From November 12-14, 2008, the American Library Association’s Office of Information Technology Policy hosted a thoroughly stimulating conference on Cultural Heritage and Living Culture: Defining the U.S. Library Position on Access and Protection of Traditional Cultural Expression. Held in Washington D.C., the conference aimed to discuss and debate the present and historical role of archives, libraries, and museums in preserving and providing access to the “traditional cultural expressions” (TCE) of indigenous people and traditional communities worldwide. The conference further aimed to begin forming ALA positions on TCE, including how the rights of native people in their own TCE interact with conventional Western concepts and codifications of intellectual property. ALA will be able to carry forth these positions to discussions with global organizations such as UNESCO and the United Nation’s World Intellectual Property Organization (WIPO). WIPO’s Intergovermental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGC), addresses protections for TCE, which affect and are affected by international copyright treaties and U.S. copyright law.

In order to begin to build the framework for an ALA policy on TCE, the conference participants discussed the history and current policies of museums, archives, and libraries toward the acquisition, display, and treatment of tangible and intangible expressions of traditional culture such as music, manifestations of religious belief evident in material culture and dance, and traditional forms of healing and medicine. Through case studies, examples of projects, and discussion, conference participants examined key issues for libraries, archives, and museums that collect and have collected traditional cultural materials. Also examined were how respect for the rights of traditional culture, and how the management and preservation of traditional culture by archives, libraries, and museums, will coexist with intellectual property rights as envisioned by organizations such as WIPO, which was started in 1967 to encourage a “balanced” international intellectual property system. Since the establishment of WIPO’s IGC in 2001, more attention is being paid to the concerns and rights of indigenous communities in their traditional cultural expression.

The conference consisted of panel discussions as well as a keynote presentation by Wend Wendland, a lawyer who is head of WIPO’s IGC. Michael Taft, archivist of the Library of Congress’ Folklife Center and a conference speaker, pointed out the tension between concepts of ownership between a group such as WIPO, created by copyright and patent lawyers, and the concepts of moral rights and community obligations of traditional communities. Who owns traditional cultural expression anyway? Taft pointed out that archives, libraries, and museums possess collections and permit access to them but these institutions are not the tradition bearers. He also raised issues that the conference speakers and attendees would struggle with during the conference in considering an ALA statement on TCE. For example, who “owns” culture practiced in diaspora? How do innovations in culture affect “ownership” rights? Taft also said that archives would probably continue a role already begun: to provide training and advice to indigenous people to control their own expressions. Perhaps archivists would relinquish or reduce their role as caretakers of others’ culture.

Kay Mathiesen, from the University of Arizona’s School of Information Resources and Library Science, spoke of the possibility of “overlapping consensus” between indigenous people and mainstream cultural institutions in creating ethical access to and preservation of TCE. She spoke of the key concepts to keep in mind in dealing with TCE: rights, respect, and autonomy – and also the need to consider the legitimacy of limiting rights to use TCE resources. Mathiesen discussed the Protocols for Native American Archival Materials, a draft document of best professional practices for the care and use of Native American archival materials held by non-tribal groups or organizations. The protocols have as a foundation the sovereign rights and right to self-determination of indigenous people. The document was written by a group of nineteen Native American and non-Native archivists, museum curators, librarians, and anthropologists, and presented to the Society of American Archivists (SAA) in 2007. [The protocols have been received with some caution by the SAA, possibly due their discussion of a possible need for restricted access to native materials. However, the presence and participation at the TCE conference by Frank Boles, president of the SAA, may invigorate the continuing SAA discussion of the protocols]. Eric Kansa, from UC Berkeley’s School of Information posed a question: as the world’s information moves toward less privacy, is it sensible to move toward a position of more privacy (for native materials)? It was the consensus of the native participants that it was most sensible, but this is a question that will continue to be considered. More questioners suggested that instead of speaking of consensus, perhaps we should speak of compromise and dialog between native communities and libraries, archives, and museums.

Dr. Michael Shapiro, Acting Senior Counsel of the Office of Intellectual Property Policy and Enforcement, United States Patent and Trademark Office, stated that WIPO’s IGC branch is revisiting Article 15 of the Berne Convention to see if its reference to unpublished work can be used to revisit modern expressions of TCE. He also suggested that the conference keep in mind which issues would properly be placed before an international organization like WIPO.

