Jacqueline Trescott, Historians Protest Smithsonian's Deals, Washington Post, April 26, 2006.

http://www.washingtonpost.com/wp-dyn/content/article/2006/04/25/AR2006042502231.html

Excerpt:

The Society of American Historians, a group that promotes excellence in historical writing, has suspended Smithsonian Books from its ranks in protest over the Smithsonian Institution's "increasingly commercial approach to its mission." The suspension itself will have little impact, but it is the latest symptom of friction between the Smithsonian's top managers and many of the nation's scholars. The latest criticism follows a month of public debate over partnerships the Smithsonian made with commercial businesses and the change in policy about access to its archives. In a resolution passed by the historical group's executive board yesterday, the society raised questions about the deal with Showtime Networks to create a series of 100 programs a year based on the Smithsonian collections and experts. But the historians also raised questions about a second contract, this one a publishing pact with HarperCollins....

In recent weeks, the Smithsonian has come under attack from writers, historians and filmmakers. The primary issue is how much access that researchers and producers not affiliated with Showtime will have to Smithsonian archives and the appearance of "right of first refusal" awarded Showtime for any project that has more than "incidental" use of Smithsonian materials. "The Smithsonian is an institution that involves public money and public trust and is a public archives," said Elizabeth Adkins, president-elect of the Society of American Archivists. "It should follow the general guidelines of equal access. We are distressed." The exact nature of the agreements are secret. The Smithsonian contends they are proprietary and not subject to freedom-of-information laws that require most federal contracts to be available for public inspection. However, a Smithsonian directive states that "the institution follows the intent and spirit of the [FOIA] as a matter of policy."...Last week, about 215 filmmakers and historians asked the Smithsonian to reconsider the deal. Ken Burns, one of the country's best-known documentary filmmakers, called the Showtime terms a mistake. The Society of American Archivists also asked the Smithsonian to reconsider the Showtime arrangement. "We urge the Smithsonian to revisit the agreement and to abandon those portions that limit either access to the archives or distribution of a researcher's final results," said the society's president, Richard Pearce-Moses....The American Library Association and the Association of Research Libraries asked the Smithsonian for a copy of the contract with Showtime. The two organizations argued that the "mission of the Smithsonian militates toward full disclosure of this document." They argued that as a public institution, the Smithsonian had a responsibility to let the taxpayer know about its business dealings. "The public interest in disclosure here is clearly high in light of the unique nature of the agreement and its potential impact on public accessibility of Smithsonian resources," said the organizations in a letter to the Smithsonian.

http://www.earlham.edu/~peters/fos/2006_04_23_fosblogarchive.html#114614599797028700

See also:
http://dcartsjobs.blogspot.com/2006/04/news-smithsonian-film-deal-stirs.html

UN stamp archive selloff scandal

Can you imagine the US Government selling off whole collections from the Smithsonian? Or the UK sending the British Library to Christie's? Far fetched, indeed: yet the UN, that great upholder of international law, did pretty much exactly that a few years ago in selling off its philatelic archive lock, stock, and barrel -- and for cheap. Read all about it here:

Auditors from the U.N.’s investigative arm, the Office of Internal Oversight Services (OIOS), are currently putting the last touches on an investigative report that has taken months to complete, and that aims to determine exactly what happened — and why — to the U.N.’s rare and much-admired collection of materials that belong to the United Nations Postal Administration. . .

One thing that investigators know for certain about the archive: In a discreet but historic auction carried out in a quiet suburb of Geneva, Switzerland, all of it — more than a metric ton of prized material, dating from as early as 1951 — was sold off to a single bidder on May 12, 2003. The collection included original artwork for U.N. stamps, unique so-called die proofs to test the faithfulness of design reproduction, printing proofs and other rarities, along with hundreds of thousands of other stamps, reflecting many of the most colorful aspects of U.N. history.

As the article notes, there were and are strict rules that one would have expected to bar such a selloff outright. One gets the impression that this was in essence a theft in broad daylight, though it is not yet clear how those who profited from the sale and those who orchestrated it might be connected.

The auction itself was carried out in entirely legal fashion.

Excepting, of course, the rather serious matter of title.

