February 3, 2015 by Susan Prillaman
When faced with a request that will likely be denied, I’ve heard people joke–with some seriousness–that they should beg forgiveness rather than ask permission. I understand the sentiment, but when potential consequences are high the strategy seems unwise. It was therefor with some surprise, consternation even, to learn that in the realm of digital history the ability to quickly remove contested content from the web is, according to Cohen & Rosenzweig, “the most important reason why historians should not worry excessively about many of the [copyright] issues we discuss [in “Owning the Past?],” a concept now known in my mind as “the ‘My bad. Please forgive me.’ defense.”
Reading further, my consternation was assuaged by the unfortunately titled “Well-intentioned practice for putting digitized collections of unpublished materials online” from the Online Computer Library Center, Inc. (OCLC), and “Intellectual Property Rights Strategy for Digitization of Modern Manuscript Collections and Archival Record Groups” from Triangle Research Libraries Network (TRLN). I may be splitting nomenclature hairs, but being “well-intentioned” may count little within the confines of a courtroom. Editorializing aside for the moment, TRLN’s strategy document clearly explains the due diligence process each member organization performs before items from their respective special collections may be published to the web.
With the volume and variety of individual documents within a collection often staggering, and the time and resources available to ascertain copyright status limited, TRLN decided to “proceed on the basis of an intelligent assessment of the potential risks and reasonable efforts to reduce those risks; ” “reasonableness” being a key legal concept. In addition to its three-pronged approach–recognize some materials are already in the public domain, obtain permissions and rights when and where possible, and acknowledge the strength of a fair use argument—TRLN’s strategy includes the placement of a statement about intellectual property on each member’s website; similar I imagine to sample take-down policy and disclaimer language provided in OCLC’s statement. In the event an infringement complaint is received and deemed warranted, the library removes the digital object.
But do they really? Given evidence that the Internet Archive may not remove the offending content at all but instead blocks it from public view, what assurances does a rights holder have that the material has indeed been expunged?
Where OCLC’s statement is a one-page, bullet-pointed document (not so different from one recently published by my employer), and TLRN’s strategy statement provides an excellent primer on copyright issues, Hirtle, Hudson and Kenyon’s Copyright & Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives & Museums offers a much deeper view into its intricacies. Even so, potential issues are complex and vary on a case-by-case basis, one reason OCLC recommends involving an attorney in the event your institution employs one.
In this regard, I think OCLC’s statement falls short in two ways. First, it doesn’t include the possibility an organization might need to hire outside counsel based on the nature and extent of the materials involved. Second, it fails to suggest the attorney be well-versed in copyright law; a corporation, real estate or litigation attorney may do more harm than good.
But hell, it’s the intent that matters, right? In the event you think me too harsh I say, “My bad, please forgive me.”