Michael Foight's presentation on Legal and Rights-Management Issues in Collaborative Digitization at Villanova given at ASCLA/ICAN Collaborative Digitization Interest Group for our session at ALA Mid-Winter 2014 in Philadelphia. Posted with permission from Michael Foight

1. Legal and Rights-Management
Issues in Collaborative Digitization
ASCLA/ICAN Collaborative Digitization
Interest Group
ALA Mid-Winter 2014, Philadelphia

2. I am not a lawyer
{a “cutting” edge presentation
referencing the law must have at
least one lawyer joke!}

3. I work for a living
{wait for applause}

4. Significant differences exist
between collaborative digital
libraries and metadata only
repositories

5. Collaborative Digital Libraries vs. Metadata Only Repositories
In consideration today are only the issues related to Collaborative Digital
Libraries:
scanning – hosting – description - long term preservation of digital
surrogates
This is just, ONE MODEL, based on based on the philosophical principles of
open access, digital common ownership of heritage materials, and
community service.

7. Digitize Villanova Content

8. Including Dime Novels

9. Story Papers

10. Catholica

11. Irish

12. Villanova and Pennsylania

13. CMS: Open Source Software
VuDL: (back-end) highly customized Fedora-commons
flavored repository searching solr
VuFind: (front-end) solr indexer, used worldwide
Both coordinated out of Villanova by 4 computer
programmers, but with contributors around the world.

14. Repository Size
Item count: 20,857
½ Villanova physical
content

15. With talented staff including:

21. What about the other half?

22. Digital Library Partner Program
18 institutional partners; individual digital donors
Content includes: primary source manuscripts, rare
books, realia, newspapers, magazines, year books,
scrapbooks, programs, maps, bank registers, ships
papers, photographs, prints, audio and video, and
more… “Rights”
Some partners are larger institutions, some smaller,
some have no paid staff at all; individual digital donors
include people, families, and estates.
Milestone content examples: “found” materials in
unprocessed archival collections (James Buchanan);
disparate physical collections collocated virtually in the
same digital library (Thomas Lloyd, John Barry letter) private content shared: Lincoln letter; outreach with
Digital Humanities projects and scholars (Melville
Marginalia / Ardmore Chronicle); Saints.

23. Who?
Intentional cultivation of individual and institutional
partners based on programmatic content and institutional
donor development, sometimes event driven.

24. Opportunity does knock ….
Keep an eye out for donors and institutions that have content in need
of preservation that might enhance the reputation of your institution.
Make strategic partnerships and alliances: Universities engage in subtle
prestige conflicts for staff and faculty, students, grants, and donations.

25. Sample partner content:

30. But….WHY?
for the betterment of society
win-win
shared glory
greater access to rare content
cross-promotion
donor development
mutual marketing
prestige engine
preservation of fragile content
{not just open content but shared tools and practices, because
this is what libraries ought to do}

31. Events: such as signing ceremonies

32. Statue outside Independence Hall… (from a digitized partner
document ... the signature on Naval Academy statue)

34. Conferences

35. Like attracts Like: more donations
Both digital donors and in physical materials: karmic
good will

37. The Details
Digitize at DLF standards (preservation
scanning ) for free; Mount content (source
TIFF files) forever under a Creative
Commons License of the partner’s choice for
free; Full cataloging and descriptive
metadata for free; Transcription and
promotion of content in social media for
free.
Partner has TIFF file access, and can enter into
other relationships without restriction: sell
images or mount them independently.
Partner warrants ownership of copyright;
Partner assumes all legal liability; Digitizer
can decide to pull content (with notice) and is
immune to legal action from partner related
to materials handling. Insurance is
recommended for partner but not required.

38. Specifics
One Contract for Institutional
Partners
One Contract for Individual Digital
Donors

39. Because:
Lawyer time is expensive time. If they
rewrite the contract each time, it will cost,
and not just at the time of the creation of the
contract.
You (and your legal team) will have the
problem of managing differing partnerships
with different legal wordings.
Finally: it brings great clarity to partnership
negotiations. Take it or leave it.

