28 Apr. 2020
Not Legal Advice
Therese
Bonney,
undated
https://calisp
here.org/item
/ark:/13030/k
64x5gb4/

14. Contains: PL4 (SSNs, Drivers
Licenses, bank info, medical records,
health insurance); PL3
(FERPA-protected); Attorney-Client
or other Privileged information
Obtain permission
or
remove/redact?
YES NO
But set up alert
for potential
statutory
expiration
YES
NO
YES
NO
Remove items
(physically, or darken
digitally?) and/or
redact in DAMS
PRIVACY
(1 of 2)
ETHICS
CONTRACTUAL
ACCESS
RESTRICTIONS
COPYRIGHT
Go to Privacy Exceptions
(Slide 2 of 2)
Does other content fall under one
or more of these privacy torts? (e.g.
nudity, illegal activity, private
personal information)
Intrusion upon
seclusion
Public
disclosure of
private facts
Painting someone
in a false light
Decision about whether
“yes,” containing
protected content, or “no,
no protected content”
UNCLEAR
YES
NO
Updated 28 Apr. 2020
Not Legal Advice
Appropriation
of name, voice,
likeness
Therese Bonney,
undated
https://calisphere.org/i
tem/ark:/13030/k64x5
gb4/

15. PRIVACY
(2 of 2)
ACCESS
RESTRICTIONS
COPYRIGHT
Removable/
Redactable?
NO
Or digitize
for dark
Can
permissions
be obtained?
Remove items
(physically, or darken
digitally?) and/or
redact in DAMS
Previously
published?
ETHICS
YES
Determination
about whether to
republish
Person
(subject)
identifiable?
(1) Matter is
newsworthy, or
(2) Person
(subject) dead?
YES
NO
NO
Obtain(ed)
permissions from
subject(s) [check
acquisition contract]
YES
YES
NO
NO
YES
UNCLEAR
(data incomplete)
Assessment at scale
order of questions
(1) Newsworthy:
Determination of whether
to treat as “yes” (e.g.
public figure, public
interest), or “no” (proceed
to death inquiry)
(2) Death:
Determination of
whether to treat as
“yes” (e.g. if item >50
years ) or “no”
YES
NO
YES
YES
NO
Updated 28 Apr. 2020
Not Legal Advice
Does other content fall under one
or more of these privacy torts? (e.g.
nudity, illegal activity, private
personal information)
Intrusion upon
seclusion
Public
disclosure of
private facts
Painting someone
in a false light
Appropriation
of name, voice,
likeness
Therese Bonney,
undated
https://calisphere.org/i
tem/ark:/13030/k64x5
gb4/

16. PRIVACY
CONTRACTUAL
ACCESS
RESTRICTIONS
COPYRIGHT ETHICS
PROVIDE
RESPONSIBLE
ACCESS!
Could unfettered access lead
to: harm or exploitation of
people, resources, or
knowledge?
NO
YES
MAYBE
Update local practices as
appropriate
Consult & adhere to current,
local practices for ethical
access, developed by:
❏ Engaging the community
❏ Referencing professional
standards
❏ Implementing/adapting
local policies
Determination around which
access mechanism and/or
metadata remediation to
conform to community
standards & local policies
OKAY TO
DIGITIZE
DO NOT
DIGITIZE
Therese Bonney, undated
https://calisphere.org/item/
ark:/13030/k64x5gb4/

17. Ethics - Background
● Intended to provide the UC Berkeley
administration and California Indian tribes
with a place to start the conversation about
improving relationship and addressing the
disposition, management and use of Native
American cultural heritage items on
campus.
● Over 50 tribes with 70 representatives and
individuals from those tribes.
● Report from the forum was produced
and presented to the Chancellor.
● March 2018 the Chancellor released a
Memo that announced:
○ There would be a change in the
campus NAGPRA process.
○ Vice Chancellor for Research Randy
Katz would appoint a working group
to discuss and make
recommendations in relation to
collections that are not necessarily
NAGPRA sensitive.
2017 California Indian
Tribal Forum Result

18. Native American collections in archives, libraries, and museums at
UCB working group
● Discuss the relationship among
Indigenous people, the State,
University of California, and
Berkeley’s Native American
collections
● The Ethical and moral
considerations that emerge from
the history of Berkeley’s research
and collection process.
● UC Berkeley Repositories
● Ethics, curation, and
collaboration.
Overview
Co-Chairs: Andrew Garrett & Melissa Stoner
Members: Susan Edwards, Jeffrey MacKie-Mason, Nicole Myers-Lim, Benjamin W. Porter, Elaine C. Tennant, Verna Bowie.
Recommendations
● Acknowledge Native American Historical Trauma
● Acknowledge different systems of information management
● Improve the campus climate for Native Americans
● Improve the NAGPRA climate
● Clarify research policy for Native American contexts
● Appoint a central campus Tribal Liaison Office
● Approve accessibility to digitize or not in regards Native
American materials in campus archives, libraries, and
museums.
● Empower Native American individuals, communities, and
tribes to participate in curation, and assert cultural ownership,
of materials in campus archives, libraries, and museums.

19. DLP - What we did
Photo by Elena Mozhvilo on Unsplash
● Literature Review
● Two local practices documents
○ Collections Materials (general)
○ Indigenous Materials

20. Theoretical
frameworks
1. Deontological
2. Virtue
3. Utilitarian (Consequential)
An Ethical Perspective on Political-Economic Issues on the Long-Term
Preservation of Digital Heritage (Lor & Britz, 2012); Stanford
Encyclopedia of Philosophy, Virtue Ethics (updated 2016)
Normative

21. Photo by ev on Unsplash
Structural racism &
unequal power

22. Unanticipated usesUnanticipated uses

23. Consent may
not be feasible,
or even possible
at scale

24. Ethics of Care
Unlike previous ethical theories
that start from the position of an
independent rational subject
thinking about how to treat other
equally independent rational
subjects, the Ethics of Care starts
with the real experience of being
embedded in relationships with
uneven power relations.
-Suomela 2019
Applying an Ethics of Care to Internet Research, Suomela 2019; Stanford
Encyclopedia of Philosophy, Feminist Ethics (2019)

25. Harm
Objects, materials, resources
● economic disadvantage
● violation of laws, practices
● risk of looting or defiling
People
● Deprivation or violation of,
or or threat to, one’s
liberty, body, well-being

26. Balancing Principle
Does the value
to cultural communities,
researchers, or the public
outweigh the potential
for harm or exploitation
of people, resources, or knowledge?

27. Balancing for Indigenous Collections
Dual Trust
Cultural
Ownership
Not
Culturally
sensitive
Culturally
Sensitive
Potentially
Culturally
Sensitive
Digitize
and make
available
Do not
make
available
online
Digitize and
make
available
with
outreach
Harm > Value
Value > Harm
Value > Harm

28. NEXT STEPS
1. Your feedback on the ethics local practices (http://ucblib.link/34X)
2. Documentation
3. Record-keeping (ideally software)
4. Rights statements
5. Integrating workflows at earlier stages
6. Change the world

29. QUESTIONS?