The price it fetched — $3,068,000 — was hailed on a variety of stamp collecting Web sites as a world record price for a single lot sale at a stamp auction. . .

But for the U.N., it was no coup, even though, according to officials familiar with UNPA finances, the UNPA netted “some $2.5 million” from the Swiss auction deal.

Not clear here if the $3,068,000 figure represents the hammer price or the net paid with buyer's premium tacked on. In any event, the UN's net seems low. I'm not familiar with the stamp world, but normally the big auction houses waive seller's commissions for large, important consignments from governmental and nonprofit institutions, and will usually pick up the costs of photography and catalog production as well.

This whole affair is certainly a huge black eye for the UN. They must be just tearing their hair out at UNESCO . . . .

Source: Cronaca
http://www.cronaca.com/archives/004330.html

http://repositories.cdlib.org/cmrs/comitatus/

"Comitatus: A Journal of Medieval and Renaissance Studies was first published in 1970 under the auspices of the English Medieval Club at UCLA. It is now a peer-reviewed annual publication of the UCLA Center for Medieval and Renaissance Studies, under the supervision of the CMRS publications director."

The volumes 1970-1997 are now available for free.

http://archivesreviews.ning.com/

D. Mattison has created Archives Reviews, a new social web app, nearly empty yet. People not familiar with social web apps will find it enigmatic. It might be helpful to look at "Library Reviews" to find out the intention:

http://libraryreviews.ning.com/

You can go to the Brigham Young University website ( http://www.lib.byu.edu/ ) and do searches of over 5000 books which the Family History Library has put online.* ... the LDS Family History Library has announced that it has begun the process of digitizing and making available on the Internet all of the Family History books in their collection. These are primarily books in the "929.273Series" that are currently housed on the first floor of the Family History Library (previously housed on the fourth floor of the Joseph Smith Memorial Building). At the present time (Sept 2005), about 5000 books have been digitized and are available. They've announced that they are adding abt 100 titles/week to the on-line collection. Copyright issues are playing a role in determining the order in which they progress through this task; books out of copyright are being done first. As these Family History books are digitized and placed on-line, an entry is being placed in the Family History Library on-line catalog with a hyperlink to the digitized image. By going to the FHL On-Line Catalog, you can search for a specific name, find a book that has been indexed using the name, and view it on-line, flipping through the pages as separate "pdf" images, much the same as if you were on the first floor of the Family History Library. Of course, the indexing that is available through the FHL Catalog is only as good as the human indexers made it; typically they only include the "top" 4 to 6 names that appear in each book in their indexing efforts. But there is even better news! The digitized images of these Family History books are actually being stored on the electronic servers at BYU in Provo, Utah. By going directly to the BYU web site to view the images, there are several additional possibilities that provide genealogists functionality that they have never had before. You are now able to do full-text searches on each book, and on every digitized book in the collection. Now you can locate the small two-paragraph entry on Grandpa Ebenezer McGarrah that is buried in one of the Family History books that you would have otherwise never thought to look at before. This can open up a huge new possibility for extending lines, getting past brick walls, and uncovering new relatives! How to Find The Digitized Images? Go to the web site of the Harold B. Lee Library at BYU at ( http://www.lib.byu.edu/ ) on their home page, follow the links "Find Other Materials/Electronic/On Line Collections at BYU". Click on the "Text Collections" tab and select the "Family History Archive" from the list of collections that are displayed. You would then normally want to use the "Search All" feature with the "Search Full Text" box checked, although the "Advanced Search" will allow very high-powered searches that will allow certain phrases to be searched for and other words to be used to exclude potential hits. As you make selections from the "hits" that are displayed, you will need to use the "Click Here to View Item" button near the top of the screen to display the actual image of the page. You can page through the entire document using the index displayed on the left side of the screen. Each page may be printed after being viewed. One interesting sidelight is, when you are at the first web page for the Family History Archive (the page that lets you begin a search), click on the "Browse the Collection" button. This will display every Family History book that has been digitized and is available in the collection. You can scroll through this list much the same as if you were walking up and down the stacks at the library. At the top of the first page of the search results, it displays the number of hits, which (in this case) is the number of books in the collection. If you keep track of this number, you can get a pretty good idea of how fast they are adding titles to the collection as you revisit the web site from time to time. I think you will want to visit this site often as the collection grows!"

http://www.jeffcochapter.com/Links.htm

4. Is the issue of orphan material economically important and relevant in practice? If
yes, what technical, organisational and legal mechanisms could be used to facilitate
wider use of this material?

