Addressing tensions between rights and access in CLIR’s proposed digitization program

By Christa Williford posted

As two previous posts here have noted, we at CLIR have spent much time this year considering the feasibility of building a national digitization program on the model of Cataloging Hidden Special Collections and Archives. There seems to be strong interest among our sponsors and other constituents in our pursuing this possibility, and we hope to be in a position to announce specific plans about this new venture by the end of 2014.

In some ways, we can view the transition to digitization as a natural evolution of our previous efforts to expose critically important materials in ways that advance knowledge. Yet, even if scholarship remains the focus of our program, the work of creating full digital surrogates of rare and unique collections raises challenging legal questions about intellectual property and privacy. Cultural heritage professionals must grapple with these questions before digitizing content that is (or could be) under legal protection.

Fortunately, leaders in the cultural heritage communities have already invested much time and energy into helping institutions set policies and procedures that maximize full access to materials while attending to the complex legal questions inherent in their digitization.

Peter Hirtle, Emily Hudson, and Andrew Kenyon published Copyright and Cultural Heritage Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums in 2009; this comprehensive work includes guidelines for libraries on taking a “risk management” approach to digitization practice, rather than conducting research into intellectual property issues on an item-by-item basis. Earlier that year, the Society of American Archivists’ (SAA) Intellectual Property Working Group released its Orphan Works: Statement of Best Practices. In 2010, OCLC Research held asymposium for the Research Libraries Group membership that outlined key challenges and promoted “Well-intentioned practice for putting digitized collections of unpublished materials online,” while the Association of Research Libraries (ARL) released its “Principles to Guide Vendor/Publisher Relations in Large- Scale Digitization Projects of Special Collections Materials.”

In 2012, ARL published a special issue of Research Library Issues titled Special Collections and Archives in the Digital Age. This issue includes a model deed of gift, a model digitization agreement, and an essay by Kevin Smith that neatly outlines four strategies for assessing possible legal risks of digitization efforts. The Berkeley Digital Library Copyright Project, with the support of the Alfred P. Sloan Foundation, has produced numerous papers that explore the many legal issues relevant to digitization in cultural heritage institutions. Individual institutions and consortia, such as the Triangle Research Libraries Network, have begun drafting and sharing intellectual property policy strategy documents that govern their digitization programs.

Dealing with privacy concerns can be even more challenging than addressing questions of intellectual property raised in the course of digitization work. Without careful monitoring, exposing whole collections online can potentially violate the privacy of donors or other subjects. Health, educational, financial or legal records are a few of the more obvious types of content that require special attention, and such items appear frequently among personal papers and often within other kinds of unique collections. Libraries, archives, and museums have both legal and ethical obligations to provide access to such materials only in circumstances where there is minimal or no risk to the privacy of an individual or family.

Discussions about privacy have long been important to librarians and archivists, but the past year has seen reanimated interest and activity in this area, some of which is fueled by increased focus on digitization and access and some of which focuses on risks associated with the use of digital content. At the most recent SAA annual meeting, archivists (including representatives of a project funded through Cataloging Hidden Special Collections and Archivesdiscussed the potential of “privacy aware processing” methodologies for efficiently creating access. Just last week, a panel discussion at the Charleston Conference focused on “Privacy in the Digital Age: Publishers, Libraries, and Higher Education.”

As an administrator of a new grant program, CLIR would be in no position to offer any grant applicant or recipient legal advice; however, staff will monitor current standards and practices relating to intellectual property and privacy to help us assess applicants’ approaches to legal issues related to digitization. It will also be important that we establish clear, consistent requirements for our program, at least for intellectual property. These will have to reflect the values expressed in the policy of the program’s potential funder, The Andrew W. Mellon Foundation.

While program guidelines are still in development and subject to the foundation’s approval, our approach will involve a program-specific intellectual property agreement that all recipients would be required to sign as a condition of accepting the grant. In this binding agreement, enforceable by CLIR, the recipient institution would accept full legal responsibility for all project activities. It would require that recipients make all digital content created through their projects available for noncommercial scholarly and educational purposes and that all metadata describing that content be explicitly dedicated to the public domain.

Requiring a public domain dedication for project metadata was inspired by the policy adopted last year for the Digital Public Library of America(DPLA), which was itself inspired by action taken by the global digital library leader Europeana in 2012. CLIR’s rationale for following the DPLA’s example of requiring (in DPLA Director Dan Cohen’s words) a “maximally permissive” license to metadata is to promote the widespread and long-term discoverability of digital content, even in cases where access to the content itself is legally restricted in some way. While metadata are essentially statements of fact and so (under U.S. law) not copyrightable, a public domain dedication removes any doubt about the legal status of the descriptions of digitized materials and the purposes for which those descriptions may be used. In the fast-evolving world of the Web, allowing those descriptions to be used and re-used without limitations or additional requirements will help ensure that records of today’s “unhidden” collections persist over time.

That said, allowing metadata to be used for any purpose does not eliminate the need to establish and promote good practices for sharing and using the data created by collecting institutions. The DPLA’s Data Use Best Practices Statement summarizes why proper citation and attribution remain critical to building effective digital libraries. We hope that recipient institutions will find ways to make it easy for those who use their collections to credit sources correctly and to understand and abide by any legal restrictions applicable to the content they digitize.

With these goals in mind, DPLA has been working with global partners to develop a standardized set of machine-actionable rights statements that can be incorporated into metadata; the most recent version of the DPLA’s metadata application profile indicates that future versions of the profile will require use of these standardized rights statements in metadata aggregated into DPLA collections. CLIR will watch this initiative closely and will look to grant applicants and recipients for ways these standards can help individual institutions streamline their own approaches to digitization and metadata creation.

As we continue to plan for our new program, CLIR is interested to hear from you about resources that you have found helpful in understanding and addressing legal issues arising in your work to digitize rare and unique materials. What guidelines and best practices seem most appropriate to your collections and institutional contexts? What barriers unreasonably inhibit access to collections protected by law, and how might these barriers be surmounted? How might CLIR use its new program as an opportunity to facilitate conversation and promote good practices related to intellectual property and privacy in the context of digitization projects?

We would welcome suggestions of additional resources or responses to any of these questions in the comments below, or privately at hccomments@clir.org.