Copyright and Fair Use: The Great Image Debate (Visual Resources (M.E. Sharpe))

EDITORES Helene E.Roberts Art History Department 6033 Carpenter Hall Dartmouth College Hanover, New hampshire 03755 Christine L.Sundt Architecture and Allied Arts Library University of Oregon, Lawrence Hall Eugene, Oregon 97403 Members of the Editiorial Board David Bearman, Archives and Museum Informatics Eleanor Fink, The Getty Art History Information Program Fiorella Superbi Gioffredi, Fototeca Berenson Dan Jones, Peabody Museum, Harvard University Anne-Marie Logan, Yale Center for British Art Jeanne Marty, University of North Carolina at Asheville Claudio de Polo, Fratelli Alinari Rachel Stuhlman, George Eastman House John Sunderland, Courtauld Institute of Art Founding Editor: Patricia Walsh

AIMS AND SCOPE Visual Resources—An International Journal of Documentation is devoted to the study of images and their use. Those images which depict architecture and works of art are of primary concern. The process by which these images are made, organised and ultimately utilized is investigated. This journal explores how visual languare is structured and visual meaning communicated and aslo illustrates how picture collections are acquired, organised, indexed, and preserved. Its scope delves into the past and looks toward the future. Included herein is an analysis of how reproductive images have influenced the perception of art, and how the interpretation of images has affected academic disciplines, including anthropology, archaeology, history, and particularly art and architectural history. Visual Resources examines early attemps to document the visual, reports on the state of visual resources, assesses the effect of electronic technology on the future use of visual material, and provides a platform for the reporting of new ways to organize and access visual information. It hopes to incite further experimentation and speculation about the potential uses of visual materials, and to increase the appreciation of visual documentation. Visual Resources is indexed by Art Index, ARTBibliographies, Bibliographies of the History of Art, and Fotodok. Notes for contributiors can be found at the back of the journal.

This edition published in the Taylor & Francis e-Library, 2005. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to http://www.ebookstore.tandf.co.uk/.” © 1977 OPA(Overseas Publishers Association) Amsterdam BV. Published in The Netherlands under license by Gordon and Breach Science Publishers, a member of The gordon and Breach Publishing Group. All rights reserved. Except as permitted under national laws or under the photocopy license described below, no part of this publication may be reproduced or transmitted in any form or by any means, electronic, mechanical, photocopying or otherwise, or stored in a retrieval system of any nature, without the advance written permission of the Publisher. World Wide Web Address Additional infrormation is also available through the publisher’s web home page site://www.gbhap.com Full text online access and electronic author submissions may also be available. Editorial enquiries by e-mail: <[email protected]> Six issues per volume. Subscriptions are renewed on an annual basis. 1977 Volume:13 Orders may be placed with your usual supplier or at one of the addresses shown below. Journal subscription are sold on a per volume basis only; single issues of the current volume are not available separtely. Claims for non-receipt of issues will be honored if made within three months of publication of the issue. See Publication Schedule Information. Subscriptions are available for microform edtions; details will be furnished upon request. All issues are dispatched by airmail throughtout the world. Subscritption Rates Base list subscription price per volume: ECU 90.00* This price is available only to individuals whose library subscribes to the journal OR who warrant that the journal is for their own use and provide a home address mailing. Orders must be sent directly to the Publisher and payment must be made by Personal check or credit card. Separate rates apply to academic and corporate/government institutions. Postage and hadling charges are extra. Published in The Netherlands Rights and Persissions/Reprints of Individual Articles Permission to reproduce and/or translate material contained in theis journal must be obtained in writing from the publisher. This publication and each of the articles contained herein are protected by copyright. Except as allowed dunder national “fair use” laws, copying is not permitted by any means or for any purpose, such as for distribution to any third party (whether by sale, loan, gift, or otherwise);as agent (express or implied) of any third party; for purposes of advertising or promotion; or to create collective or derivaticve works. A photocopy license is available form the publisher for institutional subscibers that need to make multiple copies of single articles for internal study or research purposes. Any unauthorized reproduction, transmission or storage may result in civil or criminal liability. Copies of articles may be ordered through SCAN, the Publisher’s own document delivery service. SCAN provides customers with the current contents and abstracts to all Gordon and breach and fHarwood Academic journals. Please contact one of the addresses listed above to receive SCAN, or view current contents and abstracts directly on the wb at http.//www.gbhap.com, and for ordering. The Publisher is also a member of Copyright Clearance Center.

This journal is sold CIF with title passing to the purchaser at the point of shipment in accordance with the laws of The Netherlands. All claims should be made to your agent or the Publisher. ISBN 0-203-98518-4 Master e-book ISBN

ISBN 90-5699-553-7 (Print Edition)

VISUAL RESOURCES An International Journal of Documentation Vol. XII, No. 3–4 1997

EDITOR: Helene E.Roberts Dartmouth College TECHNOLOGY EDITOR: Christine L.Sundt University of Oregon REVIEW EDITOR: Elizabeth O’Donnell Dartmouth College BIBLIOGRAPHER: Patricia L.Keats California Historical Society NEWS FROM THE GETTY INFORMATION INSTITUTE EDITOR: James M.Bower Getty Information Institute Published by Gordon and Breach

GORDON AND BREACH PUBLISHERS Published in The Netherlands

VISUAL RESOURCES An International Journal of Documentation Special Issue on Copyright and Fair Use: The Great Image Debate Vol XII, No. 3–4 Edited by Robert A.Baron

TABLE OF CONTENTS

Contributors

x

Editor’s Introduction, Summary and Analysis. Robert A.Baron,

1

IMAGE PROVIDERS Rights and Responsibilities in the Digital Age. Karen A.Akiyama, Museums and Intellectual Property: Rethinking Rights Management for a Digital World. David Bearman and Jennifer Trant, Fair Use, Fair Trade, and Museum Image Licensing. Amalyah Keshet, Prospects for a Public Domain Art Image: Resource in an Era of Digital Technologies. Allan Kohl,

23 30

40 48

ANALYSIS, INTERPRETATION AND OPINION

Visual Resources Archives A Visual Resources Advocacy Statement. Christine L.Sundt, The Pedagogical Consequences of Photomechanical Reproduction in the Visual Histories: From Copy Photography to Digital Mnemonics. Maryly Snow, By Line Drawings Ye Shall Know Them: Consequences of Barriers to Digital Reproduction. Patricia Taylor,

53 60

82

Copyright: Fair Use or Foul Play. Karlene M.McLaren,

90

Museums Fair Use/Museum Use: How Close is the Overlap? Stephen E.Weil, Art Museums and Copyright: A Hidden Dilemma. Peter Walsh,

98 104

LAW, LEGISLATION AND NEWS

United States Fair Use of Digital Art Images and Academia: A View from the Trenches of the Conference on Fair Use (CONFU). Barbara Hoffman, Fair Use and Digital Image Archives: A Report on the National Information Infrastructure Conference on Fair Use. Virginia M.G.Hall, The Visual Surrogate as Intellectual Property: The Clinton Administration’s “White Paper” and its Implications for Visual Resources Collections. Caron L.Carnahan,

113

130

137

Canada Moral Rights and Exhibition Rights: A Canadian Museum’s Perspective. Barbara Lang Rottenberg and Rina Elster Pantalony, Canadian Visual Resources and Canadian Copyright. Linda Bien,

144 154

REVIEW Copyright, Public Policy, and the Scholarly Community, Edited by Michael Matthews and Patricia Brennan. Maryly Snow,

165

Author Index—Volume XII

172

Title Index—Volume XII

176

Selected Index of Terms, Names, and Concepts—Volume XII

180

CONTRIBUTORS

Karen Akiyama, manager—business & legal affairs, Corbis Corporation. She is responsible for managing Corbis’ legal activities which include content and technology acquisition, licensing and protection. Prior to joining Corbis in 1993, Karen Akiyama practiced law with the Seattle firms Davis Wright Tremaine, and Stokes, Eitelbach & Lawrence, where she specialized in mergers and acquisitions in the telecommunications industry and in intellectual property law. She holds an undergraduate degree from Stanford University and received her J.D. degree from Georgetown University Law Center. Robert Baron is an art historian and consultant specializing in museum information studies, automated museum collection management systems and computerized scholarly cataloging. His credentials in the field of visual resources include working for H.W.Janson’s Educational Lantern Slide Project and serving as faculty adviser for the visual resources collection in the art department of the California State University at Fullerton. In addition, Mr. Baron maintains a small catalogue of slides for sale to educational institutions. His most recent articles include reviews of Tony Bennett’s The Birth of the Museum: History, Theory, Politics (Culturefront and Museum Management and Curatorship) and “Digital Fever: A Scholar’s Copyright Dilemma” (MMC). He is currently working on a monograph on Bernard Salomon for the Illustrated Bartsch series published by Abaris Books. Robert A.Baron, P.O. Box 93, Larchmont, New York 10538–0093. (914) 834–0233 voice, (914) 834–0284 fax, [email protected]. David Bearman is President of Archives & Museum Informatics, a Pittsburgh-based consulting firm. Bearman consults on issues relating to electronic records and archives, integrating multi-format cultural information and museum information systems, and edits the quarterly journal Archives and Museum Informatics. Prior to 1986 he served as Deputy Director of the Smithsonian Institution Office of Information Resource Management and as Director of the National Information Systems Task Force of the Society of American Archivists from 1980–1982. From 1987–1992, he chaired the Initiative for Computer Interchange of Museum Information (CIMI). In 1989 Bearman proposed Guidelines for Electronic Records Management Policy which were adopted by the United Nations Administrative Coordinating Committee on Information Systems (ACCIS) in 1990. Since 1991 he has organized and chaired the International Conferences on Hypermedia and Interactivity in Museums (ICHIM). He has published previously in Visual Resources (Vol. XI, No. 3/4). David Bearman, Editor, Archives and Museum Informatics, 5501 Walnut St.

Suite 203, Pittsburgh, PA 15232–2311, USA. 412–683–9775; fax 412–683–7366, [email protected]. Refer all questions regarding MESL article to J.Trant. Linda Bien is Head of the Faculty of Fine Arts Slide Library at Concordia University in Montreal, Canada, where she holds the rank of Associate Librarian. She has chaired the Canadian Visual Resources Curators Copyright Committee for many years and is currently the Moderator of the Visual Resources Division of ARLIS/NA. Her e-mail address is [email protected]. Caron Carnahan is the Slide Librarian at Williams College, Williamstown, MA. She has presented papers at regional and national conferences, in the fields of visual resources management and art history. Most recently, at the 1996 annual conference, she moderated the VRA/CAA session on the visual surrogate as intellectual property. She is a member of the VRA’s Intellectual Property Rights Committee, and is currently working on an article profiling the career of the Sandaks. Virginia M.G. (Macie) Hall is the Curator of the Art History Visual Resources Collection at Johns Hopkins University. She is a graduate of Princeton and Johns Hopkins University. Her background in microcomputer applications led to the development of a project on the Johns Hopkins University web server involving digitizing images used in Art History courses for student review. In the fall of 1994 she became the Visual Resources Association representative to the Department of Commerce, Patent and Trademark Office Conference on Fair Use in the National Information Infrastructure. She is also the chair of the VRA Intellectual Property Rights Committee. Virginia M.G.Hall, Curator, Art History Visual Resources Collection, 256 Mergenthaler Hall, Johns Hopkins University, Baltimore, MD 21218. 410–516–7122, [email protected]. Barbara Hoffman has practiced and taught arts, entertainment and intellectual property law for over 20 years. Her clients include artists, directors, producers of TV, film and multimedia projects. She has represented the College Art Association and is the current Chair of the Committee on Art Law of the Association of the Bar of the City of New York. Barbara Hoffman, 40 West 57th Street, New York, NY 10019. (212) 974– 7474, (212) 974–8474 fax. Amalyah Keshet was born in the US and received her B.F.A. from Washington University, St. Louis. She came to Israel in 1977, upon completion of her M.A. in art history at George Washington University, Washington, D.C., and has been working at the Israel Museum since then in several successive positions, including Curator of European Art. Ms. Keshet has also taught courses on “Museums in Israeli Society” for the Hebrew University’s Overseas Students program. Currently she is the Director of Visual Resources, formerly the photographic services/rights and reproductions department of the Israel Museum. She is responsible for building the department into the leading office for publications photography and copyright licensing among Israeli museums. She serves on the Museum’s Publications, CD-ROM Initiatives, and Internet committees and is currently managing the imaging and rights & reproductions aspect of the nation-wide collections management database pilot project of the Israeli Ministry of Education and Culture’s Department of Museums. Amalyah Keshet, Director of Visual Resources, The Israel Museum, Jerusalem, POB 71117, 91710 Jerusalem, Israel. E-mail: [email protected].

Allan T.Kohl is Visual Resources Librarian at the Minneapolis College of Art & Design, where he holds the position of Senior Lecturer in Art History. He also teaches at the College of Visual Arts in St. Paul, where this past year he led a seminar dealing with intellectual property and copyright issues for visual artists. His extensive photographic documentation of cultural sites has appeared in numerous publications and academic image collections. At present he is working on an augmented version of the “AICT” project described in the paper published here. This project provides via the Internet hundreds of images, keyed to related illustrations in the standard undergraduate art history survey textbooks, for free use by educators. Karlene McLaren, has been a special educator, since 1965, in Michigan, New York and New Mexico. From 1987, when she established the Developmentally Delayed Preschool and Early Intervention Program for two, three, and four year old children in the Roswell (NM) Independent School District, Karlene has been called on to find and develop resource materials for this unique age group. Copyright implications related to learning resources necessary for this program required an understanding of the Copyright law, its impact on pre-school education, and sources of materials needed or adapted from other resource bases. She was recently recognized for her efforts in these areas by being named as the winner of the 1996 Elementary Laureate Award for Teaching Excellence. Karlene M.McLaren, Roswell Independent School District, Valley View Elementary School, 1400 S. Washington, Roswell, NM 88201. (505) 625–8202, fax: (505) 625–8223, [email protected]. Rina Elster Pantalony obtained her undergraduate and law degrees at Dalhousie University in Halifax, Canada. She is a member of the Law Society of Upper Canada and practiced commercial and intellectual property law in Toronto. After spending a year studying art history in Paris, Ms. Pantalony joined the Canadian government as an analyst in copyright and arts policy. Rina Elster Pantalony, CHIN, Canadian Heritage Information Network, 365 Laurier Ave., West 12th Floor, Ottawa, Ontario, K1A OC8, Canada. Barbara Lang Rottenberg is a graduate of McGill University, Canada, and the University of Leicester, England. She spent a number of years at McGill’s Redpath Museum as Assistant Curator of Anthropology. Since 1980, she has worked at the Canadian Heritage Information Network, most recently as director of Policy. A major focus of this position is the management of intellectual property in digital form. She is active in the international museum community, serving on the board of ICOM Canada and as post secretary of CIDOC, the Documentation Committee of ICOM. Barbara Lang Rottenberg, Policy Director for the Canadian Heritage Information Network, [email protected]. Maryly Snow is the Librarian of the Architecture Slide Library, Department of Architecture, University of California, Berkeley. She has participated widely in, and published extensively on, many aspects of issues involving computers and visual resources. Maryly Snow, Librarian, Architecture Slide Library, Department of Architecture, University of California, Berkeley, 232 Wuster Hall, Berkeley, CA 94720–1800, (510) 642–3439, (510) 643–5607. Christine L.Sundt is the Curator of Slides and Photographs in the Architecture and Allied Arts Library at the University of Oregon. She is the Technology Editor of Visual Resources, and has edited two Special Issues on technology (Vol. VII, No. 4; Vol. X.

No. 1). She has written widely on issues of preservation and use of technology in visual collections. She currently serves on the College Art Association Committee on Intellectual Property. Christine L.Sundt, Architecture and Allied Arts Library, 5249 University of Oregon, Lawrence Hall, Eugene, OR, 97403, (541) 346–2209, (541) 346–2205 fax, [email protected]. Patricia Taylor, after spending eighteen years traveling the world with her military family, settled in Austin, Texas. She received her Bachelor of Fine Arts in Studio Art and her Master’s of Arts in Art History from the University of Texas at Austin. In addition to exhibiting her work, Ms. Taylor has written and published articles in her speciality, Picasso’s Les Demoiselles d’Avignon. She teaches a multimedia, multidisciplinary course, “Introduction to the Fine Arts” at Southwest Texas State University, where she has inaugurated a teaching and development multimedia lab. Presently, she is working on several educational multimedia projects. Pat Taylor, Art Department, Southwest Texas State University, San Marcos, TX 78666. [email protected]. Jennifer Trant is the Director of Arts Information Management, a consultancy based in Toronto, Ontario. Her recent assignments have included managing the Imaging Initiative for the Getty Art History Information Program, directing the Museum Educational Site Licensing Project, and preparing the report of the Art Information Task Force, Categories for the Description of Works of Art. Ms. Trant is actively involved in the development of museum data standards, chairs the Multimedia Working Group of the Documentation Committee of the International Council of Museums and regularly speaks and writes about issues of access and intellectual integration of networked cultural heritage information. Her recent publications include Introduction to Imaging: Issues in Constructing an Image Database with Howard Besser. In the Fall of 1996, she assumed responsibility for Collections and Standards Development at the Arts and Humanities Data Service, King’s College, London, The Strand, London WC2R 2LS, UK, [email protected]. Peter Walsh is director of information and institutional relations at the Davis Museum and Cultural Center, Wellesley College, and chairman of the Massachusetts Art Commission. He writes frequently on issues in the visual arts and architecture. Peter Walsh, Davis Museum and Cultural Center, Wellesley College, Wellesley, MA 02181. E-mail: [email protected], telephone: 617–283–2034, fax: 617–283–2064, Web site: http://www.wellesley.edu/DavisMuseum/davismenu.html. Stephen E.Weil, Emeritus Senior Scholar in the Smithsonian Institution’s Center for Museum Studies, served from 1974 to 1995 as Deputy Director of the Smithsonian’s Hirshhorn Museum and Sculpture Garden. From 1967 to 1974 he was Administrator of the Whitney Museum of American Art. A member of the New York Bar since 1956, Mr. Weil was co-author of the 1986 treatise Art Law: Rights and Liabilities of Creators and Collectors which won the 1987 SCRIBES Award as the best law book published the previous year. He is also the author of three collections of essays dealing with museums and the law, most recently A Cabinet of Curiosities: Inquiries into Museums and their Prospects (Smithsonian Institution Press, 1995). Stephen E.Weil, Emeritus Senior Scholar, Smithsonian Institution, Arts and Industries Building, 900 Jefferson Drive, SW, Suite 2235 MRC 427, Washington, DC 20560. (202) 357–3101, (202) 357–3346 fax.

ACRONYMS, ASSOCIATIONS AND CORPORATIONS

AALL

American Association of Law Libraries 53 West Jackson Boulevard, Suite 947 Chicago, IL 60604 Tel: (312) 939–4764, Fax: (312) 431–1097 URL: http://lawlib.wuacc.edu/aallnet/allnet.html

AAM

American Association of Museums 1225 Eye Street, N.W., Suite 200, Washington, D.C. 20005 Tel: (202) 289–1818, Fax: (202) 289–6578 URL: http://www.americanmuse.org/aam URL: http://www.netready.com/AAM/

AAMD

Association of Art Museum Directors 41 East 65th Street, N.Y. 10021 Tel: (212) 249–4423 URL: http://www.gatech.edu/CARLOS/AAMDO/

ACLS

American Council of Learned Societies URL: http://www.acls.org/

ACM

Association for Computing Machinery URL: http://www.acm.org/

ACUM

Israeli authors’ and composers’ copyright collecting society ACUM Limited, ACUM House, 118 Rothschild Boulevarde, Tel Aviv PO Box 14220, Tel Aviv 61140, ISRAEL

ADAGP

Société des auteurs dans les arts graphiques et plastiques 11, rue Berryer, F-75008 Paris, France. Tel: +33 1 45 61 03 87, +33 1 43 59 09 79 Fax: +33 1 45 63 44 89

AHIP

Getty Art History Information Program (Now Getty Information Institute) URL: http://www.ahip.getty.edu/

AICT

Art Images for College Teaching, Minneapolis College of Art & Design URL: http://www.mcad.edu/AICT/index.html

ALA

The American Library Association Public Information Office, 50 East Huron St, Chicago, IL 60611 Tel: 312/944–6780

URL: http://www.ala.org/ ARL

Association of Research Libraries 21 Dupont Circle, Suite 800, Washington, D.C. 20036 Tel: (202) 296–2296, Fax: (202) 872–0884 Gopher: arl.cni.org E-mail: [email protected] URL: http://arl.cni.org/

ARLIS/NA

Art Libraries Society of North America URL: http://caroline.eastlib.ufl.edu/arlis/

ARS

Artists Rights Society, Inc, 65 Bleecker Street, New York, NY 10012. Tel: (1212) 420–9160 Fax: (1212) 420–9286. see URL: http://www.cisac.org/enmem.htm

ASCAP

American Society of Composers, Authors and Performers URL: http://www.ascap.com/ascap.html

AUCC

Association of Universities and Colleges of Canada (excluding Quebec) URL: http://www.aucc.ca/

CAA

College Art Association 275 Seventh Avenue, New York, NY 10001. Tel: 212/691– 1051 URL: http://alberti.mit.edu/caa/ E-mail: [email protected]

CAAH

Consortium of Art and Architecture Historians (An Internet discussion list) [email protected]

CANCOPY

Canadian Copyright Licensing Agency 6 Adelaide Street East, Suite 900 Toronto, Ontario M5C 1H6, Canada Tel: +1 416 868 1620, Fax: +1 416 868 1621 URL: http://www.cancopy.com/http://www.cancopy.com/ E-Mail: [email protected]

CARFAC

Canadian Artists Representation/Le Front des Artistes Canadiens URL: http://www.culturenet.ca/carfac/

CAUT

Canadian Association of University Teachers

CBC

Canadian Broadcasting Corporation

CCC

The Copyright Clearance Center 222 Rosewood Drive, Danvers, Massachusetts 01923, USA Tel: +1 508 750 8400, +1 508 750 4343 URL: http://www.copyright.com/

CCUMC

Consortium of College and University Media Centers 121 Pearson Hall-MRC, lowa State University, Ames, IA 50011–2203, Tel: (515) 294–1811, Fax: (515) 294– 8089

CD-ROM

Compact Disk, Read-Only Memory

CEO

Chief Economic Officer

CHIN

Canadian Heritage Information Network URL: http://www.chin.gc.ca/

URL: http://www.chin.doc.ca/ CIC

The Creative Incentive Coalition URL: http://www.cic.org/

CNI

Coalition for Networked Information URL: http://www.cni.org/

CNI

[email protected]. Discussion list for copyright issues. Listserv archives gopher: gopher.cni.org

CONFU

NII Conference on Fair Use URL: http://gold.utsystem.edu/OGC/IntellectualProperty/confu.htm

CONTU

Commission on New Technological Uses of Copyrighted Works see URL: http://www.cni.org/docs/infopols/www/CONTU.html

Corbis

Corbis Corporation URL: http://www.corbis.com/

CRC

Canadian Reprography Collective (See CANCOPY)

CREPUQ

Conference of Rectors and Principals of Quebec Universities

CVRC

Canadian Visual Resources Curators URL: http://watarts.uwaterloo.ca/FINE/carl/slides/cvrc1.htm

DACS

Design and Artists Copyright Society Ltd. Parchment House, 13 Northburgh Street, GB-London ECIV OAH Tel: +44 171 336 8811, Fax: +44 171 336 8822

DFC

Digital Future Coalition URL: http://home.worldweb.net/dfc/

EDUCOM

http://educom.edu/

EFF

Electronic Frontier Foundation http://www.eff.org/

GATT

General Agreement on Tariffs and Trade

GII

Global Information Infrastructure; Al Gore on GII: URL: http://www.cs.umbc.edu/pub/news/umbc.cs/msg00139.html; GII Commission: URL: http://www.gii.org/

IITF

Information Infrastructure Task Force, chaired by Assistant Secretary of Commerce and Commissioner of Patents and Trademarks, Bruce A.Lehman. URL: http://iitf.doc.gov/

MESL

Museum Educational Site Licensing project URL: http://www.ahip.getty.edu/mesl/home.html

MIT

Massachusetts Institute of Technology

MUSE

MUSE Educational Media 1 East 53rd Street, New York, NY 10022 Tel: (212) 688–8280, Fax: (212) 688–0409

NEA

National Endowment for the Arts

URL: http://arts.endow.gov/Homepage/Homepage.html NEH

National Endowment for the Humanities URL: http://www.neh.fed.us/

NII

National Information Infrastructure (See IITF)

OPAC

On-line Public Access Catalogue

RRO

Rights and Reproductions Organizations URL: http://www.kopinor.no/IFRRO/7.html URL: http://www.cancopy.com/linksout.html URL: http://www.copyright.com.au/doc/organize.html

SLA

Special Libraries Association URL: http://www.sla.org/

SODAAV

Société de Droit d’Auteur en Art Visuel

SPADEM

Société de la propriété artistique et des dessins et modèles 15, rue Saint Nicolas, 75012 Paris Tel: (331) 43 42 58 58; Fax: (331) 43 44 84 54

UAAC

Universities Art Association of Canada

UMI

University Microfilms International (Xerox Corporation).

UNEQ

Union des écrivaines et écrivains Québecois 3492, rue Laval, Montréal, Quebéc H2X 3C8, CANADA Tel: +1 514 849 8540, Fax: +1 514 849 6239, E-mail: [email protected]

UQAM

Université de Québec à Montréal

URL

Universal Resource Locator (Address for World Wide Web documents)

U.S.C.

United States Code

USCA

United States Code Annotated

USPTO

United States Patent and Trademark Office URL: http://www.uspto.gov/

UVic

University of Victoria

VAGA

Visual Artists and Galleries Association, Inc. 521 Fifth Avenue, 8th floor, New York, NY 10017 Tel: (212) 808–0616 Fax: (212) 808–0064 see URL: http://www.cisac.org/enmem.htm

VIS-ART

VIS-ART Copyright Inc. 3575 Boulevard St, Laurent, bureau 516, Montreal, H2X2T7 Quebec, Canada. Tel: (1514) 845.6061 Fax: (1514) 845.6240 see URL: http://www.cisac.org/enmem.htm

VRA

Visual Resources Association URL: http://www.vra.oberlin.edu/

VRA-L

Visual Resources Association discussion list ([email protected])

WIPO

World Intellectual Property Organization URL: http://www.uspto.gov/wipo.html URL: http://itl.irv.uit.no/trade_law/documents/i_p/wipo/art/wipo.html

WWW

World Wide Web

Editor’s Introduction, Summary and Analysis1

by Robert A.Baron Visual Resources, Vol. XII, pp. 233–259 Reprints available directly from the publisher Photocopying permitted by license only

© 1997 OPA (Overseas Publishers Association) Amsterdam B.V. Published in The Netherlands under license by Gordon and Breach Science Publishers Printed in Malaysia

INTRODUCTION TO THE ARTICLES It will come as no surprise to frequent readers of Visual Resources or to anyone whose occupation it is to tend to the visual information needs of academia and elsewhere, that a transformation is in progress. What had once been a profession in which photographic technology, equipment assessment, accessibility of sources, meeting production schedules, and working and developing filing and retrieval systems occupied the greater part of one’s time, in recent years has become a profession in which the legal process by which its goals are achieved is assuming a vastly disproportionate claim to the time and attention of image workers. No single topic exemplifies this transformation more acutely than that which speaks of the rights pursuant to using and obtaining images—copyright and intellectual property. The papers in this volume speak to those issues surrounding the processes of obtaining and using images—what rights and freedoms custodians of visual resources collections may claim for themselves; what obligations they owe to the owners of copyright and their representatives; what procedures they may invoke to lay claim to their rights and to oblige the rights of others; how best to mine and secure the promises of electronic media and distribution systems; and which systems, protocols, license arrangements, exemptions, and organizational structures are best to meet the needs of those in this profession. While image curators and librarians must still concern themselves with the traditional array of slide-room obligations, today they must pay attention to contracts, item licenses, site licenses, rights and reproductions, permissions, network distribution, multimedia issues, distance learning, copyright agents, researchers and scholars, intellectual property issues, and university legal counsels, meetings, symposia, legislation, and papers such as those offered here.

