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TOWN MEETING: New York City, Sept. 24, 2001
Intellectual Property & Multimedia in the Digital
New York Public Library
Heike Kordish, Paul LeClerc and David Green, Introductions
I Intellectual Property Owners in the Digital Environment
Aggressive Asset Management
Adam Eisgrau, Policy Issues
Ryan Craig, Distance
Donald Waters, ArtSTOR: A Case Study of Responsible Use of
II Intellectual Property Users in the Digital Environment
Linda Tadic, Intellectual
Property Versus the Digital Environment Rights Clearance
Siva Vaidhyanathan, Copyright
and How We Talk About It
Howard Besser, The
Fate of the Commons
E. Jane White, The
Internet Moving Image Archive
Speakers' Biographical Sketches
Heike Kordish, Paul LeClerc and David Green
Heike Kordish welcomed over 200 participants
in the fourth meeting of the third series of Town Meetings, held
in the Celeste Bartos Forum. She encouraged attendees to take part
in the discussion and not to hesitate to bring their own experiences
to bear on the topic at hand. She then introduced Paul LeClerc,
President of the NYPL, who stressed the importance of the Town Meetings
series in general, was pleased to be working with NINCH and thanked
everyone for their participation.
David Green offered an overview of the Town
Meetings. He thanked the hosts, the local organizing committee,
with members from the Frick Collection, NYPL, New York University
Library, and the NYU Humanities Computing Unit, and, finally, he
thanked the Samuel H. Kress Foundation for its continued support
of the Town Meetings series.
Keynote 1: Intellectual
Property Owners in the Digital Environment
Peter Jaszi, Aggressive
Peter Jaszi opened by discussing the apparent
but possibly artificial opposition between intellectual owners and
users of intellectual property. As a precursor, he suggested a terminological
shift from "user" and "consumer" to "information practitioner."
But his main point was to speak from the rhetorical perspective
of copyright owners, suggesting a provisional set of strategies
that a cultural institution might employ to identify and maximize
control over its intellectual property assets, in order to secure
an economic return or to control their use and representation. He
reserved for later the question of whether, when considered in the
context of nonprofit cultural institutions' overall objectives,
these strategies were actually desirable.
The most significant difficulty facing nonprofits
in creating an aggressive asset management strategy is that often
much of their physical assets is not protected by copyright law.
Institutions might own the objects in their collections, but often
not the copyright. Therefore, part one of this rhetorical strategy
was for cultural institutions to establish copyright claims to images
of their assets based on the value added when they photographed
or reproduced them. However, the courts gradually drifted away from
supporting this perspective, as in the Bridgeman Art Library v.
Corel Corp. case where judges demanded a "spark of creativity" be
present before owners could claim copyright. The court ruled that
documentary photographs lacked such a spark and the rationale of
that decision seems to have extended to digital reproduction as
well. Nonprofits need to attack the decision in Bridgeman if they
are going to make the most of their portfolios. They also need to
develop new content from their collections. Part two of the aggressive
asset management strategy is for nonprofits to take steps to assure
that as many rights as possible are gathered into the institution.
And, one way to do so is to ensure that they hold the rights to
their employees' work.
With regard to digital asset management,
Jaszi explained that institutions' assets were likely to be exploited
by the Internet. From the perspective of proprietors, the Internet
has the advantage of extraordinary reach at relatively low cost.
But the disadvantage is what Jaszi called "extreme porosity," or
the ease with which assets can be exploited without compensating
the institution. In order to maximize the advantage and minimize
the disadvantage, institutions should campaign vigorously in the
courts for recognition that unauthorized links to proprietary content
should be barred as unauthorized invasions of the exclusive rights
of owners. Institutions might adopt an aggressive litigation strategy
to encourage a narrow interpretation of the fair use doctrine and
to implement pay-per-view technologies, watermarks, and click-through
Jaszi suggested that it is fortunate that
the Digital Millennium Copyright Act (DMCA) prohibits and penalizes
the circumvention of protections as well as the provision of any
means of such circumvention. Those prohibitions are under attack
by users, so proprietors should stand shoulder-to-shoulder in support
of the DMCA. He noted that the information marketplace is global
and therefore we should all adopt anti-circumvention provisions,
despite a movement in the European Union toward moderation.
Finally, Jaszi noted that "things are never
simple," and acknowledged that many nonprofits side with ordinary
information practitioners rather than with for-profit content providers
in the policy disputes over copyright law. He demonstrated in his
talk that the "traditional pro-access position" of the nonprofit
cultural community should not be taken for granted. He concluded
that the Town Meeting would allow panelists and audience to explore
the pros and cons of the practical options and policy positions
facing nonprofit cultural institutions.
Panel 1. Intellectual Property Owners
in the Digital Environment
Adam Eisgrau, Policy
Eisgrau discussed the policy impact of issues
surrounding intellectual property and new technologies. He argued
that copyright is key to U.S. self-identity but that the balance
between market forces and the advancement of knowledge it has striven
to protect is under threat as a result of the defensive response
to new technologies by rights owners.
The notion of balance remains key to our
understanding of copyright. Eisgrau mentioned that the proprietary
community feels very threatened by the advent of the Internet, which
it sees as a tool of perfect reproduction and wide distribution.
In the early 1990s, rights holders began proposing changes to the
law to protect their assets, actions the public sector saw as a
threat to the delicate balance between owners and users dictated
in the Constitution.
In 1995, a Clinton administration white
paper recommended radical changes to copyright law. These included
that access to copyrighted material should no longer be freely available
for previously lawful purposes. Rather, it would be available "by
sufferance." The central premise of the changes was that owners
could not afford NOT to make the copyright system watertight. When
legislation arising from the white paper failed to pass, however,
rights holders pressured the U.S. government to work with the WTO
to enact its central assumptions in a World Intellectual Property
Organization (WIPO) Treaty. However, the resulting 1996 W.I.P.O.
Copyright Treaty included strong statements about signatory
nations' rights to extend into the digital environment pre-existing
copyright exemptions (such as fair use in the U.S.)
Eisgrau pointed out that when the DMCA was
enacted, it contained section 1201 that created a new cause of action
for copyright owners, a copyright protection mechanism not dependent
on the infringement of owners' rights, per se. The new legal protection
was for owners who had implemented a technological means to protect
a work that had then been circumvented to get to the material behind
the "digital wrapper." The provision contradicted the Supreme Court
decision about Sony Betamax (see Tyler Ochoa's presentation at the
Houston Town Meeting, "From Betamax
to the DMCA: Copyright Owners and Device Control"). The law
went into effect with one exception; the Librarian of Congress would
have to conduct a rule making every three years to exempt categories
of works from the anti-circumvention provisions of the DMCA. The
chosen, though, were extremely narrow, and so the kinds of works
that the public sector had historically championed and made use
of were in jeopardy, and remained so.
Ryan Craig, Distance Education (see
Craig discussed current developments in the
field of "e-learning," which, he explained, provides educational
content online, including audio, video and interactive tools. Quality
online education should have clearly stated learning objectives
and a clear learning plan. The content may be mediated by an expert
or a discussion board and there may or may not be evaluation by
According to Craig, sufficient bandwidth
will allow online learners to do everything their in-classroom counterparts
do. The goal is to expand educational opportunities, especially
to working adults. One risk, however, is that traditional institutions
may lose students to online education. Another risk is the incursion
of for-profit companies into secondary and higher education. Still,
according to Craig, the reality is that almost all K-12 e-learning
supplements, not replaces, in-class learning. And on college campuses,
80% of technology applications are used to supplement on-campus
learning. Fair use is a major issue in e-learning and the recent
if passed, should extend fair use to the digital learning realm.
Craig explained that there are three types
of activities related to e-learning. The first is the capture, creation,
and development of content; the second is teaching the content;
and the third is delivery of the course to the learner. Each activity
is linked to a different business model. Intellectual property issues
arise around content development because that content can be so
Traditionally, faculty members were considered
to own copyright in their written work (the so-called "teachers
exception to the "work-for-hire rule). While universities and colleges
claimed patents to inventions that emerged from their laboratories,
distance-education courses fell somewhere in the middle and it was
unclear if they could be considered "work-for-hire." Most of the
time, employment contracts were silent on this issue, although the
law (as far back as the late eighteenth century) supported a professor's
right to the content of his or her courses until the late 1980s.
In 1989, in CCNV
v. Reed, the Supreme Court set out a multi-part test of
what constituted the scope of employment. Applying that test to
post-secondary education would have deprived professors of the copyright
to their courses. In 1998, a court found course creation to be within
the scope of faculty members' employment. When courses are fully
online, the university's claim to copyright is even stronger, and
especially when the school's IT resources are utilized. Craig pointed
out that the risk to schools that stand firm on this issue, however,
is that faculty might decline the opportunity to create online content.
Still, the financial investment in such courses is significant and
schools typically hesitate to pursue online education unless they
can secure or significantly share in the rights of the courses.
Under Columbia University's 2000 copyright
policy, the university owns the nominal copyright in any digital
media product created with substantial use of university resources,
leaving the definition of "substantial" purposely vague. The university
also maintains a generous revenue-sharing policy with faculty.
Waters, ArtSTOR: A Case Study of Responsible Use of Copyright
Waters offered a case study of the kinds
of responsible strategies nonprofits could pursue as owners of intellectual
property. He outlined the principles the Mellon Foundation applies
in supporting JSTOR (an electronic
archive of over 150 journals in the arts and sciences) and ArtSTOR
(a planned library of digital images for the arts and humanities),
and the related principles the Foundation applies when making grants
to projects that result in the development of intellectual property.
Waters suggested that the categories of
creator, owner, and user are difficult to define. Ownership ranges
from full exclusive control of a work to very limited control. The
ownership stake of JSTOR and ArtSTOR in the content of their collections
is slim because they are aggregators and distributors of content
that is fully owned by others. The nonprofit missions of both organizations
charge them to balance their limited rights against the rights of
original owners, creators, and users in the larger interests of
Waters acknowledged that rising concern
about intellectual property and multi-media in the digital age corresponded
with the rise of the Internet and related technologies, and their
dual potential as tools for both the distribution of knowledge and
massive copyright infringement. Waters suggested that what unites
many in the nonprofit sector is the conviction that the primary
way of promoting the advancement of science and the useful arts
is through the educational processes of research and learning. Such
a conviction, he said, is what should drive cultural institutions
in their approaches to intellectual property and the Internet
However, confusion among policy makers about
the goal of copyright law has led to two reactions in cultural institutions.
First, many institutions have not used new technologies to their
greatest effect because of paralysis in the face of intellectual
property concerns. Avoiding copyright problems, they consequently
aim low in terms of quality and quantity. They either produce and
distribute low resolution images or they act alone, making higher
quality results available only to those behind institutional firewalls.
These approaches tend to result in duplication of effort and limit
the possible economies of scale that could be achieved through collaboration.
Second, some institutions have succumbed
to the "gold rush mentality," by focusing on the profit-making potential
of digitizing collections. Cultural institutions have begun to behave
like big corporations, suffering from "mission drift," thereby creating
competition within the community and forgetting about their original
educational missions. In response to these two widespread problems,
Mellon has developed a set of core principles in relation to intellectual
property and is incorporating them into the agreements it makes
with its grantees.
JSTOR's intellectual property rights are
based on contracts made with both publishers of the journals in
its database and its users. The agreements embody three principles:
to protect the rights of creators and
owners by obtaining a limited, nonexclusive, but perpetual,
license to digitize the content for nonprofit use;
to "preserve the educational commons"
by making content available for educational purposes; and
to create a regulated environment in
which users formally agree, through the terms of a license,
that they will restrict their uses to nonprofit, educational
Mellon is now applying these principles to
the development of ArtSTOR, which was announced in April 2001, funded
with a $5 million start-up grant. Its mission is to develop, store,
and provide electronic access to digital images for the study of
art, architecture, and other humanities fields. ArtSTOR is keen
to develop relationships with museums and will include a digital
design collection from the Museum of Modern Art. The database will
also include the Mellon International Dunhuang Project, a collection
of high-resolution images of paintings, drawings, manuscripts, and
printed books, and other materials from Dunhuang, China and museums
and libraries from around the world. The breadth and depth of these
collections of images should make ArtSTOR useful to students and
researchers throughout the arts and humanities.
The three principles outlined above have
been central to the intellectual property agreements that Mellon
is making on ArtSTOR's behalf. But, in order to be most useful as
a scholarly tool, ArtSTOR will also be creating digitized image
collections on a massive scale from sources where it will not always
be possible to get permission from every owner. Waters explained
that the Foundation is exploring a risk management approach that
would make it possible to reproduce hundreds of thousands of images,
provided that the images are distributed in a "nonprofit, carefully
regulated online environment limited to use for educational purposes."
ArtSTOR believes the presence of an image in its database will only
enhance the value of the original work, not harm it. However, if
harm is demonstrated, ArtSTOR will remove the image from its database.
It is the Foundation's contention, said
Waters, that this approach to intellectual property could be a way
for institutions to avoid the paralysis that has kept them from
developing high quality, collaborative projects. It could also limit
"mission drift," helping cultural institutions stay focused on their
scholarly and educational purposes, rather than embarking on a dubious
quest for profit.
An intellectual property attorney suggested
that any tension between copyright law and the first amendment should
be resolved in favor of the first amendment, particularly in the
case of databases. Jaszi suggested there was indeed massive tension
between copyright and the first amendment. Fair use could be considered
a safety valve that released that tension, although not completely.
However, the situation has changed because of the evolution of copyright
law, the DMCA, and its anti-circumvention provisions.
A librarian asked who was going to defend
"free information"? Jaszi agreed that libraries and public service
institutions were squeezed by the cost of information resources,
licensing costs, and their missions to provide information for free.
A curator for a for-profit organization
that owned 6,000 presidential letters and other manuscripts said
that he was confused about what they actually owned, noting the
distinction between owning the physical objects as opposed to their
Eisgrau said that copyright law did not
protect facts; rather the specific expression of those facts was
protected. However, compilations of facts, such as databases, were
protected because of the work that went into their creation.
Keynote 2: Intellectual
Property Owners in the Digital Environment
Linda Tadic, Intellectual Property
Versus the Digital Environment Rights Clearance.
Linda Tadic opened by stressing that her
address reflected her own opinions and not those of her employer,
HBO, or AOL Time Warner. In clearing rights, Tadic said that both
for-profit corporations and nonprofit cultural institutions face
many of the same issues in identifying copyright owners and securing
permissions or licensing agreements. If the use does not fall under
the fair use provision, permissions had to be secured.
Defining terms, she stated that an "asset"
was a work or an object that can be owned and exploited by: society
as a whole (public domain works); a creator (writer, composer, artist,
etc.); a corporation or organization (often through licensing agreements);
or the government (rights to cultural landmarks). In the U.S., the
Copyright Code gives a copyright owner the exclusive right to reproduce,
distribute, perform, display, or license his or her work (or asset)
as well as to produce or license derivatives of the work. Putting
assets or derivatives of assets on a website or on the internet
is in effect reproducing, distributing, performing (if audio or
video), and displaying the works. Before an individual or organization
decides to reproduce a work or asset, it needs to be
determined who owns the asset. This could be quite complicated.
She divided her presentation into the use
of four media: still images, audio, moving images and web sites.
1. Still Images
Possible owners of the rights to reproduce and distribute a certain
image include a photographer (unless the work was produced as work-for-hire);
an artist; a publisher (if a book cover); the subject of an image
(under rights to privacy/publicity); or a corporation (either owning
work outright or with the rights to license digital reproductions).
Some artists or their estates take care of their own permissions
and licensing, while others use agencies or clearinghouses to license
the reproduction of their work (e.g., The Artists Rights Society). Some artists, however,
use companies who are only responsible for licensing digital reproductions.
For example, the Ansel Adams Foundation must be contacted for reproducing
an Adams photograph in print, but Corbis has the digital reproduction
Tadic considered some cases where users might
think about using images online without seeking clearance. These
- Copyright notice: Simply placing
a copyright notice next to an image obtained without permission
- Thumbnails: Citing the Kelly v
Arriba case (in which Arriba's search engine returned photographs
by Leslie Kelly) Tadic said that re-using thumbnail images had
been ruled as fair use (as the quality was below acceptable commercial
use). [This case was upheld on appeal: http://netcopyrightlaw.com/pdf/0055521.pdf.]
- On-site use: Cultural institutions
may provide access on-site to digital copies of copyrighted items
in their collections, for which they do not own distribution rights,
(under Section 108), as long as there is no commercial activity;
the collection is open to researchers and to the public; copyright
notice is displayed; and the copy is not made available outside
- Marketing web sites: Some companies
encourage the downloading of authorized images from their marketing
web sites for use in creating fan web sites, screensavers, e-cards,
etc. In these cases, the company decides what images are authorized
for downloading; and the consumer is not allowed to use the downloaded
image to sell products.
Possible owners of audio rights include: the producer; the production
company or performer(s); the composer; the recording label; the
distributors (different ones for different markets); or the subject
of an an interview. In using audio on web sites, Tadic explained
that one needed to obtain composition rights (for public
performance of the composition itself); recording rights
(for the recorded work); and reproduction and distribution rights
(for both the composition and the recorded work). Licensing organizations
such as ASCAP and BMI act as clearinghouses for licensing composition
rights. A recording company owns the specific recording of a piece
of music. It is a common practice that rights revert to the performer
35 years after the recordings release. Internet transmissions
involve reproduction and distribution, which are separate from public
performance and involve two steps: reproduction occurs in downloading
the music to a hard drive or server; distribution occurs by making
the music widely available over the Internet. While public performance
of a composition might be handled by ASCAP, reproduction and distribution
rights for a composition are represented by the National
Music Publishers Association and are licensed through
the Harry Fox Agency, a clearinghouse for reproduction and distribution.
In her paper, Tadic presented some useful examples
to help illustrate these different rights.
Just as for-profits take rights management
very seriously, nonprofits need to as well. Once a museum, library,
or archive includes an asset owned by others on its web site, it
steps into the same realm that the for-profit community lives in.
As argued by Georgia Harper, under certain circumstances, an educational
nonprofit could argue that its use of copyrighted assets is fair
use and should be protected, see http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm.
However, it could be argued that the use of that asset was negatively
affecting the assets market value (Jupiter Media Metrix has
estimated that single paid downloads represent $25 million in sales).
3. Film and Video
The streaming of video on the Internet is another new digital copyright
issue. Already film studios have created joint ventures offering
subscriptions to online movies, protected by anti-piracy software.
Currently, few nonprofits can afford to mount more than short clips
of streaming digital video; however, many public domain films are
available online (for example at the the Internet Archive and the American Memory web site of
the Library of Congress).
Possible owners of moving image rights include:
the producer; the production company; the performer(s); the composer;
the distributors (different ones for different markets); the subject
of an an interview; actors; the screenwriter; the director; the
Determining the rights owner to a film or
video can be particularly difficult because films and their rights
are frequently sold and one also needs to investigate whether the
rights of actors, producers, writers, performers, guilds, or music
need to be cleared. To research film and video copyrights, Tadic
recommended the Copyright Database at the Library of Congress http://www.loc.gov/copyright/rb.html/
that lists claimants and copyright ownership to works created after
1978. To search before 1978, one needs to search the Library of
Congress online catalog, LOCIS, or the published lists.
Tadic noted also that different companies
own distribution rights in different markets, such as national,
international, cable, and the Interne, although the definition of
Internet rights is still unclear.
Privacy and publicity rights also influence
the use of moving images and audio on the Internet and this can
affect a nonprofits use of home movies or oral histories.
For example: A donor can give rights to use his/her familys
home movies in an exhibition/web site, but the organization then
needs to obtain clearances from other members of the family who
are represented in the footage.
4. Web Sites
Possible owners of web site rights include all of those listed so
far together with an author (if the site includes an unpublished
text); a translator; or the publisher (if the site includes a published
5. Digital Rights Management
As assets are distributed over the Internet, owners and distributors
want to control, track, and protect their use. Digital rights management
essentially comprises: tracking who created the asset; tracking
who owns the rights to control usage; and protecting the content.
Tadic then cited a number of examples of digital rights management systems
6. Nonprofits and For-profits: Similarities
Before concluding, Tadic briefly summarized
the issues for nonprofits and for-profits.
Owns assets (IP)
Owns physical item (sometimes
Wants to provide access to
assets (profit motive), but to control that access/distribution
Wants to provide access. Profit
isnt usually a motivating factor. Any control placed
on that access is out of fear/respect for rights.
Rights management awareness
firmly in place
Rights management awareness
still new concept
Content protection. Cant
access assets unless have authorization or pay (subscription
Content protection usually
limited to giving copyright credit on web site. Not enough
(see Kelly v. Arriba).
Digital Rights Management
tools to track ownership and usage
Follow new business model:
- Be strict in clearing rights/permissions; non-profits are
now in the distribution business
- Secure rights to publish electronically; dont assume
that a contract to publish also applies to the
- Consider rights to privacy and publicity
- Protect content
- Copyright your own
websites (design and content)
In conclusion, Tadic said that she believes
Congress will revisit the DMCA, and that it is important for users
of copyrighted materials to keep up to date with changing law and
cases in the courts. Nonprofits that place assets owned by others
on the Internet have in effect become distributors. As a new distribution
model for the Internet is created, nonprofits and for-profits might
discover that they have more intellectual property rights issues
in common than they had previously thought.
Panel 2. Intellectual Property
Users in the Digital Environment
Siva Vaidhyanathan: Copyright and How We Talk About
Vaidhyanathan called for a new rhetoric
of copyright that would facilitate a broad, civil, and nuanced discussion
of the sort of copyright system that might work best for owners
and users. He thought there is a clear "vocabulary gap" in the way
elites and the general public discuss copyright issues within the
public sphere. Substantive discussions of copyright are largely
restricted to "experts" even though the public has just as much
at stake. The common rhetoric about copyright obscures more than
it enlightens. He outlined some of the fundamental differences within
the rhetoric of copyright.
First, he argued that copyright discussions
remain within the domain of experts because of their elaborate jargon.
Although jargon can provide precision and concision for those "in
the know," it more often limits useful discussion. The metaphor
"intellectual property" the analogy between real property
and the world of ideas is particularly problematic, he said.
When one side uses metaphors of property, accusing the other side
of theft when referring to unauthorized uses of copyrighted materials,
the other side is "imprisoned" by the metaphor. According to Vaidhyanathan,
"property talk limits our imagination." When words like "theft"
dominate the discussion, a broad, nuanced, and civil discussion
about what kind of system would work best is almost impossible ("because,"
as he put it, "it's impossible to argue FOR theft.").
Vaidhyanathan urged the audience to think
about copyright as a set of important policy choices, and not a
fundamental property right, suggesting that such a rhetorical shift
could alter the future of copyright law. He went on to urge nonprofit
organizations to abandon the phrase intellectual property in favor
of copyright, and even more specific terms that allude to strands
or bundles of rights.
He referred to a "battle for the rhetorical
high ground," claiming that post-1998 copyright limits creativity.
The new copyright law rigs the system for "the established" and
limits the choices of "the emerging." Historically, copyright was
a fluid, open system about distribution and publication. Now it
actually affects the creative choices of creators. Some owners of
copyright argue for a strong, perfectly sealed regulatory system,
that they claim would encourage creativity (for example, the Motion
Picture Association of America claims that without the DMCA there
would be no video disks because owners would not have had the confidence
to distribute their work). Vaidhyanathan acknowledged the truth
of that claim: much digital content might not be available. However,
he argued that "content creativity," is far more important for our
culture than "format creativity," and we should protest the circumvention
of that creative freedom.
Vaidhyanathan pointed to the rhetorical
gap in discussions of fair use. Users and the public simply want
to know what they can "use," while experts can only reply "it depends."
He outlined the three theories or approaches to fair use, now in
Statutory theory: Fair use is
simply an affirmative defense to an accusation of infringement.
Therefore, its criteria are only relevant as a defense.
Law and economics theory: Fair
use is a vestige of the analog age when transaction costs for
small amounts of content were too high to justify regulation.
Democratic theory: Fair use is
a fundamental user's right, a public benefit that exist within
Howard Besser: The Fate of the Commons
Howard Besser responded to Vaidhyanathans
comments on property talk, arguing that there was at
least one useful metaphor of property for the user community, and
that was the commons. He continued by discussing the
particular problems of twentieth-century art, which he maintained
was, above all, multi-media in format and very often about the re-contextualization
of existing works. The creation of multi-media requires access to
content, but, he pointed out, content is increasingly locked
up. Overall, Besser said, there has been a significant shift
from information as part of the commons to information as commodity.
Besser pointed out that it is difficult to
distribute team-created multi-media works and the need to renegotiate
rights each time a work is transferred to a new delivery device
Besser pointed out the high degree of commonality
between users and creators of information. Strong copyright laws
are bad for both creators and users because both make wide use of
old content and both want the widest possible distribution of their
new content. Both benefit from moves away from perpetual restrictions
on content; both benefit from the survival of works over time. In
fact, Besser argued, users are creators because they reconstitute
content in their minds each time they read it.
The Content Industry
Leading myths about the commercial content industry include:
- that recording labels represent the music
industry (Besser cited Courtney Loves
speech before the Digital Hollywood online Entertainment Conference
in May 2001, where she argued that the record labels fight
with Napster was about protecting their profits, not the welfare
of their recording artists);
- that the Motion Picture Association of
America represents filmmakers; and
- that publishers represent authors.
According to Besser, the content industry
does not serve creators or users, and he advocated an alliance between
content producers, users, and librarians, who have more in common
with each other than they have with the content industry.
Imagine a World with No Public Domain
described a world in which rights to all content would be negotiated
and re-negotiated. Historically, he said, we have had an information
commons upon which creators develop new work, scholars make
new discoveries and teachers find teaching materials. The information
commons is a key element of public discourse. But it is under increasing
threat and rapidly being eroded as fair use and first sale are being
limited. Licensing, tracking, and perpetual copyright are all eliminating
the public domain. The threat to the public domain mirrors the erosion
of public spaces.
Besser suggested that as copyright laws are
strengthened, they will be used to limit free speech and stifle
creativity, citing the case of The Wind Done Gone, Alice
Randalls controversial parody of Gone With the Wind,
The dangers we face are the elimination of
the public domain, fair use, and a public commons. The result will
be control over social and political commentary, satire, the creation
of derivative works, the criminalization of acts that impede digital
commerce, and the web as a tool of consumption rather than production.
The content industry wants to monopolize production by limiting
the public voice in the production of information and culture.
Besser referred attendees to his own web
site on intellectual property issues, http://www.gseis.ucla.edu/~howard/Copyright/
and to Lee Felsensteins 1993 article The Commons of
E. Jane White: The Internet Moving Image Archive
Jane White opened by declaring that she had
worked on both sides of the intellectual property issues discussed
by the previous speakers. In her position at ABC News Interactive,
she became interested in working with archival footage and the myriad
problems with gaining rights to multi-media.
Internet Archive was founded by Brewster Kahle in 1996 with
the goal of building a digital library of Internet sites and other
cultural artifacts in digital format. It now provides free access
to scholars, researchers, and the general public. Its central purpose
is to provide open access, and thereby encourage alternative voices
to the mainstream media. White argued that an open archive helps
people better understand their world, a particularly important need
in light of the events of September 11. The Internet Archive was
built on the inherent promise of the Internet, that information
should be free and available to the public. The Internet Archive
consists of an Internet Library, the Internet Moving Image Archive,
an election archive of 1996 and 2000, and the International Childrens
Digital Library. It contains forty-three terabytes of information,
including four billion pages on the 2000 election.
Some of the problems that face the Internet
Archive are that, despite the fact that content exists in vast quantities,
it is locked up, in part because owners are not able to catalog
their holdings and make the material available. Also, rights holders
too frequently have an outmoded business model, based on the fear
of duplication of their material. White argued that archives are
underutilized and restrictions exacerbate the situation. She urged
nonprofits to ask themselves what their philosophy is: should there
be more or fewer voices? White argued there should not be such a
firm distinction between users and owners, declaring that emerging
users or creators are much less text-based and more visually- and
audio-based. And yet, the very material that is being most restricted
by the DMCA and other legislation is audio and video.
The Internet Archive puts the idea of the
intellectual commons or preserve into practice, and suggests the
commons be administered like the National Parks Service, as a national
treasure. The Internet Archive is not in the business of commodifying
White presented a case study of the Internet
Moving Image Archive, that started with Rick Prelinger's enormous
personal archive of ephemeral films. Believing that if he makes
them available on the web, he will not lose money, Prelinger has
done so and, so far, there have been 100,000 downloads of his films
from the site, and his sales have increased. By making the images
available online, more people become aware of the collection. White
argued that wide access does not dilute the value of the films,
but enhances it.
A participant argued that, despite Tadics
suggestion that it is in the interest of publishers to distribute
material and thus make a profit, publishers control access in order
to prevent the public from getting to the information. He suggested
publishers, or the content industry, lock up works in order to manipulate
their value, citing Star Trek as an example.
Vaidhyanathan argued from the perspective
of the content industry, saying that publishers have no direct interest
in limiting access because that would limit sales. However, the
only way publishers can recoup their investments is to create unnatural
scarcity, particularly within the culture of abundance facilitated
by the Internet. Besser suggested that for any content holder there
are several possible business models, but the content industry has
relied on traditional, overprotectionist models.
An audience member asked the speakers to
offer some guidelines for nonprofits who find themselves looking
to for-profit business models to exploit their collections. Vaidhyanathan
said that it is important to remember that every content producer
is equally dependent on a rich public domain, and if all content
is locked up, there will be no building blocks of new content. White
encouraged nonprofits to give their content to an information commons
or preserve. If they offer their works at a lower quality, many
users will be willing to pay for high quality reproductions. Besser
encouraged nonprofits to think carefully about digital preservation.
Full Program Discussion
David Green offered a summary of key themes
covered throughout the days program. He pointed to the dramatic
utopian and distopian views of the digital revolution presented
by several speakers. The issue of access to material seems to have
overtaken reproduction as a central concern of owners. Green was
intrigued by Mellons new model for the deployment of ArtSTOR,
commenting that there were few institutions willing to take similar
risks and to stand by their principles. The importance of new economic
or business models was a recurring theme, and nonprofits are encouraged
to explore the possibilities and to resist the temptations of traditional,
for-profit models. Green was intrigued by Vaidhyanathans suggestion
of the need for a linguistic revolution in the way copyright is
discussed. He pointed to the threat of database legislation and
the promise of the TEACH Act, that will give distance educators
more options than fair use currently does, as areas in need of public
One audience member urged participants to
note, and oppose, the Security Systems Standard and Certification
Act (SSSCA) to be introduced by Fritz Hollings (D.-S.C.). If passed
the Act will restrict access to software by embedding copy-protection
controls in consumer electronic devices and personal computers.
Jaszi encouraged individuals, or citizen constituents, to let their
Members of Congress know of their concerns with regard to intellectual
property. (See a report on this issue in Wired Magazine).
An audience member asked Tadic if there are
any calls from the for-profit community to streamline rights clearing
processes. Tadic suggested that for-profit organizations will not
make the process easier because the system, while quite cumbersome
and difficult to navigate, protects their content.