Advice and Advocacy
by Aprille McKay
SCCR 29 at WIPO -- Breaking the Logjam
SAA's representative William Maher attended the 29th meeting of the Standing Committee on Copyright and Related Rights at the World Intellectual Property Organization in Geneva, Switzerland, December 8-12, 2014. Instead of a frustrating event focused more on procedural wrangling than on substantive debate, Maher reports that the delegates of the members states engaged in serious consideration of potential library and archives exceptions to copyright. Kenneth Crews presented an update of his 2008 study comparing different nations' treatment of libraries and archives under their copyright laws and attended the meeting, answering delegates questions. (See, Study on Copyright Limitations and Exceptions for Libraries and Archives.)
As a representative of SAA, Maher queried Crews about why archives are seriously overlooked in the statutes of 70 or so of the nations. Crews' answer highlighted before the entire delegation the special status of archives, emphasizing the public's interest in archives, saying:
[B]ecause the preservation and research access and other kinds of beneficial uses of archival materials goes directly to the preservation of culture and the history of our countries and our people, . . . it is vital that we be able to do that and keep archives at the table.
A concise document consolidating the library and archives topics being considered by the SCCR was proposed by the Africa Group, Brazil, Ecuador, India and Uraguay.
The redoubtable William Maher returns to Geneva to advocate for archives at SCCR 28
Demonstrating its abiding commitment to advocate for copyright exceptions for archives, SAA has again supported William Maher as its representative at the 28th meeting of the Standing Committee on Copyright and Related Rights at the World Intellectual Property Organization in Geneva, Switzerland, June 30 - July 4, 2014. Maher has had great success in educating delegates about the special challenges that copyright poses for archivists by giving specific examples of instances when copyright concerns prevented cross-border use of archives. In his prepared statement, Maher told the delegates:
Now is your chance to ensure copyright's future by respecting users as much as creators. By recognizing the essential worldwide mission of archives and libraries for education and culture, and by removing unworkable copyright barriers, you can demonstrate that copyright has the vitality to cope with today's increasingly complex information environment. The world will move on. Can you risk being left behind?
At a side event sponsored by the International Federation of Libraries and Archives on June 30, Maher presented a talk relating to the challenges faced by archivists trying to collect digital materials when it is impossible to know before making a copy whether some of the content donated may have been subject licensing contracts. For more about the event and Maher's presentation, see the IPWatch Blog.
SAA submits additional comments to the Copyright Office on Orphan Works and Mass Digitization
On March 10 and 11, 2014 the Library of Congress held a Roundtable on Orphan Works and Mass Digitization. IPWG members Eric Harbeson and Jean Dryden attended as the official representatives of SAA. We had originally submitted comments on the topic back in January of 2013 and Dryden and Harbeson relied heavily on the recently approved advocacy position brief on Orphan Works. On May 20, 2014, SAA submitted additional comments on topics that were specifically raised during the meeting including copyright registries, diligent search requirements and extended collective licenses.
William Maher advocates for archival exceptions to copyright at WIPO
William Maher again traveled to Geneva, Switzerland for the 27th meeting of the Standing Committee on Copyright and Related Rights, April 28 to May 2, 2014. Though the EU delegation tried to shut down progress on a treaty on library and archives exceptions to copyright, SAA (in collaboration with our colleagues from ICA, the Scottish Council on Archives and IFLA) was able to effectively lobby to prevent the adoption of a weak work plan. Though the meeting unfortunately ended without any agreement on conclusions, the library and archives community agreed that this result is better than the alternative, namely, the adoption of a plan with weak goals. Maher's powerful remarks were especially appreciated by the chair of the meeting, because he provided solid real-world examples of why exceptions are needed.
After Maher's remarks about the cross-border use of archives, the Chair responded with the comment, "Thank you very much to the society of American archivists for bringing us an example of what we require, a connection of the general topic of orphan works with a special need of archives and libraries. I invite other NGOs to do so, to bring us rights regarding this connection. We can think about the topic as a general issue, however, we are hearing this under the framework of exceptions for libraries and archives regarding. So thank you very much for that approach."
Ben White of LIBER made a joint statement on orphan works for the library and archives NGOs.