Visual resources

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The articles presented in this issue of Visual Resources are about the laws controlling how images are provided, and about the rights and obligations image users and image owners expect to be respected. Obviously there are disagreements in this area, for, if there were none, there would be no articles to print on the topic; indeed, every article presented here supports one or another view on how our image distribution system should be constructed. An outsider without special knowledge of the history and traditions of visual resources curation may posit that the lines of discrepancy and conflict of necessity must be drawn between image providers and image users, that the providers must wish to protect their investments and maximize their profits and that the users must want to continue their operations without undue hindrance and with minimum tax on their budget. But while these positions are generally true (as they must be), an analysis of the stands actually taken by interested parties reveals a considerably more complexly faceted landscape of preferences. The truth of the matter is that, comparatively speaking, the community of image resource professionals in academia is relatively small, and the individuals who inhabit this discipline, in its various manifestations, be they vendor, scholar, information specialist, curator, or technician, for the most part have been drawn into this world by a common belief in the value of the humanities in general and most specifically in the worth of the visual humanities. Indeed, looking back, it has never been quite clear who among this group will end up as vendors and who will find themselves in the business of image acquisition, who will become scholars or authors, and who will represent the interests of museums or artists. It is not surprising, therefore, that there is considerable role switching and role overlap among the professionals in this industry. You might say that almost everyone has a conflict of interest, or better said, a conflict of responsibilities. Is the above a naïve assessment of a factionalized situation? At times this commentator might agree and say it is; but, on some deeper level one senses that there is an innate truth to these characterizations. Although the essays in this edition have been broadly divided into those by image suppliers and image users, what will become immediately apparent to anyone who reads through the lot of them is the fact that the ultimate goals of each group sufficiently overlap so to expose the decent respect that any one side has for the needs and problems of the others. Withal, there is no requirement that the principle players bow to the altar of altruistic service for the good of the discipline—though some do. Readers should not be surprised therefore to discover how vendors and image suppliers feel that their strategies and protocols are well suited to supply useful images to their customers, while at the same time respecting their needs and customs, or how they wish to protect the interests of their sources while characteristically taking positions that a more cupidinous industry might find self-destructive or even foolhardy. Correspondingly, essays by image users often show concern and respect for the intellectual property rights and markets of image owners and their representatives, for the rights of artists and other creators, while they fight to insure the continuation of their traditional fair use privileges within the coming National Information Infrastructure (NII) and elsewhere. The above not-withstanding, the industry does find home for extremists on both sides. The subtext that haunts the majority of the articles printed here is the great need to resolve the perennially nagging questions: What rights are right, what obligations are necessary, what compromises are realistic, and what kinds of procedures may be used to

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facilitate exercising these rights and meeting these obligations. If there is a note of desperation that reverberates through these articles, it is one sympathetic to the tone of frustration born of confusion, specifically when it derives from a perceived lack of clarity and applicability of the laws, and from the lack of any universally respected institution specifically established to orchestrate and administer the protocols and procedures needed to get the work done. When one encounters extreme positions, be assured that they have been formed in an atmosphere of fear in which the unknown cataclysm brought on by a powerfully attractive but potentially untrustworthy technology—digitization and worldwide network transmission—is known to be just around the corner. Image vendors during pre-digital days could always absorb a certain level of copyright infringement, just as shop owners knew that they had to put up with a fixed amount of shoplifting. When images are transmitted and stored digitally, however, no one can blame image rights owners for their fear that a gang of image-looters will break in and carry away the store. Copyright and fair use may be issues now, but in the future, when the dust settles, when the players are more comfortable with the benefits and safeguards that technology will undoubtedly have to offer, and when, with any luck, the administration of copyright will have become just another routine task, no one will think twice about it, no one will bother writing about it, and everyone will be able to pack up their law books and get back to the work they prefer. The articles contained in this issue of Visual Resources are written by people who have been brought together from a variety of disciplines involved with the image resource industry. They include an electronic image vendor and licensing agent, an independent museum informatics consultant and editor of an important journal in electronic records management for cultural institutions, an imaging project leader and arts information specialist, museum and academic visual resources curators from around the world, a museum publications director, a museum administrator and specialist in museum law, an elementary school teacher, a university humanities professor, museum policy specialists, and an arts law attorney specializing in intellectual property. The editor is a consultant in the application of automated object management systems for use in museums and visual resources collections, with a background as an academic in the history of art. Not all important players are represented here. Missing are the points of view of artists, publishing and independent art historians, publishers of conventional and electronic media, slide vendors, and professional infringers, among others. In addition, there are no articles that challenge the very notion of copyright and which attempt to undermine the assumptions that have defined the authority given to privately held intellectual property—but see Maryly Snow’s review of Copyright, Public Policy, and the Scholarly Community in this issue. Several articles speak directly to museum matters: Bearman/Trant, Akiyama, Keshet, Weil, Walsh, and Rottenberg/Pantalony. The papers in this issue have been divided into three main categories: (1) articles by image providers, (2) articles that are interpretative, analytical, or which are essentially position statements and (3) articles about the law and legislative events. This last set explains and interprets the law in its application to image resources; it reports on the legislative process, and analyzes its consequences. Finally, there is one book review. Admittedly the similarities between articles that have fallen in one or another of these pigeon holes can appear to be more convenient than substantive at times, for in one way or another each article is interpretative and molded by self-interest; each is based on a

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view of the law and written in the shadow of the promises and threats of imminent legislation. Within each group the reader will find vast differences in outlook and across groups the reader will find profound similarities. Among the papers submitted by image providers, readers will note an article (1) that describes methods and game plans of a commercial image license house—Bill Gates’ Corbis Corporation (Akiyama); (2) that argues the merits and discusses the cooperative and experimental nature of the site licensing scheme being prototyped by the Getty Educational Site Licensing Project (Bearman and Trant); (3) that surveys the economic and licensing issues faced by the visual resources department of the Israel Museum (Keshet); and, finally (4) that proposes establishing a cooperative image archive without encumbrance from claims of copyright so as to make images available for free use without a required license fee (Kohl). A similar variety of points of view may be found in section two. Here are gathered articles that interpret current laws and copyright guidelines—usually from the point of view of collections and users. Positions in this group run the gamut from the highly conservative, cautious, pro-copyright or restrictive views found in published fair use guidelines (McLaren), to relatively radical (though not the most radical) attempts to liberate images from the hold of copyright claimants (Weil, Walsh). Stephen Weil shows how the four fair use guideposts stipulated by statute may be applied to a multitude of museum image uses. Peter Walsh aims to expand our perception of the kinds of materials that are available in the public domain. Discussions of methods used to achieve fair use and other kinds of access to images include descriptions of historical practices vouchsafed by tradition (Sundt, Snow). There is even one lamentation on the decline of free speech and the demise of the educational mandate (Taylor). Christine Sundt describes how images are used in art history teaching as a preface to her entertaining list of examples of analog and digital image usages that she would like to see pass as fair uses. Instead of setting an illustration in print, Ms. Sundt provides a URL. Maryly Snow (see also her review) presents a history of the collection and use of reproductive photographs as tools for the teaching of art history. One paper in this group, Karlene McLaren’s “Copyright: Fair Use or Foul Play” is different from the others in that it is not addressed specifically to an audience of suppliers and/or users of images, rather it is aimed at primary and secondary school teachers in an attempt to explain the safe pathways and procedures available to teachers for the incorporation of fairly used copyrighted materials into their lessons. Ms. McLaren’s topic is the explication of copyright guidelines as applicable to their use in educational contexts. Drawing much of her material from the United States Code Annotated (USCA) put out by the legal publisher West Publishing Company, among other sources,2 we discover that the scenarios presented in these “classroom guidelines” for educational use of copyrighted materials are more highly restrictive that what is commonly practiced today in institutions of higher learning, such as, for the present readers, in slide and image collections. In her discussion of classroom use of materials such as music, software, and broadcast media, readers will find many correspondences that relate disturbingly to their own practices, but perhaps none of these is so closely matched as are the required fair use goals of “brevity,” “spontaneity” and the prohibition against forming collections—the “cumulative effect”—that the guidelines impose when using copyrighted materials in the classroom. These issues will be discussed below. The McLaren article is included in this

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collection so that readers of Visual Resources can place the relatively narrow issue of the use of images in higher education within the larger context of educational license and prohibitions, and as a reminder that some guidelines guarantee a particularly narrow range of activities to qualify as fair use. Finally, five papers are presented that are concerned with the effects of recent laws and the efforts to create legislation and guidelines governing the development, maintenance, and use of electronic and analog visual resources and museum collections, including the NII Conference on Fair Use (CONFU) and the “White Paper.” Three of these are written in the context of United States copyright law, while two concern the development and application of copyright and intellectual property law in Canada. Barbara Hoffman, legal counsel to the College Art Association and arts law attorney, reviews several points of law germane to the operations of image resource collections and to the practices of scholarship, placing special emphasis on the legal definition of fair use, the four tests for which are replicated time and time again in this volume. (See especially papers by Weil, Snow, and Carnahan.) Ms. Hoffman discusses key examples of case law, and their consequences for the development and maintenance of visual resources collections. (See the review by Maryly Snow for a description of some of these cases and decisions.) Her broad analysis, focused on issues affecting visual resources archives and scholarship, should be compared to the penetrating interpretation offered by Stephen Weil, whose point of departure is the use of copyrighted works in a museum setting, and it also should be compared to the exceedingly narrow prohibitive view of these issues found in the guidelines cited by Karlene McLaren. Barbara Hoffman’s aim is to establish a setting for arguing that fair use must be guaranteed in applications made available via the NII. But, this is all by way of prologue to her report on the CONFU meetings she attended with Virginia (Macie) Hall, who also reports in this collection. Ms. Hoffman recounts how poorly the advocates for fair use are faring, especially against those who advocate licensing as a means of obtaining intellectual properties. Ms. Hall also reports on the CONFU hearings; in these two articles one finds juxtaposed a report by an intellectual property attorney with one by a visual resources curator. They worked together, but the differences in outlook expressed in these articles make for an interesting comparison: the first paper considers the issues in relation to principles established in statute and case law, while the second, by and large, looks at them from an operations perspective. Caron Carnahan takes as her topic the fair use consequences of the legislation proposed in the “White Paper” put out by the Working Group on Intellectual Property Rights of the U.S. Information Infrastructure Task Force.3 Following the lead provided in Pamela Samuelson’s “The Copyright Grab,”4 Ms. Carnahan notes how the main goal of the proposed legislation is to protect commercial intellectual interests to the exclusion of the goals of the non-profit, non-commercial educational community and to the detriment of the traditional base of “fair users,” among which many academic visual resources collections in the United States count themselves. Two valuable rights, the “first sale doctrine” and “fair use,” according to Carnahan, will be defined out of existence in the world of electronic information access. The two papers contributed by representatives of Canadian institutions—the Concordia College Slide Library (Montreal) and the Canadian Heritage Information Network (CHIN)—are about issues of concern to all collections: the formation of

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copyright cooperatives, the rights of creators (moral rights), and the right of exhibition. Curiously, these topics, while universal, have not been made the specific subject of any of the other papers, though their issues do pop up here and there. Barbara Hoffman characterized her own paper as a “view from the trenches,” an outlook that may well describe all the papers in this group. Certainly Linda Bien’s lament on the intricacies of obtaining rights and permissions by an institution in a country that does not have recourse to the benefit of (one must say) grass-is-greener fair use (as defined in, or interpreted from United States Law) and where the legally sanctioned copyright collectives never seem to work, can be taken as a good example of battlefield literature. Linda Bien addresses the frustrating history of the attempts by the Canadian Visual Resources Curators (CVRC) to get the Canadian government to acknowledge the unique needs of the visual resources community in the context of the drafting of fair use provisions. Her story implies that educational issues and scholarly warrant assume very low positions in the set of priorities created for copyright reform in Canada. Similarly, the creation of copyright collectives, agencies for collecting royalties in service of copyright owners and for granting rights to users, has provided little or no help, and may even have served to increase the level of confusion and frustration while providing unworkable administrative nightmares. Ms. Bien’s article, truly, another “report from the trenches,” clearly shows the disruptive environment created when copyright law ignores a major constituency of intellectual property users. Her addendum is less pessimistic. The situations described in Linda Bien’s article should be compared to the attempts to provide low protocol access to images by MESL and Corbis. The frustrations she relates should be compared to reports by Macie Hall and Barbara Hoffman. Compared to the plight of visual resource collections, in Canada, museums seem to have a much clearer picture of their sets of responsibilities (as well as the ironies) and have a more definitive sense of national policy in this regard. The paper presented by Barbara Lang Rottenberg and Rina Elster Pantalony in their capacities as policy administrators and analysts for the Canadian Heritage Information Network (CHIN), explains Canadian moral and exhibition rights and compares them to similar but different U.S. versions. In the second part of the paper the authors choose four examples of different kinds of art, and expose them to an analysis of how the law would be applied to each.

TOPICS RAISED BY THE CONTRIBUTING AUTHORS The following tracts analyze trends and issues that have emerged as topics of concern in the papers presented. The choice of subjects to discuss has been made by the editor and does not necessarily represent a balanced survey of all the important topics; indeed, there has been no special effort to balance the discussion of any one topic. An effort has been made, however, to contrast the varying opinions expressed by the authors on these matters. The Administration of Rights

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Amalyah Keshet, visual resource director for the Israel Museum, Jerusalem, a major source of images to publishers and scholars, writes from the standpoint of a museum visual resources department that has neither the funds nor the ability to provide gratuitous or low-cost museum services for the academic community—a break with tradition. We may look at this description of the Visual Resource Department of the Israel Museum as a harbinger of what might befall other museums (if it has not done so already). Lacking conventional patronage from the sponsoring institution, the Israel Museum Rights and Reproductions department is forced to work according to a business plan in which profitability and minimization of loss has become, of necessity, somewhat more important (for the time being) than fulfilling its public mandate and its scientific and scholarly mission. Forced to acknowledge the interests of copyright holders of works in the collection (as in Canada and other Berne countries), and not being able to mine the economic potential of much of its modern holdings, the rights income, the valve that traditionally relieved museums of a few of their financial pressures, has been taken away from them. Amalyah Keshet’s article, in its description of the financial considerations pursuant to providing images for CD-ROM production, lends weight to the analysis and arguments proposed by Jennifer Trant and David Bearman in their paper on site licensing, the latter which places considerable emphasis on the unprofitable nature of museum-based rights management. Indeed, Ms. Keshet and other contributors look out to the Museum Educational Site Licensing project (MESL) as a hopeful sign that the difficulty in making a market in CD-ROM images may soon be over. For her, it would seem, the commercial model has failed. The educational imperative has been blockaded by financial hard times. The author looks toward the day when the promised reduction of costs and the simplification of administration can restore the museum’s historical role as servant to science and scholarship. CD-ROM publishers now recognize that the commercial factor in their enterprises nearly guarantees that their resources must come at a dear price. The rudest awakening, however, must come to the scholars and educational workers who have traditionally benefited from a symbiotic relationship with museums and other image owners. Scholars have traditionally depended upon the kindnesses of the fair use privilege. If society wishes to renew its traditional support for scholarly investigation it will certainly have to develop picture resource models that reduce the unit cost of providing images—so that commercial suppliers can offer low cost images without incurring a loss themselves, or so that non-commercial image holders can hold to a cost basis that is not linked to unique image sales. The former requirement may be met by commercial electronic distribution systems and the latter by site licensing. Several papers (Bearman/ Trant, Keshet, Taylor) emphasize the failure of the traditional rights pricing structure in commercial and educational multimedia, CD-ROM projects. Keshet’s article should also serve as a call to scholars accustomed to receiving privileged access to and use of visual intellectual property. It is clear that this tradition, as institutions reinvent themselves into self-sufficient entities, is disintegrating, and it is obvious that art historians and scholars, whose complaints are often read on listservs like the Consortium of Art and Architecture Historians (CAAH),5 being the supplicants in these matters, will be forced to discover a new model to serve the needs of their enterprises. Ms. Keshet graciously suggests that museums, themselves, solicit visual

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resource funds from kind donors to apply to worthy scholarly requests. Certainly, asking the scholarly community to support their own publication expenses out-of-pocket is a sign that society has marginalized the importance of their contributions. Patricia Taylor reporting on the draft multimedia fair use guidelines that the Consortium of College and University Media Centers (CCUMC) has established for using images, notes that while there is considerable latitude given to using images in purely local, personal, scholarly, and classroom applications, it is clear that scholars are given no leeway when their work is slated for the commercial marketplace or for any other kind of distribution. Another scenario aimed at achieving these ends is described in Jennifer Trant’s and David Bearman’s paper on the Museum Educational Site Licensing Project. Instead of forcing users to negotiate through the morass of individual rights permissions and obligations, instead of wagering on the benign indifference of rights holders to possible infringement or in taking refuge in the always chancy sanctuary of fair use, the educational site license is put forward as an attractive option to educators. In the site license, assuming that the agreed-upon terms are sufficiently broad, educators and image resource caretakers will not need to pay attention to the intricacies of individual item property management. Scholars will be free to mine these resources at will and can devote their energies to something other than legal issues and to wondering whether their uses are fair ones. Licensing does involve disadvantages; it collides head on with the idea of the image repository and it side-swipes the traditional promises, privileges and guarantees of fair use. The articles by Allan Kohl, Stephen Weil, and Peter Walsh suggest alternate methods of obtaining needed images, but at this point there is almost no recourse available than to deal with museums on their own terms. Museum Rights and Reproductions departments, according to Ms. Keshet are also used to preserve and protect the reputation of their objects. Their rules govern how objects are reproduced, what quality they assume and how they are identified. The desire to protect the integrity of the art image (a different issue than protecting the integrity of the art object) is a common concern among writers. Similar calls in this volume may be found in the papers by authors Akiyama, Bearman/Trant, Taylor, and Hoffman. However Peter Walsh, in his article, sees these protective measures as restrictions—potentially stultifying and limiting. What the museum and its representatives view as an obligation to its collection, and what artists see as a due respect for their own works—their moral rights, as it were—publishers, designers, artists (!) and scholars may see as limitations to their freedom of expression. More on this, below. Property and Intellectual Rights Peter Walsh’s article on art museums and copyright looks at these issues from the perspective of the scholar who is being forced to acknowledge the de facto control that museums and other object owners may exert over the use of reproductions of their objects. What, from the museum’s viewpoint is an act of responsibility, to the publisher and scholar is a run-around tactic intended to prevent the free use of images of objects that have entered the public domain. Indeed, between the new rights artists themselves possess, and the disposition of rights in public domain objects, Mr. Walsh sees the museum with little, if any, ability to control the use of images after works they own—

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outside of the control achieved through intimidation or by limiting access to new images or even access to the objects themselves. To Mr. Walsh, all works have two domains of property. These are the physical object and the intellectual property that exudes from it, the former tangible and earth-bound, and the latter ephemeral, but for a time subject to sale and use by license or fair users. He argues that just as museums in countries that have endorsed the artists’ rights provisos of the Berne convention have virtually lost control of copyright of works created recently, while still owning the object, the rights to the intellectual property component of those works consigned to the public domain should be considered separate from the object itself. Unlike some commentators in this issue who argue that a work of art is not like literature, the force of Mr. Walsh’s argument follows from a strong analogy made to literature that is now consigned to the public domain. It is particularly this loss of museum rights that Stephen Weil, writing from the museum’s perspective, addresses in his essay. Starting from U.S. statute, the law that provides the key to claiming “fair use,” Mr. Weil argues that the educational non-profit mandate of many museum activities offers opportunities to claim use of copyrighted images under the fair use affirmative defense. He admits that not all museum uses of copyrighted materials can be interpreted as fair uses. Some museum activities will undoubtedly be seen as predominately profit-making, and some as interfering with the copyright owner’s attempts to turn images into incomeproducing properties. But within the traditional range of museum activities, Mr. Weil sees multiple opportunities to stake out fair use claims. Peter Walsh observes that the world-wide inventory of public domain photographs of works of art will soon swell with old museum and gallery photographs, and will undoubtedly form the foundation of image repositories that can be used and distributed without fee, credit-line, attribution or other restrictions. Allan Kohl describes a project he undertook to provide access to a corpus of images unencumbered by copyright restrictions. These images, thus far, have come from donations of new images in which copyright is not intended to be enforced. To these, one would assume, may soon be added the contents of public domain repositories of the sort that Peter Walsh surmises will soon exist. Kohl’s project, admittedly, is tentative, and will serve primarily as a testing ground in which to uncover issues that may arise with the distribution of works assigned to or inherited by the public domain. For instance, when commercial, income-producing imagebases exist side-by-side with free ones, there will be a tendency for photographers to try to locate their images first with those agencies from which they can obtain royalty payments. Even so, clearly, the number of public-domain/copyright-free repositories must soon increase, even if eventually users may be required to pay usage or membership fees to access them. Providing access to images outside of the kinds of visual resource collections maintained by universities and art history departments is the subject of two articles. Karen Akiyama writing in behalf of Bill Gates’ Corbis Corporation and Jennifer Trant and David Bearman for the Getty Art History Information Program’s (AHIP’s) Museum Educational Site Licensing Project (MESL), each, in their own manner have scripted strategies for supplying images to users.6 Corbis has staked out all users of electronic media as potential clients and hopes to merge the services of a conventional stock photography house with those of a vendor of fine arts images. MESL’s mandate, on the

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surface, is less entrepreneurial and is more highly focussed on establishing a mechanism of image distribution that will satisfy the needs of discrete classes of image owners and image users, and here, too, the distribution system will be electronic. The locus of operations for MESL is the university and the museum, apparently at this time it goes no further. One hopes that the stock houses and site license purveyors realize that with an appropriate price structure there is a market to be made and good will to be garnered among individual scholars and other non-commercial users. Intellectual Freedom A common theme in several of the papers, though not investigated in and of itself, is the issue of ownership and moral rights versus the rights of scholarly and artistic free inquiry and free expression. We tend to think of our society as relatively free and open, where truth is tested and assessed in the “marketplace of ideas.” Competing against this marketplace are the proprietary claims of artists, object owners, and even of social groups who may lay claim to the use of and/or interpretation of a style or even to an historical period, as evidenced by the unfortunate Enola Gay exhibition. In Canada (see Rottenberg article) the right to exhibit (although assignable) remains with the artist. The artist can prevent his or her works from being shown in contexts in which the artist disapproves; the artist has a right to protect the integrity of her creations, as she sees fit. Even when the right of exhibit has been assigned, it seems as if the right to prevent defamation of art objects and their creators may be used to stifle criticism or to prevent unwanted associations. Patricia Taylor asks whether a work of art can be above criticism, even more so than individuals may. Museums perceive that the management of the public and published use of their collections ultimately reflects upon the value of the use of their images as a commodity and on the reputation of the collection as a whole. Individuals writing on behalf of museum interests (Keshet, Akiyama) clearly state that they are responsible for such duty of care. Artists and scholars, who ordinarily would be expected to rely on guarantees of verisimilitude, yet find these restrictions constraining (Walsh, Taylor). The right not to respect the aesthetic authority of an artist’s work or of a museum’s object may be bargained away in an attempt to obtain agreement on fair use guidelines (Hoffman). Nonetheless it is assumed that any image obtained through the public domain will be immune from the admonitions of the “preservators.” Agencies, brokers, image vendors, and others who barter images for the copyright owner also have a vested interest in preserving the value of the images in their purview. Corbis, as it must, expresses its obligation to make sure that the works it can license are not misused. Their obligations to the object owner are profound; they cannot be perceived as damaging the object’s intellectual property, be it its visual manifestation or its reputation—a new twist on the admonition: “Don’t touch.” Sometimes (Bearman and Trant) the misuse is defined as a variance from a technical standard of fidelity, and it is understood that creative use of materials should not be prohibited. While the intent to hold high standards professed by some contributors (Akiyama, Bearman/Trant) must be lauded, one should remember that some creative uses of images require the introduction of obvious technical distortions, such as the way Andy Warhol in his screen prints and oils sometimes used distortion and lack of color

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registration to invoke the process of printing. As in pop music, where tonal distortions can be expressive, so in the visual arts distorted quotations may be used as functional ingredients of new images. Once criteria to authenticate high technical standards of image reproduction are established, images could be “stamped” with a “seal of good technical fidelity” that might be made to disappear in any second generation (uncontrolled or altered) copy, thus providing incentive for some users to depend on licensed resources and freedom for others to use what they can find. The dilemma that these papers reveal on this question is rooted in the paradox that our society has created by its need to respect intellectual property rights while honoring the ideals of intellectual investigation and free expression. Pat Taylor’s article, “By Line Drawings Ye Shall Know Them,” investigates the ramifications of pitting the interests of copyright holders and moral rights holders against those of the academic community. Indeed, this theme has occupied the pages of this journal before—when the authority of the rights of the artist and his heirs were shown to have power to restrict the right to present biographical and analytical presentations.7 In the New York Times of June 16, 1996 we learn that the Rock and Roll Hall of Fame has trademarked its I.M.Pei signature architecture and has prevented a photographer from selling posters made from his photograph of the building. The intellectual property attorneys interviewed for the article seem to agree that trademark law provides the museum with the right to prevent profit-making off its trademark, even if it is part of the public environment. United States copyright law specifically permits the making of photographic reproductions of copyrighted buildings in public view.8 The museum does admit that newspapers have first amendment rights to photograph the building that trademark cannot protect. But, between these two extremes where does the line fall that permits and prohibits use of images of this building? When owners trademark their signature architecture, speculates Paul Fahrenkopf of the U.S. Patent and Trademark Office, the skyline itself “technically may be protected against unauthorized reproductions.” A trademark is a commercial entity intended to signify a product, maker or company; trademark is a sign, not valued for its image but for what it represents. Trademark law specifically permits trademarks to be used by competing corporations in comparative advertising campaigns. No copyrighted image can be used that way without license. A letter to the editor of the New York Times on this issue notes that a trademark indicates source—where something comes from; trademarks validate and authenticate the objects on which they appear. There is no question that the photographer’s poster is intended to convey the idea that it comes from the museum; it depicts the museum; it is not from the museum. The author of this letter sees a dangerous mixing of the domains of trademark and copyright here that is set to impinge on the public’s right to use images of objects in the public view.9 Trademark law has also been used to protect the style of artistic creation.10 With copyright, trademark, and moral rights working together, powerful tools exist that can be exploited to stifle the traditional give and take of artistic development. Several years ago Pebble Beach Golf Course in Carmel, California, attempted to copyright its trademark tree—not the image of the tree, but the tree, itself. Nevermind who the creator was and whether He assigned His rights to the golf course. Sooner or later perhaps everything will be protected, but, without insuring the freedom to grow and develop, there may eventually be nothing around worth protecting. Learning in the arts

