Past, present, and future of mass digitization Kevin L. Smith University of Kansas

Assumptions Most libraries are engaged is some form of digitizing collections or resources Copyright issues are always on the table Access question is inseparable from digitization

Prehistory: Vannevar Bush WWII head of Office of Scientific Research & Development “As We May Think” 1945 essay in The Atlantic. “Memex” would provide access to human knowledge for all. Counter trend toward “destructive” science Early vision of hypertext, and of a digital (microfilm) library.

Project Gutenberg Began in 1971 Focused on public domain Makes no © claim over digital versions Some restrictions (NC) if trademark is used.

Libraries get involved

LoC & American Memory Began digitization in 1990, focused on Internet distribution since 1993. Partnership with Ameritech Corp Competition to digitize collections Much is public domain, but permission and fair use also in play. LoC will not grant or deny © permission for users.

Duke Digital Scriptorium (1996) Focused on public domain works Greek Papyri Civil War papers American advertising, pre-1923 19th century sheet music Early attention to metadata Ideas for interactivity

No © problems Digitized public domain works Sometimes unitary collections, with permission Libraries developed partnerships What about mixed collections from mid-20th century? Libraries mostly looking at capacity Workflows Staffing

ETDs Few institutions claim ownership or joint ownership License from student authors Voluntary or compulsory Non-exclusive Different approaches to digitizing earlier works Permission v. forgiveness ProQuest license

Google Books! 2004 announcement startled many Partnerships with 5 libraries Based on high-speed digitization process Extended a permission-based project with rights holders What U. Mich said would take 1000 years, Google promised to do in six. Surely this was illegal! Lawsuits began in 2005

Settlement proposed (2008) Google would get license to digitize © books Payments would go to rights holders In © part of database would be sold, with limited, gratis availability for libraries. Objections: Academic authors Fear that Google would monopolize orphan work digitization Cy Pres amendment to fiduciary responsibility in 2009

Rejected! Settlement rejected by Judge Denny Chin in 2011 Lack of representativeness Fear of altering terms of copyright through litigation Judge Chin agreed to certify class for class action Second Circuit rejected class certification Instructed lower court to consider fair use Would make class issue moot

Five years ago Libraries seeking ways to share unique & distinctive collections. Communicate with and serve alums and domors Improve the Internet as research space Avoid legal liability!!

Legal landscape Can §108 ever help us? Digitization allowed for preservation Restriction on “making available to the public outside premises of library” What are premises? Who is public?

Fair use Developing case law around transformative use. Finding of transformation correlates strongly with fair use ruling. Can collection (context) be transformative? iParadigms case (2009) Note limited purpose Bill Graham Archive v. Dorling Kindersley (2006) Note limited set of items

AG v. HathiTrust Judge Baer gave strong endorsement of fair use For preservation, indexing, and access for the print-disabled Second Circuit agreed. Emphasis on fair use to support the public interest Reminder that fair use intended to prevent © from being obstacle to learning and innovation Limitation on “rent-seeking” Rent seeking is the use of resources (in this case a government-granted monopoly) to obtain economic gain from others without reciprocating any benefits to society

AG v. Google Second Circuit affirmed that “snippet view” was fair use Emphasis on limited text accessible Distinguished between derivative work and transformative use Information about a work Stress on public benefit Supreme Court denied cert in April 2016

State of fair use Clearly available even for large-scale project! Risky for open access to large collection Best to rely on fair use for some portion of larger collection, when really needed. Possible to improve case for fair use by adding context Scholarly commentary Pedagogical suggestions Student work (with permission) Those ideas for interacting with users that Duke was considering 20 years ago now look like a great way to improve fair use situation

Four-prong strategy Recognize that some materials will be public domain Scale the problem Seek selective permission, esp. from large or litigious rights holders Rely on fair use, and strengthen the case. Talk to putative rights holders Take down only when discussion fails

Future directions? LoC wants to test a pilot for mass digitization Skeptical of fair use Suggests extended collective licensing Especially for orphan works Many in library community think fair use, as part of careful strategy, is better option.