SAA submits comments for Copyright Office's "Making Available" study
In February, the Copyright Office at the Library of Congress commenced a study on the state of the law recognizing and protecting "making available" and "communicating to the public" rights for copyright holders (See, the Notice of Inquiry, Feb. 25, 2014). The IPWG drafted a statement in response to the request for comment which was endorsed by Council and submitted to the Copyright Office on April 1, 2014. In short, SAA opposes giving copyright owners a new exclusive right to make their works available to the public. The right is unnecessary, as the existing exclusive rights for reproduction, distribution, public performance, and public display already address any infringements, and provide more than sufficient incentive and redress for copyright holders. The right could also have unintended consequences for existing exceptions and limitations as copyright owners explore the extent of the new right. A public roundtable on the topic was scheduled for May 5, 2014.
Maher once again travels to Geneva to represent SAA at WIPO deliberations
Past SAA president and IPWG member William Maher traveled to Geneva, Switzerland to represent American archivists as an observer at the World Intellectual Property Organization's Standing Committee on Copyright and Related Rights Meeting, December 16-20, 2013. The agenda is to discuss an international treaty for library and archives exceptions for copyright -- including provisions related to preservation copying and to orphan works.
Many of the national delegates are less familiar with the mission of archives than that of public libraries. Maher's statement on SAA's behalf, delivered to the assembly and simultaneously translated to the delegates helped bridge that gap. Several reports have indicated that ICA's and SAA's statements were influential and generated discussion. (See, for example the Knowledge Ecology International blog, which is reporting on the meeting.) SAA has joined with many other library and archives organizations to create this flyer, summarizing the impact and value of library and archives and arguing for expanded copyright exceptions. SAA provided the financial support for this important advocacy effort.
SAA signs on to community letter against inserting "Life + 70" copyright term into Trans Pacific Partnership Agreement
Based on the recommendation of the IPWG, SAA Council contributed SAA's endorsement to a letter objecting to the insertion of a clause extending the term of copyright to life of the author plus seventy years. Twenty-nine organizations, including the American Library Association, the Association of Research Libraries, Creative Commons, Wikimedia Foundation and and the Internet Archive joined more than seventy individual signatories to protest the extension of copyright among US trade parters during upcoming trade talks.
Annual Report of IPWG Activities (2012-13)
Outgoing chairperson Heather Briston filed this report of the activities of the Intellectual Property Working Group for the year 2012-13.
President Jackie Dooley submits orphan works comments to Copyright Office
The Copyright Office is reviewing the problem of orphan works under U.S. copyright law and has requested public comments about what has changed in the legal and business environments during the past few years that might be relevant to a resolution of the problem. The IPWG drafted a response which highlights new research about the high cost of conducting a "reasonably diligent search" to clear copyright in manuscript collections. Council endorsed the comments and they were submitted to the Copyright Office on January 29, 2013.
Annual Report of IPWG Activities (2011-12)
Chairperson Heather Briston filed this report of the activities of the Intellectual Property Working Group for the year 2011-12.
IPWG Member Peter Hirtle Pens Archival Outlook Article on Pearse-Hocker Suits
The May-June 2012 issue of Archival Outook (members only) features Peter Hirtle's article, "Copyright Infringement on the Docket." He explores the settlement of two suits based on a donor-photographer's claim that the National Museum of the American Indian had improperly granted consent for the use of her photographs, and had violated the terms of the deed of gift.
IPWG Member William J. Maher Cited by Supreme Court
Maher Represents SAA Perspective at International Copyright Treaty Meeting
Past President and IPWG member Bill Maher represented SAA at the November 21 – December 2, 2011, meeting of the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights, which convened to discuss a proposal for a treaty on exemptions for library and archives. Any treaty adopted by WIPO may have a direct impact on American archivists and archives users. There he gave a statement, outlining the interests of archivists and the users of their collections, and collaborated with representatives from other library and archives NGO's to advance common goals in the negotiations.
Earlier this year, the IPWG recommended to SAA Council that SAA apply for observer status with the World Intellectual Property Organization, and prepared the application. The group also applied for and was awarded a grant from the Alfred P. Sloan Foundation to support sending Maher to the meeting on library and archives exceptions.
