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NINCH
Copyright Town Meeting Session: Copyright Confusion? Community Guides The College
Art Association's by
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AAM Baltimore I. Origins (next) By February 1998, when the College Art Association met in Toronto, the consequence of CONFU's disastrous muddling of the meaning of fair use in the academic community was already running its course. In academe, where the collection of images for use in the classroom and for research had previously been accepted as an inherited right, these rights no longer seemed so secure. Forces with economic interests in the administration of images and their use, came knocking at the doors of the ivory towers. CONFU guidelines in general were not friendly to education, but those concerning the use of digital (and by implication, analog) images in the classroom, in particular, did great damage.[1] This happened even though the digital image guidelines were rejected by nearly every academic and scholarly interest group, even, eventually, by the American Association of Museums (AAM) itself.[2] In short, the guidelines served to destabilize the confidence with which academics always acquired and made use of images for scholarship. The trouble began at the administration level, where these guidelines told policy-makers that dark skies were on the horizon. The activities of slide-rooms and nascent digital collections suddenly became subject to the imagined demands of a variety of parties bent on imposing the ethic of a market economy on every educational activity. The fear that everyday slide-room practices would be challenged by rights-holders, ironically, never bore fruit -- except as the dangerous fruit of paranoia. The "Big Case" in which fearful visual resources curators and professors foresaw doom to their long-standing professional practices never occurred. Instead, the bomb exploded from within. To university counsels and administrators across the nation the CONFU guidelines offered their offices tangible criteria with which they could determine whether current practices fell within a safe harbor or not. These guidelines were approved by the copyright industry, and that is what mattered. Never mind if that harbor was so shallow that only a few small craft could seek safe haven within it. Universities around the country and the administrators within them, in order to escape being caught in the "Big Case," issued orders that, if followed, for many schools would have either nearly killed art history teaching as we know it, or left it quite lame.[3] For many schools. system-wide safety and financial protection came before their educational mission. There are notable exceptions of course. But the exceptions did little to quiet the rampant hysteria that followed in the aftermath of CONFU.[4] The relevant stories traveled at the speed of rumor.[5] I know of one school, that, for fear of being caught as the owner of putatively infringing photocopied slides, transferred ownership of their entire collection to one of the faculty members poor enough to be legally insulated. The idea, one assumes, is that one faculty member passes ownership down to another. Most of these stories revolve around the cessation of copy-photography. This February at College Art, when it met in New York, after a demonstration of the Academic Image Cooperative prototype, a young faculty member came up to me to thank us for our efforts to gather public domain and copyright free images. She began to complain (hiding tears) that in her school all photocopying out of books for classroom slides is absolutely prohibited. In addition, there is no budget for buying slides. She can't teach the courses for which she was hired. Her only solution is to acquire images from vendors on her own account or to photocopy out of books herself. From the perspective of academics, this kind of restrictive interpretation of fair use is making it impossible to teach. All the vendors in the world cannot put together enough images to teach a top-notch art history curriculum.[6] Clearly, in an atmosphere where one's customary methods and rights are being challenged at every step, where one does not know where to turn to acquire the tools needed to teach, where one must confront efforts to maximize profits at the expense of often naive scholars and teachers, questions and pleas for help will abound. And they do. Everyone is affected. The museum community, I regret to say, though traditionally, even instinctively disposed to support education and scholarship, and often doing everything feasible to help educators and scholars obtain access to and use of materials they need, ever more frequently is asked to adopt the rules of the new economics. Because they are no longer profitable, one after the other, museums have ceased selling slides of their collections. Museum visual resources departments, no longer looked upon as service agencies, must now pull their own weight and support their activities –– activities that sometimes must include the cost of routine object photography –– as if customary object documentation were not central to the museum's mission, and had to be supported by an external demand for publishable images.[7] What consequences do these new goals have on academics and teachers? Scholars, once seen as assets that must be cultivated are now clients; in this way collegial relationships transform overnight into adversarial ones. And adversaries have questions. Similar stories are told at the publishing end. One well-known scholar, on the verge of bringing out a second edition of his successful textbook discovered that some image vendors have a sliding scale of fees for second editions. The cost of obtaining second-use rights may escalate as much as ten-fold. Teachers who are often stuck with buying photographs and obtaining rights are forced into that hard place between having to meet obligations for professional advancement at exorbitant cost or not publishing at all. At the College Art Association meeting in Toronto, to meet these challenges, to put an end to this chaos and confusion, was born a movement to help academics, artists and teachers trudge through the suffocating jungle of copyright law and rights management. The CAA Committee on Intellectual Property (CIP) has taken three decisive actions to counter the effects of revitalized efforts by the copyright community to "tame" uncooperative academia. The first of these is the co-sponsorship of these NINCH Copyright Town Meetings. To date, CAA-NINCH meetings have taken place four years in a row.[8] The second of these is the sponsorship of a guide to copyright in academia -- the subject of this session. And the third action is support for what is now called the Academic Image Cooperative -- an effort to gather public domain and license-free images that may be used freely and without permission for a wide variety of academic, artistic, scholarly and didactic uses.[9] The AIC held a successful demonstration of its software and presented its mission at the CAA convention in New York this last February. I won't discuss it further here, except to note that at the Visual Resources Association conference in San Francisco -- the locus of the previous NINCH Copyright Town Meeting -- I presented a paper based on my AIC experiences. That paper surveyed reasons why the Public Domain and license-free solutions offered by the AIC are so difficult to produce within a non-profit public environment.