The IP SIG meeting in Portland is going to consider the possibility of getting together and working on a fair use best practices for museum collections, along the lines of what the documentary film makers have done: http://www.centerforsocialmedia.org/rock/backgrounddocs/bestpractices.pdf. Other "industry groups" have banded together as well: there's safety in numbers and consensus (if you can reach it) and it might be a way for us not to have to reinvent the wheel at each institution.
Deb Wythe Brooklyn Museum deborahwythe at hotmail.com > Date: Wed, 16 Sep 2009 12:46:03 -0400 > From: RealW at CarnegieMuseums.Org > To: mcn-l at mcn.edu > Subject: Re: [MCN-L] rights question > > Hi everyone, > > This is a timely discussion for us as we are looking ahead to a redesign > of our web site and online collection. > > I believe that a few museums have taken the position that publishing > copyrighted images, in "thumbnail" size only, on their online > collections, is fair use. I don't know if they publish thumbnails of > copyrighted works only after a reasonable effort to secure permission, > or whether they simply publish them without asking. I believe they > arrived at their policy with legal counsel. > > I don't think there is any commonly-accepted definition of what > constitutes a thumbnail that would pass a fair use test (100 pixels? 250 > pixels?). > > I'd be interested to hear your opinions: is this approach is an emerging > trend in the museum field, and/or is there is an emerging understanding > in the field regarding what a "thumbnail" is? > > Our own legal counsel has suggested that it would be difficult to make > generalized policies about which images could be published under this > kind of approach; they recommended we consider each case on its own > merits--not exactly what we were hoping to hear. In many ways it boils > down to a risk assessment. > > Will Real > Carnegie Museum of Art > Pittsburgh PA > > -----Original Message----- > From: mcn-l-bounces at mcn.edu [mailto:mcn-l-bounces at mcn.edu] On Behalf Of > Eve Sinaiko > Sent: Tuesday, September 15, 2009 4:02 PM > To: 'Museum Computer Network Listserv' > Subject: Re: [MCN-L] rights question > > > > > On Sep 14, 2009, at 2:29 PM, Weinstein, William wrote: > > > > We are evaluating our policy regarding obtaining rights for images of > > works we publish in our online collection section. The issue of what > > to do with works where there is an apparent copyright holder that can > > either not be contacted or does not respond to repeated permission > > requests. Does anyone have a position of what to do regarding works > > in this particular state of limbo? > > > > Bill Weinstein > > > Bill, legally if you do not have permission, you may not use the work. > > There is no mechanism in US copyright law to help you. However, if > > you are based in Canada, there is an unlocatable copyright owner > > provision which can help you just in that circumstance. And it is > > possible that you can use it if using a Canadian work (though I would > > have to double check to see who is eligible if you are not in Canada.) > > > > Lesley > > > > Lesley Ellen Harris > > lesley at copyrightlaws.com > > www.copyrightanswers.blogspot.com > > > I think this is an incomplete answer. I'm not a lawyer, so I can only > speak to how many publishers and museums are addressing this question in > practical terms, on the ground. If I've gotten any of the legal aspects > wrong, please correct me. > > There are two kinds of "in limbo" works: 1) Those known still to be in > copyright or probably in copyright (because they are not very old), for > whom no rights holder can be found; and 2) those whose rights holder > ignores repeated efforts to obtain permission. > > The first group are Orphan Works (OWs)--works still in copyright for > whom no known rights holder can be found. Congress has been working on > legislation to deal with OWs for several years. Last year the Senate > passed an OW bill, but the House version died. It's uncertain whether > the bill will be revived any time soon or not. Absent an OW law, users > must consider whether they may assert fair use. (At museums, a common > type of OWs are archive photos of objects, where the object is out of > copyright but the photo is not, the photographer's name is missing, and > the museum has no document to indicate that the photo was made as a work > for hire.) > > The second group includes works where the copyright holder has been > found and is not responding, or works where it's not absolutely clear > who the rights holder really is (e.g., two different nephews of a dead > artist both claim to own the rights, or a work by an artist may have > been made while he was on staff somewhere and therefore be a work for > hire). > > For the second group, as for the first, fair use