Digital Millenium Copyright Act Exemptions
The DMCA provides a cause of action against individuals who break technological measures that are placed on media whether or not the circumvention results in a copyright infringement. Archivists feel strongly that acts of circumvention should be unlawful only when tied to actual acts of piracy or violations of copyright. Cultural materials that are fixed in digital media must often be copied in order to be preserved, and good stewardship of materials in our collections comes into conflict with the law.
Periodically, the IPWG has prepared Copyright Office correspondence for SAA to voice support of exemptions to the DMCA that allow archivists to take appropriate preservation actions. The call for the next round of DMCA exemptions is in December 2011. The IPWG plans to provide a submission in support of archivists. In particular we want to collect examples of how access controls have hurt archives. Archivists who want to contribute their DMCA stories can contact Aprille McKay (aprille [at] umich.edu).
Annual Report of IPWG Activities (2010-11)
Chairperson Heather Briston filed this report of the activities of the Intellectual Property Working Group for the year 2010-11.
Well-intentioned practice for putting digitized collections of unpublished materials online
Recommended that SAA endorse the community-written document "Well-intentioned practice for putting digitized collections of unpublished materials online," with the addition of a preface which gives context and a recommendation that archivists arm themselves with an understanding of copyright law before applying the recommendations. The standard was ultimately endorsed by the SAA Standards Committee with the IPWG’s accompanying preface.
With support from OCLC Research, IPWG members helped author the 16-page report, "Orphan Works: Statement of Best Practices" in 2009, which was endorsed by the Standards Committee and SAA Council. In 2011, the IPWG updated the document with a Creative Commons license.
“Orphan works” is a term used to describe the situation in which the owner of a copyrighted work cannot be identified and located by someone who wishes to make use of the work in a manner that requires permission of the copyright owner. Eight archivists and a recognized legal expert in intellectual property and copyright law developed the statement, based upon their experiences researching copyright status.
“We created this statement to provide archivists with a framework to discover what materials they hold are truly orphaned works, and in the hopes of empowering them to provide wider access and use of those materials as a result,” said Heather Briston, chair of SAA’s Intellectual Property Working Group.
The primary authors of the statement included Briston (UCLA), Mark Allen Greene (University of Wyoming), Cathy Henderson (University of Texas, Austin), Peter Hirtle (Cornell University), Peter Jaszi (American University) , William Maher (University of Illinois, Urbana-Champaign), Aprille Cooke McKay (University of Michigan), Richard Pearce-Moses (Arizona State Library), and Merrilee Proffitt (OCLC). Financial and administrative support was provided for this project by OCLC Research and the RLG Partnership.
- 2005 Comment from SAA President Randall Jimerson regarding pending Orphan Works legislation
- 2005 Reply comment from SAA President Randall Jimerson regarding pending Orphan Works legislation
Federalization of Copyright of Pre-1972 Sound Recordings
The Copyright Office was charged to “conduct a study of the desirability and means of bringing sound recordings fixed before February 15, 1972, under federal jurisdiction.” The IPWG, in consultation with several SAA component groups (Recorded Sound, Oral History, Native American Archives, Manuscript Repositories, Performing Arts and Preservation sections and roundtables) , drafted the SAA comments approved by the Executive Committee and submitted by President Helen Tibbo on January 19, 2011.
The comments, in part, stated that "Congress and the Copyright Office need to remove any legal impediments that may discourage libraries and archives from preserving sound recordings." Many others who submitted comments to the Copyright Office were supportive of SAA's statement. However, the Recording Industry Association of America and American Association of Independent Music submitted a joint statement opposing federalization of copyright for pre-1972 recordings. The IPWG prepared for SAA a rebuttal to the RIAA, which Tibbo submitted to the Copyright Office on SAA's behalf. The transcripts of the public meetings are available at the Copyright Office's website.
Working Group member, Mark Greene penned an article for the July/August 2011 issue of Archival Outlook, "What's That You Say? Bringing Sound Recorded prior to 1972 Under Federal Copyright Protection," summarizing and publicizing SAA's advocacy effort.
