Well-intentioned Practice for Putting Digitized Collections of Unpublished Materials Online (W-iP)

Developed by:  OCLC Research

Preface prepared by SAA's Intellectual Property Working Group

"Well-intentioned Practice for Putting Digitized Collections of Unpublished Materials Online" (W-iP), prepared by OCLC Research, offers a framework for an assertive approach to digitization of unpublished archival materials whose rights holders are often difficult to identify and contact. Consistent with the aggregate, rather than item-level, approach that traditionally has been so fundamental to the rest of archival practice, it emphasizes a collective approach to the management of the copyright responsibilities involved in large-scale digitization projects. By definition, the W-iP guidelines encourage a movement away from work-by-work or even author-by-author decision-making on rights clearances.

The guidelines offer the prospect of moving beyond a near paralysis coming from the impossibility of having copyright clarity on all the works or all the authors in a given collection or archival record series that otherwise merit wide exposure through digitization. If the guidelines are adopted widely enough, they offer the promise of becoming a "community standard" that, by its broad use, could become a foundation on which the archives profession could rely as a "best practices" defense.

For this to happen, however, archivists must understand what W-iP does and does not provide, and that W-iP cannot substitute for being well-informed about copyright. In essence, W-iP is a map of how to take risks in moving forward with digitization when a strict interpretation of copyright might argue otherwise. Those who wish to use WiP as a basis for launching digitization programs must understand that the guidelines offer no formal legal protections, but merely define an approach for managing the inevitable risks in large-scale digitization. Before adopting the W-iP approach, archivists should confer with their legal counsel as well as their risk management staff, if available and appropriate, to be certain that the institution is prepared to accept responsibility and costs should a legal action or simply an out-of-court settlement result.

Although W-iP defines an approach consistent with the archival mission of promoting the widest possible access, it assumes a level of legal knowledge that not all archivists may possess or have available to them. Archivists need not become copyright lawyers, but to use W-iP well, they need to have a solid understanding of the law. Indeed, gaining the institutional approval to adopt the W-iP approach will be most likely if one can forcefully articulate the particular archival dimensions of copyright. A start for building a knowledge base can be found in the following sources:

• Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums by Peter B. Hirtle, Emily Hudson, and Andrew T. Kenyon. Ithaca, NY: Cornell University Library, 2009.
  • Available for purchase from:
    • SAA online bookstore;
    • Create Space; and
    • Other book retailers.
  • Available for free download at:
    • http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1495365
    • http://hdl.handle.net/1813/14142
• Orphan Works: Statement of Best Practices (Society of American Archivists)
• Columbia University Fair Use Page (Kenneth Crews, Director, Copyright Advisory Office, Columbia University Library)
  • Fair use checklist
• Copyright Term and Public Domain in the United States (chart) (Peter Hirtle, Senior Policy Advisor, Cornell University Library)
  • Includes links to additional sources