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and elsewhere, truth to say, almost always involves a degree of what some would label “infringement”—theft of intellectual property—but from the educational perspective, it may better be called “creative or developmental adaptation.” Making Slides from Published Illustrations One of the unknowns that has stirred great introspection and uneasiness among curators of visual resource collections and which confounded CONFU conferees, as well, is the legality of populating image collections with images taken from published books and other ad hoc sources. Linda Bien, looking south at United States practices, bemoans the fact that Canadian collections do not have the same fair use privilege to engage in copystand photography that her American colleagues enjoy. But, across the fence the grass is not always quite as green as it appears from the north. It is true that Macie Hall and Maryly Snow (“Photomechanical Reproduction”), repeating widely-held views, are fairly certain that most “copy photography” does not offer sufficient creativity for copied images to cross the copyright line into the protected area—meaning that published reproductive photographs of many public domain works cannot lay claim to copyright protection—but here fair use is hardly an issue. Peter Walsh supports this agenda, too. But, museums and other owners, picture houses, photographers, and (in this issue) Karlene McLaren, and this writer take the other point of view. Christine Sundt, ostensibly disagreeing with colleagues Hall and Snow, states that “few if any images automatically fall into the public domain, even though the process of reproducing images is more of a mechanical technique than a creative expression; [this is true even when] the subject of the reproduction is often itself in the public domain.” Without repeating the oft-told arguments, it is clear that enough visual resource curators and/or their university counsels consider the issue of sufficient gravity to have cause to warrant issuing local guidelines that place strict limits on the degree of copying permitted from a single source, or even to warrant banning the practice altogether. It would seem that university legal counsels either place little faith in, or have scant comprehension of fair use issues; or, preferring not to place the university in jeopardy, they may not wish to allow the fair use prerogative to be exercised. New stories appear with unremitting frequency about slide collections forced by opinion of university counsel to cease creating copystand images unless they receive specific permission from copyright claimants. This observer knows of one school that surrendered its entire collection of copystand photographs to a faculty member so that the school could not be held responsible for owning the “infringing” images. Ms. McLaren states and Ms. Hoffman reminds us that educational guidelines, the socalled “Classroom Guidelines,” permit making fair use copies only for spontaneous purposes. Archiving for reuse is an infringement, they report. Macie Hall and Pat Taylor counter this directive, holding that the spontaneity rule effectively prevents course design since in the visual arts everything must be prepared in advance. But Barbara Hoffman goes on to explain that the kinds of works to which these guidelines were meant to apply were literary, not pictorial. Linda Bien informs us how difficult it is to obtain permission from copyright holders—a difficulty not necessarily due to cost or unwillingness on the part of the copyright holder, but rather to the immense administrative overhead involved, an inhibition that affects both ends of the transaction. She notes the lack of cooperation of

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publishers and the inefficiencies or lack of authority of copyright collectives to act. Maryly Snow, agreeing with Christine Sundt, argues that the development of image collections fits the confines of fair use as defined by the law, that it is sanctified by tradition, and that the entire discipline of art history, as it has been taught from the beginning of the century (if not earlier), is based upon the expectation of the free and unencumbered right to collect and use displayable images—photographs and slides, as well as digital reproductions derived from multiple sources—copystand photography from published illustrations among them. Most arguments supporting the claim that copy photography (including direct copies of objects) cannot contain sufficient originality to warrant copyright are based on a threepronged proposition: (1) that the intent of the copyist is to be as faithful to the original as possible, (2) that the technical skill required to create “good” copy images requires that originality and creativity be minimized, and (3) without acknowledging its conflict with number two, that at its best, copies are never substitutes for the original in the way that an edition of Moby Dick can be republished, but are mere tokens, surrogates, or signifiers of the original, possessing only sufficient similarity to their models to serve as pedagogical instruments, bearing as much relationship to the original as, say, an anatomical model does to a human. For these reasons, it is argued, images taken of art objects in the public domain cannot be copyrighted, and when they do appear published in books, they are free to be copied again for educational or other uses without having to put forward a fair use defense. The problem, it is asserted, is that our notions of copyright are based on the rules for the reproduction of literature, not images—the rules for one cannot easily be adapted into the requirements of the other. For teaching, anyone can make an exact copy of Moby Dick, but no one can ever make an exact or even a relatively close copy of, say, Michelangelo’s Last Judgment in the Sistine Chapel. The original is inviolate; even the best copy is always a mere token. Yet, when viewed from outside the context of having to provide faithful copies (“signifiers” to use Maryly Snow’s word) for educational uses, the above arguments seem to be crafted by an imperative if not a felicitous justification. For when we ignore or diminish the role of the maker of the reproductive image, it becomes obvious that the copy never fully substitutes for the original, even though the purpose of the photoreproductive act is to minimize any contribution by the process, and that the result is just a signal that evokes the original. This is why, as Christine Sundt reports, most slide collections never bothered to collect information on the source of their images. As a document, on the other hand, the photograph was always seen as a window through which one viewed the original object; the reproductive photograph was never understood to be an object in and of itself—it was just a tool, and a poor one at that. The reproductive photograph is a paradox—neither an object in its own right, nor a vera icon of what it represents. The copyist’s role, when considering the act of creating copies, or when seen from the vantage-point of the historian of the human mimetic impulse, looks quite different. Technical proficiency turns into a societal code for implanting shared values. Verisimilitude is merely an acknowledgement that such shared values have been perceived. To judge a product by considering the “intent” of its author may be interesting, and always appeals to our natural curiosity about others, but judging through “intent” ignores the influence of subconscious and other involuntary forces acting through the

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artist or copyist. In the language of criticism, to judge results by considering intent is manifestly an example of “the intentional fallacy.” And finally, although copies are signs, all originals are signs, too. When an observer looks at an original he sees in it a sign that reflects the participation of that original, as seen by the observer, in the cultural, aesthetic, and symbolic outlook of the observer. The copy fixes the copyist’s view of the original in itself, which itself is viewed by another conditioned observer. Copies of the same original made over time sometimes readily reveal the changing dispositions of the copyists. Here is the old dilemma popping up again: is what we see the result of kunstwillen? or does the culture, the material, and the technique combine on their own to make the style?11 Whether these conjectures have any relevance at all to copyright law remains to be demonstrated, and whether copyright law should acknowledge these understandings has not been determined yet. If the law serves to mediate the issues of the present, it may be forced to forgo speculations regarding how the future looks at its past, and must default to accepting images at face value as tools needed today. Ms. Hoffman, perhaps perceiving difficulties such as these, states that the sources of visual resources collections are so varied, within themselves, that it is difficult to say yea or nay to the question of making copyright-free or fair use copies. Because institutions that hold original objects typically control the high quality images of their objects, both subtle philosophical arguments such as those above, as well as convenient justifications tend not to be relevant for obtaining high quality pre-publication photographic originals. Whatever the source, most visual resource collections rely on the fair use argument when obtaining images from published and non-published sources, but in these images the quality is relatively low. For publishing, high quality costly images are always preferable; public domain and fair use is rarely an issue. In Canada, where fair use does not exist, different situations arise. Linda Bien, as cited above, tells of the frustrations encountered when Canadian visual resource collections attempt to obtain permission from publishers to copy from their books. She reports that most publishers wish not to be bothered with requests to copy. Ms. Hall however, reports that publishers do, indeed, wish to develop a secondary market for their published images, and therefore would like ad hoc and routine copystand photography prohibited altogether. Linda Bien reports that it is not clear if publishers, who, themselves most likely had to license their illustrations from copyright holders, have the right to prohibit or permit others to copy them. This observation is repeated by Maryly Snow. The impracticability of obtaining license to copy published works is an argument often heard among visual resources curators contending that the practice of copystand photography should be considered a fair use. Maryly Snow (“Reproductions”) takes this proposition one step further, demonstrating that the ability to make slides of images (of photographs and published objects) is to be directly credited with the invention of modern art history in its current form as an academic discipline. She maintains that the copyright laws, drafted to promote the development of study and criticism, together with the projected photo image (to be considered more of a sign or mnemonic than a simulacrum), provided fertile ground for the growth of this discipline and (by implication) any effort to curtail the traditional rights to copy such images will have a stultifying effect on the educational practices upon which, incidentally, the market to buy art books ultimately depends. Fair use should be considered the means of encouraging

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education, especially in those situations when the lack of access to fair use will tend to inhibit it. The Commerce in Images: Who Owns the Images? Another recurring theme, already mentioned, concerns the lack of applicability of copyright law as written and conceived to the nature of images and how they are used. Copyright law seems best applied to controlling literary products and performing products, but ill fits managing intellectual property in images (Hoffman, and others). This theme forms one focal point of Stephen Weil’s challenging application of the four tests for fair use to a museum’s use of reproductive images. Additionally, both Linda Bien and Macie Hall express their frustration in attempting to apply, first Canadian, and then U.S. law to the acquisition of images. Karen Akiyama (Corbis) immediately brings us to the central paradox of intellectual property: Who owns it and who may use it? Highlighted is Mario the postman’s response in the film Il Postino after being charged with “appropriating” a poem by Pablo Neruda, his friend. Ms. Akiyama quotes Mario: “Poetry belongs to those who need it” This wording (as it comes out in translation) must have been intended to be an ironic twist on the expected “Poetry belongs to the people,” and, as such, underscores a subtle, but important difference between Mario and the formulaic manifesto of those people sometimes classified as “copyright deniers.” The phrase that was not said would have turned the remark into a political statement rather than a personal one; it would have emphasized the rationale for the doctrinaire appropriation of intellectual properties for distribution to the masses, for it recalls and depends upon the slogan: “Power to the people.” Even so, Mario’s remark pits the idea of ownership against those who cannot acknowledge property rights or those who do not respect them. It is very difficult, as exemplified by the intellectual property wars between the United States and Asia, to acknowledge property when you do not have any yourself. In the nineteenth century, the United States, like China now, was a major infringer. Infringement may function as a societal tool that helps equalize social and economic inequalities, working much like water attempting to seek its own level. Perhaps human individual, social, and political maturation requires a little theft here and there. Mankind, harking back to its Promethean benefactor, owes its very supremacy to such a theft. “Fire for the masses,” he may have said—to give this myth a little Marxist twist. But Mario is different. He takes Neruda’s poem, not because he thinks it belongs to him, but because he sees no differentiation between himself and Neruda. It fits, he needs it, he takes it. Poetry in this case is like sunshine; if it is there it belongs to whoever absorbs it. Without denying the validity of Mario’s motive, Ms. Akiyama understandably follows another path. While the above meanings are not necessarily unimplied by Mario’s statement, the notion that “poetry belongs to those who need it” introduces a factor that any owner of intellectual property must eventually be forced to consider—a factor that flows like an underground river bringing sustenance to some of the papers printed in this journal: that the creative traditions of our civilization (s), in a real sense, are our common cultural property and are there for us to do with what we want—like sunshine—a human necessity with jurisdiction extending both beyond and before copyright and its rules. This property is there for those who need it; indeed, our laws make exception for personal use.

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Yet, it is this component of cultural property that Marcel Duchamp could call upon when he ridiculed a cultural icon by drawing a mustache on the Mona Lisa—now a cherished and protected work, but by his and our standards certainly a “defacement.” How does one preserve this sacred cultural right in a society in which the personal, the educational, and the commercial seem to meld so closely together? As creators we inherit all that the past and present have to offer, as creators and thinkers we cannot agree to ignore any element of our heritage. We wish to preserve the past for our descendants; and we want to honor what is good and respect the property of others, for the very notion of property must certainly be a construct that developed out of the experience of theft. At the same time we want to be able to ridicule and distort the icons of the past and overthrow the values of our predecessors. We reserve the right to “salute” and “jab.”12 These laudable goals provoke understandable tension between the copyright owners and the image users—a tension that ironically pits those who want to use the past creatively in their efforts to mold the present against those who wish to preserve how the past used its own past to mold its own present. We may well speculate that it is the commercial model that makes these images available to us in the first place. Indeed, it may be that our very notion of cultural property is the result of the success of this commercial model and that freedom of access is not inherently inconsistent with being asked to pay for its use. Paying money for things does have the benefit of making users choose only the most important items. Not having totally free access may have its side benefits. Being in the business of licensing or selling images forces one to determine at what point the use of intellectual property is commercial and at what point it is not. This, in fact, is one of the most interesting themes of Ms. Akiyama’s paper, i.e., that Corbis is attempting to determine at what point to draw the lines that separate personal, educational, professional, and commercial usages of its archives: there are so many potential customers and a special product for each one. It seems clear in this editor’s mind that there is a struggle emerging in which image vendors and licensers will have to determine at what point their obligations to their financial goals, rights holders, and investors stop, and at what point their public obligations begin. One paradox with which such corporations must continually live is that the profit-making sector may not be able to thrive unless it well defines its public responsibility, and conversely until it recognizes that its public mandate might be impossible without its having created a successful image supply business. Analogously, educational users must recognize that they live in a commercial world, and try as they might to do otherwise, are going to have to acknowledge its existence and demands—at least some of the time. Among those papers printed here, Ms. Akiyama’s may be one of the few that comes closest to acknowledging this truth—that the public and private, the commercial and the educational, are not opposing forces but the yin and yang (so to speak) of an integrated continuously merging whole. And the manifestation of this truth will come (ironically to some) out of the very process of determining how to maximize royalty income. It is inevitable that the process of determining the maximum financial worth of an intellectual property will come to be understood to be intimately tied to financing those very institutions responsible for the determination of the cultural worth of these same properties.

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One of the deepest dark secrets in the rights management business, the kind of secret that everyone knows anyway, but which no one in business dares to utter, is the relationship between financial success and copyright infringement. The real-politic of success in rights management suggests that a modified disregard for infringement or unlicensed uses may prove useful as a means to grow a client base. The phenomenal success of the wordprocessor WordStar was as much due to its utility as to the fact that it was commonly stolen. Fair use, or from the publishers’ point of view, selectively not challenging infringement, may serve as “seeding,” a technique that helps build future demand—de facto coupons. Tradition! Most curators of visual resources collections, many users, and even the vendors and purveyors of images realize how poorly the guidelines and statutes governing the use of intellectual property seem to fit the way images are actually used in the creative arts and critical humanities. Applying mores and policies found suitable for governing the commerce in images to the ways images are used in education and academia seem to be detrimental to the educational and scholarly mission of image studies. Christine Sundt’s essay outlines how images are used in visual resources collections and in art historical teaching, in the creative arts and in scholarly studies. She outlines several of the practices artists have traditionally used to create their own works, among which are techniques she characterizes as “appropriation”—a kind of artistic implied “license.” The practices of creative artists in the past and the underlying interconnectivity and traditions of mutual dependency that were cherished by artists working in most cultures form the building blocks of the artistic monuments of great civilizations and laid the foundations upon which to erect a history of art; these traditions cannot stand up to the demands of modern copyright law. Ms. Sundt shows that there have been times when artists have conspired to erase or hide the marks of individual creation—a theme that was explored in a lengthy article by Gary Schwartz (published elsewhere), in which he shows that individuals often must share the credit for their creative output with others from present and past who, wittingly or not, must be considered their creative collaborators.13 It is clear from the list of traditional practices of academic slide collections and scholars listed by Ms. Sundt, and, similarly, from the examples of the manners in which artists have always used the work of other artists, that some kind of exemption, less ambiguous than the current notion of “fair use,” perhaps, must be created for the benefit of education, scholarship, and the non-commercial non-profit practice of fine arts. The predicament encountered in doing this is that there is a fluid continuum these days between educational applications that should be governed by the commercial copyright code and those that should not be so ruled. Neither side wants to agree to a formula that slices the baby in half. The public versus private mandate of visual resource collections is considered anew by Maryly Snow. In her analysis of the history of “photomechanical reproduction” as a tool for teaching, Ms. Snow argues that the copyright law’s fair use allowance for “personal use” is not intended to limit the educational use of materials to be shared among classes and other groups. She maintains that “personal use” should be considered an antonym of “commercial use.” In this way the images that appear in various media not

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specifically targeted at fulfilling the needs of visual resource collections may be collected and used in classroom situations, while the interests of vendors whose customer base is composed primarily of educational institutions and research collections may be suitably protected. The problem of mediating the competing interests of image suppliers and image users is a theme that appears within a number of the papers published here. Jennifer Trant’s and David Bearman’s appraisal of the benefits of site licensing, as has been said, is echoed in Ms. Keshet’s paper on the needs and travails of a museum’s photo resource department (as vendor), and is discussed as an option in several papers submitted by visual resource curators from educational institutions (as users). In all cases the desirability of the site license comes as a result of the efficiencies promised by evolving technology and ease of access. The need for these efficiencies is well documented in Linda Bien’s paper, as are their benefits touted in the paper on the MESL project. Site license boosters may claim that in the long view, sometimes items acquired freely are more expensive than items acquired efficiently and neatly. Although licensing has been presented as a panacea for a host of problems that have evolved when attempting to use traditional media, no contributors have sketched out the ways in which site license agreements and other formulas for digital delivery of images will change the mission of image resource collections in the future, and how they will affect their users, although we can identify this theme as a subtext in Barbara Hoffman’s paper. Today we assume that visual resources collections collect images and that scholars and students can fulfill their research needs in the library and in other repositories of information. How will the visual resources collection evolve or even exist when it no longer necessarily holds or owns images; what will be the significance of the disappearance of repositories; how will the scholar achieve the objects of his or her researches when research is a pay-as-you-go no-refunds/no-returns endeavor? Among the studies collected here, no one has dared to speculate on what consequences will emerge when new methods of obtaining study and teaching materials have taken hold. An Editorial Conclusion As fair use guidelines are established for the operation of visual resources archives, some of their authors will most certainly attempt to downplay, ignore, or even prohibit any possibility of users claiming copyright exemption through fair use.14 To rights holders fair use is an assertion put forward by users in the face of the law and contrary to accepted commercial practices—it is a claimed exemption from the law. In the eyes of the property owner the fair user always seems to be infringing, never exercising a right; like Prometheus, he seizes property without the benefit of license and places himself thereby into legal or civil jeopardy.15 It is a rare owner of intellectual property who will allow broad fair use practices to be written into fair use guidelines. Therefore, fair users will always be challenging rights holders either to ignore the purported infraction or to bring them to task for it. Guidelines will be helpful to users whose actions must fall on this side of caution and to owners who need a bright line to tell them when not to pursue unlicensed uses. But guidelines are not laws, so ultimately, it is up to the user to determine when to manifest the conviction that his or her claim of fair use is justified—guidelines or no.

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Indeed, this is the reason why fair use must be established through an affirmative defense. The court in this case represents civilization, itself; the court determines where to place the fulcrum on the scale that measures fairness to rights holders and fairness to presumed educational copyright infringers—fair users. Guidelines, education, various levels of intimidation, and rigorous pursuance of infringers may be the only tools rights holders have to protect their interests when the objects susceptible to fair use exist on paper, in books, or in purchasable digital products like CD-ROMs. When it comes to the on-line world, the tables are turned—it is the rights holder who maintains the upper hand. Because the most extreme instances of fair use claims have always been an aggravation to rights owners, and because even the less controversial ones have always been an annoyance, under the NII it is understandable that content providers will conspire to prohibit fair use altogether. In the digital world they have the power to do this preemptively, instead of pursuing perceived infringements retroactively. Electronic information resources can lock out fair users by exacting payment up front and by stipulating acceptance of restrictive non-negotiable license agreements. But is this a step that they really want to take? Will forcing the traditional class of fair users for the first time to pay for all their resources be of benefit to society? Should all users pay without regard to how useful they find the materials they uncover? Or in the long run will such policies parch the fertile ground out of which our creators are born and nourished? It makes sense when information suppliers say that without means to guarantee adequate return for their products, their will to produce will wither. But, how is one to judge “adequate,” by short-term criteria or long-term criteria? Will not this short-term formula for compensation ultimately be a self-destructive one? What kind of forest is it where no new trees grow, where young trees cannot obtain the protections they need from their elders, where no new saplings are allowed to obtain the light they require to grow and insure the replacement of older dying trees—thereby sustaining the forest and providing for its continued existence? For our information and aesthetic culture to thrive it is crucial that the work of mature creators be made available to nurture the immature ones. Perhaps it is unrealistic to expect rights holders to look past the goal of maximizing royalty yields. It is the government, as representative of society, after all, not the rights holder, who is given the task to grant both copyright protection and exemption from copyright. It is the law that is given authority to make sure that our long-term goals for the promotion of “science and the useful arts” are met and are not traduced by the needs of the hour. Society knows that the educational use of intellectual property outside of the commercial system of rights and fees is essential; this is why fair use provisions have been written into the current law. It remains to be seen whether we will continue to guarantee education its prerogative and society its nourishment when certain commercial interests, the managers of the NII and similar distribution systems successfully make their doors tamper proof to anyone who does not use a credit card.

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NOTES 1. I would like to thank Helene Roberts and Christine Sundt, the permanent editors of Visual Resources, for their unwavering support and encouragement, and for their ever useful and sorely needed advice freely given throughout the duration of this long project. Christine Sundt graciously consented to be my editor for this introductory essay. My gratitude goes out as well to the many contributors to the listservs MUSEUM-L, CAAH, VRA-L AND CNI-COPYRIGHT who so articulately and passionately contributed to copyright discussions and allowed me to spar with them on this or that issue. Finally, I would like to thank the authors who have contributed the results of their hard work and experience to help bring this publication to fruition and from whom I have learned more than I would like to admit. 2. The fair use guidelines discussed by Karlene McLaren are reproduced in Donna A.Demac, Is Any Use “fair” in a Digital World? Toward New Guidelines for Fair Use in the Educational Context (The Freedom Forum Media Studies Center at Columbia University, New York, 1996). See Appendix B: Existing Fair Use Guidelines and Appendix D: The Clinton Administration’s Fair Use Committee’s Draft Guidelines for Educational Multimedia. 3. The “White Paper” is available at URL: http://www.uspto.gov/web/ipnii/. It may also be obtained by writing to “Intellectual Property and the NII,” c/o Terri A.Southwick, AttorneyAdvisor, Office of Legislative and International Affairs, U.S. Patent and Trademark Office, Box 4, Washington, D.C., 20231. See also the list of copyright web sites in the documentation section of Maryly Snow’s article, “Pedagogical Consequences.” 4. Wired, Vol. 4, No. 1 (Jan 1996), p. 134 ff. 5. CAAH ([email protected]) is a limited membership list. To join, apply to Marilyn Lavin via e-mail at [email protected]. On this topic, see further by this author, “Digital Fever: A Scholar’s Copyright Dilemma,” in Museum Management and Curatorship, Vol. 15, No. 1 (1996), pp. 49–64. 6. As of July 8, 1996 the Getty Art History Information Program is officially renamed the Getty Information Institute. See URL: http://www.ahip.getty.edu/ahip/. The URLs for the Museum Educational Site License project are http://www.ahip.getty.edu/mesl/home.html and http://www.gii.getty.edu/gii/muse.html. 7. “Editorial: Picasso Copies, Forgeries or Look-Alikes.” Visual Resources, Vol. 12, No. 1, pp. vii–viii. 8. Section 120(a). 9. Stephen R.Barnett, “Trademark, Copyright, Rock-and-Roll,” New York Times (June 19, 1996). 10. In Romm Art Creations Ltd. v. Simcha International, Inc. (786 F. Supp. 1126, 22 USPQ2d 1801 [E.D.N.Y. 1992]) “a preliminary injunction was granted to protect the ‘look’ of an artist’s paintings as inherently distinctive trade dress.” The author of an unidentified, but standard, legal commentary on case law states that “this is a unique result that seriously impinges on the policy of copyright law that artistic style is no one’s exclusive property.” 11. On this question see especially E.H.Gombrich, “Truth and the Stereotype,” Chapter 2 in Part I (“The Limits of Likeness”), of Art and Illusion: A Study in the Psychology of Pictorial Representation (The A.W.Mellon Lectures in the Fine Arts, 1956. National Gallery of Art, Washington. Bollingen Series 35.5), (Princeton, New Jersey: Princeton University Press, 2nd edition, 1969), pp. 63 ff. 12. Judge Leval quoted by Barbara Hoffman. 13. “Copyright after the death of the author,” IER, Vol. 11, No. 2 (April 1995), pp. 49–55. 14. For the most recent draft of the Educational Fair Use Guidelines for Digital Images, consult the following URLs: http://oregon.uoregon.edu/~csundt/cweb.htm http://alberti.mit.edu/caa/ http://www.utsystem.edu/OGC/IntellectualProperty/image.htm

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15. But note, in an unofficial opinion on the application of fair use in educational settings prepared for Michael J.Bowers Attorney General of the State of Georgia, by Michael E.Hobbs, Counsel to the Attorney General, and L.Ray Patterson, Special Assistant Attorney General, the traditional understanding of fair use as an affirmative defense is redefined. It states that “the Eleventh Circuit recently stated in dictum that fair use is a right, not merely a defense.” This, they note, is derived from “Bateman v. Mnemonics, Inc.,—F. 3d—, 1995 WL 757786 n. 22 (11th Cir., 1995). (‘[S]ince the passage of the 1976 Act, fair use should no longer be considered an infringement to be excused; instead, it is logical to view fair use as a right.’)” The Georgia opinion is available at URL: http://oregon.uoregon.edu/~csundt/cweb.htm, under the headline “Guidelines.”

Rights and Responsibilities in the Digital Age

by Karen A.Akiyama Visual Resources, Vol. XII, pp. 261–267 Reprints available directly from the publisher Photocopying permitted by license only

© 1997 OPA (Overseas Publishers Association) Amsterdam B.V. Published in The Netherlands under license by Gordon and Breach Science Publishers Printed in Malaysia

Understanding reproduction rights has never been easy. For hundreds of years, publishers, archivists, teachers, and others seeking access to creative material have struggled to interpret laws governing the use of photography, art, literature, and musical compositions by people other than the original artists. As use of the personal computer spread throughout the 1980s, things got even more complicated. For the first time, art could be digitized—turned into tiny bits of information for storage on computer disk and distribution to mass audiences. Then came multimedia technology, which gave computer programmers and users the ability to combine one artist’s music with another artist’s painting—to literally mix text, music, animation, sound, and images in whatever way they saw fit, even if it undermined the integrity of the original artwork. This, in turn, has led to a whole new set of issues for both the creators of art and those of us who would like to share in their creations. In Antonio Skármeta’s Burning Patience (known to moviegoers as The Postman), Mario the village postman tells Chilean poet Pablo Neruda that he has not done anything wrong by appropriating Neruda’s work for his own use. Poetry, Mario insists, belongs to those who need it. In the Corbis legal department, we sometimes wish it were that simple. Corbis Corporation, a privately held company owned by Microsoft founder and CEO, Bill Gates, is in the business of understanding the rights and responsibilities of everyone concerned with digitized art. We are a small company, established a few years ago to build a comprehensive digital library of visual materials as a resource for consumers and commercial users in their homes, businesses, schools, and libraries. Today, the Corbis archive is home to over half a million images culled from hundreds of sources, including museums, professional photographers, agencies, libraries, and public domain archives. We also own The Bettmann Archive of more than 16 million images, many of which we are in the process of digitizing for incorporation in the Corbis archive. In the past few years, as we have systematically gone about amassing important works to develop our digital archive, we have also assembled a staff of copyright experts to

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establish standards for reproducing and licensing digitized images. Despite our immersion in the field of digital rights, we do not presume to have all the answers. It is our hope, however, that some time in the not too distant future, people like the members of the Visual Resources Association (VRA) will be able to refer to clear guidelines for reproducing and distributing digitized images for their constituencies. For now, let us look at how we are developing the Corbis archive and some of the issues that attend our efforts.

