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

2. 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

3. 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.

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

5. Libraries get involved

6. 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.

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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!!

14. 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?

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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.