TRLN Digitization Strategy Advocates Flexible Approach to Intellectual Property Rights of Large Collections
By Josh Hadro Feb 24, 2011Go forth and digitize: so says a recent report from the Triangle Research Libraries Network (TRLN), which urges libraries to make large-scale special collections available online, even if some question about the copyright status of certain elements remains.
The TRLN group—which includes Duke University, North Carolina Central University (NCCU), North Carolina State University (NCSU), and the University of North Carolina at Chapel Hill (UNC)—described this strategy in a recently released document, "The Triangle Research Libraries Network's Intellectual Property Rights Strategy for Digitization of Modern Manuscript Collections and Archival Records Groups" [PDF]. The title may be unwieldy, but the underlying idea is simple and appealing: don't let potentially legitimate but vague copyright concerns overwhelm digitization projects of significant scholarly value.
The document specifically describes the strategic approach to a joint effort undertaken by the four schools to put together a massive collection on the Civil Rights movement in their state. For the project—"Content, Context, and Capacity: A Collaborative Digitization Project on the Long Civil Rights Movement in North Carolina"—each school will contribute ten sub-collections of unique and previously unpublished material, including correspondence, diaries, reports, newspaper clippings, and more.
The strategy document, however, also serves as an example of an approach other libraries and archives might take. The report notes, "[m]any of the models for expanding access that digital technologies engender have often been met with ... undue caution by libraries in facilitating that access. Libraries have avoided digitizing modern documents so that their project would not be encumbered by intellectual property rights concerns."
Kevin Smith, scholarly communication officer at Duke University and coauthor of the document, told LJAN that while the TRLN strategy was drafted to specifically govern the CCC project, it could be a template for thinking about how to approach the presentation of collections more generally.
He noted, "in each case, it is important to look at the individual collection," but added that libraries exploring the idea of putting large collections online often come up against initial copyright conundrums, and sometimes hit a brick wall that can stall digitization efforts. He said he hopes a framework such as the TRLN document and the brief but similarly positive OCLC "Well-Intentioned Practice..." (see below) might "encourage a little bit less hesitancy."
The approach was prompted by an initial Mellon-funded study concerning the Southern Historical Collection at UNC Chapel Hill. When surveyed about the prospects of a large-scale digitization effort, scholars of the South's more recent past were adamant that they not be excluded from the benefits of large-scale digitization, said Laura Clark Brown, coordinator of the school's Digital Southern Historical Collection and another co-author on the TRLN paper. The scholars were conscious of the fact that copyright might present a problem, but cautioned that a purely incremental chronological approach would potentially stymie them for decades, and could skew research efforts toward older materials more readily available.
The intellectual property rights strategy
The rights strategy outlines four main tenets: recognizing that many materials—even those post-1922—may already be in the public domain (and thus clear of copyright concerns); requesting large-scale permissions from copyright holders when possible and practical; realizing the strength of fair use arguments; and finally, putting in place a responsive policy to address issues brought by rights holders.
Explicit permission requests have historically been the basis for special collection displays, both analog and digital. But as libraries gain the ability to collect and make available collections on the order of tens of thousands of documents, those individual requests are not always feasible in every case.
"TRLN member libraries," the document says, "will request permissions from known and likely rights holders including prominent public figures, collecting donors, and newspaper publishers." But, for example, there's still the "Aunt Sally problem" for the less obvious cases, as described by OCLC Senior Program Officer Merrilee Proffitt: there may be materials from someone identified only as Aunt Sally, which gives researchers almost no way to verify whether that author is living or dead, or when any copyright claims might expire (akin to issues surrounding orphan works).
In that case, a library using these guidelines would rely on fair use and other elements to guide their practice. Indeed, the most compelling portion of the document is the lengthy discussion of fair use virtues. "In the unlikely event that a TRLN member library is challenged on the presentation of the digitized collections/groups, and in the even more unlikely event that the library is unable to resolve those challenges...the library will rely on a fair use argument."
The section then describes the balancing test based on the four fair use criteria, and describes how they are likely to apply to nonprofit and educational materials such as the CCC southern history collection. It concludes, "the risk of conflict over intellectual property rights is small because the challenges will be few, and can be addressed and rectified without litigation. The benefits to education and research are enormous and outweigh the minimal risks. Therefore, the CCC project should proceed as planned."
Well-intentioned practice
TRLN's four-tiered strategy follows and in many ways reflects a one-page document that came out of a Spring 2010 OCLC Research seminar ("Well-Intentioned Practice for Putting Digitized Collections of Unpublished Materials Online" [PDF]). The OCLC approach has been endorsed by five major library organizations, including TRLN, as well as more than two dozen directors and scholars at other institutions.
It offers four broad areas of advice: "select collections wisely," "use archival approaches to make decisions," "provide take-down policy statements and disclaimers to users of online collections," and "prospectively, work with donors."
Like the TRLN method, the OCLC work also notably advocates a fair degree of autonomy and independent judgment: "If your institution has legal counsel, involve them in adopting this approach; after the approach has been adopted, only seek their advice on specific questions."
OCLC's Proffitt said that while the practice framework was "more of a theoretical document," she was excited to see many of the principles adopted as part of the practical TRLN approach: "this is a number of well-known institutions, using this as a core part of their strategy for the digitization of unpublished materials."
"The main thing we want to convey is that it's possible to respect copyrights," Smith said, "but also to do so in a holistic way."