BUILDING THE CORBIS DIGITAL ARCHIVE Of the more than half-million images in the Corbis archive, each has been digitized with state-of-the-art scanning equipment to honor the quality of the original work. This vast inventory of images is stored and cataloged in a sophisticated multimedia database for easy access by Corbis staff. In addition to the group responsible for bringing valuable artworks into the archive, two other divisions interact with this image library. Corbis Publishing produces and distributes CD-ROM and online consumer products enriched by digitized images from the Corbis archive; and Corbis image licensing makes images available to publishers, graphic designers, educators, librarians, and other professionals for use in electronic and print communications. Currently, there are four ways images come to the Corbis archive. First, we enter into non-exclusive license agreements with museums, photographers, historical societies, and other private archives. These arrangements give us the right to incorporate selected images from their collections into our archive, publish these images in our own products, and license these images to the public for professional and personal use. The term “nonexclusive” means that the image providers, too, can continue to license their photographs and transparencies to the public. Non-exclusive also means they retain copyright to the original works. In addition, many of the museums with whom we have agreements— notably the Barnes Foundation in Merion, Pennsylvania, the Detroit Institute of Arts, and the State Hermitage Museum in St. Petersburg, Russia—maintain considerable control over the way Corbis licenses the digital versions of their works to the public. The second way that images enter the Corbis archive is through purchase agreements. Under these arrangements, the owner of a collection permanently transfers ownership of the entire collection, including all copyrights, to Corbis. As two examples, we recently purchased The Bettmann Archive and the collection of photographer Roger Ressmeyer, which features his one-of-a-kind photographs of space, science, and technology. The third building block to our comprehensive digital archive comes from our Commissioned Photography Program. In this case, we engage well-known photographers to shoot pictures on assignment, paying their day rates and expenses. Corbis owns the copyright to all images we select from each assignment, and we assign ownership of the others to the photographers. Finally, we collect images in the public domain. To enhance the historical depth of the archive, we send picture researchers to the National Archives, Library of Congress, Department of Defense, and other public agencies to look for images in the public domain. In this case, copyright generally does not apply.

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Non-exclusive license agreements, purchases, commissioned photography, and public domain research—these programs represent the four ways we continually add images to our archive. But the question remains of how Corbis grants publishers, designers, educators, librarians, and other professionals—such as the members of the VRA—fair and economical access to the images they and their constituencies seek.

RECONCILING PUBLIC ACCESS WITH PRIVATE VALUE In pioneering access standards for digitized imagery, Corbis continually acknowledges the concerns of the creator or source in preserving the value of the original work and receiving fair compensation for use of a work. We then weigh these concerns against the considerable benefits of universal access. In a digital world, this delicate balancing act requires the reconciliation of several competing interests. First, with digital technology an image can be reproduced, copy after copy, without loss of quality. The ease and accuracy of digital reproduction make the image attractive to the creator and viewer—and to potential pirates. The threat of piracy, however, can lessen the value of the original image. Second, there is the paradox of mass distribution. Artists fear their works will be distributed without adequate protection or compensation to millions of online consumers with the click of a mouse. Yet, the very possibility of such fast and far-reaching distribution is exactly what makes digital communications so appealing in the first place. And third, there are the inherent conflicts of different media types converging in a digitized environment. Interactive multimedia technology enables users to manipulate data, alter images, turn still paintings into animated sequences, and combine music and art in idiosyncratic ways. While this may be exciting and innovative to the user, in the eyes of the creator such manipulation may compromise the value of the original artwork. Generally speaking, in developing access privileges for digital images, Corbis is ever mindful of these competing interests. To that end, we try to structure fees and use restrictions in ways that maintain the integrity—and thus the enduring value—of the original work. At the same time, we want to create a model that facilitates broad distribution and results in a healthy economic return to both Corbis and our image providers. As for the specifics of our access policies, they are still very much a work in progress. Until the industry develops standards of security for online transactions, we continue to exercise caution when granting access to our growing archive, handling each licensing request on a case-by-case basis. Nevertheless, I would like to explain what currently informs our access procedures and explore some of the issues we face in trying to fashion a balanced, yet broad, access policy in a digital environment.

PRESERVING VALUE ON THE WORLD WIDE WEB Anyone who visits the Corbis site on the World Wide Web (http://www.corbis.com/) can gain access to a group of images that represents a small portion of the Corbis archive. To

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prevent unauthorized use of the digital images available there, we have built in three safeguards. The first safety measure is purely contractual. To enter the Corbis site, all visitors agree to download images only for personal use. They also agree not to copy or distribute the images. Second, we always reduce the resolution of the images we publish on the Web so they are of limited value to publishing professionals. Third, to view images at a higher screen resolution, visitors must download the Corbis Image Viewer, which imposes a translucent watermark in the center of the image. If the viewer tries to remove the watermark for an unobstructed view (which can be done by clicking the mouse while holding down the Control key), the process disengages the keyboard to minimize the chance of pirating the image at this higher resolution. Both of these viewing restrictions help preserve the value of the images by reducing their usefulness to the millions of users who could potentially visit our Web site. Meanwhile, we keep the unmarked high-resolution versions in the vault, so to speak. As online tracking and metering systems evolve, we will one day be able to offer less restricted access to these more desirable versions without risk of unauthorized use. For the time being, however, it is critical that we protect the images from potential harm or violation. At Corbis, we view the images as valuable assets—as worthy of care and protection as a Picasso painting is to an art collector or a great grandmother’s diamond ring might be to a family descendent. For this reason, we are also concerned about the way we provide access to the archive beyond the select group of images offered on the World Wide Web.

BALANCING ACCESS AND VALUE THROUGH CAREFUL LICENSING In providing access to our digital archive to individuals, businesses, and organizations, we are as careful to control the scope of the rights we grant as we are to prevent piracy at our Web site. Taking each request on its own merits, we typically restrict the rights we grant and never license images for unlimited use, such as in clip art. The fee we charge for image use is based on a number of factors, including the type of image and the use for which it is intended. In economic terms, differentiated fees recognize that some uses are worth more than others. An image used for educational purposes, for example, generally requires a far lower fee than one intended for commercial use, such as an advertisement. A differentiated fee structure also allows us to provide broader access to the archive. By charging lower fees for certain uses, we can offer a variety of organizations a level of access similar to that enjoyed by our higher paying commercial customers. At the same time, we are mindful that we must fairly compensate our image providers, while also meeting our own financial goals. Admittedly, pricing based upon use or image type is nothing new in the photography industry. Nevertheless, the business of licensing digital images raises a number of new contractual issues. Some of them concern the economic value of an image, while others concern its artistic integrity. Let us look at some of the issues unique to doing business in digital and online environments.

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Multimedia Interactivity One of the more difficult issues concerns multimedia interactivity. As I mentioned above, the very essence of interactive multimedia—whereby the user has the power to combine digitized art, photography, sound, text, video, and so on in idiosyncratic ways—leads to a number of quandaries during contract negotiations. In traditional media production, such as print, radio, music, video, and film, producers and editors control the mixing and matching of creative properties. But in a digital world, the user has the ability to reshape multimedia properties, whether they are made available through CD-ROM products, online services, or the Internet. Consequently, the stewards of a Degas dancer, for example, might demand contractual restrictions to prevent someone setting the painting to rock music. Yet, such restrictions tend to undermine the very attraction of interactive multimedia technology, making the creative property less appealing to licensees who plan to use it in various ways or in multiple products. Digital Manipulation Another complex contractual issue concerns digital manipulation. Many artists, museums, photographers, musicians, and filmmakers are haunted by the specter of people manipulating the digitized version of an original artwork for their own end. But how exactly do we define image manipulation? In preparing contracts, we can easily stipulate against intentional cropping or gross manipulation—such as substituting body parts or painting a mustache on the Mona Lisa. But some people are asking for even broader restrictions to retain the art’s integrity. In digitizing an image that has deteriorated over the years, however, we may find it necessary to color-correct the image precisely so the digital reproduction mirrors the original photographic quality. Does this degree of manipulation violate the spirit of the art in the interest of bringing it closer to its original state? Mass Distribution And, finally, there is the issue of the new distribution systems made possible by digital technologies. A typically simple license provision, which lawyers refer to as territory, is complicated by the emergence of Internet distribution and, eventually, by midband and broadband programming for interactive television. Today, the distribution of copyrighted works is based on the fundamental premise that exclusive distribution-licensing rights within certain jurisdictions are worth something to book, film, video, and even software and CD-ROM distributors. On the Internet, however, a property can travel instantaneously to multiple jurisdictions all over the world, which forces us to re-think how we draft distribution language in creative property contracts.

TAMING VIRGIN TERRITORY In addition to these contractual issues, companies like Corbis are wrestling with a variety of other matters as we attempt to establish standards in this brave new world. The tension between value and access lies at the heart of the debate. For some properties, such as

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popular music and stock photography, the wider their use and bigger their audience, the more valuable they become either in perceived or real terms. This, in turn, earns both artist and distributor more money. For other properties, however, such as fine art and rare books, mass distribution diminishes the intrinsic value of the work. In other words, controlled access and distribution actually safeguard the economic value of these works. Since these principles are not likely to change, the models for pricing and distributing digital works will have to reflect the concept of value as it applies to different types of creative properties. Just as Corbis weighs competing concerns on a case-by-case basis, in establishing more universal standards the challenge will be to construct fee structures that preserve the value of the original work, fairly compensate the source, and generate an economic return for the licensing company. Fortunately, Corbis is not alone in trying to survey and ultimately tame the virgin territory of digital rights for creative materials. While we may have pioneered the effort, industry groups are now banding together to help construct more systematic models for granting access, setting fees, and clearing rights to creative materials for digital use. For a time, this may delay the development of clear access guidelines to digitized versions of creative properties. But at Corbis, we believe that the more thoroughly we understand the issues and interests involved, the more enduring the eventual guidelines and policies will be.

Museums and Intellectual Property: Rethinking Rights Management for a Digital World1

by David Bearman and Jennifer Trant Visual Resources, Vol. XII, pp. 269–279 Reprints available directly from the publisher Photocopying permitted by license only

© 1997 OPA (Overseas Publishers Association) Amsterdam B.V. Published in The Netherlands under license by Gordon and Breach Science Publishers Printed in Malaysia

THE PROBLEMS OF DIGITAL RIGHTS AND REPRODUCTIONS The ease with which “faithful” copies of visual resources can be made in a digital environment, the potential of electronic distribution of images to reach vast new audiences, and the difficulty of ensuring generation to generation integrity of digital copies has compelled owners of image rights throughout the world to take a second look at their methods of control over reproductions and has spawned a debate over multimedia copyrights. Archives and museums which own huge collections of images have, until very recently, tried to remain aloof from the rough and tumble policy debates raging in this arena, but they now are being confronted with major decisions about their institutional identities and economic future. We contend that both the appropriate cultural role and the financial best interests of cultural heritage institutions will be advanced by collective protection and promotion of their intellectual properties, and by mechanisms that encourage the growth of a market in high quality reproductions. In order to understand why new approaches are required, and how profoundly differently museums and other rights holders, such as artists and photographers, will need to act in a digital world, we need to identify the salient features of this new environment. Technological innovations are at the root of the new situation. First, digital copying is a great advance over analog copying because neither an infinite number of copies nor generations of copying will degrade the master. While this is a highly desirable development for anyone concerned with reproduction quality, it removes one of the major reasons why image users were forced to respect image rights holders. It is they who held the masters, and who brokered access to quality images. Secondly, digital copying, when combined with technologies for network broadcasting, permits, for the

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first time in history, mass distribution of high quality reproductions previously limited, due to the cost of reprography, to a few. Once again, this technological capability is a significant advance that will be welcomed by educators and museums, but a two-edged sword for the future of those controlling rights. Finally, digital technologies make it easy to manipulate images both to make new creations and to alter reality in less obtrusive but more undesirable ways. The consequences of these technological changes are only beginning to be felt. Publishers and broadcasters are beginning to explore means for mass dissemination of digital information. Educators are taking the first steps towards teaching with digital reproductions. Holders of image collections and creators of images are experimenting with the conversion of analog copies to digital formats, and artists and photographers are using digital media to create original works. As the results of these forays into the new digital world become known, the cultural and economic dysfunctions of simply applying approaches taken from analog image distribution systems are becoming clear, creating tensions for both users and rights holders. The digital environment is voracious. On-line services, broadcasting, and multimedia CD-ROMs are “hotter” media (to use Marshall McLuhan’s famous distinction) than traditional print publication. As such, they only work when large numbers of images are available. This demand, however, requires more rights to be negotiated and places severe strains on the existing business processes for acquiring rights. In addition, because the emerging market for digital publications is just being nurtured, it is small. Despite tremendous hype, little money is being made, and much is being lost in this new area of commerce; such a market cannot support the transaction costs or the royalty fees traditionally charged for rights designed for products that used a tenth, or a hundredth as many images. The combination of the large volumes of intellectual properties required in new distribution formats, the relative insignificance of a single image within such a large collection, and the limited markets that now exist for these products, means rights holders are going to receive significantly less remuneration than previously for each use of their images. The potential for the use of greatly increased numbers of images can only be realized if transaction costs can be lowered to a reasonable price point. The pressure to obtain rights at reasonable costs in a digital market has significant implications for rights owners. Market forces increase the competition for lower cost rights, increase the incentives to replace images of actual things with manufactured images, and increase the incentives for illegal copying. When these three trends are combined, it is evident that owners of unique image properties need to be concerned that they will be bypassed as a bona fide source for quality information. Technologically modified copies of their original properties, or technologically altered copies of properties belonging to others, will be substituted for the “real thing,” creating a truly “virtual” world. Instead of profiting greatly from the advent of digital mass distribution, rights holders may find themselves holding rights no one wants if they charge higher costs than the market can reasonably bear. Instead of serving the mission of communicating deep cultural knowledge, cultural institutions may find their practices contributing to info-tainment short cuts that debase or misinterpret authentic culture. This final concern must be taken seriously. If unique images of the vast array of Egyptian sarcophagi held by museums throughout the world are too expensive to license for use in multimedia, producers may either digitally model a “typical” sarcophagus, or

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use digitally modified versions of an image they have found in a public domain source, thus creating ersatz representations which will (unfortunately) satisfy their users equally. If some images of Impressionist paintings held by public museums can be obtained easily and without license fees for inclusion in multimedia productions, these will be seen frequently and others will rarely, if ever, be sought. If one Renoir Mother and Child is readily available, why search for rights to another, even if it may be considered a “better example” by the scholarly community? If high quality images available from museum sources, together with excellent documentation of the objects, are priced beyond the ability of multimedia producers to pay, then undocumented lesser-quality images from other sources (such as on-site photography by visitors, which is still permitted in many museums) will prevail. Because museums hold objects in trust for cultural interpretation and preservation, they must think carefully before creating a situation in which the manufacture of false and superficial representations of culture is encouraged or where access is reduced to the quality analyses, interpretations, and documentation painstakingly created by curators. The potential consequences for this loss of information integrity and decline in cultural diversity are great.

CURRENT METHODS OF MANAGING INTELLECTUAL PROPERTY The processes now used in archives and museums to manage their intellectual properties cost both museums and licensees more than can be supported by the digital marketplace today or in the future. Cost centers in the rights acquisition value chain include: the costs of researching images, researching rights, negotiating rights, paying license fees, and monitoring or reporting use. Today, the sum of costs for these five separate transactions is prohibitive in the context of high volume digital licensing. The expense of negotiating rights is impeding the development of cultural multimedia products and may be contributing to massive violation of, and/or avoidance of intellectual property rights. There is, at present, no organized way to locate the images held by cultural repositories that would satisfy a specific publishing or research need. A few cultural institutions use agencies to promote their images (traditionally to sell slides), but only a tiny fraction of the available image content can be found through these means. Essentially, those who want to find images held by museums or archives are required to know the collections of the museum or archive in question. There are no databases which describe these holdings in general terms, to say nothing of imagebases in which one might browse or preview images. The result is that sophisticated subject expertise is required to locate appropriate content, and a disproportionate amount of effort is expended on this preliminary task. Once content has been located, it is not always easy to establish who owns what rights to reproduction and redistribution of an image. Reproductions of works of art, for example, involve layers of intellectual property rights: rights to reproduction, distribution, and the creation of derivative works are vested in the original work itself, in its reproduction in analog form, in a digital reproduction made from the analog source, and in derivative images made from a digital source. These rights are often disassociated from one another. Thus clearing rights in one format does not guarantee obtaining them

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in another. Sound and motion image rights can be even more complex, as they often involve issues of group authorship. Historically archives and museums acquired collections of images, and built collections of images of their artifact holdings without consistent attention to rights management. Works of art were often acquired with attention to rights pertaining to the work itself, but without regard for rights in existing or future images. Whole collections assembled by others were often obtained with a legacy of muddied rights. Time and money expended identifying rights holders after picture research is completed adds to the cost of licensing, whether these costs are absorbed by the potential customer or by the cultural repository when it receives a request. Many museums have not undertaken the task of clarifying these layers of intellectual property rights, and therefore cannot guarantee that they have rights to license images for use in multimedia products. This lack of clear ownership of rights diminishes the attractiveness of museum content for the multimedia producer. Simply negotiating rights for images held by cultural organizations can be expensive and time-consuming. The terms under which archives and museums are willing to provide image rights are complex, as are the many variations in ways of publishing. Cultural repositories do not share a common typology of uses, common conditions and terms of use, or common fee structures. The interested buyer, after describing the ways in which an image is to be used, may find that no specific category covers that kind of use. Letters or phone calls may be required to find out the costs of rights for specified uses. This constant renegotiation adds appreciably to the cost of completing each transaction; it consumes countless hidden staff hours and frustrates the potential buyer. Of course, the license fee itself will contribute to the cost of licensing museum intellectual property. Considerable uncertainty exists about the value of rights, particularly digital image and network distribution rights, because norms have not been set in this emerging market. The model of analog publishing, however, seems not to be transferable to the digital world. Historically, license fees set in the context of an analog image market, which uses fewer images per publication, have been quite expensive. A fee of several hundreds of dollars for the use of a particular image is not unusual. These in turn were large enough to cover the costs to the archive or museum of conducting the negotiation or billing the transaction. As the volume of images required for a publication increases, this fee scale results in a prohibitive cost for visual material. From the perspective of the licensee, transaction costs and license fees are taken together as the cost of obtaining the image—an increase or reduction in either affects the overall price. Hence as the number of images required for any given publication increases, the increased cost leaves much less potential profit to be divided across many more images, dramatically reducing the market value of single-image licensing fees. Finally, the digital image marketplace imposes an additional burden on rights licensing. As a consequence of the novelty of the fixed media digital publication (e.g., CD-ROM) and of the uncertainty involved in estimating numbers of users for on-line publications including images, license terms will often be based on the size of the actual market. Generating these statistics requires that the market be measured. In addition, the ease of copying digital images has created an insecurity about releasing such properties onto the market which many participants have felt can only be relieved by detailed monitoring of image use. Unfortunately, the cost of measuring usage and monitoring

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illegal copying activity are likely to prove unacceptably high, requiring a significant investment in systems which are clearly beyond the capacity of any one rights owner or licensee. The overhead for monitoring systems will add substantially to the cost of the end-to-end licensing transactions, and these costs must be assessed alongside any additional security benefits when systems are implemented. In sum, the costs of rights transactions in the digital environment are currently prohibitive. An expensive “coffee-table” edition of an exhibition catalogue or illustrated text on cultural history or connoisseurship might include 100 images; the costs of acquiring the rights to use these images, when research, clearance, negotiation, and license fees are taken together, could easily exceed $50,000 (at $500 per image). Within this sum, the actual licensing fees would likely be several times greater than the transaction costs. When much larger numbers of images are required to make viable digital publications, this scenario does not seem realistic: To produce an adequate revenue stream to support rights acquisition, publications will need (1) to reach much larger audiences at the same unit costs as the fine art book (very unlikely), (2) to contain images licensed at much lower cost (possible), and/or (3) to be researched and negotiated more effectively (necessary). If transaction or processing costs remain as high as at present, even free licensing would not enable the development of a profitable digital publishing market using cultural and intellectual properties. Ironically, cultural heritage institutions can rarely afford to have requests for rights clearance and licensing increase dramatically. When the entire process is considered (including expenses for staff time and overhead costs), our experience in museums leads us to believe that few institutions “make” money—in the sense of earning a true profit— from their rights licensing function. Clearing, negotiating, and supplying individualized licensing terms cost most museums more than the fee imposed. The inefficiencies of these transactions (mail, fax and phone discussions and contracts) are such that it is difficult to imagine how to adapt the existing system to function better with higher volumes of transactions. More than likely, a higher volume will have the effect of creating greater losses rather than generating absolute profits.

MODELS FOR THE FUTURE The current system is breaking down in the face of the increasing volume of digital rights licensing. Consequently, it is no surprise that other approaches are being advanced for the efficient management of museum intellectual property. Museum administrators are besieged by proposals from firms with ideas of how to improve the marketing of digital images. On the one hand they hear from agencies which promise to re-license museum images and earn museums unimagined wealth. (For an up-front payment plus royalties, the museum is asked to assign the rights to license its collections—either exclusively or non-exclusively.) On the other hand, museums are approached by companies that propose to “list” images so that researchers will have easy access while museums fulfill the licensing. (These organizations broker image rights for the museum but do not save them administrative costs.) Finally, museum administrators are being urged by some of their colleagues to join in the formation of collectives to maintain control over access to image rights within the museum community.

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It goes without saying that most museum managers find the choices for rights marketing in a digital environment immensely confusing. The picture can be simplified somewhat if we understand that there are three entities involved in all arrangements: the rights holders or content providers (in this case the museum), the distributor or access provider, and the consumer. The three models for rights administration systems—the agency, the brokerage, and the collective—reflect distinctive arrangements between content providers and distributors. Relationships between the distributor and content consumers may be characterized as either volume licensing or individual item licensing. Usually the volume license, which applies to a “library” of properties of the distributor, will be granted to the consumer as a “site license” at a single price. Works are made available for a suite of functions, without pre-identifying each possible use. Specific permission is not required as long as uses fall within the set of conditions (including definition of the site) identified in the terms of the license. Under individual item licensing arrangements, each image is licensed separately under its own terms, which typically specify in advance each product into which the image may be incorporated. In item licensing agreements, the terms of use will typically outline the number of allowable copies, languages, editions, and countries of distribution, and impose other specific conditions. Rights can be administered by rights holders individually, or by an organization acting on their behalf. In most industries, cooperation in price and terms among providers would be prohibited under anti-trust laws, as restrictions on cartels, illegal restraint of trade, or price fixing. Special exceptions, however, are often made for Rights and Reproductions Organizations (RROs) which represent holders of intellectual property rights. These organizations exist throughout the world, and are characteristically organized along professional lines by medium, form and/or genre in which the rights holders work (photographers, authors, composers, performers, etc). In some countries, including Canada, collective administration of rights is outlined in copyright legislation itself. The collective administration of copyright offers significant attractions for the facilitation of the development of a market for museum digital intellectual property. The centralized, coordinated administration of rights would offer an ease of access to the image consumer—a type of one-stop-shopping for museum content. An RRO would also offer a wide body of museum information according to a standard set of terms and conditions and a published fee scale. This would remove the need for regular renegotiation of terms, and would facilitate the processing of individual rights transactions. In turn, administrative costs could be reduced, as the processing of individual transactions would be streamlined. If museums were to form such a copyright collective, however, it would cut across some existing organizational jurisdictions. Relationships would need to be negotiated with other RROs, particularly with those representing contemporary artists, photographers, and their estates.

COLLECTIVE LICENSING AND ADMINISTRATION OF RIGHTS In 1994, in response to interest expressed by museums in exploring new approaches to copyright management, MUSE Educational Media and the Art History Information

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Program (AHIP) now the Getty Information Institute of the J.Paul Getty Trust, undertook a project to explore the site licensing of digital content from archives, libraries and museums to educational institutions. The Museum Educational Site Licensing (MESL) project has been widely publicized and may be replicated, with attention to cultural differences, in a number of other countries.2 By focusing on a particular market segment (the educational community), and a particular mode of intellectual property administration (the site license), this collaboration is clarifying alternatives to the commercial model generally presented to museums by advocates of image agencies and brokerages. Sixteen institutions are collaborating in a good-faith effort to define the terms and conditions surrounding the use of museum digital content.3 MESL participants are prototyping the site licensing of museum content for educational use and are exploring the nature of the educational market to determine whether it has sufficient size and coherence to operate independently of “commercial” concerns. Of particular relevance is the question of whether this market segment can operate in a fashion beneficial to both rights holders and rights users by providing access to significant quantities of content and by providing a feedback loop from users, thereby influencing how museums capture and distribute intellectual property. To make a case for a Rights and Reproductions Organization successfully, the MESL project must demonstrate that the methods for providing such access are available and functional, that the resultant access is beneficial to educational institutions, and that the value of those benefits, expressed in payments by the educational institutions to the museums, is sufficient to drive a system of capturing and delivering a higher quality of data than would be supported by commercial users alone. The MESL project is strongly committed to collective site licensing for several reasons crucial to any successful cultural heritage intellectual property licensing scheme and consonant with the values of cultural heritage repositories and educational institutions: – Site licensing encourages use, while item licensing discourages it. Not only will more uses of an item not incur additional charges under the site license, but items that were not explicitly sought or known to those arranging the license are available for use under the site license. – Site licensing requires no negotiation of individual licensing agreements and incurs no item-level monitoring costs, thereby greatly reducing the overhead associated with item licensing. – Site licensing enables cultural heritage repositories to provide documentation, interpretation, and images together, and can further the use of these valuable additional data. – Collective activity promotes best practices and encourages greater consistency and quality on the part of content providers. A merged cultural heritage data source is a more useful research resource. Further reasons to favor collective educational site licensing include our conviction that museums and educational institutions share similar values, and that scholars and educators will appreciate and exploit the added value of enhanced quality investments such as color and size indicators, controlled and expanded vocabularies, provenance,

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bibliographies and exhibit histories associated with images, as well as any accompanying curatorial interpretation. Museums will also benefit from further research in the scholarly community and will obtain an increased understanding of how and where their collections are used.

ECONOMICS OF SITE LICENSING The MESL project further hopes that site license fees will be directed to the creation of larger volumes of image data in museums. Museums will then be able to re-use this digital content and be better positioned to enter the commercial market with an already established critical mass of licensable, high quality, digital information. Without the pressure for an up-front cash payment as an essential source of capital for capture of content, terms and conditions for commercial use can be set which are more likely to satisfy museums’ long-term needs. A rights collective could provide a vehicle for community advancement, while, at the same time, ensuring maximum returns to those institutions that have provided image content. Over the next year, the MESL project will be the subject of several studies of costs, risks, and benefits,4 which we hope will lay the conceptual foundation to expand beyond those institutions selected for the pilot implementation for future collaborations. Ultimately the model will work best if each nation has its own cultural heritage RROs reciprocally administering agreements, and accepting mutual obligations. Intellectual property laws vary slightly from country to country, and the funding mechanisms and institutional relations of universities, schools, and museums are completely different from place to place. International access to cultural heritage will require the kind of multinational collaboration that already exists for other media and formats of rights.

CONCLUSION The MESL project offers a vehicle for prototyping a viable economic system that enables and encourages the educational use of digital intellectual property now being created in cultural heritage institutions. Distribution of materials through site licenses under terms and conditions of use which are clearly articulated dispel the ambiguities associated with the use of digital materials. The collaborative development of the MESL site licensing agreements, through negotiation between representative users and suppliers of information, will ensure that a balance exists between the concerns of rights holders and the needs of information users. Within this environment, the development of a Reproduction and Rights Organization for the management of museum intellectual property rights, and the subsequent creation of a high quality information source could enable efficient access to digital cultural heritage information in support of research and teaching.