40. Rights
Many rights and reproduction schemes exist; new schemes
can be invented of course, but it is a best practice to formally
define these in crystal clarity in the agreement before a
dispute arises: because they will, now or later.
“a Creative Commons License of the partner’s choice”
Default: Attribution-NonCommercial-NoDerivs
Other common choices include: Attribution-Share Alike

41. Partnership Workflow
One typical pattern:
1. initial meeting, talking about the contract and the benefits
2. questions
3. partner legal review
(time passes)
4. questions (especially about altering the terms of the contract)
5. secondary meeting: official signing of the contract by partner
6. celebratory event (reenactment of signing of the contract)

42. 7. materials retrieved: license decision by partner
8. first digital items scanned
9. draft collection organization and metadata / collection description
10. review of metadata and collection organization / description by partner
11. completion of scanning / metadata {keep materials till fully described}
12. retrieval of materials / obtain new materials…
(Time passes)
13. a 3d party wants to cite or reproduce the partner content
14. the chosen license governs use …. but … if a non-commercial license is
chosen, the partner may not be prepared to respond to the many new
requests for usage. (See: Paul Klimpel’s “Consequences, risks and sideeffects of the license module “non-commerical use only – NC”.)

43. Ongoing Partner Issues
1. The partner isn’t sure what copyright they may actually own; or perhaps they
give you materials that are clearly in copyright and not owned by them. [Will
you help them? Partner education: can be a time sink, but friendly
communication is paramount]
2. The partner want to change their license. [Easy to do for one item; more
complicated for thousands of items in hundreds of different collections].
3. Non-destructive scanning: materials that the partner wants digitized cannot be
done without destruction. [Constant communication about materials
conditions. ]
4. Staff turnover at partner institutions can make ongoing communication
difficult. [Patience is rewarded in the end.]
5. Partner wants digitization done for a deadline. [Try to work with their
schedule; agreement specifically doesn’t mention scanning deadlines].
6. Physical ownership of materials is disputed or difficult and you are in the
middle. [The owner and the phyiscal custodian of the materials are different
with materials on deposit with the custodian.]
7. For individual donors: materials never retrieved / death while materials are
being digitized. [Legal issues with the estate.]
8. Partner wants enhanced or significantly altered metadata. [Partner access to
compartmentalized back-end; they may upgrade within limits].

44. Prevent conflict and confrontation
before it starts!
Make friends with your legal counsel and talk with
them often. Work with them to develop a legal
framework to articulate your vision of collaborative
digitization, but do this before you start pitching to your
potential partners.

45. Some other things to consider for your
agreement:
-For out of state partnerships: location for hearing a dispute and the choice of
which state’s laws will apply… (if your institution has to hire out of state counsel or
has to travel to file motions this could be very expensive even if you are on the
winning side of a legal action): make it your state; simplify.
-What about accidents? Disasters? Consider indemnification! What about the
transportation of materials to and from your scanner location? Automobile
accidents can happen, include specific provisions for this, just in case!

46. What if the partner indeed owns the copyright but
something is perhaps considered – by some party, some
where – to be a written defamation? Manage the risk,
add language to mitigate this potential loss.

47. Include specific language to enable the digitizer (even if not others) to make
derivative use of partner materials in other formats: in transcriptions, in marketing
materials , and in oral readings like serialized podcasts.

48. Finally, develop a clear procedure with your counsel to deal with disputed
materials, be they from your own collection or a partner collection. Have bullet
proof action steps to take when the dreaded “cease and desist” letter or threat of
legal action presents itself, so you can enjoy life away from the tether of the
iPhone.

49. Thank you!
Please feel free to contact me for a
digital version of the template
agreement or to answer any
questions.
michael.foight@villanova.edu