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by Aprille McKay
Copyright: WIPO. Photo: Emmanuel Berrod. This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 IGO License.
IPWG member and former SAA President William Maher attended SCCR 37 at WIPO in Geneva to continue SAA's advocacy for an international treaty on special copyright exceptions for archives and libraries. He gave a general statement to the assembly, as well as targeted statements responding to a proposed archives study and how a potential treaty about broadcasting rights would impact archives and their users.
At the recommendation of the SAA Intellectual Property Working Group (IPWG), the SAA Executive Committee signed a Joint NGO Letter on the Proposed WIPO Treaty on Broadcasting, drafted by Knowledge Ecology International. As IPWG members noted, the current proposed treaty “creates a new exclusive intellectual property right that reaches too broadly, creates post-fixation rights, and contains inadequate exceptions and limitations.” SAA stands with many other groups in expressing concern that “negotiations on a broadcasting treaty have not clarified a number of important issues, nor addressed core concerns from civil society and copyright holders.” Read the full letter, dated May 28, 2018, here.
Also at the urging of the Intellectual Property Working Group, on May 23, 2018, the SAA Executive Committee signed a Library Copyright Alliance letter to Senator Ron Wyden (D-OR), praising him for introducing the Accessibility for Curators, Creators, Educators, Scholars and Society Recordings Act ("ACCESS to Recordings Act"). The bill "would provide full federal copyright protection to sound recordings fixed prior to 1972, which currently receive protection only under state copyright law." The letter further urges Congress to proceed with the ACCESS to Recordings Act rather than CLASSICS. Read the letter here
The quest for international standards on copyright exceptions for libraries and archives continued at the latest meeting of the Standing Committee for Copyright and Related Rights at the World Intellectual Property Organization in Geneva, Switzerland, May 1-5, 2017. As usual, William Maher represented SAA, presenting a statement to the body which argued in part that "an archivist's obligation to the future requires that we minimize risk. That is why we need reasonable exceptions to deal with the tremendous ambiguity inherent in our collections."
Standardized rights statements developed through a joint project by the Digital Public Library of America (DPLA) and Europeana represent an important development in providing access to digital collections, particularly for materials in major aggregation platforms that are available internationally. If widely adopted, they could standardize how cultural heritage institutions provide information regarding the copyright status of digital objects that they make available online, benefitting both the institution and the user. Bur applying them to archival material is a bit challenging. The Intellectual Property Working Group has prepared this guide to understanding how archivists can best use them.
On March 28, 2017 SAA President Nancy Y. McGovern sent a letter to the ranking members of the House Judiciary Committee, Representatives Bob Goodlatte and John Conyers, objecting to the passage of House Bill 1695, which would remove the Register of Copyright from the supervision of the Librarian of Congress. McGovern noted that, "we believe that removing the Register of Copyrights from direction by the Librarian of Congress would result in a diminishment of Congress’ constitutionally-mandated authority regarding copyright. Therefore, we urge that the bill be delayed in order to provide the public adequate time to weigh in on this significant and highly damaging piece of legislation."
New Librarian of Congress Carla Hayden solicited short comments about desireable qualities to be sought for a new Register of Copyrights. In comments submitted January 29, 2017, SAA outlined the following qualifications:
A Register must be able to manage a large workforce and update the Office’s registration and renewal of copyrights recordation processes.
An essential qualification for a Register, in addition to having the necessary knowledge of copyright itself, is a long history of public service, and a background, whether in writing or in practice, that shows breadth and balance in copyright experience.
A Register should understand and respect the appropriate limitations of the Copyright Office and the role of the Register.
SAA has joined with the Council of State Archivists, the National Association of Government Archives and Records Administrators, and the Regional Archival Associations Consortium to submit “Recommendations on Federal Archives and Records Management Issues” to the Trump presidential transition team. Read the document here. IPWG contributed advice related to the copyright-related recommendations.