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NOTES 1. The Authors are grateful to Christine Steiner, Secretary and General Counsel, The J.Paul Getty Trust for her review of the manuscript. Refer all inquiries regarding this article to J.Trant. 2. Full details about MESL are available at http://www.gii.getty.edu/mesl/home.html 3. Participants in MESL are: Museums: Fowler Museum of Cultural History at the University of California, Los Angeles; The George Eastman House, Rochester, New York; The Harvard University Art Museums, Cambridge, Massachusetts; The Library of Congress, Washington, DC; The Museum of Fine Arts, Houston, Texas; The National Gallery of Art, Washington, DC; The National Museum of American Art, Washington, DC.

Universities: American University, Washington, DC; Columbia University, New York, New York; Cornell University, Ithaca, New York; University of Illinois, Urbana-Champaign, Illinois; University of Maryland, College Park, Maryland; University of Michigan, Ann Arbor, Dearborn and Flint, Michigan; University of Virginia, Charlottesville, Virginia. Sponsors: Getty Art History Information Program, now the Getty Information Institute, Los Angeles, California, in collaboration with MUSE Educational Media, New York, New York. 4. The Andrew W.Mellon Foundation has funded one such study, based at the University of California at Berkeley.

Fair Use, Fair Trade, and Museum Image Licensing

by Amalyah Keshet Visual Resources, Vol. XII, pp. 281–289 Reprints available directly from the publisher Photocopying permitted by license only

© 1997 OPA (Overseas Publishers Association) Amsterdam B.V. Published in The Netherlands under license by Gordon and Breach Science Publishers Printed in Malaysia

INTRODUCTION When it was established, the Visual Resources Department of the Israel Museum (then called Photographic Services) set out to serve the needs, not only of the many scholars and publishers abroad seeking visual materials from our collections, but also those of a strong local publishing industry. The former community was mostly well-versed in “rights and reproductions” procedures, but the latter had only a vague idea of what stock photography might be. Traditionally photographs were supplied by photographers, not picture libraries or agencies. Publishers knew little of what copyright licensing meant for works of art or for archaeological artifacts; nor did they imagine that museums would claim that copyright exists in photographs of works of art. The idea of compensating museums for their time, work, and the use of their intellectual property was a startling concept. To them, museums were handy repositories of endlessly free cultural resources. Indeed, to the outside world, the idea of a museum operating on a business basis (including the administration of “bothersome” copyright transactions) has often elicited strong reactions: “You can’t do that. You’re a public institution.” is the usual protest. Sometimes one has to explain patiently just what the term “public institution” does not mean. In the case of the Israel Museum, for example, while we fulfill the traditional role of a “national” museum, up to eighty percent of our annual budget derives from earned income and donations. A similar misconception applies to the notion of a “non-profit” institution. Some still believe it means that the organization is prohibited from making money. In truth, we are very much a business—as I believe many museums are, or must soon become in order to survive. And, if we do business, for the sake of our public, we must do it well. The rights and reproductions “business” is not just a source of muchneeded income for museums. The copyright licensing structure is one of the tools museums possess for

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maintaining the integrity of their collections. Badly printed reproductions of works of art copied from old publications, with erroneous captions, and used in inappropriate contexts, cheapen the works in a collection, and by extension, degrade the museum. In the era of digital reproduction, with its unlimited means of distorting an image, pixel by pixel, and its ability to distribute it or cause it to be downloaded nearly anywhere, the concern for image integrity—and consequently for the museum’s own “image”—is growing more acute. The Israel Museum is only 30 years old; it opened two years before the Six Day War, and today contains nearly a quarter of a million archaeological artifacts and works of art. The complex covers 37,500 square meters, with 17,000 square meters of exhibition space—not counting the Billy Rose Art Garden. It includes the Shrine of the Book (in which are preserved the seven most complete of the Dead Sea Scrolls), an extensive Youth Wing, the largest art library in the country, and the leading conservation and restoration laboratories in the region. We have more than 700,000 visitors a year, ranging from local school children to tourists from the Far East. We are the major showcase for the archaeological finds belonging to the Israel Antiquities Authority, and we are the largest museum education facility in the country. The Museum’s collections include everything from Old Master painting and European decorative arts to Impressionist and Post-Impressionist painting and sculpture, Photography, Prints and Drawings, Contemporary painting and sculpture, Design, PreColombian and Tribal art, Far Eastern Art, and Islamic Art. But, of course, the collections for which the Museum is best known are the world’s largest collections of Biblical archaeology, and the most comprehensive collections of Jewish ceremonial art, Jewish ethnography, and Israeli art

COPYRIGHT AND LICENSING OF IMAGES Because the Israel Museum is such a rich source of images, its Visual Resources Department receives hundreds of requests for photographs, reproduction rights, and documentary filmmaking services every year from clients all over the world. In order to meet this demand, we have had to develop what are in fact the first reproduction rights licensing procedures and price structures for the Israeli museum community. We have also developed the first guidelines for electronic publishing contracts and site-licensing agreements for filming. In the Visual Resources Department we have taken on the role of informing not only our local clients, but also our own curatorial and management staff of the protections guaranteed and obligations imposed by copyright law. We have discovered, for example, that people hold many erroneous assumptions about the meaning of fair use as applied to museum publications. For example, in a recent curatorial forum meeting, where the issue of copyright in acquisitions, donations, and collections management was raised, the museum’s curatorial staff was advised that, in essence, if the museum does not hold the copyright, it legally can do nothing with works of art in its collection except to display them to the public. The idea of acquiring even partial copyright along with a work of art has been brought up in the past, but emphasizing one fundamental principle of copyright law—that

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copyright is an entirely separate piece of property from the physical work of art itself, and can belong to a person (the artist or another), or an institution, or a company other than the Museum—has clarified the issue. When the Museum can obtain no propriety interest in the copyright of its holdings, it seems clear that there will be problems involved in “using” these particular works of art. If they cannot be reproduced, one may even question the value of acquiring them for the collection in the first place. The application of the principal of moral rights in our collection is also significant. Moral rights, as a concept, seems to be easier for “art people” to grasp than that of copyright. In addition, we have, occasionally, had to clarify misunderstandings about the supposed existence of copyright in archaeological artifacts—a misunderstanding predicated upon the tradition of first-rights-of-publication enjoyed by archaeologists for their own discoveries. One area in particular in which the Museum’s copyright expertise can serve as a leader and catalyst is in raising awareness not only of museums’ rights (or limits thereto), but of the rights of artists. Artists in Israel are not unaware of copyright, but they tend to look upon it as something they do not enjoy, not as a protection afforded by them. At a meeting of the Israel Artists’ Association in Tel Aviv, organized by ACUM, the Israeli authors’ and composers’ copyright collecting society, the artist members attending bitterly complained about their works being copied without permission or compensation. Yet, when I suggested that they register a means of contacting them with the Information Center for Israeli Art at the Israel Museum, they roundly protested that they did not want a lot of people calling them up and “bothering” them. Indeed, the Information Center reports that most of the registered artists refuse to list personal contact information. The efforts of the Museum’s Visual Resources Department to require clients to clear artist’s copyright in addition to (or even prior to) licensing our photograph of the work of art, has therefore led to some odd results. One prominent artist’s wife once called to apologize for her husband’s annoyance at being contacted for copyright clearance. She assured us that she would handle the matter. On the other hand, one does find evidence that in the early part of the century a few artists did know enough about how copyright provisions operated under British Mandate law to take advantage of them. This fact was brought to light in a recent copyright infringement claim against the Israel Museum. We had assumed that copyright in all of the works by a particular local artist, one of the acknowledged founders of Israeli art, had been inherited by the artist’s daughter. This assumption was proven incorrect when a small Tel Aviv publishing firm produced a handwritten note from the 1920s in which the artist had sold to them his copyright in a certain series of lithographs. It was revealing to discover that such a transaction occured at that time—two decades before Israel became a state. Most Israeli artists even today do not realize that they can assign their copyright interest in their works (The case was settled out of court).

FAIR USE OR EDUCATIONAL USE? The issue of “fair use,” interestingly, is brought up far less frequently in our experience than that of “educational use.” There seems to be a general confusion as to the meaning of the two terms. Numerous clients claim that their use is an “educational use.” They

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assume that these words have magical connotations that will release them from the requirement to pay for using what they want. These “educational” requests typically are not for materials to be used in the classroom or for scholarly or student research (which is of course in the traditional realm of fair use), but for publication in books or products which the clients, themselves, wish us to consider “educational.” In responding to these “educational” requests, I have been influenced by guidelines suggested by the British Association of Picture Libraries and Agencies. One should ask: Is the editor of the book in question paid a discounted salary because it is “educational?” Does the designer work at a discount? Does the paper supplier give them a discount because the book is “educational?” Does the bindery? Are color separations made at a discount? Therefore, why should a supplier of photographs give a discount? Since anyone can claim that nearly anything outside of, for example, pornography, is “educational,” obviously the word “educational” is devoid of any real meaning in context. It seems that these clients are confusing muddled notions of fair use with the desire to get something at discount. Ironically, for us the typical order for a truly scholarly publication takes significantly more search and supply time (often including special photography of obscure objects from multiple angles) than the typical “commercial” order. Follow-up time needed for tracking the return of transparencies, payment of invoices, checking credit lines, etc., is the same for each. If the cost of professional labor is to be factored into the price, images produced for scholarly purposes cost more to supply, and, theoretically, should be billed at a higher rate than those for “commercial” use. When a client unjustifiably tries to get us to discount our set fees for “educational use,” and when reason and logic fail, in desperation I offer the client “the same fee the Ministry of Education pays us for textbook use.” The client assumes that this must be rock-bottom: after all, the word “education” appears there. Actually, when I discovered that the largest local textbook publisher was paying commercial photo agencies prices several times the low rate they had traditionally been enjoying from us, I tripled our fee to match that of our standard commercial book-use rate. They accepted the new price without argument. (In Israel we are required to buy our children’s school books; they are not rented or loaned by the school system. Significantly enough, parents are not offered discounts because these books are for “educational use.”)

GREAT PUBLIC RELATIONS Similar in nature is the assumption that we will be willing to waive all fees for reproduction rights because appearing in a particular publication will have “great public relations” value for us. This strategy works on very new museums who may wish to charge this “advertisement” of their collection to their public relations budget, but for a more established museum, such as ours, the publicity benefit travels in the opposite direction: the fact that the client contacted us with their request for specific images from our collection only proves that we have already done our public relations work, and have done it rather well. This is not to minimize the value of seeing our credit line appear frequently in a wide range of good publications; we admit, it is a very important side benefit. Yet, we must

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sometimes remind the client that it is we who are the supplier of what he or she needs, not the other way around. The exception to this rule, obviously, is the publication which we can really use as a public relations opportunity: one in which a significant amount of text about the Museum or its collections appears and can be accepted or vetoed by us, one in which we can select the images to appear, etc. This kind of request, as well as all photographic requests for general or exhibition publicity (fair use for review and criticism), are handled by our public relations department, not by Visual Resources. Today, the concepts of “fair use” and “educational use” are being increasingly distorted and abused in Internet/World Wide Web publishing. Few go so far as to find out how the law defines fair use (information readily available via the Internet). Fair use is reduced to mean “I want to use it, so it must be fair.” Its corollary follows: “If I can’t use it, someone is restricting my freedom of expression, which isn’t fair.” The naïveté of these claims is astounding, but too often they pass for valid interpretations of “fact.” This is an attitude with which undoubtedly we will be confronted more and more. Our position, based on an understanding of case law already in place, not to mention common sense, is that legally speaking, the Internet is just another publishing and distribution medium—it is not a separate planet circling outside the universe of existing laws and ethics.

SCHOLARLY PUBLICATIONS The Visual Resources Department does distinguish between very small-print-run scholarly publications and higher print-run enterprises. In this regard, to us a “scholarly” work is one made for a clear scientific purpose—those special publications once described to me (with some exaggeration) as “of interest to a dozen specialists at most.” A book on Impressionist art of interest to the general reader, whose publisher has decided it is “educational,” does not qualify. What do qualify are the kinds of scientific publications that would otherwise not see the light of day because they cannot command a sufficient budget. Our policy, again, is based on the model of the commercial stockphotography business: rights for small-print-run publications are usually priced lower than those for high-print-runs. Offering a waiver of fees on the presumption that the museum should provide free reproduction rights in the interests of intellectual pursuit or scholarly perogative sounds noble, but the truth is that someone has to cover the not inconsequential costs: the cost of the photographer printing away in his darkroom, photographic paper and chemicals, the lab’s bill for duplicating a transparency, and, of course, the time needed to search, check, label, supply, license, and follow up on the photographic request (average: two hours per photograph). If the client does not cover this overhead, then in essence the museum must do it, thereby effectively subsidizing the publication. If a museum is fortunate enough to be able to write off these services and other work-at-a-loss items, it may wish to entertain requests for waiving fees. One potential solution to this dilemma might be to raise money from private or corporate donors and create a “fund” to subsidize scholarly publications. Otherwise, however, just as a museum must pay full price to the carpenters and glaziers and graphics firms who supply work when they install an exhibition (no “educational” discount there!), clients,

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no matter how scholarly or valuable their projects, will have to cover the cost of what they order.

ELECTRONIC PUBLISHING Another area in which we confront what we might call minor “conflicts of interests” between the museum-as-supplier and publishers-as-clients is in the domain of multimedia (primarily CD-ROM) publishing. This industry is one of the fastest-growing and most successful in Israel. In fact, Israeli companies develop products primarily for foreign distributors. Participating in the birth and development of this industry, which by its nature demands huge quantities of “visuals”, has made us rethink our assumptions on image use and licensing. Instead of emulating traditional licensing procedures and prices, here we found ourselves confronted with an entirely new market. Neither the CD-ROM publisher nor we knew, for example, what would be an acceptable market price for use of a photograph of a work of art or an archaeological object in a CD-ROM. They had to work out their economics, and we ours. To resolve these questions, I took the position that, as the Museum would be both a supplier of images and, soon, a co-producer of CD-ROMS, we would “work it out together” with the clients. Without too much effort, we would figure out both what level of compensation they could afford (considering that a CD-ROM requires vastly more images than a book), and what we needed in order to make it worthwhile to supply the images. Because we were not the only image supplier working on CD-ROM contracts, I kept in touch with colleagues in commercial photo agencies who were in the midst of their own negotiations. Rather quickly, we discovered that the CD-ROM developers could not budget per image as much as our lowest standard book-use rate. Unfortunately, this makes it much more profitable to work with traditional book publishing clients, where price schedules are based on the size of image (half-page, fullpage, double-spread, etc), on repeat use in the same book, on cover use, etc. Each of these categories, of course, bears its own fee schedule. CD-ROMs change the rules: in a CD-ROM, the concept of “repeat use,” for example, is irrelevant; these images are meant to be infinitely “repeatable.” CD-ROM images cannot always be captioned and credited where or when they appear; an end-screen listing of image sources (“Collection of…”) is rendered nearly meaningless: the reader cannot determine where a particular image originated, and has no way to discover where any particular work of art can be found. As a result, our images become anonymous in a sea of others. Clearly, the advantage of appearing in a traditional hard-copy book increases proportionally. (Exceptions to this, obviously, are CD-ROMs of a museum’s own collection, and those based on a traditional page-by-page art book layout, that is, less adventurous products.) This is not to imply that we will not license to CD-ROM developers, only that the economics of licensing are different. Unfortunately, when we have to devote limited resources to supplying hundreds of orders, the most lucrative ones will tend to get preference. This sounds truly and unacceptably greedy to an academic mind, but we must remember two things: (1) the staff-hours and other costs presently required for the supply and licensing of individual museum images are otherwise unsupportable, and (2) that, in

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order to fulfill any educational or other mandate as a museum, we have a primary responsibility to stay afloat. We have to survive financially before we can preserve our collections and provide any educational output at all. Quite possibly, this calculation is significantly different in those American and European institutions which are supported by government funding, national or local; but for those who are essentially private, nonprofit organizations trying to provide all that is implied by the phrase “in the public trust,” calculations are necessarily more bottom-line than idealistic. One solution to the dilemma, in my opinion, is to establish the sort of fund for scholarly publication reproduction rights suggested earlier, and another may be the type of educational-site licensing arrangement proposed by the Museum Educational Site License (MESL) project. These would work for the supplier (the museum) as well as for the client (the school or university). We will be closely following the development of this idea. The site-license may be the next initiative we will find ourselves introducing into the local museum community.

NOTES The opinions expressed in this article are those of the author, and not necessarily those of her employer.

Prospects for a Public Domain Art Image Resource in an Era of Digital Technologies1

by Allan Kohl Visual Resources, Vol. XII, pp. 291–296 Reprints available directly from the publisher Photocopying permitted by license only

© 1997 OPA (Overseas Publishers Association) Amsterdam B.V. Published in The Netherlands under license by Gordon and Breach Science Publishers Printed in Malaysia

Our academic environment as a whole—as well as its component activities including research, publication, and teaching—has been predicated on the smooth and harmonious integration of three interrelated domains: (1) the generation of information, through discovery, analysis, and synthesis; (2) the codification and preservation of information, through publication, archival work, and the development of library collections; and (3) the dissemination and application of information, largely through the structuring of teaching and learning activities. The heart of the creative and scholarly dynamic in both studio arts and art history is the association of images and concepts, the linking of visuals and ideas. As recent trends in the design of undergraduate art history textbooks demonstrate, our profession is becoming increasingly aware that these associations may be accomplished by a variety of means, not all of which are traditional and textual in nature. Today our students, computer literate and raised on MTV, are increasingly sophisticated in their expectations of image-based learning. In carrying out course assignments such as graphic design projects, they routinely search for, acquire, alter, and manipulate images using technically advanced hardware and software. First year students want to use visuals to complement their writing about the arts; graduate students are required to do so. Educators have become more sensitive to the widely varying ways by which students successfully process and internalize information, and work to accommodate different learning styles. Visual resources specialists such as slide librarians and picture archivists are urged to acquire, store, and retrieve images using technologies many of us never dreamed of when we entered the field; and many of us are being asked to participate in the duplication, transmission, or reconfiguration of image resources in ways that transcend the natural limitations of the traditional slide or photograph collection. Forward-looking academic departments and individual educators are interested in taking advantage of new technical possibilities, to choose the most appropriate pedagogical means to help today’s students cultivate their ability to associate

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images and concepts. Perhaps many of us have considered undertaking, or have participated in activities such as compiling course- or topic-specific image review files that are electronically accessible from a variety of campus locations or distance learning sites; building hypercard stacks; or formulating interactive instructional experiences through devices such as in-house produced CD-ROMs. But, as the frequent, nervous exchanges over the VRA-L, the Visual Resources Association discussion list ([email protected]) regarding fair use issues will testify, all of these constituencies are fearful, sometimes to the point of paralysis, that creative and/or instructional utilization of derivative images could potentially involve our institutions, and even ourselves as individuals, in copyright violations that might well result in costly and embarrassing litigation. Commercially-driven image providers seem unlikely to offer more than a partial answer to our dilemma. Indeed, the ongoing trend of publishers and media producers to merge into ever larger corporate conglomerates, under the aegis of the entertainment industry, suggests that their image control strategies will continue to be oriented toward the needs of the commercial publication and production fields, and the needs of the broadcast media, with a secondary focus on the growing home entertainment market. Many of us, to be sure, have been critical of certain poorly researched, hastily compiled CD-ROM productions prepared by media firms in hopes of generating quick profits from the home “info-tainment” sector, and subsequently passed off on academia. Some of the worst examples contain inaccurate information or discrepancies with the standard texts they supposedly support. Others limit their usefulness by concentrating on image selections that do not correspond to the key works we typically teach. Few are comprehensive enough to stand on their own as primary image sources even for introductory level courses; yet, because of design or legal restrictions, they may not readily be excerpted, reconfigured, or combined with other image sources, including our existing slide collections. Seemingly low on the priority scales of most image vendors are the special requirements of the academic community, particularly those of us who work in small liberal arts colleges, in independent colleges of art and design, and in community colleges, as well as in large research-oriented university environments. Some commercial image suppliers and producers price their material beyond realistic consideration. They demand substantial payment or site license fees based on formulas that count usage per item, per application—even per student. Many of us walk the razor’s edge between inadequate and constantly shrinking budgets on the one hand, and growing frustration over restrictions that limit our full participation in the exciting potential of new technologies to enhance teaching and learning opportunities on the other. Sessions at the College Art Association (CAA)/Visual Resources Association (VRA) Conference in Boston during 1996 have dealt extensively with sophisticated descriptive cataloging and search strategies needed to access research-oriented holdings. This is, of course, of concern to larger visual resource collections: to provide for scholarly inquiry by specialists. Bear in mind, however, that even in large collections a relatively small proportion of the holdings typically will satisfy a large proportion of patron requests. We must not forget the importance of balancing the needs of specialists with the needs of general users—our responsibility to address the requirements of large research-oriented institutions and those of small teaching-oriented institutions. For some of us the issue

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today is less a choice of filet mignon vs. ground chuck, but, rather, whether we have the resources to eat at all. The dangers posed by the widening gap between information “haves” and “have-nots,” suggest uncomfortable parallels to the polarization of fiscal resources in our society; therefore, the cultivation of an artistically literate citizenry is a task which, in its own way, is as significant as the support of specialized scholarship, for the possibility of the latter ultimately depends on the success of the former. I would maintain, then, that an equally important mission of visual resource collections, large and small, is to provide those images that nearly everyone needs. A possible solution, a partial solution at least, to these interrelated problems of cost, access, and copyright, is already in our own hands. We take for granted the notion that educators have the freedom to reconfigure information and ideas according to each individual’s particular scholarly orientation and pedagogical requirements, giving proper documentation and due acknowledgement to the originators where necessary. We freely exchange ideas and information with our professional colleagues, especially through the expanded possibilities afforded by electronic mail lists and bulletin boards. My proposition begins with an invitation to us, and our colleagues, to become actively involved in offering our image resources on a similar basis, exploiting more fully the tremendous possibilities offered by new on-line technologies. Think of it initially, perhaps, as the logical, and more sophisticated, next generation manifestation of the traditional “slide swap” so frequently featured in the past at our regional gatherings. My proposal is to build upon many such individual efforts to establish a national, or international, free-use image bank, one in which all material could be reliably understood to reside in the public domain for use in the various applications I have previously mentioned, as well as for those that will arise in the future as hitherto-unrealized technologies develop. This bank would be compiled using digital surrogates of original slides and photographs provided by the very individuals who comprise our membership: studio artists, art historians, and visual resource specialists. Images could be accessed together with text-based records that would enable others to use them in an unlimited variety of applications. We would be empowered to expand our thinking and push our parameters, without having constantly to look over our shoulders in fear of the Kopyright Kops. As a first step, we can and should begin working immediately to encourage and facilitate the creation of numerous image-providing web sites within our existing departmental and institutional network publishing environments: even small, focused individual efforts would provide the opportunity to try out and critique various formats. We need to test descriptive protocols and indexing strategies under conditions of actual use; and we need to arrive at a consensus on technical issues such as those regarding image resolution, size, palette range, etc. As we do so, we should use the mail lists of our organizations—CAA, VRA, Art Libraries Society of North America (ARLIS/NA)—to discuss our work in progress, to offer feedback and constructive criticism, to share problems and solutions, and of course, to announce the availability of our projects. As such image banks grow to include tens or even hundreds of thousands of items, a central management, storage, and display site may ultimately become necessary. Should this prove to be the case, organizations like the CAA and the VRA should take the lead in enlisting the collective power of our institutions and consortia in pursuit of grant funding towards this end. These activities might parallel the pilot projects in shared cataloging

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and in the creation of uniform image core description records that have been discussed previously in these sessions. But this may not be necessary. As an alternative strategy, it may be sufficient, and far less expensive, for our organizations to provide a linking umbrella, merged indexing, or simply directory access to these numerous individual sites—collocations, if you will—that would retain their specialized, perhaps delightfully idiosyncratic, character. The demonstration web site, and the image array provided here under the auspices of the Minneapolis College of Art & Design and my personal project acronym AICT (Art Images for College Teaching), was compiled from a number of my own original site and museum photographs converted to Kodak Photo-CD format and linked with item records created using a relatively simple Filemaker Pro 2.0 layout. It is presented here as an example of what can be done within a low budget when one instructor collaborates with a couple of undergraduate volunteers. For this we received no grant funding or institutional budget allocations, and worked evenings and weekends using existing equipment and software in our institution’s computer lab. I have tried to include a high proportion of frequently-sought images that would be useful for teaching first-year survey courses, and also for pre-college instruction in humanities and world civilization courses. Is this latter really our concern? You bet it is, particularly at a time of diminishing government funding for public education, when arts programs are often seen as prime candidates for the chopping block. In higher education we need to be actively involved in cultivating the up-and-coming generation of students who, if they have no prior background in the visual arts, are much less likely to consider art history or studio courses as viable options in their academic careers. Museums are now reaching out via the World Wide Web to new constituencies: can academia afford to do less in an era of changing demographics and a shrinking student pool? The answer is “No,” particularly under a scenario such as the one described above, in which it would literally cost nothing to offer for general use what we are already creating for our own purposes. It could gain us valuable prior exposure, name recognition, and good will. The AICT demonstration project is certainly not intended to serve as a fully realized implementation, but rather to provide an example of the kind of individual effort that is well within the reach of the computer semi-literate and institutionally budget-challenged. This is our site address: http://www.mcad.edu/AICT/index.html. Try it out, criticize it. Download the images and descriptions into your personal or institutional files. Rearrange them to suit your own requirements, or combine selected items with other images to which you have access—and then envision the resource we could all have were such a modest effort multiplied a thousandfold. In the mid-fifteenth century, the technological revolution set in motion by Johannes Gutenberg and other early printers transformed the very nature, not just the volume, of intellectual activity. The ongoing computer revolution and the growth of a networked environment have created the potential for a similar transformation. I ask readers to consider the ability we now have with which to empower ourselves. At the same time these tools offer opportunity to explore one another’s unique assets and to strengthen our sense of colleagiality across the traditional lines of discipline, geography, and institutional size. As dozens, even as hundreds of us ponder whether to unlock our personal treasure-troves, we need to modify our notion of intellectual “property” by including the older, but equally valid paradigm of intellectual “resources,” the sharing of

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which in no way diminishes the ability of the originator to utilize such material for her or his own teaching and scholarship, but rather serves to expand possibilities for one’s colleagues and their students throughout the worldwide academic community. I’m reminded of the old tale, recounted by the Brothers Grimm, of the ever-filled purse: as the protagonist discovered to his amazement and delight, that no matter how often one opened it and took out a coin, the original gold was always still there.

NOTE 1. This paper was presented to the College Art Association and Visual Resources Association joint session “The Visual Surrogate as Intellectual Property: is ‘Fair Use’ on the verge of extinction?” Boston (Saturday, February 24, 1996).

A Visual Resources Advocacy Statement

by Christine L.Sundt1 Visual Resources, Vol. XII, pp. 297–306 Reprints available directly from the publisher Photocopying permitted by license only

© 1997 OPA (Overseas Publishers Association) Amsterdam B.V. Published in The Netherlands under license by Gordon and Breach Science Publishers Printed in Malaysia

PART I: TRADITIONAL FORMATS AND PRACTICES Images Used in Teaching and Research The visual resources collection, known variously as an image collection, image archive, slide collection, or slide and photograph collection, has been growing and evolving in North American educational and cultural institutions since the early days of photography. Some of the earliest documented collections, started between the 1880s and 1900, include the Art Institute of Chicago, the Massachusetts Institute of Technology, Princeton University, the University of Michigan, the University of Illinois, and the American Museum of Natural History.2 Visual collections within these institutions are repositories of images used primarily for teaching and secondarily for research. They exist in a variety of formats that have been acquired over many years from myriad sources. They cover seemingly limitless topics typically in the arts, humanities, and social sciences. The arts, e.g., visual arts, art and architectural history, are wholly reliant on the availability and use of images. For instruction, it is not unreasonable for an instructor preparing an art history course, for example, to use more than 100 images in one lecture. With the typical pattern of three lectures per week, times the sixteen weeks in a standard semester, 4,800 slides could be used by a single faculty member. At the University of Oregon, annual statistics for 1993–94 indicate that 40,213 slides were used by the art history faculty, and overall, more than 82,000 were used by all departments during the year. Images so used are often those illustrated in text and trade books, or in specialized scholarly journal articles, commonly included in the readings assigned for the course. A small percentage of these images are available through commercial vendors, with plans, maps, diagrams, and non-mainstream art and architecture being the images least likely to be available through these commercial channels.

