What would a "transformative use" of digitized moving image assets look like?By Dimitrios Latsis posted
On the heels of the US Supreme Court's decision not to review the Author's Guild case against Google's Digital Library project (which means that at least for the time being book digitization and selective online sampling and machine-driven "reading" is safe), everyone who cares about access and digitization preservation of cultural heritage has breathed a sigh of relief. This, however, is tempered by the realization that most large-scale digital libraries (whatever their degree of openness) have thus far focused on textual material: Internet Archive, Open Library, HathiTrust, and Google Books chief among them. This is not to say that multimedia repositories do not exist — the American Archive of Public Broadcasting is a good recent example. A big impediment to their development, however, has been the murky definition of an issue that is becoming more settled in the case of texts: "transformative use.”
The so-called legal principle of transformative use determines whether a copyrighted asset has been substantially altered or added to in the service of research, or through creative reuse that its dissemination falls within the "fair use" provisions of the law. For books, articles, and the like, this entails any number of existing practices like sampling snippets of text (either images of a page or OCR), annotation, augmented text platforms (e.g., through the use of TEI), and translation. The recent decision of the appellate court in the Google Books case now holds that text-mining and similar machine-learning initiatives can also constitute grounds for fair use.
Similar standards do exist in the case of moving images, but they are mostly geared toward teaching and research, with very little room for wider accessibility. Through the advocacy of scholars and archivists, organizations like the Society for Cinema and Media Studies and the Association of Moving Image Archivists have successfully lobbied for the expansion and updating of fair use principles for the twenty-first-century moving image landscape. Creative Commons has been a leader in attribution and reuse guidelines in a wide array of media and here at the Internet Archive, we have adopted their standards with relevant metadata in a wide array of user-contributed and our own digitized content. We have long provided high quality, fully downloadable stock footage, home movies, and other non-theatrical films for artists to use in their work. I would, in fact, invite you to stay through the end credits crawl of the next documentary you watch and see if you can't spot our name or that of one of our partners (e.g., Prelinger Archives) credited as a source. More often than not, you will.
Despite these largely uncoordinated but noble efforts, the question remains: What would a "transformative use" of digitized moving image assets look like? Rather than attempting to answer the question here, I would like to gather some examples of questions/challenges to our collective thinking on transformative use, drawn from our own digitization projects and those of a variety of partners:
Is the sampling of films in the burgeoning new scholarly genre of the video essay within the provisions of fair use?
Are the subtitles, closed-captioning, and other time-coded metadata that often accompany moving image files subject to copyright? If so, how would this affect discoverability, given that transcripts and metadata are key in the search functionality of online video repositories?
Are so-called mezzanine-quality video files, digital surrogates of a low or medium resolution, corresponding to the entirety of the film or video in question, closer to the provisions of transformative use? Can libraries that own physical copies of said materials make digital copies available on this basis for access purposes? Is streaming or even full download an option in this case?
Within the variety of moving images held by archives, what are some genres or modes of film that offer themselves more readily and less problematically to sharing in online repositories? Would, along the lines of Boston Public Library's Cookbook digitization project, educational, amateur, scientific and industrial films qualify as better candidates for "transformative use" than mainstream, fiction-feature films?
What are some of the tools (visualization, clipping, annotation, etc.) that can be offered to users of online video collections so that they can repurpose these collections within the context of transformative use?
While these are complicating and evolving issues, the answers to these questions will come only if all stakeholders approach fair use principles in a collaborative, sustainable manner rather than as a "battle" between intellectual property and accessibility. Ongoing developments, such as the Copyright Office’s hearings on aspects of the Digital Millennium Copyright Act and the International Federation of Film Archive’s Symposium on copyright have offered excellent opportunities for artists, scholars, and archivists to provide feedback on the existing legal framework and offer perspectives on the direction it should move to in the future. After all, as archivist Rick Prelinger reminds us,
“The earliest moving image archivists dared to collect physically endangered works and films of uncertain provenance. They ignored cultural disdain for the populist medium, flouted copyright laws whose interpretation was Draconian then as now, and risked nitrate fires. They loved cinema and achieved much despite their cautious culture and the external limitations on their activities.”
It’s time for the current generation of digital archivists to follow suit.
Dimitrios Latsis is CLIR-Mellon Postdoctoral Fellow in Data Curation for the Visual Studies. Film Curator, The Internet Archive. The views expressed above do not necessarily represent the views of the Internet Archive, or its employees or affiliates.
 Rick Prelinger. "Points of Origin: Discovering Ourselves through Access." The Moving Image 9, no. 2 (2009): 168.