Orphan works pose a huge problem for all sorts of people including publishers,
broadcasters and authors. TNA has experience of running digitisation projects
where much of the time and the budget have been spent on rights clearance. The
Commission is right to recognise that the cost of rights clearance could easily
exceed the cost of digitisation. Orphan works are works known or believed to be
in copyright and whose copyright owner is unknown and (probably) unknowable.
There are plenty of such works in libraries: publishers disappear or are bought
up by others and become untraceable. There are many more in archives. A high
proportion of files in The National Archives contain letters from private
individuals and companies, each of which is a separate copyright work; there is
3
no prospect whatever in the great of majority of cases of tracing the present
owners of the copyright. Collections of photographs are always an especial
problem, because most images bear no useful data at all and yet they are visually
attractive and people wish to use them. Very few collections provide adequate
information on provenance and fewer still on present copyright ownership.
One possible solution is a new exception in the Information Society directive
(and member states' laws), covering both the reproduction and communication
rights, permitting the reproduction and use of orphan works so long as
reasonable efforts are taken (and can be shown to have been taken) to trace the
copyright owner and so long as there are mechanisms in place to require
acknowledgement of copyright and compensation (in the form of a fee at the
level that would have been payable had the copyright owner been known at the
start) if the copyright owner comes forward with proof of his rights. It is worth
noting that the USA has recognised this problem and the Library of Congress
has been consulting for a study on it. It might be sensible for the Commission to
do likewise if it feels that it cannot act immediately.

http://europa.eu.int/information_society/activities/digital_libraries/consultation/replies/consult_results/national_archives_uk_a303393.pdf

http://europa.eu.int/information_society/activities/digital_libraries/doc/communication/results_of_online_consultation_en.pdf

4.4) Is the issue of orphan material economically important and relevant in practice? If yes,
what technical, organisational and legal mechanisms could be used to facilitate wider use
of this material?
- Several replies indicate that the issue of orphan material is a real problem that may be
exacerbated by the convergence of digital media. They stress the economic interest and
potential of orphan works, next to its cultural and historical value. However, the issue is not
equally relevant for all communities: a number of smaller cultural institutions indicate they
are not concerned. Some replies underline the relevance of orphan material for mass
digitisation processes in view of the cost intensity of clearing rights. The replies that identify
orphan material as a problem call for a clear legal position for the use of such material to ease
the handling costs. Reference is also made to a recent major US consultation on this issue.
- Proposed solutions for handling orphan works vary widely: they range from changing
copyright legislation to developing better tools for locating right owners and making a
common European code for dealing with this type of material. Several replies propose to
generalise the Nordic model of extended collective licensing for orphan works, whereas other
replies recommend the French model as operated for audiovisual orphan works. The Canadian
model is also mentioned, in which collecting societies do not play a role. A reserve fund is
suggested to compensate authors if they are found after all. Some replies want to go much
further, e.g. by making orphan works generally useable until a copyright holder opposes
(eventually after a certain period a work has been advertised as an orphan work), or by
creating a legal ‘safe haven’ for people using orphan works. Rightholders and collecting
societies are generally opposed to legislative change to accommodate the orphan works issue.
- The absence of an overview of orphan works is seen as a serious problem. Up-to-date
databases of orphan material would help. For running these databases the public could be
involved, as well as the collecting societies.
- The attention is drawn to the need to prevent a further extension of the orphan works
problem: proposed solutions range from expanding the public domain (e.g. by reducing the
term of protection) to the use of technical mechanisms for identification of the owner and the
object.

Comment I cannot understand why this problem is underestimated by German archives (e.g. see the Bundesarchiv statement).