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Their use in teaching is straightforward. These images are projected or displayed in the classroom to illustrate concepts or to define and describe terminology embodied in the art or architectural object. Images used in lectures are often chosen not for their photographic merit, but rather for their ability to make a point. As a result, instructors sometimes favor using less than spectacular images in lectures (often to the consternation of students), even though a more photogenic rendition of the object is also available in the visual resources collection. Image archives amassed over decades are anything but static collections. Despite the fact that images fade, can be easily damaged, or are lost by irresponsible users, it seems clear that there is more importance placed on what the image represents than on who produced it or what its physical condition is. Furthermore, image collections are notorious, perhaps out of ignorance on the part of those who administer them, for not retaining source information for images acquired. This practice is gradually changing, although there are many collections for which the only documentation available is the description of the artwork or architecture represented. Likewise, when used in teaching, the image is less significant for who created it than for what it illustrates. It is a tool for teaching; its creator or source is transparent and, most of the time, unimportant to the teacher and her students. It is not uncommon for images appearing in even the most basic textbooks to be unavailable from commercial vendors. While many images are sold commercially,3 still many more, such as plans, maps, diagrams, reconstructions, and the like, are not. Furthermore, it is often impossible to determine if an image is available from a commercial source because reference tools or indexes to images currently do not exist. It is also important to recognize that the use of images in teaching art and architectural history is not gratuitous. Images are used as the basis for discussion, criticism, comment, and reporting. Without images, the teaching of these disciplines would be impossible. Because the use of images in teaching and research has been taken for granted for more than half a century, the mechanisms for regulating their use as well as for determining ownership of images have not been developed. Early literature seldom identifies the creator of the image and in some cases, copyright is not mentioned for images used within a text.4 Images used for instruction or in teaching have similar problems. Images made from reproductions or even photographed directly from the object (artwork or architecture) would most likely be considered “unpublished works” under the Copyright Act of 1976 (17 U.S.C.) unless they have been published, performed, or publicly displayed according to provisions outlined in the law. Furthermore, few if any such images automatically fall into the public domain, even though the process of reproducing images is more of a mechanical technique than a creative expression, and even though the subject of the reproduction is often itself in the public domain. The duration of copyright protection will differ depending on whether the work is published or not. Charts outlining copyright duration over time and through legislative changes are readily accessible.5 These, however, appear to be more useful for published rather than unpublished work. Furthermore, it is obvious that mechanisms used for determining copyright for text lose their tidiness when applied to images. There are many questions regarding images and copyright that are still unanswered and may remain so until test cases provide sufficient legal guideposts for subsequent analyses.

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Images Used by Students, their Teachers, and Others: Appropriation Visual collections as repositories of images are often regarded as the logical source for images that can be used for any and all purposes. While access to archived images is often restricted to certain controlled uses, such as providing images for display in the classroom or allowing researchers to study the images, curators are often asked to accommodate other uses that go beyond traditional practices. Some of the more common nontraditional needs for visual materials include making additional copies of collection slides for someone’s personal use; reproducing slides for use in small-run brochures and posters; allowing the slides to be reproduced in local publications or displayed in campus-sponsored public performances; letting students use slide images as the basis for an art project; and more frequently today, supplying images for inclusion in scholarly literature. To the visual resources curator, these uses are problematic because of copyright questions, such as whether an image reproduced from a book or journal article under a fair use argument can be further reproduced, or whether slides acquired from commercial vendors with the stipulation that they not be reproduced or used commercially can be offered for any of these other uses without some sort of prior authorization. Increasingly, people want to use images in many more ways than in the past. Whether we can attribute this phenomenon to the influence of television or not, we must address the changing needs of education in a world where the image has become more powerful than text and an obsession to many. The image is necessary for communication and few will be able to understand why image collections are so restrictive when it comes to how collection images can be used. Another growing area of concern related to free and unrestricted access to images is the practice of appropriation. Appropriation of images is a common practice that has a long and important history in the study of art. Byzantine artists relied on formulae and repetition, borrowing freely from revered models in creating “new” images. In Chinese art there is a long tradition of copying the works of earlier masters as a form of homage to their greatness. Flemish artists borrowed and freely used “quotations” from works of their teachers and other acclaimed masters within their new creations. Another long-standing practice—copying the works of old masters—is still much in evidence in art curricula throughout the world. Students of art making literal copies of masterpieces may be found at work, even today, in most major museums. During the first quarter of this century, Dada artists took this tradition a few steps further: they created works collectively, building on each others’ creations, altering or adding freely and without worry about whose rights were being imperiled by these actions. These practices continue today as appropriation art becomes more popular and accepted within the art community, while at the same time raising significant issues regarding copyright ownership, fair use, and the like. Another manifestation of appropriation occurs in scholarship. In what appears to be another long-standing practice, scholars—not to mention students—frequently reuse an image published earlier by simply citing its source, or by noting the published basis or inspiration for their new contribution to scholarship.6 This is a practice that is recognized internationally by scholars as a reasonable use of previously published materials. Recognizing that time and customs change in response to new requirements and challenges and basing this proposal on the description of traditions, curricular

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requirements, and reasoning included in the above, I offer the following examples of what one visual resources curator hopes will be to all concerned parties acceptable fair use practices involving images: – Making an image for classroom use from reproductions in copyrighted printed matter without permission, especially when suitable photographic reproductions are not available through commercial vendors specializing in art or art historical images. (Example: The Mona Lisa within a reconstruction of its original frame, published in an article on 16th-century frames).7 – Using images8 in a course assignment, or in fulfillment of degree requirements, such as a term paper, thesis or a dissertation. (Example: The Mona Lisa in a term paper for course in Art History: “Mona Lisa = Leonardo da Vinci?”.) – Incorporating images in new creative works as a course assignment in an accredited academic institution. (Example: The Mona Lisa by Leonardo da Vinci, transformed into “Mona Lisa the Morning Before” [Mona Lisa in a hairdresser’s chair, looking into a mirror].) – Reproducing images for use in derivative works for which there is no real commercial value or financial gain for either the creator of the original image or the creator of the derivative work. (Example: Mona Lisa illustration, from a book catalog, incorporated into a name tag designed to look like a frame.) – Using images of public domain artworks or architecture freely (without written permission), even though the maker of the reproduction is identifiable (Example: The Mona Lisa: photographed by a fellow student during a trip to Paris in 1975. We had copies made and shared these with our friends. I subsequently donated my copy to the University’s visual archive.) – Using images as illustrations in a scholarly presentation or lecture to a specialized audience. (Example: Showing the Mona Lisa as an example of Leonardo da Vinci’s portraits of women at a session on Renaissance women during the annual College Art Association (CAA) conference.) – Using a reasonable number of previously published images to expound an idea or argument in scholarly writings, such as articles or books, written for a small, specialized scholarly audience. (Example: Mona Lisa by Leonardo da Vinci, illustrating the smile in Renaissance portraiture, in an article submitted for publication in a journal such as the Art Bulletin.) – Reproducing pre-1977 published images lacking copyright notices as well as any other means of identifying a photographer or creator of the image. (Example: Early photographs of the Mona Lisa that appear in countless early journals and books.)

PART II: NEW TECHNOLOGIES AND IMAGES The Transition from Analog to Digital: Images in Education and Scholarship and the Visual Resources Collection The process required for changing an analog image (e.g., a slide or an illustration) commonly used in the classroom into a digital one is relatively simple and straightforward, even with equipment made for private, at-home use: take the slide or

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illustration, scan it, adjust its size, color, and framing, save it to a file, and display the file using a projection device onto a screen. The projected image is fundamentally the same regardless of its format: a representation of a scene or object with enough definition and clarity so that it can be discussed or critiqued or be the vehicle for eliciting commentary or be the object of a report. The content of the image has not changed with its transformation from an analog object into digital bits and bytes, even though in the latter, it probably has lower resolution and it may not be as luminous as its film or paper counterpart. The need for images in the new classroom is the same as in the old. Digital images are still needed in the same quantity as slide images, and these are still the same images represented in text and trade books that constitute required reading for students. Unlike slides, there are fewer commercial vendors offering digital images, although it would appear that images available on the Internet through the World Wide Web (WWW) already exceed in size the typical visual resources collection (250,000 items). The proliferation of images on the Web and the desperate push by revenue-deficient academic institutions “to digitize” (the newer version of the verb “to automate”) has opened up new areas for concern regarding the use of images within what we understand to be the legal limits of copyright and fair use. The proposed fair use practices in the previous section of this report are easily translated into digital practices. Because none of the conditions for use have changed other than the transformation of the object’s image from an analog format into a digital one, I suggest that if these practices are acceptable in the traditional format, they should also be approved for the new technologies: – Making a DIGITAL image for classroom use from reproductions in copyrighted printed matter without permission, especially when suitable DIGITAL reproductions are not available through commercial vendors specializing in art or art historical images. – Using DIGITAL images in a course assignment, or in fulfillment of degree requirements, such as a term paper, thesis or a dissertation. – Incorporating DIGITAL images in new creative works as a course assignment in an accredited academic institution. – Reproducing DIGITAL images in derivative works for which there is no real commercial value or financial gain for either the creator of the original image or the maker of the derivative work. – Using images of public domain artworks or architecture freely (without written permission) TO CREATE A DIGITAL IMAGE, even though the maker of the reproduction is identifiable. – Using DIGITAL images as illustrations in a scholarly presentation or lecture to a specialized audience. – Using a reasonable number of previously published (OR POSTED) DIGITAL images to expound an idea or argument in scholarly writings, such as articles or books, written for a small, specialized scholarly audience. [See for example, Mona Lisa, accessible at WWW site: http://www.cnam.fr/louvre/paint/auth/vinci/joconde/] – Reproducing pre-1977 published images lacking copyright notices as well as any other means to identify a photographer or creator of the image AS DIGITAL IMAGES.

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The transition from analog to digital is not easily traversed. Numerous questions are being raised, some based on an earlier understanding (or misunderstanding) of technology, suggesting that fair use may not apply to the digital format9 Some of the more challenging questions in recent discussions on various electronic listserves include: what is fixation and when does it occur; how many copies are made during transmission; and how should images be used and regulated in cyberspace? Other questions, more fundamental questions, also beg answers. For example, consider the following. – When licensure and contractual arrangements are available for electronic or digital images in education, is a fair use argument for the use of the images weakened or possibly excluded? If not, under which circumstances could fair use take precedence over a previously negotiated contractual or license agreement? – Who really owns which rights in an image? Just because an image is reproduced with text, does the publisher/copyright holder of the text have any claim or rights on the included image? – When can museums rightfully restrict the use of an image of an artwork now in the public domain? Is this a provision of copyright, or another right? – If a museum acquired an artwork prior to 1978 (when the current Copyright Law in the U.S. took effect), did the artwork’s copyright status change to conform to the new rules, or do the older rules in effect at the time of acquisition still apply? – Is a photographic reproduction—a summary illustration, more precisely—of a work in the public domain eligible for copyright protection? – Because publication can affect the length of protection under the current Copyright Act, when is a slide or photograph considered to be published? – Does the absence of copyright notice before 1978 signify that the artwork illustrated is not covered by copyright? How does one determine if an image is in the public domain? – Is there confusion between the use of the term “copy” when applied to text, and “copy” as it is used to describe a unique artwork—one which exists only in a single manifestation? Does the Copyright Act sufficiently account for the difference between the ability to produce an exact copy of the text of Moby Dick and the inability even to come close to replicating the Mona Lisa? – Given the minimal requirement for originality in copyright decisions, does a manipulated digital file of an artwork constitute a new copyrightable object? Conversely, does the goal of making photographic reproductions of artwork to be as faithful to the original as possible, diminish the creativity requirement for copyright protection of that photograph?

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– Can an object or copy be protected by a “thin copyright,” that is, a copyright that accounts for the layer of difference thought to be implanted by reproduction techniques, or involuntarily imposed by the unconscious objectives of the copyist? Some copyright specialists see only a “dubious copyright” in such hypothetical claims. – When are guidelines that stipulate limits on usage in the educational process a possible violation of free inquiry? When do the laws governing intellectual property actually become the laws of intellectual control?

NOTES 1. The views expressed in this paper are my own. I do not speak for the University of Oregon or for any other organization with which my name may be associated. 2. See B.J.Irvine, Slide Libraries: A Guide for Academic Institutions, Museums, and Special Collections, 2nd edition (Littleton, Colorado: Libraries Unlimited, 1979), p. 25, for additional names of institutions dating from this period. 3. See the Slide Buyers Guide, 6th edition, edited by Norine Cashman. This publication, now sponsored by the Visual Resources Association, was first distributed by the College Art Association, Commercial Slides Committee. Nancy DeLaurier was the editor of the first edition in 1972. 4. John Rewald, The History of Impressionism (New York: The Museum of Modern Art, 1946). The copyright notice appearing on the verso of the title page reads: “Copyright 1946, The Museum of Modern Art, 11 West 53 Street, New York 19, N.Y.” On p. 434, “Sources of Illustrations” includes a list of image providers who are in fact the owners of the artworks illustrated (private collectors). Also included is a list of illustrations “made after reproductions in books, periodicals, catalogues, etc.” None of the figures indicate copyright, nor is copyright mentioned with respect to the list of sources. 5. See Robert A.Gorman and Jane C.Ginsburg, Copyright for the Nineties: Cases and Materials, 3rd edition (Charlottesville, VA: The Michie Company, 1989), p. 275, for a table describing duration of copyright relevant to the transition from the 1909 to the 1976 Copyright Act. According to this chart, works “[c]reated, but not published, before 1978” are protected upon creation, and this protection lasts for a “Unitary term of at least life +50, earliest expiration dates 12/31/2002 (if work remains unpublished) or 12/31/2027 (if work is published by the end of 2002).” 6. In the article, “Likeness of No One: (Re)presenting the First Emperor’s Army,” by Ladislav Kesner, Art Bulletin, Vol. 77, No. 1 (March 1995), all of the illustration derive from other sources, including one comparative illustration of Queen Nefertiti, “from The Egyptian Museum in Berlin, Berlin, 1990, 97.” 7. [Ed. The original images are not reproduced here.] 8. “Images” here and hereafter will assume that these are from any source or in any format. While I have used Leonardo’s Mona Lisa as the basis for my examples, I am not limiting my arguments to art in the public domain. Artworks from all periods, through the modern, should be assumed to be equally applicable, unless otherwise indicated. The images are also assumed to be protected by copyright unless otherwise noted. 9. [Ed. See Donna A.Demac, Is Any Use “Fair” in a Digital World? Toward New Guidelines for Fair Use in the Educational Context. (New York: The Freedom Forum Media Studies Center at Columbia University, 1996).]

The Pedagogical Consequences of Photomechanical Reproduction in the Visual Histories: From Copy Photography to Digital Mnemonics

by Maryly Snow Visual Resources, Vol. XII, pp. 307–331 Reprints available directly from the publisher Photocopying permitted by license only

© 1997 OPA (Overseas Publishers Association) Amsterdam B.V. Published in The Netherlands under license by Gordon and Breach Science Publishers Printed in Malaysia

INTRODUCTION: COPYRIGHT, PHOTOGRAPHY, AND ART HISTORY Legislators, attorneys, librarians, slide curators, even art historians have been discussing intellectual property and copyright with an intensity unmatched for the past twenty years. Barometric readings of the number of scholarly and professional society conference sessions devoted to copyright indicates increased levels of preoccupation. The 1996 College Art Association (CAA) annual conference, often the setting for high-level semiotic and deconstructivist art discourse, presented a slew of intellectual property and digital pedagogy sessions. Attendees at the concurrent Visual Resources Association (VRA) conference were able to attend sessions on various aspects of intellectual property, copyright, fair use in the electronic environment, and digital pedagogy. The diversity of topics and speaker affiliations reflected a surprising breadth of discussion within what is essentially a narrow range of concern: art and architectural history instruction, and its supportive professional specialization, visual resources curatorship. Session titles ranged from the boldly discursive (“Making money, making art in the new media: law, business, policy, and ethics in the digital environment”), the straight-forward (“Intellectual property rights in the electronic age: the issues for librarians, visual resources curators, scholars, and artists”), the polemical (“Who owns the Mona Lisa?”), to the bedrock of pedagogy in art and architectural history, the status of copy photography (“The visual surrogate as intellectual property: is ‘Fair Use’ on the verge of extinction?”).

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What occasioned this exponential growth of attention to intellectual property was the release of the government’s pre-legislative position paper on intellectual property, the “White Paper.”1 Release of a policy document precedent to legislation is generally accompanied by position papers, legislative hearings, and non-legislative policy debates such as the ongoing Conference on Fair Use (CONFU) in Washington D.C. The outcome of the CONFU debate will be important, for CONFU will undoubtedly form the basis for the first set of implementation guidelines to accompany the finalized National Information Infrastructure (NII) Copyright Protection Act of 1995. If the experience of the 1976 Copyright Act is any indication, other fair use guidelines for education and libraries will follow, but a congressionally-mandated one will appear to have the prestige and force of law. A critical argument in the CONFU debate seems to turn on the role of copystand photography in the pedagogical environment. Behind the “White Paper,” of course, is the computer. Although the computer has been around since World War II, the convergence of the personal computer and the World Wide Web has made unregulated one-to-one transmission of intellectual property both feasible and desirable. In an attempt to rein in and develop profit from the heretofore free electronic and seemingly anarchic transmission of information, the NII Copyright Protection Act has been drafted. Prior to the recent debate, fair use and acknowledgement of copyright in the non-profit educational environment had reached a normative point of balance. In visual resources collections, for example, signage has been posted advising patrons not to duplicate slides, because, after all, fair use permits making only one copy of copyrighted material. That one copy is the extant slide, and curators are professionally obligated to ensure that slides purchased from vendors and other images requiring copy protection receive it. Institutions of higher learning have had to come to terms with the various edicts of their respective legal counsels. A few schools were not permitted any copystand photography whatsoever. Some schools were permitted a prescribed amount of copy work (10–11% of the total number of images in a book, for example), while the majority were allowed to meet the curricular needs of the their faculty as they saw fit, whether through a combination of copystand photography and purchase of vendor slides, or whether forced to rely exclusively on copystand photography because faculty demand exceeded budget limitations. The release of the “White Paper” has focused attention once again on both the fair use doctrine and copystand photography. Although the current law still stands and institutional practices have not yet changed, the “White Paper” and its accompanying debate have brought to the fore issues unresolved by the 1976 Copyright Act. In other words, is copystand photography legal, permissible, defensible? In the process, different opinions have been expressed, not only among the various legal counsels of institutions of higher learning, but also among image professionals themselves, especially those allied with intellectual property-owning-institutions versus those affiliated with intellectual property-using-institutions. The focus of this paper will be on the role of the visual surrogate in education, especially in art, architectural and other visual histories, that is, in interpretative pedagogical environments in which visual transmission of the creative output of others is mandatory.

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COPY PHOTOGRAPHY Before considering the still nascent realm of digital rights, one must consider the legal status of copystand photography. Notwithstanding the conviction held by most visual resources curators that this issue is a dead horse, in fact copystand photography is a keystone in the fair use debates. Why, after all these years, has the issue assumed newfound prominence? Perhaps image professionals have failed to live up to some undelineated professional duty to educate attorneys and legislators, or perhaps photographers and museums are being enticed by the potential for additional revenue streams. In any case, the practice of copystand photography has been straightforward, necessary, and appropriate for art history’s pedagogic mission for at least a century. Although the term “copystand photography” can be used with a variety of nuances, here I am referring specifically to the duplication of copyrighted materials by photomechanical reproduction methods as a fair use. “Fair use” has been conceptually embedded in American copyright law from its inception in the Constitution, for the law was written “to promote the Progress of Science and useful Arts.” The fair use doctrine was first explicitly articulated in 1841 in Folsom v.Marsh (9 F.Cas [No. 4901] 342 [C.C.D.Mass. 1841]). In deciding whether the Reverend Upham had violated copyright by deriving, or abridging, 353 pages of someone else’s book of 866 pages, the court held that, “…In short we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degrees in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”2 Today this is the basis of Section 107, Fair Use, of the 1976 Copyright Act. Ray Patterson puts this into context, saying that …the primary purpose of copyright—as stated explicitly by the framers of the U.S. Constitution and subsequently upheld by federal courts and Congress—is to promote the public welfare by the advancement of knowledge. With the specific intent of encouraging the production and distribution of new works for the public, copyright provides incentive for creators by granting them exclusive rights to reproduce and distribute their work. But these rights are subject to important limitations—nearly all of them related to the basic purpose of advancing knowledge for the general welfare of society.3 Much of the argument between owners and users of copyrighted information seems to have arisen over a basic dispute over the purpose of copyright law, and Patterson’s book, quoted above, is devoted to resolving the debate. To employ the fair-use provisions of the copyright act is not to abuse the rights of the author or copyright owner; indeed, the very purpose of copyright is to advance knowledge and thus benefit the public welfare, which is exactly what fair use—properly employed—does… Underlying all of the misconceptions and confusions concerning copyright are several key theoretical issues… Central among them is the long-standing debate over the nature of copyright itself, which in legal terms boils down to this:

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Is copyright a natural-law property right of the author by reason of creation of a work? Or does copyright exist only as a concession by society, that is, as a statutory grant of a limited monopoly? As we will demonstrate, the weight of evidence overwhelmingly supports the limitedmonopoly interpretation, which indeed serves as the basis for the 1976 Copyright Act. Nevertheless, arguments based on the alternate theory continue to arise in court cases, regularly contributing to the confusion surround[ing] the law.4 The history of the visual histories (including but not limited to architectural and art history) is, by nature, bound up with the ability to see and comprehend images and forms. While it is beyond the scope of this paper to describe the historiography of the visual histories and the history of visual pedagogy, it is useful to recall some of the pretechnological means of establishing visual mnemonics. These range from traveling abroad, the post-Renaissance Grand Tour, to copy-drawing in museums, popular during the eighteenth and nineteenth centuries. People also studied and drew from plaster casts. The ability to draw and copy was considered an essential attribute of an educated person. These practices are succinctly summarized in Walter Benjamin’s seminal essay, “Art in the Age of Mechanical Reproduction:” In principle a work of art has always been reproducible. Man-made artifacts could always be imitated by men. Replicas were made by pupils in practice of their craft, by masters for diffusing their works, and, finally, by third parties in pursuit of gain. Mechanical reproduction of a work of art, however, represents something new.5 Benjamin’s concern and ours soon diverge, for he is concerned with the sensate experience of art which may be traced in a continuum from its original cult and ritual roles to its function in exhibition. In contrast, our concern is generally not with the exhibition, but with the image as mnemonic, to be used for pedagogic purposes. Benjamin was concerned not with the pedagogical consequences of mechanical reproduction, as we are, but with the impact and authenticity of the original. In contrast, our focus is on the copy as a visual reference to the original. It is important to note that the invention of photography and the development of recent art historical education practices follow a parallel trajectory. The first American art history course was taught at Princeton in 1831–32. The first direct positive photograph was produced in France in 1839. By 1900 art history had become an autonomous discipline in the United States, and by the mid-twentieth century over 900 courses in art history were offered in colleges and universities alone, not counting the numerous courses taught at museums and galleries.6 The history of architectural and art historical education and the history of photography during the nineteenth century are relevant to today’s intellectual property debate, for the development of photography and photomechanical reproduction capabilities matches, indeed permits, the development of art and architectural history. Although art history had its earliest beginnings in ancient Greece, and assumed its more familiar form in the sixteenth century, it was only with the development of photomechanical reproduction that visual education entered the academic

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mainstream. The history of visual instruction across disciplines, while not yet adequately researched, is touched upon briefly by librarians, visual resources professionals, and historiographers, especially the historians of art and architectural history and photography. As we shall soon see, the development of art historical education in the United States depended as much upon photomechanical reproduction as upon supportive copyright law. Because the earliest visual reproductions, whether plaster casts, painted copies, or lantern slides ( glass slides) were tedious to produce, they were saved, collected, and gathered together for future use. This is an important point, for even though the 1976 Copyright Act explicitly permits fair use for personal use, interpreting this term too literally as a reference to one person would seem to be wrong, in this writer’s view. Collecting copyrighted works for “personal use” is generally thought to refer to a one-person collection of items, whether books, photocopied articles, or slides. However, that is merely the common and obvious interpretation. “Personal use” can also be interpreted as the antonym of commercial use. Personal use does not mean that one person cannot share with another person, or that an institution cannot strive for economies of scale and shared resources. Personal use and fair use may be similar in that both are not commercial uses, but they are still not inherently synonymous. Plaster casts, painted copies, engravings, and lantern slides were collocated together then, as 35mm slides are today, and organized into collections from which the faculty could illustrate their lectures. Visual resources collections, and the profession as we know it today exists as a result of progress in the technology of mechanical reproduction…”7 “The earliest noted slide collections in the United States date from the 1880s to 1900.”8 These included Bryn Mawr College, the Art Institute of Chicago, Cornell University, Dartmouth College, Massachusetts Institute of Technology, Princeton University, and the University of Illinois. The lantern slide was the object of collection. Melvil Dewey, founder of the American Library Association in 1876, said of the lantern slide in 1906: …A generation ago the lantern slide was little known except in magic lantern entertainments, and it required some courage for the first schools to make it a part of the educational apparatus. Today there is hardly a college or university subject which is not receiving great aid from the lantern. No one thinks of it as a course in art or discusses it from an ethical standpoint. It is needed by the engineer, physician, botanist, astronomer, statistician, in fact in every conceivable field, but of course, it is specially adapted to popular study of fine arts because they are so dependent on visual examples, and the lantern is the cheap and ready substitute for costly galleries.9 Exactly what first propelled these slide collections into being, how slides were collected, and when visual instructional materials were first produced requires further research. Much of what we know is conjectural and accretive. One can assume that these early collections acquired lantern slides through both faculty travel abroad and local distributors as early as the 1880s. By the 1890s, service bureaus were producing lantern slides from negatives supplied by customers, and were widely advertising their services.

