Digital Libraries, Archives, and Rights Registries

Overview

Thursday, 12:30-1:30pm
Format: Roundtable Discussion
Lead: Charlie Nesson
Participants: William Fisher, John Palfrey, Jeffrey Schnapp

A discussion moderated by Charlie Nesson will focus on opportunities and challenges regarding the creation and use of digital registries, archives, and libraries. Practical use cases such as the Digital Public Library of America (DPLA) in addition to other efforts to create registries for public domain works will be discussed, building upon and further illustrating previous thematic areas and pillar sessions, including copyright, user innovation, and free and fair use. Central considerations regarding underlying technical architecture, legal challenges, legal support, and liability will inform the conversation.

Driving Questions

• Charlie Nesson: Suppose it were to be agreed among us that when the founders wrote the Progress clause of our constitution, the exclusive right they were granting to publishers of creative works was the legal right to stop other publishers from selling copies of their works. Can you tell a coherent legal story about how we got from there to here?

• Charlie Nesson: Viewed from the vantage of equal citizens in a public domain of common (totally usable) knowledge, when did We the People surrender the liberty of privately copying works of any kind? That is to say, when was this liberty taken from us?

Required Readings

Library and Archive Models

• Europeana
• The Internet Archive
• Hathi Trust
• Digital Public Library of America

Rights Registries

• Background and Philosophy of the Rights Registry, August 4, 2011.
• IMSLP -- Petrucci Music Library
• James Grimmelmann, "Inside Judge Chin's Opinion," The Laboratorium, March 22, 2011, skim all (focus on Section 4, “Copyright”)

Golan v. Holder

• U.S. Copyright Act, 17 U.S.C. §§ 104A, 109(a) (codifying § 514 of Uruguay Round Agreements Act)
• Golan v. Holder, 609 F.3d 1076 (10th Cir. Jun. 21, 2010), 131 S.Ct. 1600 (March 7, 2011) (granting cert.)
• See generally, Golan v. Holder, U.S. Supreme Court Docket No. 10-545
  • Read all: Petitioner's Brief
  • Respondent's Brief
  • Read all: Amicus Brief for Project Petrucci in Support of Petitioner

Recommended Readings and Videos

• Citizen Media Law Project, "Copyright"

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• June update from John Palfrey on The Digital Public Library of America

Student Reflections

By: Jason Gross, Brian Wood, and Elizabeth Bailey

This session featured Charles Nesson leading a panel discussion featuring William Fisher, John Palfrey, and Jeffrey Schnapp. Professor Nesson opened by breaking down the materials on the Internet, which he called “bits,” into four categories. The first was those bits that are clearly parts of the public domain; everyone is free to use them. The second was the opposite extreme, those that are clearly copyrighted; you would need express permission to use them legally. In between these two extremes lie the final two categories: the orphan works and the Creative Commons bits. The orphan works are copyrighted, but one would have serious difficulty obtaining permission for their use because of the inaccessibility of the copyright holder. In contrast, the Creative Commons bits are ostensibly free for anyone to use without obtaining permission, yet it is often unclear if the claims that these bits are not copyrighted are true.

It is the unclear legal status of these bits and their outright exclusion from viewing or use, rather than limitations in the extent of our current collections, that limits people’s ability to take advantage of information and media. These issues weigh heavily on efforts around the world to establish digital libraries archives. Professor Nesson explains that there is a need for the lawyers and policymakers to clarify legal distinctions in copyright and sharing paradigms for engineers and coders working on digital humanities archives, and that, perhaps more importantly, can be relied on by users of content to a certainty.

Open questions remain as to how the legal distinctions may be clarified and by whom. Professor Nesson suggested a general call to the power brokers of the legal profession, law firms and influential attorneys, to take up the challenge - but this was questioned by a number of conference participants who voiced skepticism as to the extent of pro bono man-power available and the limits of pro bono legal services (especially when dealing with interest groups and other political actors outside of direct litigation). Professor Palfrey suggested a strategy to try and reshape the boundaries of copyright law, by activist lawyers bringing pointed lawsuits.

In opposition, the notion of “don’t ask, do” seemed to run though the discussion. As Professor Benkler pointed out during the session, Napster was only possible because it was illegal. This idea, which seems to capture the Zeitgeist of online innovation, may lead to a different approach altogether, which exists outside of the traditional methods of legal or political advocacy. Forging ahead with attempts to digitize, collect, and categorize information, attempting to navigate copyright law where possible and proceeding with contract and insurance on an ad hoc basis, may lend more short- term progress and generate more momentum than pursuing slower, ex ante legal resolutions.

Future of the Internet session questions:

1. What roles should government and private organizations play in future innovation projects such as digital humanities registries?
2. What is the future of written (paper) materials like books, and what’s the future relationship between public libraries and the Internet?
3. How do we balance the interests of copyright protection of creator’s rights against the benefits of more free use, access, and collaboration?