Please use this identifier to cite or link to this item: http://hdl.handle.net/1813/2719

Title: Research, Libraries, and Fair Use: The Gentlemen's Agreement of 1935
Authors: Hirtle, Peter B.
Keywords: copyright
libraries - legal issues
Issue Date: 20-Mar-2006
Abstract: The Gentlemen's Agreement of 1935 was a voluntary agreement that set guidelines for the limits of acceptable reproduction of copyrighted materials on behalf of scholars. Developed in response to the challenge posed by the easy and inexpensive photographic reproduction of research materials, the Agreement allowed library, archives, museum, or similar institutions to make single photographic copies of a part of a copyrighted work in lieu of loaning the physical item. The copies were not supposed to substitute for the purchase of the original work, and they were intended solely to facilitate research. Liability for misuse was to rest with the individual requesting the copy, and not with the institution making the reproduction. The Gentlemen's Agreement has long been recognized as one of the most important landmarks in the history of the fair use privilege. [...]

The third International Conference on the History of Records and Archives (I-CHORA) will be held in Boston, Mass, September 27-29, 2007, hosted by the Massachusetts Historical Society.

For registration information and the preliminary program go and see
http://www3.fis.utoronto.ca/research/i-chora/home.html

The theme of the conference will be the history of personal records and personal recordkeeping practices. This theme is intended to cover the full range of personal documents—including, for example, letters, diaries, journals, and scrapbooks—both as document types and as parts of recordkeeping systems that document personal life.


Organizing and Program Committee
Barbara Craig, University of Toronto
Philip Eppard. University at Albany, SUNY
Heather MacNeil, University of British Columbia
Brenda Lawson, Massachusetts Historical Society

On I-CHORA(2) see Der Archivar, Februar 2006:91-93.

Building Universal Digital Libraries: An Agenda for Copyright Reform

HANNIBAL TRAVIS
Florida International University - College of Law August 25, 2005

Abstract:
This article proposes a series of copyright reforms to pave the way for digital library projects like Project Gutenberg, the Internet Archive, and Google Print, which promise to make much of the world's knowledge easily searchable and accessible from anywhere. Existing law frustrates digital library growth and development by granting overlapping, overbroad, and near-perpetual copyrights in books, art, audiovisual works, and digital content. Digital libraries would benefit from an expanded public domain, revitalized fair use doctrine and originality requirement, rationalized systems for copyright registration and transfer, and a new framework for compensating copyright owners for online infringement without imposing derivative copyright liability on technologists. This article's case for reform begins with rolling back the copyright term extensions of recent years, which were upheld by the Supreme Court in Eldred v. Reno. Indefinitely renewable copyrights threaten to marginalize Internet publishing and online libraries by entangling them in endless disputes regarding the rights to decades- or centuries-old works. Similarly, digital library projects are becoming unnecessarily complicated and expensive to undertake due to the assertion by libraries and copyright holding companies of exclusive rights over unoriginal reproductions of public domain works, and the demands of authors that courts block all productive digital uses of their already published but often out-of-print works. Courts should refuse to allow the markets in digital reproductions to be monopolized in this way, and Congress must introduce greater certainty into copyright licensing by requiring more frequent registration and recordation of rights. Courts should also consider the digitizing of copyrighted works for the benefit of the public to be fair use, particularly where only excerpts of the works are posted online for public perusal. A digital library like Google Print needs a degree of certainty - which existing law does not provide - that it will not be punished for making miles of printed matter instantly searchable in the comfort of one's home, or for rescuing orphan works from obscurity or letting consumers preview a few pages of a book before buying it. Finally, the Supreme Court's recognition of liability for inducement of digital copyright infringement in the Grokster case may have profoundly negative consequences for digital library technology. The article discusses how recent proposals for statutory file-sharing licenses may reduce the bandwidth and storage costs of digital libraries, and thereby make them more comprehensive and accessible.


Keywords: Copyright, First Amendment, Internet, cyberspace, digital, library, libraries, fair use, Grokster, Aimster, originality, registration, recordation, Google, Archive, Gutenberg, Congress, Supreme

Working Paper Series

Suggested Citation

Travis, Hannibal, "Building Universal Digital Libraries: An Agenda for Copyright Reform" (August 25, 2005). Available at SSRN: http://ssrn.com/abstract=793585