may be an option. One > also has to evaluate whether the use one wants to make of the work is > protected under fair use (or in the UK, under fair dealing). The > Stanford Fair Use Project has a very good, clear rundown of fair use and > how it works: > http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/ind > ex.h > tml > > Fair use depends on the context of the use, so institutions should > develop guidelines on fair use in consultation with legal counsel--both > for using works in their own collections and for when others use works > whose copyrights you control. In the last couple of years there have > been some important court decisions strengthening the assertion of fair > use for visual images. Thus, it's not always the case that one must not > publish a work because the rights have not been cleared. Especially in > the case of those OWs where it's pretty clear that there is no living > rights holder, publication may be very low-risk. > > Fair use and fair dealing are US- and UK-specific, and some institutions > are concerned that in the internationalized realm of the Internet such > laws may not fully protect uses. A practical approach to the problem > that some websites and publishers adopt is to make every effort to > obtain all permissions, and document the efforts, and then to publish > the works with a notice that states: > > "The museum has made all reasonable efforts to ascertain the rights > status of all works reproduced on this website. Any corrections should > be sent to the attention of [name/digital rights administrator]." > > Or: > > "All reasonable efforts have been made to identify and contact copyright > holders but in some cases these could not be traced. If you hold or > administer rights to works posted here, please contact us. Any errors or > omissions will be corrected." Such disclaimers are becoming more common > and at a minimum are useful in demonstrating the publisher's good faith. > If a rights holder should come forward and object to the use, prompt > removal of the image may be sufficient remedy. > > In other words, in crafting a policy for the use of works where it's not > possible to obtain permission, an institution, in consultation with > counsel, should to consider several things: > > ~Develop guidelines for doing a proper fair-use assessment in individual > cases and develop a protocol so that all staff who are responsible for > rights clearance know how to make a good assessment (and when to consult > counsel); ~Develop guidelines for what constitutes a sufficient search > for a rights holder and put in place a program to ensure that staff > understand it; ~Develop a protocol for rights search documentation and > document retention; ~Determine its comfort zone with respect to use of > works that fall into a "gray area" such as OWs; ~Decide whether its own > internal policy with respect to the use of such works is also going to > be its policy when others outside the institution make use of a work > whose rights are controlled or administered by the institution; ~Assess > the status of the works you want to use. If the rights owner is known to > be active in asserting rights but for some reason has not been answering > your request letters, you should not consider that work to be "in > limbo"; ~Don't be guided by your own convenience: your policy should not > be driven by a desire to avoid paying legitimate rights fees, or a > desire to publish fast, without waiting for a slow responder to write > back (perhaps from a distant country or an understaffed museum), or a > desire to avoid masses of rights-clearance paperwork. > > In these notes, I don't mean to encourage users not to clear rights. I'm > only suggesting ways to address the small group of works that are truly > in limbo. > > Regards, > Eve Sinaiko > > > > > _______________________________________________ > You are currently subscribed to mcn-l, the listserv of the Museum > Computer Network (http://www.mcn.edu) > > To post to this list, send messages to: mcn-l at mcn.edu > > To unsubscribe or change mcn-l delivery options visit: > http://toronto.mediatrope.com/mailman/listinfo/mcn-l > > The MCN-L archives can be found at: > http://toronto.mediatrope.com/pipermail/mcn-l/ > _______________________________________________ > You are currently subscribed to mcn-l, the listserv of the Museum Computer > Network (http://www.mcn.edu) > > To post to this list, send messages to: mcn-l at mcn.edu > > To unsubscribe or change mcn-l delivery options visit: > http://toronto.mediatrope.com/mailman/listinfo/mcn-l > > The MCN-L archives can be found at: > http://toronto.mediatrope.com/pipermail/mcn-l/ _________________________________________________________________ Hotmail: Powerful Free email with security by Microsoft. http://clk.atdmt.com/GBL/go/171222986/direct/01/