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It is probable that those who were acquiring commercial lantern slides also took advantage of such service bureaus to reproduce those plans and diagrams and images required for their instructional programs that were not available commercially. The technology was available, as evidenced by articles and advertisements in photographic magazines such as the Photo-miniature and Photogram.10 We do know that Art historians welcomed the new medium. Allan Marquand (1853–1924) lectured with slides at Princeton as early as 1882, and James Hoppin (1820–1906) began using them in his omnibus course in the history of art at Yale during the same period. [Charles Eliot] Norton had turned to slides at Harvard by 1896 and D.M.Robb believes they were introduced at the University of Pennsylvania about 1910. According to L.Arnaud, such teaching aids were initially employed at Columbia’s School of Architecture in 1912, by Professor A.D.F.Hamlin (1855–1926), who made them from a collection of Alinari photographs he had been gathering since 1892.11 Because none of the college and university slide collections from the 1880s now report having collection development records from their founding days, it is unclear when institutional copystand photography began. In the absence of further information, we can make some informed and logical suppositions, namely, that three collection development techniques were available. The producers/distributors of original lantern slides were the first slide vendors. This might have included the Langenheims, who were making their own photographic transparencies by 1849, and whose published list of diapositives was probably the first slide catalog. Lorenzo Marcy, a Philadelphia optician, published the sixth edition of his list of purchasable lantern slides in 1877. The T.H.McAllister Company, Manufacturing Opticians of New York, advertised a lantern slide sale with reduced prices in 1878–1879.12 The faculty who produced lantern slides or sent their own negatives to lantern slide producers, and donated them to the slide collection were the first slide donors. And faculty requesting that certain images be made into lantern slides for instruction, because the images were not available any other way, created the beginnings of copystand photography for educational institutions. Hamlin’s lantern slide copies of Alinari photographs are the first named and documented instance of copystand photography of copyright material by a professor found by this researcher. It is unclear whether images were transferred to lantern slide format in-house by the educational institution or by an outside service provider. Nonetheless, the reformatting of one media into the lantern slide format (indeed, into the 35 mm format as well) can easily be viewed as translation to a new media, hence interpreted a derivative work and copyrightable in its own right. In any case, the transfer method was laborious and complex, and may not even have employed a copystand as we comprehend the term today. Nevertheless, the essence of this type of photographic copying remains the same whether a copystand was employed or not: Hence, we extend the term “copystand photography” to signify the production of lantern slides and 35 mm slide copies. But who was engaging in copystand photography, and when is merely a tiny piece of the puzzle, and should not obscure the fact that the invention of photography and photomechanical reproduction enabled the realistic visual display of cultural history.

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Francis Firth’s photographs of his travels to Egypt and the Middle East in 1856 and 1857, turned into lantern slides by Negretti and Zambra of London, were displayed at the Mechanics Institute Winter Exhibition of 1858. J.P.Mellor, Minister of Parliament, writes of the great excitement among the audiences, of the advantages of lantern slides for their availability to large audiences simultaneously, and of their invaluable potential as educational aids in illustrating lectures. In addition, he could “see no reason why paintings and engravings might not be photographed and exhibited in the same way.”13 Mellor was not alone in his assessment. Indeed, the comparative method of presenting visual histories was made possible only because images of objects could be placed side by side. …Wöfflin’s great genius lay precisely in his sensitive reaction to the visual appearance of the individual work of art; indeed, his constant comparing and contrasting of one object with another has formed the basis of the way in which the history of art and architecture is taught to this day: for example, professional art historians nearly always illustrate their lectures with pairs of lantern slides, a comparative technique which seems to go back to Wölfflin’s Renaissance and Baroque [published 1888].14 Slide curators and photographers generally use the term copy photography to refer (1) to the practice of, and the techniques required for making a photographic copy of an original piece of art (in situ photography), and (2) to the reproduction of an illustration of a piece of art (copystand photography). Unfortunately, the term copy photography has been used rather loosely throughout the twentieth century, obscuring what is essentially two different strategies for making photographic visual reproductions. Copystand photography takes place at the copystand and generally involves making a photographic copy or reproduction of a photographic, drawn, or otherwise still image that typically is not an original work of art. In situ photography takes place at the location of or face-to-face with the original object, such as at a museum or architectural site, or when the original object is moved into the photographer’s studio. While the location and quality of the item to be copied can vary between in situ and copystand photography, the end product of both processes is a visual reference, a surrogate image, a copy. Because the products tend to serve similar functions, the terminology identifying the two processes have been conflated in the past into the one, more common term, copy photography, thereby obscuring the fact that in situ photography produces a first generation, often high quality image demanding considerable judgment on the photographer’s part, while copystand photography, working from published illustrations, often produces images several generations distant from the original in situ photograph and consequently is typically of mediocre quality. Claims to the intellectual rights of an in situ photograph are usually made by the artist and photographer, while rights to the subject of copystand photography may be manifold. Attempts to clarify meanings surrounding the term copy have sometimes produced multiple levels of confusion. Fifty years ago, for example, photographic copying was distinguished from document copying, where the latter was defined as “reproduction, microfilming, photocopying, and office copying” as opposed to copies made from photographic negatives. The verb to copy was defined as: “to photograph flat material,

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such as photographic prints, drawings, paintings and documents.” As a noun, the copy “…in the graphic arts…denotes the original or material to be copied.”15 In this case, photographers, layout and copy editors can refer to the original as “the copy,” as in “do you have the advertising copy?”, or “Where is the copy I was editing?” While it is beyond the scope of this paper to explore more fully the etymology of the term copy, its numerous permutations of usage might shed interesting light on our discussion about the historiography of art history and the role of both photography and fair use in its development. Today some argue that copy photography, by which is meant the in situ process, is the contemporary equivalent of copying drawings and paintings in museums. This practice was so prevalent in nineteenth century Europe because it was a standard method used to train students of the arts and architecture. Indeed, the lessons it taught served as a hallmark of the educated person. In situ photography thus closely resembles copydrawing. Others hold that copy photography from reproductions, such as that which produces slides (copystand photography) is most closely related to photocopying or xerography, except that the final product is in a form that can be presented to large numbers of students at the same time instead of to only one person at a time. Still others maintain that copy photography, by which is also meant copystand photography, results in an infringement of the original photographer’s intellectual property, an argument that, in this writer’s opinion, ignores the fact that most photographers are not in the business of selling, marketing, and distributing their images directly to educational institutions, nor does this assertion acknowledge the traditional claim of fair use. Furthermore, the raison d’être of photographing in situ is not typically to create an original photograph, but to represent an object—which may be someone else’s intellectual property. In visual resource collections, using a camera and a copystand, one makes a photographic copy, usually a 35 mm slide, of an image, a picture, a reproduction. The image is reproduced or copied for use in a variety of educational settings, most commonly classroom teaching and lecture presentations. Who engages in educational copystand photography: the general public, teachers, faculty, students, and visual resources curators. The latter, be they librarians or curators, often train or hire and supervise copy photographers in order to obtain the most accurate and efficient copies possible. Both copy photographers employing the copystand and those working in situ aim to make the most exact copy, introducing as little originality and personal subjective interpretation as possible into the end product. A good representation requires technical know-how, and it is that technical know-how that gets the copy photographer hired in the first place. A crucial argument in the copy photography/fair use/intellectual property debate asks whether the photographic visual representation may contain sufficient originality in it to warrant an assignment of copyright to the photographer. Most librarians and curators argue no; they say the best photographic representation of an artwork or photograph has the least originality, and that technical acumen alone is required for its production. But most photographers argue yes; they say that their technical acumen, exercised in front of the object, involves interpretation, and warrants the assignment of a new copyright. This claim is most commonly found attached to in situ copy photography, but it also has been applied to copystand photography of original two-dimensional works. If the photographers’ argument wins in the current round of debate, it is possible that all objects and images photographed will be copyrightable, and

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fair use privileges could come to an end. In this scenario, these copyrighted images will “belong” to private individuals, to museums or corporations instead of taking their rightful places in institutions of higher learning as signifiers and reference examples of our shared cultural heritage. The privatization of art and the commercialization of images is but one manifestation of the commodification of inf ormation and the resultant decline of public education and the commonweal. Art historians often express their objection to teaching from copies. Eager and privileged to assemble collections of casts, photographs, and lantern slides, among other forms of copies for instructional purposes, nonetheless historians were, and still are, highly critical of photographic copies. It may be that the color is inaccurate, relationships are distorted, references to scale undeveloped, or the experience of the object itself falsely mediated; it has generally been obvious, heretofore, that the copy was not the original. Most historians take the time to caution students that they are being shown reproductions, not the real thing, that their experience of the object in the lecture hall is not a substitute for the experience of the object in the real world. Wolfgang Freitag, in his essay, “Art Reproductions in the Library,” quotes Estelle Jussim who notes “that even today’s photographs are simply maps of originals, not duplications of originals.”16 Freitag continues, “…it is clear that all reproductions can only be accepted as messages about the originals for which they stand.”17 Nevertheless, while some historians warn students of the perils of learning from surrogates, the need to collect them is obvious. Many students of culture assemble vast collections of images, doggedly documenting through their own photography and other image acquisition methods everything they find significant in their travels and studies. Two traditional consequences of making copies are just as pertinent today, in the era of the photographic and digital image, as they were in the past. Copies, or mnemonic images, tend to create simultaneously a devaluation and an increased eminence of the object reproduced. On one hand, increasing familiarity with the surrogate can breed contempt for the original, while it increases its reputation. In addition, with increased exposure to copies and surrogates, and decreased exposure to originals, one can easily learn to mistake one’s experience of the reproductive image for the experience of the authentic object. Indeed, the object can become cheapened and vulgarized through inappropriate reproduction. Electronically produced virtual galleries and virtual museums must take special care. Digital representations could be displayed out of context, with misleading or with no sense of scale and materiality, what Robert Baron refers to as “the union of the museum with the video-game arcade.”18 On the other hand, the creation and widespread distribution of the surrogate bestows legitimacy upon the actual, elevating it subliminally to the status of the beloved, guaranteeing it a place, however tiny, in history, conferring immortality upon the creator and the object, and assuring us, the viewers, of access to the actual, to the authentic. Some of these objects find themselves elected to the pantheon of “key monuments.” The image then exerts a strong push-pull experientially, in collecting, in copy photography, and in legal interpretation, for it becomes exceedingly difficult to separate an object from its images. Perhaps if some or most of the participants in the ongoing CONFU hearings were more familiar with the history of visual reproduction and its crucial, but qualified role in art and architectural history, the question of whether copy photography, both in

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situ and copystand, is a fair use might be put to rest. The copy image should be understood as a reference image, a signifier, a visual mnemonic—the viewer acknowledging that the actual, authentic object, in essence, the experience of the real object cannot be copied, that it can only be represented. Unfortunately, this is a more difficult argument to make today than a few decades ago because we have become so familiar with copies, reproductions, simulacrums, and visual mnemonics that we are beginning to accept the surrogate as the actual. We have been so successful in our efforts to create surrogates that accurately convey the impression of the actual that we have blurred the distinctions between the two experiences. Because as a culture we no longer always know how to distinguish the surrogate from the real, we tend to dismiss arguments such as Benjamin’s, that claim that objects can only be represented, not experienced, through their visual surrogates. Failure to discern the true differences between the surrogate and the actual can lead to a conviction that unlicensed copy photography is an infringement of the intellectual property held in the original. Nonetheless, the art reproduction has been central to the development of twentiethcentury art history curricula in colleges and universities. Photomechanical reproduction encouraged art history to evolve into a separate discipline of academic inquiry. The original aim of the Constitutional sanction of copyright, “to promote the Progress of Science and useful Arts” is well-realized in this development. From today’s vantage point, with a glut of art reproductions embellishing tee-shirts, tote-bags, and posters, it is difficult to comprehend the conviction and fervor with which art education was promoted in the nineteenth century. Once seen as a source of moral uplift and enlightenment, as evidenced by the nineteenth-century development of drawing methods, the school decoration and the picture study movements, the role of art history and art practice today is no longer perceived as central to the development of a strong democracy.19 Perhaps the decline of the role of art and art history as a force in the Americanization and democratization of a diverse citizenry, concomitant with the emergence of art as the stylish attribute of a wealthy, elite, and trendy class of collectors, has contributed to the rising expectation of images to produce capital and has fostered the corresponding lack of interest in its pedagogic, civic, and humanist functions. Owning facsimiles and fine reproductions now has social, hence economic consequence. In any case, twentieth-century image acquisition methods are almost unchanged from the late-nineteen-century methods. Copystand photography, in situ photography, and slides purchased from vendors continue to be prevalent collection development practices. Today slides are the ubiquitous 2″×2″ transparencies; the once common glass lantern slide is now virtually unused. Copy photography, as stated before, refers to the practice of making a photographic copy of an image. Slide collections also receive on-site (in situ) photographs from faculty, students, and others who shoot slides on location and offer them to the slide collection either as originals or duplicates. These are received as gifts, at cost, or in exchange for film and/or film processing. Vendor slides are those bought from individuals or companies that are in the business of selling original or duplicate slides. Typically these are slides taken on site, and frequently are under restrictive license from object owners. Obviously, many vendor slides are not appreciably different than the on-site slides of travelers. Vendor slides may be the product of professional photographers, architectural,

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museum, or studio-based. Vendor slides can be the product of scholarly travel or sophisticated in situ professional photography. One could insist on a distinction between the pragmatic “on-site” photographic efforts of scholars, curators, and travelers and the technical acumen of “in situ” professional photographers, but such a distinction might not shed any useful light on the essential argument of this paper—that the relationship between the simultaneous development of the visual histories and photography in the nineteenth and twentieth centuries was fostered by the lack of any impediment imposed by restrictions of copyright. It is important to keep in mind that acquisition of vendor slides in the “slide library” is in no way related to book and periodical acquisitions in the “book library.” For slide librarians there is as yet no equivalent to Books in Print, no listings of available image titles. Indeed, there are no titles. One building or piece of art can be represented by many, even hundreds of views. In the monographic library world there are jobbers, suppliers, and distributors who meet the basic collecting needs of each institution by filling blanket and standing orders. The confluence of several critical publication and distribution factors in book and periodical production do not pertain to images, whether photographs or transparencies (slides). The book exists as a unique, known entity, where the combination of author-title denotes a specific item, one that is distinguishable from other known entities of different author-title combinations. Scholarly and educational books can be printed in runs as small as a couple of hundred, and as large as one hundred thousand copies. Both production and purchase exist on a scale unmatched in the slide environment. Although comparative production, marketing, and acquisition studies have not been undertaken, we can hazard a few guesses about what they might reveal. How many institutionally-supported teaching slide collections are there? Seven hundred? A thousand? Of these, how many regularly purchase slides? One hundred? Four hundred? One architectural slide vendor marks each original slide with a symbol to show which institutions have purchased the right to duplicate it. A typical slide in this vendor’s inventory displays three to twelve symbols. With acquisition numbers this small, coupled with an average cost of about $4.00 per original slide, marketing is rarely cost-effective, and distribution is costly on a per-unit basis. Because none of the critical factors of book publication obtain in visual instruction (publication volume, unique known item, sufficient item cost, efficient marketing and distribution systems), buying slides is difficult, time-consuming, and chancy. In spite of these difficulties, Academic Press, a division of Harcourt Brace, has embarked on an ambitious and long-overdue Image Directory project, aiming to become the Books in Print of images. Image Directory is slated for publication circa 1998. Even if purchasing slides were easier, it is simply not possible to purchase many of the images needed for teaching. Plans of buildings, diagrams of altarpieces, obscure works of art, objects that are not key to the art historical canon, and even some which are, are among those images not available for sale. There is no market large enough to make it worth someone’s time and trouble to photograph, market, and distribute all the necessary art and architecture historical images. But many of them are available as reproductions in books and periodicals. Copystand photography has been filling the gap between what can be purchased, and what can be photographed on site for somewhere between fifty and a hundred fifteen years.

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How prevalent are these three acquisition methods in the average instructional slide library? The answer to this question may affect our views of copystand photography as a fair use. One problem in undertaking comparative production and marketing studies is that there is no typical or average slide library. The larger, long-established, slide libraries are relatively few in number, ranging somewhere between twenty and two hundred. The first survey of colleges and universities teaching art and architecture history was undertaken around 1910, and published in 1912 as the “Princeton pamphlet.”20 Of the 108 colleges and universities surveyed, sixty-two did not teach art and architectural history, or had no visual aids or library materials; twenty mentioned that they had slides and photographs, but did not cite any quantities; and twenty-six provided the number of lantern slides in their collections. The amounts cited ranged from a low of 200 to a high of 15,000, with the average 3,540 and the mean 3,000. Today, almost every college and university has an art history course, even if the requisite visual materials are not necessarily supported institutionally. What do we mean by “average,” anyway? This varies by subject and by institution. Whether we are discussing art history or architecture, the graphic or decorative arts, Near Eastern studies or anthropology, each subject area has a distinct historiography, uses different images, some published and some commercially available. Besides the almost unanswerable question of what is the average slide library, the prevalence of the three collection development methods in the various slide collections is also unknown. It is unfortunate that no surveys exist that document the range of use of each acquisition method in the slide library, both historic and contemporary. What we do know today, however, is that at one end of the scale there are slide collections that rely exclusively on purchased and donated on-site slides; and that at the other end of the scale there are slide collections that rely exclusively on copystand photography. The “average” slide library, the paradigm, if you will, could be defined as one that relies on all three methods. Most problematic is the fact that the instructional needs of the visual disciplines are too inconsequential for book and periodical publishers to address. For example, the periodical Art in America does sell slides of its contemporary art images on a subscription basis. But the publisher has repeatedly refused requests to sell its architecture and decorative arts images on a similar basis. When the images are not available commercially, copystand photography is the last and perhaps only resort. Scholarship and free inquiry will not be bounded by what the market decides to offer. Based on twenty years in the world of slide libraries, this writer would guess that copystand photography in the “average” slide collection accounts for forty to eighty percent of acquisitions (excluding both extremes of “no copystand photography” and “only copystand photography”). In other words, the average slide collection today depends to a substantial, but not exclusive degree on copystand photography. Although not explicitly permitted by the 1976 Copyright Act, copystand photography for non-profit educational uses can be interpreted as a permitted use under the terms of Sections 107, Fair Use, and 108, Library Copying, of the existing statute. The text of Section 107, Fair Use, reads as follows: Notwithstanding the provision of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in that section, for purposes such

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as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

DIGITAL MNEMONICS AND PERMISSIONS Leaving aside the question of copy photography, let us look briefly at the newest educational uses of slides. New technological capabilities are rapidly changing the nature of the slide library, the curator’s role, its users’ expectations, and the legal environment in which librarians and curators find themselves. These technological capabilities make it feasible and reasonable for visual instructional collections to be made fully accessible— not merely to the faculty in the department that funds the collection—but across the entire institutional population. This can be achieved by the use of detailed indexes using standardized vocabularies and other kinds of visual references. It is also reasonable to expect (1) that the on-line library catalogs of books will find their counterparts in on-line catalogs of images, (2) that we permit faculty access to our collections from their homes and offices, (3) that we provide access to these visual catalogs for students to review images as study aids and for research from their homes, and (4) that we support distance learning to ease the commuting and polluting burden of those located in geographicallydistant places. These are a few of the most obvious changes in pedagogical and slide library practices that require our familiarity with copyright, digital permissions, and sitelicensing contracts. As digital permissions and site licensing agreements become more common components of visual resources collections, the application of fair use will continue to play a vital role in the slide library. Copystand photography and slide scanning, the digital equivalent of copystand photography, continue without explicit contractual agreements, and will continue this way until such time as there are reasonable market alternatives. Fair use is not extinct, nor is its principle. What is new is the introduction of licensing, so that images procured through fair use increasingly coexist with those obtained through licensure. In the slide library, license agreements with slide vendors are fairly new, but are becoming more common. However, agreements with book publishers for digital images in the United States are non-existent. Is there a contradiction between negotiating permissions and contracts with slide vendors, but not with book publishers? No. The main reason why the latter does not exist may be found in the market, or lack

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thereof. Book publishers are not trying to sell their images as 35mm slides; slide vendors are. Most book publishers do not own the rights to the images in the books they publish. For many scholarly works, it is the author who purchases the images and pays for the right to publish them. Typically neither publisher nor author own the rights to images. Fair use permits the use of copyrighted material for non-profit educational purposes as long as the four above-stated conditions are met. All four conditions relate directly or indirectly to profit and the market these items inhabit. Because slide vendors have discovered a market for digital uses of their images, they are now entering into licensing agreements, in addition to selling images in film form. The Slide Producers’ Association, formed more than ten years ago, stated that they required permission for ‘other uses’ of their slides: No purchased slide may be reproduced or transmitted by any other means, electronic or mechanical, including photocopy, slide duplicator, video recording, or any information storage and retrieval system now known or to be invented, without permission in writing from the producer.21 Book publishers warn readers against copying any portion of their works without permission, yet copying from books does occur and is allowed under some circumstances. Is there a legal difference between book and slide copying? Not really; we assert that copying from books is a fair use. Copying may also be permitted by license agreements. Slides, in their digital reference form as “thumb-nails” or other low resolution manifestations (as opposed to high-resolution reproduction-quality forms) are usually licensed or scanned with permission of the vendor, but in some cases fair use can be claimed, as when a vendor goes out of business and is no longer accessible. Because there now exists a market for digital rights of vendor images, the claim of fair use is weakened. Technological changes, market forces, and professional ethics require vendor permissions. Signatories to the Slide Producers’ Association include Budek, now doing business as Media for the Arts; Dunlap Society; Hartill; Kai Dib; Miniature Gallery; Rosenthal Art Slides; Saskia; Scala; and Ed Teitelman. Given the current climate of debate and technological potential, however, it is appropriate to treat all vendors alike, and to secure their permission before reproducing or digitizing their wares. By extension, the permission of slide donors should also be secured in writing. This topic of digital permissions has been called “Mysterious and Terrible to Contemplate” because there are so many complex variables in it. The law is in a turmoil; some vendor contracts are incredibly detailed (probably because in these early stages fear of digital theft is rampant); the plans and policies of each institution, while essentially the same in intent, are variable and complexly articulated. Even access to the process and personnel for reviewing and signing digital permissions and contracts can be confusing. Keeping up with the debate, tracking the many papers and manifestos, can be daunting. The proposed National Information Infrastructure (NII) Copyright Protection Act is before both houses of Congress as H.R. 2441 and S.B. 1284. The text of the “White Paper” has already been introduced to the World Intellectual Property Organization (WIPO) as a model for the global information infrastructure. The position papers of organizations and scholarly societies such as the Association of Research Libraries (ARL), the Coalition for Networked Information (CNI), and Educom continue

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to proliferate, thankfully, as do new alliances and organizations, such as the Digital Future Coalition (DFC) and the Electronic Frontier Foundation (EFF); the Conference on Fair Use hearings (CONFU), and the Consortium of College and University Media Centers multimedia draft guidelines (CCUMC). All these groups are trying to influence perceptions, because just how the law will be restructured, including the future of fair use, will depend on how the rights of educational institutions will be perceived. While some curators act as if everything were decided, referring to one set of guidelines or to another, others are unable to move forward. Departmental chairs and deans have forecast the end of teaching from 35 mm slides, believing that once all their images are scanned, in a year or two, slide library real estate will be made available for other uses. But anecdotal accounts of college and university legal counsel questioning anew the legality of copystand photography in the slide library are rife. Twenty years have passed since a few slide libraries in educational institutions were ordered to stop or significantly reduce copy photography practices. Who would have thought that we would refer to that time as the “first wave.” It always seemed like an unfortunate and erratic blip in time to most slide curators. We felt sympathy for our colleagues who found themselves in this minority situation. We are now starting to see a second wave of directives curtailing copy photography. All told, there is no telling how many institutions have actually stopped or have significantly limited copy photography between then and now. The numbers are probably few, but noteworthy nonetheless. It does not seem to matter to the naysayers that copystand photography in educational institutions has been practiced for over a hundred years, nor does it matter that there has never been case law or legal precedent against educational copy photography. The “White Paper” has not sanctioned fair use. In addition, the rise of the political right, with its concomitant ideal of the profit motive, accompanied by the decline of the left, with its concomitant ideal of serving the social good, including education, has had a disturbing influence on evolving perceptions of educational and social institutions. These have been branded by the right as elitist and out of touch with the needs of the common man. Consequently (and ironically) the World Wide Web has made it feasible for educational institutions to achieve a broad dissemination of visual and cultural information at precisely the same time that concerns over ownership of intellectual property and maximized revenue streams threaten to limit those very opportunities. Traditional distinctions between non-profit and for-profit activities are being blurred, whether intentionally or inadvertently is unclear. Recent emphasis on revenue-based education may be contributing to the confusion. The role of education in the democratization of America was once a shared dream of legislators and philanthropists, alike. Today we are in danger of thinking, if it was only a dream, if the social benefit of an education in the humanities is questionable, why give it real sustenance? Why protect it with the legal privileges of non-profit? Certainly the proposed copyright law before Congress ratifies these suppositions by promoting ownership and markets at the neglect of education and education’s socializing role. Among recent projects that have provided means to allow students to review images via computer, reaction to the above situation is mixed. One institution controls its project by password access; another leaves its course materials on line indefinitely. One school feels that as long as its on-line student review is password-limited, licenses and digital permissions are not required. Another promises to prevent off-campus access to the

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digital images, but the programmers are always behind. Yet another places no restriction on access, believing their role is the dissemination of information, including visual information. The computing environment and the availability of technical support varies from institution to institution, thus adding to the diversity of plans and projects, while increasing confusion. The slide library has always been a relatively self-contained unit, a world almost unto itself, its materials not in the public card catalog, serving only a specialized clientele. For some time now, bit by bit, computing technology has been forcing the Slide Library to come out of its shell and enter the broader institutional arena. Some pro-active institutions inform its personnel of procedures for contract and license review; others are still debating which office should have responsibility. The slide curator should get advice on these matters, but from which individual, in which office? The choices are legion and their implementation time-consuming. Slide vendor agreements present another source of difficulty and potential for confusion. Just five years ago slide curators would purchase slides whenever the collection and/or the faculty needed them. They could be used in any number of educational contexts. The purchase was made on the basis of price, image quality, and suitability for the educational needs of the institution. But now, vendors sell their slides with use restrictions. Can we, can our institutions, agree to the restrictions and sign the contracts? Are the use restrictions supportable, manageable? Are the slides worth having in spite of the limitations? Most of the use restrictions involve digital uses, but even limits on analog, or hard copy uses are being spelled out. Some vendors permit scanning their slides without additional fees. Others charge modest fees ($0.25 to $0.50 per slide). Yet there are vendors who do not even have the digital rights to the slides they sell. As we turn digital, how can we represent our holdings of these materials in our catalogs? Should we refuse to buy their slides? Some vendors only sell digital images of the highest quality, with prices to match. Although we may need their images, their product far exceeds our needs, and the price, our budget. If left unmodified, the contractual agreements of some vendors could change educational policy in the classroom and alter procedures in the slide room. Each variation in each vendor’s contract requires careful thought before signing and purchase, and may require sophisticated and expensive rights tracking systems to administer. The above discussion has been limited to generalities about digital permissions in the slide library because as individual curators and as a professional group we have only limited experience in this area. Our perspective is necessarily that of neophytes—curators and vendors alike. We have no digital permission check-lists, no image contract standards. Today we have the VRA Data Standards Committee developing standards for image description, and the Getty Imaging Initiative working on technical imaging standards while the Getty Museum Educational Site Licensing project (MESL) experiments with licensing. It is not unreasonable to anticipate the eventual development of digital licensing standards at our institutions, as well as, perhaps, the creation of a joint Art Library Society of North America (ARLIS/NA) and VRA Digital Permissions and Licensing Standards Committee. Although there is a significant difference between digital permissions and site licenses, both are contractually binding. The reader must note that this distinction is not consistently used, and often the terms are used interchangeably. In the context of the

