Kevin Smith (Duke University) has written a post exploring what it means to recognize fair use as a “postitive right” as opposed to an “affirmative defense.” Inspired by the language used in one of the amicus briefs filed in the Authors Guild, Inc. v. Hathi Trust case, Smith concludes:

If we understand fair use as a positive right that creates a boundary limiting the control of rights holders, we ought to be less afraid of exercising it.  After all, we do not fear to walk on a public sidewalk just because some landowner might scream “trespass;” we recognize that rights over land have boundaries and do not shirk from exercising our positive right to use public land.  The argument in this amicus brief points us to a similar confidence when exercising our fair use right.

Two recent posts address two important issues in museums: digital preservation policies and copyright.

In a piece in The Signal, “Towards a Digital Preservation Policy For Museums,” Madeline Sheldon discusses her research into digital preservation policies, noting that, while libraries and archives tend to maintain published policies, she has only found one museum thus far that does so (the National Museum of Australia). While some arts organizations, such as Rhizome and the Guggenheim are active in the digital preservation of video, animation, and art, “it appears that museums are fully invested in the preservation of time-based media, but few have taken the next step towards compiling their experiences into a definite strategy or policy.”

Kevin Smith (Duke University) provides a useful primer on getting copyright permission from museums to use images of artworks in projects. Smith builds on the arguments presented in a recent article by Kenneth Crews that delves deeper into issue, “Museum Policies and Art Images: Conflicting Objectives and Copyright Overreaching,” to outline how DH projects and the public benefit when museums (as well as archives and libraries) create less restrictive rules for copyright and licensing of content. Put simply, Smith states,

For those beginning to explore the uncharted territory of the digital humanities, permission fees and reuse restrictions will probably continue to create nearly unnavigable thickets of complication…Libraries and the digital archives associated with them need to model the best practices that we can in hopes that the most absurd kinds of copyright overreaching will become less common and rational policies based on an accurate assertion.

In addition to creating clear rules for the use of images, LAM organizations can also contribute to DH projects by making their data publicly available and grant reuse rights. For example, last week the Penn Museum released metadata for 332,882 object records in CSV, XML and JSON format under a CC-BY licence.

The University of Michigan Library will be hosting a Copyright Camp 2013, on the afternoon of June 20, with a theme of Copyright and Data. Registration is free. From the announcement:

We’ll kick off with a keynote from Michael Carroll, Professor of Law and Director of the Program on Information Justice and Intellectual Property at American University’s Washington College of Law and founding board member of Creative Commons. His talk will be about “Sharing and Hoarding Research Data: Copyright, New Federal Funding Requirements and More.”  Carroll will discuss the copyright framework that applies automatically to research data as it is generated, compiled or visualized, new requirements likely to emerge from federal funding agencies in response to a new directive from the White House Office of Science and Technology Policy, and the role of informal expectations in scientific disciplines about annotating and sharing or hoarding research data.

The National Academies Press has released a new report outlining the need for increased empirical research on U.S. copyright law. Sponsored in part* by Institute of Museum and Library Sciences (IMLS) and noted copyright expert Pamela Samuelson, Copyright in the Digital Era: Building Evidence for Policy:

describes a wide range of questions that are ripe for analysis:  how incentives of creators, distributors and users are changing, what are the enablers of and impediments to voluntary licensing, what are the costs and effectiveness of copyright enforcement methods, and what are the costs and benefits of copyright exceptions and limitations. Answers to these questions will help inform decisions about copyright scope and duration, more effective licensing arrangements and enforcement mechanisms, and appropriate safe harbors and fair use exceptions.

The full report is available free online, and can be downloaded as a free PDF with site registration.

* The complete list of sponsors: Alfred P. Sloan Foundation, Ford Foundation, Institute of Museum and Library Sciences, National Science Foundation, the American Chemical Society, Business Software Alliance, Entertainment Software Association, Google Inc.-Tides Foundation, Intel, Microsoft, the Motion Picture Association of America, and Pamela Samuelson and Robert J. Gulshko. 

The U.S. Copyright Office has added to the Interent Archive seven volumes of Catalogs of Copyright Entries (CCE), which were published by the Copyright Office from July 1891 through December 1977. The CCE volumes contain data on copyright registration, and are a useful tool for tracking down copyright owners.

Although the current collection is simply digitized versions of the print catalogs, the Copyright Office has long-term plans to turn these records into a searchable database, and they are accepting capability statements from groups that are able to undertake this project.