In discussing what rights indigenous people have to control their own TCE, Preston Hardison, analyst for the Tulalip Tribes, discussed native sovereign rights, native customary legal systems, and the fact that native people are rights holders, rather than simple stakeholders in a discussion. Native people see themselves as stewards of their culture and are willing to collaborate and make compromises, but are wary of the displacement of moral rights by the commercial language of international intellectual property organizations such as WIPO. Again, respect for and protection of native culture is paramount.

Jamie Love, director of Knowledge Ecology International (KEI), took a limited and cooler-eyed view of indigenous rights. He asked: why should other people support the protection of TCE? What reasons are there beyond moral rights – what long-term benefits to society are there? He, as well as Wend Wendland of WIPO, and an IFLA representative, all said that the discussion (and hence ALA) should get a handle on what issues could be addressed before a group like WIPO, what specific outcomes were wanted, and what can native people clearly articulate about what they would like as to stewardship of their knowledge, for example. Peter Jaszi, intellectual property professor from American University’s School of Law, advised a minimalist approach to TCE based on his research in Indonesia. New laws might interfere unduly with customary and cultural practices.

Kimberly Christen, Assistant Professor of Ethnic Studies at Washington State University, spoke of “Collaborative Management of Indigenous Materials,” and presented an example of a database of Australian indigenous culture, an indigenous archive tool which uses a pre-existing system of native relationships so that people can access information through different levels of openness. The database, which she helped Australian natives to create, is not online, because native people did not want it online. The database is a social and community-driven tool, driven by community metadata as well as standard library and archival metadata terms.

There were several other presenters and attendees who were infinitely interesting. The OITP will post a full description of the conference on its website.

At the conclusion of the conference, all present discussed the beginning of a “values” statement which ALA will make on TCE, as well as guidelines for those who deal with indigenous archival materials. Among the key points raised for consideration:

An acknowledgment of different concepts of intellectual property and traditional cultural expression
The ethical obligation to consider other approaches to IP
Establish context - how did these indigenous materials end up in libraries, archives, and museums
A call for responsible stewardship
Reciprocity
Creation of a collaborative blog
What about ideas that have no commercial value (WIPO has traditionally been about who gets paid)
The existence of moral rights and the rights of indigenous people
Traditional cultural expression is living - it is not just material in a museum
Use case studies to illustrate issues
Expand beyond indigenous people and discuss other local and cultural communities
Discuss the range of views on the digitization of traditional materials
Create a matrix or landscape of the current legal picture
Begin with the ideas of respect and understanding rather than one’s rights
Focus on human value not just property rights

Cross-posted on District Dispatch:

The Center for Social Media, in conjunction with the Program on Information, Justice and Intellectual Property, and the Media Education Lab, released the Code of Best Practices in Fair Use for Media Literacy Education. This important document helps dispel more of the FUD–Fear, Uncertainty, and Doubt–behind fair use in the classroom. The Code is central to informing the teaching practices of media literacy educators, whether in K-12 education, higher ed, or other areas. The documents is also particularly useful for librarians and school library media specialists who aid instructors in identifying and utilizing a wide array of copyrighted educational resources for classroom uses.

Media literacy is central to the 21st century learning environment, is “implicated everywhere one encounters information and entertainment content,” and often is “embedded within other subject areas, including literature, history, anthropology, sociology, public health, journalism, communication, and education.” The Code points out that while educators already are granted certain exemptions to use copyrighted materials under Sections 110(1) and (2) of the Copyright Act, the document underscores the importance of understanding the application of fair use in the classroom. It urges educators to think critically about copyright “guidelines” and other advice offered by industry “experts.” While these guidelines may provide quick and dirty answers for use of copyrighted materials on the ground, they are not law and often “overstate the risk of being sued for copyright infringement, and in some cases convey outright misinformation about the subject.”

