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A Case Against Editor's note: This paper, and another anonymous submission exemplify the double-bind academic visual resource find themselves in today. The author of the other document wishes to remain anonymous, ostensibly to protect his or her institution from potential infringement liability. The author of the text before us now, desires anonymity because he or she wants to avoid embarrassment for having been forced to undergo procedures that most of the discipline considers unnecessary and contrary to the rights given to education by US copyright legislation. When what is right for one institution is wrong for another, the law not only abdicates its responsibility to offer guideposts; it also confuses, and from that confusion comes paralysis. From the perspective of rights of access to the public domain and the size of the public domain, one can easily conclude that the more the public domain is allowed to yield its treasures, the more successfully the educational mission of these collections will be fulfilled. We are a private university, serving approximately 10,000 students, of whom ca. 3,600 are undergraduates in the College of Arts and Science. Our department of art and art history offers an art history major and a master’s degree. Our slide collection of ca. 180,000 images supplies mainly art and art history faculty, six of the former and ten of the latter. It consists largely of images from copy photography, supplemented by purchases, slides taken on site by faculty, and travel slides from friends of the department. The collection embraces world art from prehistory to the 21st century. I judge that 85 to 90% of the collection represents works dating prior to the 20th century and 85 to 90% of the whole derives from copy photography. Regarding copy photography, we have always presumed fair use for educational purposes, until last year when the formation of a committee to develop plans for digital “conversion” resulted in consultation with an attorney from our office of General Counsel. Prior to his meeting with our committee, he told me that he was unfamiliar with the slide marketplace, so along with a wealth of commentary from the world of visual resources on fair use, I took him my copy of the Image Buyers’ Guide, 7th edition. At our meeting, he expressed dismay that we would engage in copy photography at all, rather than purchase from the vendors represented in that guide. The art historians present explained the impracticality of sole reliance on purchases (questions of availability of needed images, time constraints, etc.) We argued that what we do has been common practice in collections nationwide. While saying this was no justification for our practice, the attorney did not outright tell us to desist. Nor did he, perhaps turning a blind eye, require that we seek permissions from published sources for copy photography. The outcome was quite different with the plan for digitizing images on a course by course basis. In that case, we must provide full source documentation for each image scanned from books and from slides (exerting “reasonable effort to identify rights holders”), naming the rights holder of each image with contact information, such that our Copyright Office can request permission for each image, initially, for one semester’s use. (The plan is to evaluate fees and determine whether to continue to request usage rights on a semester by semester basis or to seek rights in perpetuity.) No scans are made from slides we have purchased. When a satisfactory image is available in AMICO, the image database to which our library subscribes, we use it. These images are pulled up from a closed network for class presentation, and only students enrolled in a given course have access to them for class review, using a password. Our attorney recognizes fair use only as a defense if one gets into trouble. Of his office he said, “We make business decisions based on risk.” This institution, which includes a medical school and hospital, is highly concerned about its financial liability in law suits. There is also concern, of course, about the actual costs of the permissions we are seeking. I insinuated myself into a meeting with higher-ups on the subject of permission costs, in order to point out that there are front-end costs--beyond fees to rights holders--in labor, personnel, and time. Each digital image record should contain (in addition to usual data about the artwork) detailed information, prescribed by the Copyright Office, about the source of that image. I explained that for scans of slides from books and scans directly from books, this means book title, author, page/plate/figure number, publisher/place/year, address of publisher (phone, fax, e-mail address), library call number, ISBN number, photograph credit, and rights holder with contact information if different from publisher. (We began a database for our analog collection only six years ago, and it does not incorporate this level of detail.) This endeavor entails tracing back from accession date and source code to original requests organized in notebooks dating back to the 1970s, and ultimately revisiting book sources (library stacks across campus or begging faculty for books in their libraries), perusing the reverse of title pages and the tiny print of picture credits--often arranged alphabetically by photographer/photographic source rather than numerically by page, plate, or figure number. With all of this, I pointed out, the identity of the actual rights holder often remains unclear. And that is just our part of the work; our Copyright Office will then request use rights, at first, for one semester only. The powers that be remained unmoved, apparently more concerned with protection than with effective, productive use of personnel and sensible expenditure of the University’s resources. So far, I have not been informed as to any billing for or denial of permissions. What we will do if charges are deemed out of line or permission refused, I cannot say. In the meantime, we push on, bogged down in time-consuming and labor-intensive busywork, in view of requesting the right to educate with images of artworks, the vast majority of which belong, ironically, to the public domain. Return to Robert's
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