The Chronicle of Higher Education on Copyright and Fair Use Issues

Translators and editors spend a lot of their time researching. As time is always of the essence and content or terminology in any particular document may require confirmation from sources scattered around the world, the Internet is often their best tool for verifying facts, dates, and concepts.

Almost every day I read about another archive, museum, or library that is making its material available to the public online. As a self-employed translator, rather than an academic whose university ponies up to pay high yearly subscription fees, I greatly value open access to these invaluable historical, literary, cultural, and scientific archives. Therefore, I’m been tuned into the debate that is currently raging concerning the access to and  dissemination and use of archive material preserved in private and public collections throughout the world. It seems that archives and scholars alike are increasingly fearful of inadvertently infringing copyright laws. Stricter interpretations as to what constitutes reasonable access to and use of copyrighted work, as well as doubts about whether a work is in the public domain or not, affects what can be disseminated via Internet, by means of published and recorded works in other formats, or even shared in the classroom. Once again, I owe a debt of gratitude to The Chronicle of Higher Education for its excellent coverage of all the angles of this thorny subject.

One of the barriers to offering online public access to collections is the difficulty of finding who owns the copyright to the various works within a collection. If a copyright owner cannot be found (and often archivists have no clue as to where to search for such an owner), a work is classified as an “orphan.”  The University of California, San Diego, for example, would like to digitize and make an extensive collection of recordings of Mexican popular music gathered by collector Chris Strachwitz available to the public were it not for its fear of copyright lawsuits. Many of the recordings collected by Mr. Strachwitz were made by small, regional labels that have long since ceased to exist and there is little hope of tracking down copyright owners for them. To skirt the copyright issue, UCSD offers full on-campus access to Mr. Strachwitz’s collection and provides 50-second sound bites to the general public via the Internet. If a researcher working in Boston, Madrid, or Buenos Aires needs to listen to a fragment of a recording not included in the 50-second sample provided online, he or she is out of luck.

The current U.S. copyright law is not only thwarting many archives’ plans to provide public access to collected works; it is also drastically restricting music students’ access to a tremendous number of musical scores. The Chronicle has also reported on the plight of David Golan, music professor at the University of Denver and director of that school’s student orchestra. Present copyright legislation does not take into account the small budgets university orchestras must work with, especially for the purchase of musical scores. In 1994, the United States Congress passed a law that provided copyright protection to vast amounts of material formerly considered within the public domain. As Dr. Golan puts it, “You used to be able to buy Prokofiev, Shostakovich, Stravinsky [scores]. All of a sudden, on one day, you couldn’t anymore.” Taking up the struggle to ensure that scholars and students are not barred from these works, Golan has gone to court to fight for the concept of public domain. Mark Parry explains in his article: “When a work enters the public domain, anyone can quote from it, copy it, share it, or republish it without seeking permission or paying royalties.”  How has the copyright law of 1994 changed music departments’ access to musical scores? Parry explains, “When a work is in the public domain—that Puccini opera, say—an orchestra can buy the sheet music. Symphonies typically cost about $150. And the orchestra can keep those pages forever, preserving the instructions that librarians laboriously pencil into scores. But works under copyright are typically available only for rent. And the cost is significantly higher: about $600 for one performance. With the flip of a switch, the new law restored copyright to thousands of pieces.”

Music departments are not the only study and research programs affected by the law; according to Parry, “Other works once available but now restricted include books by H.G. Wells, Virginia Woolf, and C.S. Lewis; films by Alfred Hitchcock, Federico Fellini, and Jean Renoir; and artwork by M.C. Escher and Pablo Picasso. The U.S. Copyright Office estimated that the works qualifying for copyright restoration ‘probably number in the millions’.”

Elizabeth Townsend-Gard, a scholar who was forced to rewrite much of her graduate thesis due to the unexpected withdrawal of material she had quoted from the public domain, has created a software tool she has named the “Durationator” to help others calculate a work’s copyright status.

If determining the copyright status of domestic documents is a challenge, tracing a foreign work is nigh impossible. According to the Chronicle:

But when it comes to a foreign book, figuring out its copyright status can require a mammoth investigation. That’s because a work must have been under copyright in its home country to qualify for restoration in the United States, says Kenneth D. Crews, director of the copyright advisory office at Columbia University Libraries. So, for example, when Columbia considers digitizing a rare trove of Chinese books, including many from the 1920s and 1930s of great interest to scholars, its staff must grasp the legal nuances of a country that has gone through a revolution—and a transformation of copyright law—since the books were published. Or must try to, anyway.

And if the law is unclear, the university must decide whether digitization is worth risking a potentially expensive lawsuit should a rights-holder turn up later.

“It’s deterring digitization on anything foreign,” Ms. Townsend-Gard says, “because people can’t figure it out.”

In another Chronicle article well worth reading and keeping, Jennifer Howard highlights the work of Nancy Sims, copyright-program librarian at the University of Minnesota Libraries. Scholars at the U. of Minnesota are fortunate to have expert advice concerning the copyrights they might themselves own without realizing it, as well as the copyright status of other works.

Although there are sure to be more articles in the Chronicle and elsewhere on this subject, I’ll conclude this blog with Jeffery R. Young’s report about Patricia Aufderheide and Peter Jaszi, two scholars at American University who have co-authored a new book on the issue of fair use published by the University of Chicago Press titled Reclaiming Fair Use: How to Put Balance Back in Copyright.  Ms. Aufderheide is a film-studies professor concerned about how restrictions on the legal right to make reasonable use of contemporary popular music and film material is affecting teaching and scholarship. “People are choosing not to create,” she observes. “The general feeling is, you never want to do anything that deals with popular movies or music, because you can’t clear those.”

Auferheide and Jaszi have begun to develop copyright guides for various disciplines affected by their dependence upon copyrighted material. They can be found on the Web site of American University’s Center for Social Media.

For those longing for free access to some great archives, I suggest the Prado’s online art gallery and its excellent online encyclopedia (in Spanish) and The Internet Archive, which features includes texts, audio, moving images, software, and archived web pages. IA also provides specialized services for adaptive reading and information access for the blind and other persons with disabilities. Music collector Chris Strachwitz’s commercial Web site offers lovers of blues, jazz, tejano, and other types of music an opportunity to sample tracks available on his Arhoolie label.

Credit to Javier Velilla for his clever diagram of what constitutes fair use. His Web site also gives a good description in Spanish of the concept of Creative Commons.