The Code outlines 5 basic principles for fair use in using copyrighted materials in media literacy education:

1. Educators should be able to use copyrighted material in direct media literacy lessons
2. Educators should be able to use copyrighted material in preparing curriculum materials
3. Educators should be able to share copyrighted material used in media literacy curriculum materials
4. Students should be able to use copyrighted materials in their own academic and creative work
5. Students should be able to distribute their work if it meets a transformativeness standard

The Code of Best Practices in Fair Use for Media Literacy Education joins several other enlightening projects released by the Center for Social Media, including the Cost of Copyright Confusion for Media Literacy, the Code of Best Practices in Fair Use for Online Video, and the Documentary Filmmakers’ Statement of Best Practices in Fair Use.

Download “Code of Best Practices in Fair Use for Media Literacy Education” (PDF).

This morning Google, the Association of American Publishers, and the Authors Guild announced a settlement regarding Google’s controversial library book scanning project. Some analysis and opinion will be forthcoming on this blog, but in the meantime, here are some useful links to learn more about the project and about the settlement:

• Google Book Search settlement announcement
• Association of American Publishers press release
• Authors Guild announcement
• Joint University Press Release
• University of Michigan announcement
• Comments from Paul Courant, University of Michigan’s Dean of Libraries
• Google Book Search blog

Over the years, the Walt Disney Company has assiduously protected their copyrights while relying heavily on public domain materials. Perhaps because of this, some have expressed glee at an LA Times article reporting that an early version of Mickey Mouse may be in the public domain because of unclear copyright notification on an early Steamboat Willie cartoon. The situation is far from resolved. An LA Times article* quotes Peter Jaszi of American University’s Washington College of Law, “that ‘Steamboat Willie’ is in the public domain is easy. That’s a foregone conclusion.” It seems an equally foregone conclusion, though, that Disney’s lawyers will disagree. I look forward to seeing how this story develops.

*Menn, Joseph. Disney’s rights to young Mickey Mouse may be wrong. Los Angeles Times. August 22, 2008.

Originally reported on District Dispatch:

“WIPO HQ” by villoks | CC BY-NC-SA

On behalf of the Library Copyright Alliance (LCA), Janice Pilch, one of OITP’s International Copyright Advocates, participated in the second session of the World Intellectual Property Organization (WIPO) Committee on Development and Intellectual Property in Geneva, Switzerland from July 7-11, 2008. Through two formal statements (PDF)–one jointly issued with the International Federation of Library Associations (IFLA)–LCA urged the WIPO committee to recognize and support the ongoing work that libraries undertake as stakeholders in intellectual property issues. For example, libraries engage in copyright education, purchase content, negotiate and manage rights and access to content, and provide direct links to user communities.

A goal of the WIPO Development Agenda is determining how to best address aspects of public awareness, education, training and outreach on various aspects of intellectual property. However, the library associations pointed out the need for balance between protection and access:

A challenge to the programs will be creating a workable equilibrium between intellectual property protection and the special needs of developing countries to make available the benefits of new information and communications technologies, and the content they provide, to transform the lives of citizens.

Specifically, LCA stated that if WIPO wishes to champion strong intellectual property protection as a strategy in spurring the economies of developing countries, efforts must be made up front to grant a developing country latitude in the ways it uses particular materials that can boost its economy. LCA recommended that WIPO consider an amendment to the Berne Appendix in order to reflect these exceptions and needs.

The library community supports access to knowledge and technology, adequate limitation and exceptions for purposes of education, scholarship, and creativity, and a robust public domain. If these important provisions can be adequately addressed, LCA and IFLA indicated that they will continue to work with WIPO and its Member States to engage with the development goals. OITP thanks Janice, LCA, and IFLA for the hard work and ongoing commitment to this cause!

———————-

The Library Copyright Alliance consists of five major U.S. Library associations, including the American Association of Law Libraries, the American Library Association, the Association of Research Libraries, the Medical Library Association, and the Special Libraries Association. The mission of LCA is to foster global access and fair use of information for creativity, research, and education.

The International Federation of Library Associations is the leading international body representing the interests of library and information services and their users. It is the global voice of the library and information profession.

The World Intellectual Property Organization is is a specialized agency of the United Nations dedicated to developing a balanced and accessible international intellectual property system.

