Advice and Advocacy
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)