The IPWG had two members attending the latest meeting of SCCR in Geneva, William Maher, representing SAA and Jean Dryden, representing ICA. The Committee has been working through an agenda of topics related to copyright exceptions for libraries and archives. Maher presented statements on SAA's behalf related to topics 8 (Limitation on Liability) and 9 (Technological Protection Measures).
SAA representatives Dennis Meissner, Peter Hirtle, and Jasmine Jones will meet with U.S. Copyright Office staff on July 11 to discuss that office’s notice of inquiry regarding Section 108: Draft Revision of the Library and Archives Exceptions in U.S. Copyright Law. A statement on the issue was drafted by SAA’s Intellectual Property Working Group and approved by the Executive Committee on July 7. IPWG member Hirtle served on the Section 108 Study Group that made recommendations to the Librarian of Congress for revisions to the Copyright Act in 2008.
IPWG member William Maher attended meetings of the Standing Committee on Copyright and Related Rights at WIPO in Geneva, Switzerland on December 7-11, 2015 (SCCR 31) and May 9-13, 2016 (SCCR 32). At SCCR 32 Professor Daniel Seng presented a monumental study on Copyright Limitations and Exceptions for Educational Activities. Maher gave statements on behalf of SAA on the topics of the Draft Study on Educational Activities and Cross Border Uses of Archives. For an overview of the progress made at this meeting, take a look at KEI's video of IFLA's Stuart Hamilton giving a brief summary. Library and archives NGO's comprised a significant and formidible contingent at the May meeting.
At SCCR 31 in December, Maher prepared an opening statement, delivered remarks on the topic of Reproduction and Safeguarding Copies (topic 2 on the chair's list of 11), and facilitated SAA's sign-on to a jointly issued handout on the Right to Reproduction.
The SAA Council's Executive Committee, at the suggestion of the Intellectual Property Working Group, signed on to an amicus brief, filed on March 23 by the Internet Archive, in the case of Fox News Network, LLC v. TVEyes Inc. To learn more, read this EFF treatment on the significance of the case or view the full amicus brief.
On February 18, 2016 Dennis Meissner submitted comments on behalf of SAA on the Copyright Office's Section 1201 Study. Section 1201 is the anti-circumvention prohibition of the Digital Millenium Copyright Act, Every three years the Copyright Office considers exceptions to the operation of the section. Here is an excerpt from our comments:
There is inherent in the entire 1201 rulemaking process a fundamental flaw: The rulemaking should not apply to anti-circumvention actions undertaken to accomplish a non-infringing use. At a minimum, more reasonable permanent exemptions should be adopted . . . to minimize the effort we all must expend on this procedure
Chair Aprille McKay filed this report of the IPWG's copyright advocacy and education efforts over the past year.
The Committee on Advocacy and Public Policy is charged with preparing short advocacy blueprints called "issue briefs" on individual advocacy topics for SAA's leadership. Because copyright is of significant concern for archivists, the IPWG is often called upon to consult with CAPP and provide input on issue briefs that touch on intellectual property topics. Four issue briefs, related to Orphan Works, Section 108 of the Copyright Act, and resistence to the Trans-Pacific Partnership Agreement, and resisting extensions to the term of copyright have been officially adopted by SAA Council. Jean Dryden, one of the IPWG members invovled with drafting the TPP statement was recently interviewed by the Electronic Freedom Foundation (who have linked to our statement from their blog).
“For the vast bulk of what is in archives, mostly unpublished or rare materials where copyright claimants do not exist, ECL [extended collective licensing] would be unhelpful, irrelevant, unduly burdensome, and a disservice to the communities that archives serve.” Read SAA President Dennis Meissner’s September 23, 2015 letter to the Register of Copyrights here. The statement was endorsed by the leadership of the Midwest Archives Conference (MAC) on October 6.
On August 21, 2015, during the SAA Annual Meeting, Kevin Amer of the Library of Congress's Copyright Office joined us in Cleveland for a conversation about the Orphan Works Report of the Copyright Office and other current topics of interest to archivists and their users.
