SAA Response to the Draft Guidelines for Digital Images Developed by the Conference on Fair Use (June 4,1995)

Educational Fair Use Guidelines for Digital Images: Response of The Society of American Archivists to the Draft Guidelines Developed by the Conference on Fair Use

The Society of American Archivists (SAA) has been monitoring with interest the work of the Conference on Fair Use (CONFU) to develop guidelines for the fair use of digital images. The SAA has hoped that the guidelines as they developed would come to respect the requirements and needs of the archival profession. While there has been improvement through the several drafts, the draft version dated 11/6/96 is still far from acceptable. Unless radical changes are made to the proposed guidelines, the SAA most likely will not endorse the guidelines, nor will it advise individual archivists to follow them.

Archivists manage millions of textual, visual, and electronic records found in a variety of governmental, institutional, academic, and corporate archives. It is the position of the SAA that archival resources should be broadly accessible via the nation's information infrastructure.⁽¹⁾ The SAA would welcome, therefore, fair use guidelines that advance education, increase societal understanding, and simplify the task of making archival material accessible via electronic networks. The proposed guidelines fail to help the archival profession in any of these areas, and work instead against the profession's most fundamental goals.

The SAA's general objections are as follows:

1. It is premature to develop fair use guidelines for digital materials.

Both network technology and the digital marketplace are in rapid evolution. Consequently, there is a strong likelihood that guidelines established now will prove to be inappropriate for the emerging digital environment, or may actively inhibit the desirable growth of archival information resources on electronic networks. It is the position of the SAA that until the network environment becomes more settled, it is better to follow the principles behind existing copyright law, and in particular the right of citizens to make fair use of material. Documents such as the proposed guidelines, which, under the guise of facilitating fair use, actually create an environment that is restrictive and inhibiting of research and education, should especially be disavowed.

2. The scope of the proposed guidelines is too broad.

The draft guidelines appear to have been written with the needs of a very specific community in mind -- slide libraries built on commercial products -- but the language in the guidelines is exceptionally broad. The title, for example, suggests the guidelines apply to "digital images;" at other points the document talks of "visual images" and "visual resource collections." In archival practice, however, "digital image" covers much more material than is envisioned in the document. A scan of a George Washington letter, for example, is a digital image. The guidelines as written suggest that an archives would need to identify and secure from the owners of the copyright in that letter permission to make the scan available -- an impossible task.

In addition to holding billions of textual documents that could be converted to digital form, archives are major repositories for "visual images" and "visual resource collections." Millions of analog images are found in the visual collections in archives. These images are frequently unpublished or are without attribution, and are still technically under copyright. Much use of the material can be made under existing fair use guidelines, but the draft guidelines as written would make similar use of digitized versions of these images impossible.

At the very least, the draft guidelines should be retitled and restructured to accurately reflect their true narrow scope: the digitization of fine art and architecture slide libraries built to a large extent on commercially-produced, copyrighted material.

3. The guidelines may become the de facto definition of acceptable fair use.

While the guidelines concede that there may be uses that exceed the guidelines and yet still constitute fair use, nevertheless, it is likely that the guidelines if adopted will become the maximum acceptable use (much as the CONFU guidelines limit most library photocopying). It is imperative, therefore, that when fair use guidelines are issued, that they be as comprehensive as possible. The draft guidelines neither help solve the very real management problems of archivists responsible for millions of visual images, nor do they facilitate the use of these images in education.

There is great danger that these guidelines, drafted to assist a small, specific community, may be widely applied to other research materials, to the detriment of research and education.

4. The proposed guidelines needlessly restrict the definition of fair use.

The proposed guidelines often needlessly inhibit, rather than enable, fair use of copyrighted material. The guidelines, for example, suggest time frames during which repositories can seek the permission of copyright owners to continue to make digitized materials available electronically, and "remind" their audience that permission must be sought simultaneously with digitization. There should be no automatic time limit on the fair use of copyrighted material. A use permitted under the fair use provisions of the copyright law may continue to be fair use, regardless of how many times or for how long it is used. Furthermore, the purpose of fair use is to permit socially-beneficial use of copyrighted material without the copyright owner's permission.

Copyright owners, and not users, have the responsibility to enforce copyright.

While all users should be respectful of copyright, it is primarily the responsibility of the copyright owner to investigate and prosecute violation of copyright. The use of network technology should make this search and discovery process easier, not harder. Nevertheless, the draft guidelines put the onus of protecting the rights of copyright owners on the repository that wishes to distribute material via networks. It would have been much more useful if the guidelines had offered guidance on when it is appropriate to seek permission from the copyright owner, rather than insisting that educational institutions must always do so.

6. Guidelines should not be limited to secure campus networks.

The draft guidelines discuss the use of images on the institution's secure local network, including the delivery of thumbnail images. However since, as the guidelines note, thumbnails have "no intrinsic commercial or reproductive value," it should be possible to distribute these freely over an open network for educational or non-commercial purposes under existing fair use provisions of the copyright law. Furthermore, many governmental and private archives wish to make material available for research and scholarly use, and yet their user community may not be confined to an institutional local network, but may be found anywhere in the world. Provisions limiting display to a secure local network for these institutions are meaningless.

More fundamentally, the explicit prohibitions against distributing digital images beyond an institution's secure local network found in the guidelines will work to stifle both the commercial and non-commercial development of digital images. If unable to share digital images, institutions will be forced to spend limited funds to digitize material that may have been digitized by a comparable institution, leaving less money for the purchase of digital collections from the vendors.

For archival holdings, the amount of use that could be generated within one institution would seldom warrant any digitization. Alternatively, unworkably-small portions of historical collections might be made available digitally, leading to those portions being delivered or received out-of-context. It would also increase the risk of subjectivity in the selection for digitization process.

Even if substantial portions of an institution's archives were digitized, under the guidelines users would still have to travel to an institution to use the digitized materials on the institution's secure local network, defeating in a large part the rationale for digitizing. Moreover, certain potential users of unpublished archival and museum materials, such as schoolchildren, may not for security reasons be permitted access to the physical materials and hence need in-classroom digital access. Limiting access to institutional local networks would impede the development of collaborative (multi-institutional) digital information, research, and educational environments where materials might be collated in new ways, leading to the furtherance of knowledge development.

Statement adopted by SAA Council November 12, 1996.

The Society of American Archivists, North America's oldest and largest professional archival association, includes a membership of 3,800 individuals and institutions concerned wtih the identification, preservation and use of records of historic value. Members are drawn from government agencies, colleges and universities, historical societies, museums, libraries, businesses and religious institutions.

1. Society of American Archivists, "Critical Archival Concerns and Interests in the Development and Implementation of the National Information Infrastructure," June 4, 1995 (published in Archival Outlook, July, 1995).