The US perspective Q&A


Ronan Deazley (Professor of Copyright Law, University of Glasgow) – hereinafter (RD)
Peter Hirtle (Research Fellow, Harvard University) – hereinafter (PH)
Peter Jazsi (Professor of Law, American University) – hereinafter (PJ)
Martin Kretschmer (Director, CREATe, University of Glasgow) – hereinafter(MK)
Tim Padfield (International Council on Archives) – hereinafter (TP)
Lesley Richmond (University Archivist and Deputy Director, University of Glasgow Library) – hereinafter (LR)
Matt Sag (Professor of Law, Loyola University) – hereinafter (MS)
Cathy Williams (Head of Collections Knowledge, TNA) – hereinafter (CW)


RD: Thank you very much.  Three really rich, useful presentations I think, I have been making some notes that I might refer to later, but I’ll open it up to the floor for questions. I think we’ve got about ten, fifteen minutes and then we’ll have a general wrap up plenary, so I’ll just open it up if there are questions, or comments or observations and if you have got something to say, please identify who you are and who you represent.

MartinMK: [Martin Kretschmer] It’s really a question to the archivists in the audience, how do you feel about what you’ve just heard? The encouragement to unlawful use, really?

PH: It’s fair use!

MK: But we’ve got no fair use. So, the only thing under UK law, I don’t know common law, you could look at the right of way, right to roam. There may be something, if somebody says okay you can’t possibly condone unlawful behaviour, there may be some doctrine somewhere one could look to see if it was possible to try to establish a custom, but I just wonder what the reaction is by the archivists?

PH: Okay Tim, are we nuts?

UM1:  Can someone please give more information about the HathiTrust case?

TP:   [Tim Padfield] I know what the HathiTrust case is, but I think it would be helpful for people here that might not have heard about it.

PH: I want you to answer Martin’s question about whether fair dealing and the UK law would allow for a more expansive risk management approach in England.

TP: No, the law wouldn’t allow for it at all. But as I said when I was talking earlier, I think archivists are going to have to accept risk if they want to do things that they want to do, and that more to the point, the politicians want them to do.  My experience is that archivists’ masters expect people to be making material available and the public expects it, which means the politicians expect it.

PH: I’m discouraged by that, because American archivists are as conservative and risk-adverse as we can be, and at least we’ve got the law to fall back upon and we’re asking you to be even more risky without that cushion.

4_panelMS: The lack of a general phased provision in the UK is obviously a problem, but I think perhaps a bigger problem is just a misunderstanding of copyright.  Copyright is a private right. What copyright means is as a copyright owner you have the option to take enforcement action, you also have the option to do nothing. Where we see people effectively choosing to do nothing, it puzzles me that other people want to get in and defend their rights for the sake of defending them. Copying without permission, throughout history, generally has been good.  It is good, we restrict it largely in order to give artists some reward and some control.  But when people don’t exercise their private rights, then we shouldn’t get exercised about it.

RD: Lesley. This is the problem with me sitting up here, there is now only one person with a mic in the room.

LR: I would agree with you because as I have already said, I have a large appetite for risk, but you still have to be able to identify those right owners who have actually exercised their rights, so you still have to do some diligence.

MS: Absolutely, I would agree, I just think that once you’ve made what in your context is a reasonable effort to find the people who if asked, plausibly might have a problem with it, then you should just go ahead with the rest. And when the gentlemen from the IPO suggested that if he sees too much harmless, unobjected-to, technical copyright infringement that he might have to make it criminal, I mean I honestly thought that he was joking until I figured out that he wasn’t. [Laughter]

Lesley_PanelLR: But I think that is just where we are in the UK, archive professionals just don’t really know how to do that due diligence, and that is something we will just have to deal with soon.

RD: I think one of the things that occurs to me, it was one of the reasons why I wanted to have the input of the speakers that we have, is that you can see that they have a flexible exception that is potentially delivering quite a lot of scope and latitude and capaciousness, in terms of engaging in digitisation projects around issues of preservation and access and so on, and we don’t have that in the UK and I think it’s unlikely that we ever will. That means, I think, as a community of practitioners in the UK, your tolerance for risk may need to be higher because we won’t, other than uprooting and moving to a better jurisdiction or outsourcing all our digitisation projects to the States, I don’t want to do that, but there are some jurisdictions elsewhere in the world, that are learning the lessons of the benefits of an open-ended, flexible, fair use provision.  Most currently Australia is having that debate, there are some people in Europe that are trying to push that agenda, but I don’t see it ever taking, I just can’t see it and that’s an issue that archivists need to think about.  So I will just put that out.  We’ve got a question at the back.

PH: While we’re waiting for the mic to get back there, I just want to talk on this due diligence searching a little bit.  I think Christy hit on it and the Codebreakers project is doing it right.  There is the kind of diligence you can do of trying to identify every copyright owner, as we saw in the Watson papers, and that isn’t going to work.  There’s the kind of due diligence that’s been called for in the orphan works project and the Society of American Archivists, with Peter’s help tried to sit down and come up with some guidelines on what would constitute due diligence from there, and boy it was really squishy and really hard and became too much of it depends and where do you draw the line, it just becomes really difficult. Then there is the due diligence of sitting down and saying if you are in a risk assessment environment, who is likely going to be angry about what we’re doing and in the Thomas Watson papers, if there’s only four people you can identify, you could sit down and say, “Oh, is there a letter from William Faulkner to this Georgia Senator,” or something like that, but if there’s not anyone that’s at all prominent, then don’t bother dealing with them. As far as the orphan works approach now, the Society of American Archivists is saying due diligence is not going to work for it and collective licensing for an orphan works solution.  The only hope we can see is the imposition of formalities. Formalities where you have to register in order to be able to bring a legal action, and formalities are just a wonderful idea in copyright, and I don’t know how we lost them.

RD: I feel like they’re gone for good, but maybe I’m wrong about that.

CW: [Cathy Williams] It’s just a random thought, the only reason that most of this material still exists is because we are looking after it, so where is there strength in the argument that it wouldn’t even exist if we hadn’t kept those unpublished manuscripts according to best practice archival activities, keeping them to a PD5454 standards, all of those things.  Is there nothing we could do, as a sector to push back, and say, “Hang on, it’s all about our making the effort when we’ve been making the effort for centuries, and we’ve kept it safe in the first place?”

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