The ALA Washington Office will host the DC CopyNight meetup on Tuesday, August 5, 2008. The event will run from 6:30pm - 8:30pm, with food, refreshments, and free copyright sliders. We’ll discuss the Georgia State copyright lawsuit and other current copyright news and issues. If you’re interested and are in the DC area, please take a minute to RSVP so we know roughly how many people are coming. The ALA Washington Office is located at 1615 New Hampshire Ave NW, 2 blocks from Dupont Circle.

CopyNight is a monthly social gathering of people interested in restoring balance in copyright law. Participants meet over food and/or drinks once a month in many cities to discuss new developments and build social ties between artists, engineers, filmmakers, academics, lawyers, and many others. CopyNight convenes in 22 cities around the world. If your city is not currently hosting, find out how to start one!

On Tuesday July 29th, Jon Ippolito and John Bell of the University of Maine’s Pool project spoke at Harvard’s Berkman Center for the Internet and Society on Can Creativity be Crowdsourced? Jon Ippolito is assistant professor of New Media; John Bell is a devotee of open web culture and web designer at the university. POOL is an open source community and avenue for artistic collaboration, artistic exhibition, criticism, and a means of observing and tracing the artistic process. Artists, interpreted broadly, can post their work and have others reuse it, build on it, collaborate on it, or they may post their work and reserve all rights to it.

What was most interesting in the crowdsourcing creativity discussion was the issue of licensing, reuse, and tracing of the artistic process. The gentlemen from Maine did not simply support the concept of total freedom to use and remix other’s work, but instead emphasized their preferred mode of building relationships, of building community, acknowledging a debt to work that came before – the key point being community and relationships. Thus, their POOL Choosing Rights page offers access ranging from “all rights reserved” through Creative Commons licenses to public domain.

If you click on Orient Yourself on the Pool homepage, you will be offered a walkthrough of how POOL functions.

The good people at the Center for Social Media have just released a Code of Best Practices in Fair Use for Online Video.

From the Introduction:

WHAT THIS IS

This document is a code of best practices that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances.

This is a guide to current acceptable practices, drawing on the actual activities of creators, as discussed among other places in the study Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video and backed by the judgment of a national panel of experts. It also draws, by way of analogy, upon the professional judgment and experience of documentary filmmakers, whose own code of best practices has been recognized throughout the film and television businesses.

The new report follows the successful Documentary Filmmakers’ Statement of Best Practices in Fair Use, released in 2005. The Center for Social Media offers a number of excellent resources related to copyright, fair use, and creativity, and they do a great job of blending the perspectives of both artists and academics. It’s worth spending some time browsing their site.

The Office for Information Technology Policy is now featuring the digital copyright slider to go alongside the first-life slider. Thanks to Michael Brewer, OITP Copyright Advisory Committee member and desiger of both tools.

A recent piece in the NYTimes Bits Blog points out a study from the University of Washington which showed that the technologies Big Media uses to investigate illegal file sharing regularly produce false positives.

From the Bits blog:

In two separate studies in August 2007 and May of this year, the researchers set out to examine who was participating in BitTorrent file-sharing networks and what they were sharing. The researchers introduced software agents into these networks to monitor their traffic. Even though those software agents did not download any files, the researchers say they received more than 400 take-down requests accusing them of participating in the downloads.

The researchers concluded that enforcement agencies are looking only at I.P. addresses of participants on these peer-to-peer networks, and not what files are actually downloaded or uploaded — a more resource-intensive process that would nevertheless yield more conclusive information.

In their report, the researchers also demonstrate a way to manipulate I.P. addresses so that another user appears responsible for the file-sharing.

An inanimate object could also get the blame. The researchers rigged the software agents to implicate three laserjet printers, which were then accused in takedown letters by the M.P.A.A. of downloading copies of “Iron Man” and the latest Indiana Jones film.

This is not the first time flaws in the RIAA/MPAAs’ strategy have been revealed, and librarians and other concerned parties have been calling for more transparency in their tactics for quite some time. Now opponents of file-sharing lawsuits - not to mention the defendants in those lawsuits - have scientific evidence that these tactics implicate innocent people. And laser printers.