Comments on Revision to the SAA Code of Ethics
During 2011, SAA revised its Code of Ethics. The iPWG group submitted comments on the draft dated December 20, 2010. SAA Council approved the final version of "Core Values of Archivists," in May, 2011.
Comments to the Copyright Office on possible gap in the 1976 Act termination provisions
The IPWG drafted comments recommending that the Copyright Office conduct further study before proposing legislative or regulatory changes that would affect the termination of copyright associated with unpublished works created and transferred before 1978. Peter Gottlieb, SAA President for 2009-10, forwarded a reply to the public comments to the Registrar of Copyright in May, 2010.
IPWG Receives SAA Council Exemplary Service Award
The Council Exemplary Service Award honors individuals or groups for their outstanding service to SAA and the archives profession.
The Intellectual Property Working Group was recognized by its peers for providing SAA and the Council with information and advice on intellectual property issues at the 2009 Annual Meeting in Austin, Texas. The IPWG was established in 2001 and includes: Heather Briston (chair, University of Oregon), Jean Dryden (University of Maryland), Mark Allen Greene (University of Wyoming), Peter Hirtle (Cornell University), William Maher (University of Illinois, Urbana-Champaign), Aprille Cooke McKay (University of Michigan), Richard Pearce-Moses (Arizona State Library), and Margery Sly (Presbyterian Church USA).
The group tracks current legislation on the subject and testifies on SAA’s behalf when necessary. It also makes recommendations when SAA is asked to support litigation, and prepares position papers as well. “The IPWG has more than fulfilled its charge, evidenced by the confidence that the Council places in it as a source of expert advice on one of the most important topics addressed by the profession today,” said the selection committee.
In 2008 the IPWG acquired funding from the Research Libraries Group for an orphan works investigation best practices retreat. Several members of the IPWG helped produce a 15-page report titled “Orphan Works:Statement of Best Practices,” which provides the best methods to use when attempting to identify and locate copyright holders.
American Archivist Publications License
Provided advice to the American Archivist board regarding language to include in authors' agreements and the AA copyright statement. (September 2007)
Greenberg v. National Geographic (Greenberg II)
Recommended that SAA sign on to an amici brief, together with American Association of Law Libraries, ALA, ARL, Medical Library Association and SLA. (October 2007)
Section 108 Study Group
The Section 108 Study Group is a select committee of copyright experts, convened by the Library of Congress, and charged with updating for the digital world the Copyright Act’s balance between the rights of creators and copyright owners and the needs of libraries and archives. See http://www.loc.gov/section108/. Peter Hirtle, immediate past chair of the IP Working Group and former president of the Society of American Archivists serves as a member of this group.
In January, 2007, William Maher, a past president of SAA, and a member of the IP Working Group testified on behalf of SAA in a public meeting. Transcripts of the proceedings can be seen below:
- Agenda (PDF, 53KB)
- Introduction (PDF, 32KB)
- Topic A: Amendments to Current Subsections 108(d), (e), and (g)(2) Regarding Copies for Users, Including Interlibrary Loan (PDF, 210KB)
- Topic B: Amendments to Subsection 108(i) (PDF, 120KB)
- Topic C: Limitations on Access to Electronic Copies, Including Via Performance or Display (PDF, 89KB)
This roundtable followed up on the earlier roundtable in March, 2006, in which Richard Pearce-Moses, then president of SAA, testified on behalf of SAA. Transcripts of the proceedings can be seen below:
- Introduction (PDF, 22K)
- Topic 1: Eligibility for Section 108 Exceptions (PDF, 102KB)
- Topic 2: Amendments to Current Subsections 108(b) and (c): Access to Digital Copies (PDF, 97KB)
- Topic 3: New Preservation-Only Exception (PDF, 94KB)
- Topic 4: New Website Preservation Exception (PDF, 67KB)
Statement of the Society of American Archivists on Copyright Issues for Archives in Distance Education (1999)
|IFLA WIPO Message Overview FINAL.pdf||866.01 KB|
|Report to SAA Council on OW round tables-3 April 2014.pdf||95.7 KB|
|Copyright Office_OrphanWorks_SAA Addendum_052014.pdf||74.18 KB|
|Archives, Electronic Files and Licensed Material.pdf||565.15 KB|