In August 2015, SAA signed on to a document called "The "London Manifesto" which has been published by the Library and Archives Copyright Alliance as a way to advocate for uniform copyright exceptions across all EU states. As Bill Maher's reports from the SCCRs have made clear, the European Union's delegates have thrown up roadblocks at the SCCR meetings, preventing progress on a library and archives treaty. This manifesto is part of the advocacy effort to influence them to soften their resistance.
American archivists using current internet communications serve a global audience, and thus developments abroad should not be ignored.In the case of the London Manifesto, we have an opportunity to speak positively for changes that would bring balance to the copyright environment. Insofar as European actions have been used in the past to influence domestic US copyright legislation in a way that has hindered the work of archivists (e.g. copyright term extension), we believe it important for SAA to attend to positive international developments as well. SAA's recent advocacy at WIPO has given an international voice to the copyright concerns of American archivists. The Manifesto is a natural extension of the kinds of positions we have been been advancing at WIPO.
In a July 23 response to a U.S. Copyright Office notice of inquiry, SAA President Kathleen Roe notes that, “SAA is concerned that in your effort to protect the traditional income of a small minority of creators, the Copyright Office may impose rules that close off access to graphic imagery found in archival repositories.”
In a letter to the U.S. Copyright Office in July, SAA President Kathleen Roe concludes that, “…archival collections are brimming with rich stories and essential information that cannot find their readers because of the long duration of copyright. The failure of Congress to create a workable system for digitization effectively imprisons our shared cultural heritage.” Read the full letter here.
SCCR30 at WIPO in Geneva (June 29 - July 3) once again discussed library and archives exceptions to copyright and IPWG member Bill Maher was there to represent SAA. Although the delegates sensed that progress had been achieved, the meeting did not manage to agree on recommendations to be delivered to the WIPO General Assembly in October. Maher participated in a standing-room only side event sponsored by libraries and archives, and presented on the value of cross-border reference services for archives (William J. Maher, "Stopped at the Border: Global Archives Frustrated by Copyright Localism") Maher also gave an impressive speech on behalf of SAA, to which Chair Moscoso responded quite favorably.
In addition, SAA issued a joint statement with the International Federation of Libraries and Archives, the International Council on Archives, the Scottish Council on Archives, the Chartered Institute of Library and Archives Professionals, the European Bureau of Information and Documentation Associates and Electronic Information for Libraries (EIFL). Maher noted "because SAA’s members manage primary source works from throughout the world, they need uniform, global standards that can only come through the sort of work that the EU’s delegation is blocking."
On March 11, 2015, SAA joined with several other archival and library organizations to support the conclusions of the UN Special Rapporteur in the Field of Cultural Rights in a report to the 28th UN Human Rights Council. In a letter, also signed by IFLA, EIFL, ALA, ARL and many other international and national library and archives institutions, SAA specifically applauded the report's statements that "stronger” copyright protection does not necessarily advance the material interests of creators and that supported a treaty on library and archives exceptions to copyright.
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.
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.
Maher explains why archivists need to be able to make copies of to acquire, preserve and make works available to the public in this short video by Jamie Love of Knowledge Economy International.
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 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.
Maher's statements:
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.
Additional reports of the meeting by Catharine Saez at IPWatch, Manon Ress of KEI Online, IFLA and the Scottish Council on Archives.
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.
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.
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.
Outgoing chairperson Heather Briston filed this report of the activities of the Intellectual Property Working Group for the year 2012-13.
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.
Chairperson Heather Briston filed this report of the activities of the Intellectual Property Working Group for the year 2011-12.
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.
Check out Anne Hartman's article in the March-April 2012 issue of Archival Outlook about Maher's recent citation by the Supreme Court in Golan v. Holder. (SAA Members only).
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.
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).
Chairperson Heather Briston filed this report of the activities of the Intellectual Property Working Group for the year 2010-11.
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.
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.
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.
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.
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.
Provided advice to the American Archivist board regarding language to include in authors' agreements and the AA copyright statement. (September 2007)
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)
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.
SAA President Elizabeth Adkins submitted comments to the Study Group on 16 Mar. 2007, summarizing the Section 108 revisions most desired by archivists. See all the public comments here.
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:
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: