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).
|