[10] III. Methodology (previous | next) In the beginning, the CAA Q&A handbook (or the Q&Q handbook, as I call it, myself) was intended to be a pamphlet-sized guidebook to some of the key issues that academics frequently encounter. To determine just how broad and expansive this guide need be, I spread word on a number of related Internet discussion lists that we were collecting copyright and image use questions for which people required advice or answers. We foresaw neither the unending variety nor the complexity or the depth of the questions sent us. At the same time, when relevant questions appeared on copyright-focused discussion lists such as cni-copyright, museum-l, vra-l, caah, these questions were gathered and thrown into our basket of troubles. Some submitted questions were easy to answer, and to these I responded with the solution that commonly was held acceptable to the discipline (with the proper disclaimers, of course), while showing other points of view that may be considered. Many questions were beyond my expertise. About a year ago all 461 questions then gathered were imported into an AskSam text base.[11] This database was then indexed for repeating concepts, themes and entities. We now have a rough index that contains over 500 terms and concepts that link our 450 records. From then to now additional questions have been submitted, new laws have been passed, the DMCA, the Sonny Bono Act, with Distance Education and Database legislation peeking from around the curtain. Things are a-changin'. IV. How to proceed (previous | next) The Q&A copyright guide is a work in progress. It would seem that our first upcoming task is to reduce the total number of questions by merging or synthesizing those we have and by creating generic scenarios that universalize or generalize some of the more specialized problems. These can be arranged according to the kind of question asked. For instance, we have received questions about obtaining resources to use in class or about negotiating with publishers or about distance learning. To this end, we have isolated a number of "interest centers" that can be carved out of or entered into the material we have collected. Below is a list of typical topics in the form of questions. This museum audience will instantly recognize how (and why) a book such at the CAA Q&A of necessity must differ from the guide made for the AAM constituencies.[12] Here are some typical questions (in no special order):
As you listen to these questions, as a museum audience, you should recognize that answers will differ depending on whether you represent museum or academic interests. The differences, in large measure will depend upon the audience for whom the answer is intended. And that's the rub. A copyright guidebook created to suit museum needs, such as this wonderful Museum Guide to Copyright and Trademark, and intended to forward the specific missions of museums, despite every intention to prepare a balanced understanding of the law, must, in the end propose solutions and scenarios relevant to the needs of its own constituencies. So, in addition to a standard set of questions and answers, the proposed CAA guidebook must offer the its own constituencies a set of tools to use to advance their specific aims. No guidebook can give legal advice since good advice requires an acute understanding of both the law and the specific facts. But we can offer methods and tools that can be used better to understand the issues. Here are some that come to mind: V. The CAA Copyright Tool Kit (previous | next) The tool of advocacy: The tool of currency: A tool for local action: The how-to tools: Scholars may know a lot about their chosen field, but, if any part of the stereotype is true, some know very little about a lot of practical things. And everyone hates red tape. Of great need, therefore, will be our "how to do it" red-tape kit. This tool-box may contain items like the following:
We have come this far without any budget -- depending thus far upon the kindnesses of those who believe this to be an important service for the CAA constituency. The second half of producing the CAA Q&A guide undoubtedly will require production funds, and we expect to round up the usual suspects in our bid to ask for their help. The above notwithstanding, we think we have devised a plan to run our no-cost scenario a little further yet. Obviously, we will need legal expertise to judge the quality and applicability of our trial answers, and will need help writing the usage guides we expect to create. This expertise, we believe, will arrive in several stages and in multiple forms. We suspect that in its wake will follow an interesting by-product: CAA's legal counsel, Jeffrey Cunard (who served on the Legal Advisory Committee for the AAM guide to Copyright) has devised an intriguing strategy for obtaining legally sound answers and for preparing useful guide sheets. As partner in Debevoise & Plimpton, each summer Jeff supervises a number of legal interns. We can use the problems collected in the guide as a device for helping interns learn about copyright law and about the special needs of scholars and other CAA constituencies. This kind of experience would be difficult to find elsewhere. We can even have interns work on our problems from a variety of perspectives so that our responses are not singularly one-sided. This work will be vetted by Debevoise & Plimpton attorneys and be made suitable for our guide. We can also employ these students to prepare the step-by-step instructions to help individuals analyze fair use issues and accomplish some routine procedures such as obtaining copyright registration. The by-product is this: The student-interns become aware of, and hopefully develop sympathy for issues affecting academe. VII. Production (previous | next) We do not expect to publish the CAA guide in book form. There is too much flux in this area to support an unending series of expensive paper editions. In addition, to use the CAA guide, it is best that people not have access to old versions; they must act on the most current information available. Publishing on the web also permits sections of the service to be mounted as they are complete -- without having to wait for incomplete parts to be ready. Consequently, if we plan to integrate the CAA guide into the College Art Association website we will have to find the funds to produce it, and to make certain it is updated at regular intervals. With luck, the CAA Q&A guide will serve a wider public than our immediate community, hopefully, attracting scholars from outside the circle of art historians, acquainting them, in the process, with the institution and programs of the CAA. It is difficult to determine at this point what format will be most suitable with which to present our materials, but I expect it to be divided into several key sections, responding to major interest areas.
VIII. Timeline for finishing this guidebook. (previous | notes) If we remain true to our mission, we should never finish this work. Such a hard task-master is this Internet. But in terms of how much time it will take to present something to the public, I can say with some assurance, based on the experience of the AAM guide to guide us, that the time it takes to finish will be related to the amount of funding we can garner to push this forward. Robert Baron's Home Page | Copyright Menu Report link problems to links@studiolo.org Notes: (top | previous | first)
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edit 12/2002