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visual resources collection, the term “digital permission” refers to asking and receiving permission from slide vendors or donors for the curator to create or use digital representations of vendor and donor slides. The term “site license” refers to a more complex contractual agreement in which certain populations associated with a named institution, for a stipulated length of time may have access to a body of works for use in a variety of ways, including use of digital versions of the imagery. The license or contract can include, but is not limited to the following: definitions of vocabulary used in the contract; terms for the granting of licenses; permitted and prohibited users and uses; specifications for image display and file size; other display requirements including the form of the display of copyright information; definitions of local area networks and image databases and catalogs; terms for World Wide Web and local area network access; obligations of the licensee; duration of the license; fees; warrantees; financial and legal remedies for breach of contract; procedures for dispute resolution; and which laws of which states shall govern the contract. Some will contend that making digital copies of vendor slides is a fair use, but in this writer’s opinion, it is a weak argument, because a finding of fair use is based upon, in part, the economic consequences of an action. Thus, in the case of vendor slides, fair use may be justifiably claimed only under limited circumstances, as when digitizing is limited to low-resolution representations and not turned into publishable high-resolution files, or any other situation in which such digital uses of images in no way supplants the need to purchase additional copies of the same images; and, in addition, if one is not trying to by-pass the existing market for digital licenses. However, given the burgeoning digital permission markets, the nature of the ongoing copyright hearings; given the rapid changes in technology and our changing perceptions of what constitutes low and high resolution; given the increasing use of technology in both information retrieval and pedagogy; the potential for mind-changing by curators, the faculty, or vendor; the only safe course is to secure written permission from the vendor. One can counter with the argument found in the CCUMC (Consortium of College and University Multi Media Centers) draft multimedia guidelines. These state that in the case of “remote” instruction (meaning not face-to-face instruction), as in on-line student review of course materials, when there are limitations on the network programs used, such as password protection, slides may be used under fair use. But, these are only draft guidelines, and they refer only to one instance of digital use. Yet, on the whole, these guidelines seem overly cautious, not suitable for distance learning projects perceived by forward-thinking educators. Furthermore, in opposition to these guidelines, the Slide Producers’ Association’s Statement on Copyright requests that copies, digital or otherwise, not be made without written permission. Because the attempts in the “White Paper” to replace fair use with licensure agreements may foretell a trend, because excellent vendor relations are always important, and because respect for vendors is appropriate, users may be justly advised to take the conservative course, and always seek permission before digitizing vendor images. Because the pedagogic needs of the institution are at issue, the visual resources curator should try to participate in setting the terms of contracts as much as possible. Pamela Samuelson, a professor of law specializing in copyright and digital libraries, says:

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Those who are designing or implementing digital libraries need to get educated about copyright, but they should also be willing to be pro-active about it. They should not only be willing to experiment with different kinds of arrangements, but should educate publishers about what kinds of arrangements work best for them and their patrons. Libraries can push for standardization in terms of transactions…to ensure that public access is available on fair, reasonable, and non-discriminatory terms.22

NOTES 1. United States. Information Infrastructure Task Force. Working Group on Intellectual Property Rights. Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights (Washington, D.C.: U.S. Patent and Trademark Office, 1995). 2. Ray, L.Patterson, The Nature of Copyright: A Law of Users’ Rights (Athens: University of Georgia Press, 1991), p. 68. 3. Ibid., p. 2. 4. Ibid., p. 11. 5. Walter Benjamin, “The Work of Art in the Age of Mechanical Reproduction” in Illuminations, edited by Hannah Arendt. (New York: Schocken Books, 1969), p. 218. 6. Howard B.Leighton, “The Lantern Slide and Art History,” p. 107, in History of Photography, Vol. 8, No. 2 (April–June 1984), pp. 107–118. 7. Carla Freeman, “Visual Media in Education: An Informal History,” p. 328, in Visual Resources, Vol. 4, No. 4 (1990), pp. 327–340. 8. Betty Jo Irvine, Slide Libraries, 2nd ed. (Littleton, Colorado: Libraries Unlimited, 1979), p. 25. 9. Melvil Dewey, “Library Pictures,” in Public Libraries, Vol. 11, No. 10 (1906). 10. I am grateful to Christine Sundt, Visual Resources Curator, Architecture and Allied Arts Library, University of Oregon, for sharing her wealth of knowledge, including references to the early history of lantern slides, as in Photogram and Photo-miniature. 11. Leighton, op. cit. 12. Ibid., p. 108. 13. Ibid., p. 108. Quoting from Mellor’s paper, “Shadows in a new light,” in Chambers’ Journal (Edinburgh), Vol. 32 (12 July 1859), pp. 28–30. 14. David Watkin, The Rise of Architectural History (London: Architectural Press, 1980), p. 11. 15. Copying. Kodak Publication M1 (Rochester, New York: Eastman Kodak, 1947), p. 3. 16. Estelle Jussim, Visual Communication and the Graphic Arts (New York: R.R.Bowker, 1974), p. 274. 17. Wolfgang Freitag, “Art Reproductions in the Library: Notes on Their History and Use,” p. 351, in The Documented Image: Visions in Art History (Syracuse, New York: Syracuse University Press, 1987). See also this essay for a discussion of the problematic nature of photographic reproductions, including diverse views by Charles Eliot Norton, Walter Benjamin, Bernard Berenson, Heinrich Wölfflin, among others. I wish to thank my colleague Elizabeth Bryne, Head Librarian of the Environmental Design Library, University of California, for her consistently informed and prompt bibliographic assistance. 18. From private correspondence with Robert Baron, 1996. For further discussion on the relationship between the object and its visual representation, see André Malraux’s Museum Without Walls (Garden City, New York: Doubleday, 1967); Estelle Jussim’s chapter, “The New Technologies and the History of Art History” in Visual Communication and the Graphic Arts (New York City: R.R.Bowker, 1974); and Jacquelynn Baas’ critique,

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“Reconsidering Walter Benjamin: The Age of Mechanical Reproduction in Retrospect” in The Documented Image: Visions in Art History (Syracuse, New York: Syracuse University Press, 1987). 19. Arthur Efland, “The Invention of Common School Art,” Ch. 4, and “The Stream of Romantic Idealism in Art Education,” Ch. 5, in A History of Art Education: Intellectual and Social Currents in Teaching the Visual Arts (New York: Teachers College, Columbia University, 1990). 20 The “Princeton pamphlet” is reprinted in E.Baldwin Smith’s, “The Study of the History of Art in the Colleges and Universities of the United States,” Appendix II, pp. 12–36, in The Early Years of Art History in the United States, edited by Craig Hugh Smyth and Peter M.Lukehart (Princeton, New Jersey: Princeton University, 1993). 21 “Clarification on Copyright from the Slide Producers’ Association,” May 1983, in the Slide Buyers’ Guide, 6th edition (Englewood, Colorado: Libraries Unlimited, 1990), pp. xviii–ix. 22 Pamela Samuelson, “Copyright and Digital Libraries,” in Communications of the ACM (Association for Computing Machinery) Vol. 38, n. 4 (April 1995), pp. 15–21+ Full text available on line via ABI.

Selected Electronic Intellectual Property and Fair Use Bibliography Barlow, John Perry. “The Economy of Ideas,” in Wired, Vol. 2, No. 3 (March 1994), pp. 84–86+. Wired’s abstract: “A framework for patents and copyrights in the Digital Age. (Everything you know about intellectual property is wrong.) Once you read Barlow, you will see him quoted in almost every piece of writing about copyright in the digital environment. CCUMC Draft Guidelines, Fair Use Guidelines for Educational Multimedia (September 1995 or earlier). From a September 1995 teleconference of the Consortium of College and University Media Centers, the full text of the draft is available from the University of Michigan copyright web site (listed below). The text includes guidelines for student use, instruction in multimedia development, face-to-face curriculum-based instruction, peer conferences, remote instruction, time limitations, portion limitations (including separate mention of motion media, text, music, illustration and photographs). Copyright, Public Policy, and the Scholarly Community. Edited by Michael Matthews and Patricia Brennan (Washington, D.C.: Association of Research Libraries, 1995). This 56 page booklet, published shortly after the release of the “Green Paper,” contains five perspectives on the future of copyright in the electronic environment. The essays are intended as a resource to stimulate discussions within educational institutions and scholarly societies. To order, send e-mail to [email protected] or telephone 202–296–2296 in Washington D.C. Reviewed in this issue of Visual Resources. Crews, Kenneth D. Copyright, Fair Use, and the Challenge for Universities: Promoting the Progress of Higher Education (Chicago: University of Chicago Press, 1993). An important primer on fair use for librarians and slide curators in higher education. Although Crews does not address slide rooms or images directly, his explication of fair use is useful and empowering. Reviewed in Visual Resources, Vol. XI, pp. 187–192. Lyman, Peter. “Copyright and Fair Use in the Digital Age: Q & A with Peter Lyman,” in Educom Review (Jan/Feb, 1995). Available via University of Michigan copyright web site listed below. Short and pithy look at licensing and fair use, Lyman’s comments on knowledge and on the web as an example of gift culture (based on Lewis Hyde’s book, The Gift: Imagination and the Erotic Life of Property) rather than capitalist or exchange culture is useful. Patterson, L.Ray. The Nature of Copyright: A Law of Users’ Rights (Athens, Georgia: University of Georgia Press, 1991).

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Looking at the history of copyright from its inception in 1557, and focusing on the intent of the law, Patterson argues that copyright is not a natural-law property right of the author by reason of creation, but instead is a social concession, a statutory grant of a limited monopoly. As a result, copyright is a law of users’ rights, not creators’ rights. Important philosophical underpinning to the current intellectual property debate. Samuelson, Pamela. “Copyright and digital libraries,” in Communications of the ACM (Association for Computing Machinery) Vol. 38, No. 4 (April 1995), pp. 15–21+ Full text available on line via ABI. A brief history of publishing and copyright, with its emphasis on encouraging “learned men to Compose and write useful Books” rather than the earlier licensing and compensation of publishers, as well as its promotion of public access to information, sets the stage for a look at the complexities of digital libraries. Although this paper was written before the release of the “White Paper,” her perspective on the “Green Paper” is cogent and explains much if not most of the fervor on both sides of the “White Paper” debate. Samuelson urges: “Those who are designing or implementing digital libraries will need to get educated about copyright, but they should also be willing to be pro-active about it. They should not only be willing to experiment with different kinds of arrangements, but should educate publishers about what kinds of arrangements work best for them and their patrons. Libraries can…push for standardization in the terms of transactions…to ensure that public access is available on fair, reasonable, and nondiscriminatory terms.” Samuelson, Pamela. “The Copyright Grab,” in Wired, Vol. 4, No. 1 (January 1996), pp. 134–138+ Wired’s abstract of this article reads, “The Clinton Administration, through its White Paper on intellectual property, is proposing a wholesale giveaway to its supporters in the copyright industry—at your expense.” It obscures perhaps in its inflammatory stance the brilliance of her explication of the “White Paper.” Warro, Edward A. “What Have We been Signing? A Look at Database Licensing Agreements,” in Library Administration and Management (Summer 1994), pp. 173–177. Warro, Assistant University Librarian at Loyola University in Chicago, clearly explicates standard licensing language, covering such areas as security, limitation of liability, contract termination, indemnification, assignment of contract, governing law, library responsibility, and the addition of a standard rider, with a sample included. Although written for CD-ROM and database acquisition rather than for digital image permissions, it is relevant, practical and informative.

Copyright Web Sites http://fairuse.stanford.edu/ Stanford University’s fair use site is organized into four “chapters:” Primary Materials; Current Legislation, Cases and Issues; Resources on the Internet; Overview of Copyright Law. http://www.ari.net/dfc Digital Future Coalition Homepage. Letters and testimony to Congress commenting on S.1284 and H.R. 2441, Information Infrastructure Copyright Act, in the hopes of preserving some semblance of fair use. Member organizations include: American Library Association (ALA), American Association of Law Libraries (AALL), American Council of Learned Societies (ACLS), Art Libraries Society of North America (ARLIS/NA), Special Libraries Association (SLA), among many others. http://www.arl.cni.org/scomm/copyright/copyright.html Association of Research Libraries copyright position papers. http://www.law.cornell.edu/uscode/17/overview.html Cornell University Law School’s United States Codes site. The U.S. Code Title 17 is the 1976 Copyright Law. See the text of Section 107 Fair Use, 108 Library Copying, etc. before the law changes.

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http://www.lib.umich.edu/libhome/copyright University of Michigan University Library copyright page: informative, interesting, and linked to other copyright sites. http://www.utsystem.edu/OGC/IntellectualProperty/ The University of Texas’s Office of General Counsel’s Intellectual Property web site, maintained by Counsel Georgia Harper. Very up-to-date, substantive, informative. http://oregon.uoregon.edu/csundt/web.htm Christine Sundt’s copyright web page is comprehensive, easy to use and includes her excellent advocacy position papers.

UC Berkeley Architecture Slide Library Web Sites http://www.lib.berkeley.edu/ARCH Architecture Slide Library Homepage (with links to the next two addresses): http://www.mip.berkeley.edu/query-forms/browse-spiro-form.html SPIRO, UC Berkeley Architecture Slide Library image database. http://www.ced.berkeley.edu/arch170A http://www.ced.berkeley.edu/arch170B A History of World Architecture and Urbanism Homepages (until such time as they might be required to be password protected).

By Line Drawings Ye Shall Know Them: Consequences of Barriers to Digital Reproduction

by Patricia Taylor Visual Resources, Vol. XII, pp. 333–341 Reprints available directly from the publisher Photocopying permitted by license only

© 1997 OPA (Overseas Publishers Association) Amsterdam B.V. Published in The Netherlands under license by Gordon and Breach Science Publishers Printed in Malaysia

I begin with a caveat. I am neither an attorney nor a digital expert. Rather than expert, I am typical of the average educator who has become simultaneously enchanted with the possibilities of the digital world and frustrated by its unexpected limitations. In the past two years I have created a Digital Teaching Lab for Southwest Texas State University in San Marcos, Texas. I teach a multimedia, multidisciplinary course introducing the fine arts (visual art, architecture, drama, music and dance) and the humanities as part of the core curriculum of the University. I am also involved in CD-ROM publishing and design. Currently I am designing on-line tests, interactive study guides and on-line distance education proposals. The competing and shared interests of various players in the multimedia arena have become the subject of often heated discussion. The groups involved in the current debate over copyright in multimedia and digital reproduction have interlocking and overlapping memberships. Broadly speaking, the players form three groups. The first group is the copyright holders, which includes the museums, the publishers, and artists’ organizations (such as ASCAP) as well as individual artists and creators. The second group is the educators, which includes teachers, scholars, writers, developers of educational and “edutainment” CD-ROMs and web pages. The third group, the publishers and producers, includes both for-profit and scholarly publishers. In all likelihood, all these players would probably subscribe to the following list of common legal, fiscal, and ethical rights and laudable goals: • The right to protect artwork from inappropriate, illegal and/or shoddy reproductions • Protection for the rights of creators of intellectual property from unauthorized distribution and consequent loss of both control and revenue • Protection of the copyright holders’ right to profit from reproductions of art works and publications

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• Education of the public • Increased public consumption of the arts, in the form of ticket sales, museum visits, recording sales, book sales, and so on. The protection of these rights and attainment of these ends is achieved through the establishment of copyright protection for intellectual property. If the discussion moves from the legal and monetary realm to the political arena, other considerations come into play. The nature of our society and educational system are closely involved with the question of copyright. But the protection of private property is not the unequivocal primary value of American life. One of the fundamental principles of American society is the protection of freedom of speech. In the case of the academy itself, as well as museums, the libraries and other institutions charged with educational missions, maintenance of the right of freedom of speech is a stated, and jealously guarded, tenet. According to the tradition of academic freedom of discussion and debate, all works of art and ideas, however unpopular or radical, deserve to be presented and judged on their merits, in free and open debate. When confronted with the conflict between protection of intellectual property and freedom of speech, the common interests of the parties involved wane. The nature, enforcement and limits of copyright underlie the conflicts developing on the digital frontier. Copyright protection is enshrined in our Constitution, along with the First Amendment guarantee of Freedom of Speech. Since the Constitution was written, the relative monetary value of products and inventions has been reduced.1 The really important properties in today’s information-based economy are intellectual property—images, software, performances, recordings, games, and so on. This change of emphasis throws new light on the question of copyright. Who will control rights to reproduction of the work of art and how will that control be maintained? Loss of control of the reproduction rights to a given work of art is a real fear among copyright holders, including museums and publishers, artists and artist’s organizations. This fear is exacerbated by the technology of digitization and the Internet.2 Hardware such as scanners and computers can capture and digitize any image, recording, sound, etc. Transformational software can alter any digitized image, sound, etc. The Internet can transmit any digitized image worldwide in seconds. Copyright holders, including museums, are afraid that their artworks will be appropriated and devaluated. The museums are particularly concerned with unauthorized scanned images from print media and images which may be downloaded from the Internet. This fear springs from two roots. On the one hand, these copyright holders have the moral and legal obligation to protect the integrity of their holding. Shoddy or incomplete reproductions of their holdings violate that integrity. On the other hand, the copyright holders fear that unauthorized digital images will further accelerate the devaluation of the image as the reproduction is further removed from the experience of the original. In addition, museums may fear that the availability of on-line offerings will cut into their ticket sales. Will on-line offerings decrease visitorship, membership, and consequently affect museum revenue? These technological innovations exist within the larger socioeconomic context. Holding institutions are feeling increasing pressure to maximize their profits in these days of dwindling government support and private donations. Managers of these holdings look

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to licensing their reproduction rights as a potentially lucrative source of revenue. This source is threatened by unauthorized copying and digital reproduction and transmission. In response to these fears, copyright holders have created legal and procedural barriers to unauthorized use of reproductions of their holdings. Copyright owners often place automatic restrictions on the reproduction and uses of their images which remain in force unless specifically and contractually waived.3 These limitations include restrictions on the transformation of the work, including but not limited to digitized reproductions and may include cropping the work to produce image details, and other more drastic transformations of the image. In addition to contractual barriers restricting reproduction, copyright holders use other barriers which are specific to digital reproduction. These include higher fee structures for digital reproduction rights (or televised use of an image, recording, etc.) than for print rights or the right to use slides. Copyright holders also reduce the quality of the images that they place on the Internet. These images are usually scanned at 72 dpi, a resolution which is unacceptable for projection and print reproduction. The most disturbing trend in this debate has to do with the concepts of “educational use” or “fair use” or “public domain.” Increasingly, the copyright holders and the designers of the National Information Infrastructure are restricting or eliminating these uses of their materials. When considering this issue, the aims of scholars and teachers seem to be pitted against those of the owners of copyrighted paintings, sculptures, and other visual images. Far from being threatened by the new technology, many scholars and teachers welcome it. They find in the new technology a means of informing their audiences, articulating concepts, and tutoring their students. The possibilities that the new software offers seem limitless. Instructors can produce analytic diagrams superimposed on the original work, or morph from one image to another to illustrate a relationship. The work of art can be used as an interface itself, or animated to illustrate a point. The instructor, can reach out and digitize any needed asset, if it is available in any form. In addition, the Internet allows instructors instant global access to reproductions of art works without the bother of slides. It allows us to send our students throughout a worldwide skein of images and information. The eagerness with which educators and administrators embrace the new technology is itself a product of the stresses at work in American institutions of higher learning. Demographic pressures and changes play a role. In order to succeed in the increasingly competitive world of higher education, institutions are increasing their commitment to digital media. This increased commitment is in part a response to the changed demographic profile of college students. Because schools often admit students who would not have been considered “college material” twenty years ago, they have to provide “remediation” for severely “under prepared” students. Many students come to college with poor reading skills. Their primary information source has been television. With the passage of the Americans with Disabilities Act, schools must deal with students with special needs that multimedia is often well equipped to meet. Larger institutional pressures are at work as well. Shrinking budgets—the downsizing of the outside world—demand higher teacher-to-student ratios, especially in the lower division courses and core curriculum. Multimedia presentations are in demand as a means to reach a large audience and hold its attention. The sheer size of the larger classes, taught

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by fewer instructors, aided by fewer assistants, are forcing changes in the way the courses are taught. For example, without small labs led by teaching assistants, the instructor often must design interactive study guides to replace the lost face-to-face contact encountered in individual and small group instruction. The increased demands for distance education reflects these changes. Distance education—the use of televised classes or Internet-based on-line instruction—looks like a godsend to harried administrators. By creating courses for broadcast or on-line instruction, the institution can bring in needed tuition revenue without additional faculty salaries or funds for classroom maintenance and equipment. These courses can be “canned,” that is, produced once and aired repeatedly, recouping the original investment. Decreasing departmental budgets for media acquisitions, library acquisitions, teaching assistants, faculty workshops, and training increase the pressure to produce the “oneshot” multimedia or video presentation. (One of my colleagues characterizes this as “Push Play for pedagogy.”) The nature of a given course can also drive the demand for multimedia presentations. Certain courses, such as survey courses in visual art, theater, music, and the humanities are natural candidates for the multimedia approach. Image-hungry, inherently complex, these classes cry out for multimedia, multidisciplinary approaches. Faculty job pressures are also involved. There is increasing competition for a dwindling number of tenured positions. The popularity of an instructor with students may hinge upon his or her ability to entertain the class with multimedia. The decision to grant tenure may in turn rest upon student evaluations. All of these pressures and opportunities combine to create conflicts between educational mandates and copyright law. Educators have long since considered all available materials grist for the educational mill. Educators cite “fair use,” “educational use” and “public domain” to justify their use of these materials without paying for them or getting permission for their use. Depending on their limited understanding of copyright law, some teachers believe that the importance of the educational mission exempts them from irritating, expensive, and time-consuming restrictions on the use of copyrighted materials. “Public domain” and “educational use” are the subjects of sharp debate. According to the “Multimedia Fair Use Guidelines Draft” drawn up by the Consortium of College and University Media Centers,4 to comply with copyright law, when a multi-media program achieves the status of a product, if not earlier, educators must request permission to use material. They recommend that permission be requested even for uses that are clearly fair uses; here rights are often granted automatically. In addition, the guidelines suggest users accept self-imposed restrictions on the use of material. These limit the length of an excerpt, the number of images of an artist’s work, or the length of video or recording allowed. The use of copyrighted material in multimedia presentations is restricted. Most instructors do not seem to realize that any presentation incorporating more than one medium—such as a slide lecture combined with a traditional lecture—is a multimedia presentation, and subject to the applicable restrictions. The tantalizing wealth of information posted on the Internet is not necessarily as freely available as the teacher would like to think. The low resolution used to protect images that are posted on the Internet is also frustrating for instructors who want to use a given image. The materials on the Internet are posted in many combinations of copyright status,

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including work fully copyrighted, work that may be downloaded and transformed without penalty, and combinations thereof. The posted materials themselves may be bootlegged by illegal acquisition. The instructor interested in using these materials must pay attention to the copyright holders’ notice of copyright claim and procedures for use. Those procedures must be followed for the work to be legally used by the teacher. Copyright holders, wary of losing the revenue from their holdings in the unregulated digital frontier, have paired low resolution images on the Internet to high fees for authorized high resolution reproduction in digital format. Although such a practice seeks to protect the reproduction rights, it may be in conflict with the artist’s droit moral to protect the integrity of the art work.5 High fees can be beyond the budgets of most educators and their institutions. For educators putting together presentations for scholarly publication on an on-line magazine, or for use at a conference or a for-profit digitized project, the cost of copyright permissions is often borne by the independent writer/scholar. These costs can be prohibitive, especially for the notoriously underpaid educator in the arts and humanities. Traditionally, the cost of copyright permissions for for-profit publishing ventures such as textbooks have been paid for by the publishers. However, publishers are facing a nasty combination of increasingly high cost of production coupled with increased risk of having their expensive projects bootlegged. The cost of digitized projects has risen sharply above their print counterparts. A large CD-ROM project can cost $350,000 to produce, depending on the extent of the required illustrative material, or “assets.” If such a CD-ROM were uploaded in part or in its entirety to a web site on the Internet, the publisher stands to lose a significant portion of the investment. The cost to the bootlegger: $30 to $70 per CD-ROM. Nor are the libraries exempt from the confusion of copyright law. College library copies of publications have traditionally provided poorer students with access to educational materials. But if you provide such materials, how do you prevent students from copying the material or posting it on line? The Internet harbors many dangers for publishers. One zealous or oblivious teacher or librarian posting a proprietary digital self-test or CD-ROM to the Internet can deprive a publisher of millions of dollars in unrealized sales or lost development capital. The vast resources available on the Internet pose a further problem for textbook designers. Their stock in trade, the omnibus text with images, accompanied by cassette, video, laser disk, etc., may be rendered obsolete. An instructor can design a web-path leading to on-line resources in many fields, obviating the need for the traditional text. The Iron Law of Unintended Consequences is one of the saddest facts of adult life. Without meaning it, humans have a tendency to create situations that have effects quite distinct from their original intent. In their efforts to control copyright infringement, to protect their revenue stream and to control access to their assets, the copyright holders and publishers have erected barriers to unauthorized access and use of their holdings. Although this strategy protects their economic, legal, and moral interests in the short run, it may backfire in the long run. There are at least two unintended consequences to this strategy developing now. First, creating barriers to digital reproduction pits two constitutionally enshrined rights against one another: Freedom of Speech and Copyright Law. The fair use provision in the Copyright Act6 holds that the right to “use of a copyrighted work for ‘purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom

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use), scholarship, or research, is not an infringement of copyright.’” Protecting the copyright by restrictive price structure, access and protective covenants can be interpreted as restrictive of intellectual discourse, which is protected by both our tradition of freedom of speech and the copyright law. Such restrictions by a copyright holder could result in de facto control of the content of criticism of a given work of art. Questions arise. What if the holding institution does not approve of a writer’s thesis? What if the writer’s interpretation of a given work of art can be expressed, in that writer’s judgment, through a digital transformation of the artwork in some manner? Can the holding institution, citing its moral and legal right to protect and control the reproduction of a given work, refuse permission for such a strategy? Conceivably, such restrictions on licensing the digitized use of a given work of art could result in the de facto creation of an orthodoxy of interpretation, carried out by house scholars who meet with the approval of the holding institution. Thus the right to “comment…and research” can be restricted by the copyright holder in a manner not intended by copyright law. A second unintended consequence of such barriers to digital reproduction is the inadvertent encouragement of substandard reproductions for use in teaching. In academia it is not uncommon for teachers to assemble their own self-published custom publications for course work. With no budget to purchase print rights, at times these authors have resorted to using indifferent line drawings of works of art in place of photographs. Such practices require a note of caution, as shown by the experience of a two-year college that decided to put its standard Survey of Art History course into its televised curriculum. When informed that simply screening its slide holdings was illegal and that permissions to show the images legally were prohibitively expensive, the institution voted to commission its faculty artists to draw images to be used in the course. (I have not seen the line drawings of The Virgin of the Rocks by da Vinci or Jackson Pollock’s Full Fathom Five, but I await them eagerly.) That either of these notions ever passed the discussion stage points out how easily restrictions on available images can result in the degeneration of images used in teaching. The high costs and risk of digital projects has stymied the development of digital databases for the classroom. The producers of intelligent and elegant software, texts and interactive study guides cannot interest publishers in their products. The high cost of permissions can be prohibitive for the scholar to develop these products independently. Teachers frustrated with the paperwork and the expense of complying with current copyright law may simply choose to ignore the law. The specter of a flood of bootlegged images with untraceable sources and legal status does loom ahead. There are some alternative strategies taking shape in the debate over the issue. I would suggest some possibilities for action. The first is a vigorous defense of “fair use,” “educational purposes,” and “public domain.” These concepts must be protected to allow open discussion, free speech, and education. Secondly, a standard fee schedule for digitized reproductions should be developed which is non-restrictive and fair. This fee schedule should be comparable to the fees changed for print rights. Site licensing, proposed by many copyright holders, should be established to accommodate the real needs of the classroom instructors and scholars. It should be accessible, simple and inexpensive. Paperwork should be kept to a minimum. As proposed at the February 1996 College Art Association meeting, instructors can take their own slides and photographs of monuments and works in the public domain and post them on the Internet at a designated

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site. [Ed. See the paper by Alan Kohl in this issue of Visual Resources.] Such an archive will help insure that images of monuments now traditionally in the public domain will remain there. Libraries and schools must continue to provide copies of material for students, although every effort must be made to protect proprietary interest while serving the student and faculty needs. Finally, the commitment made by educational institutions to multimedia and digital technologies must include education of faculty, librarians, and researchers. In addition to teaching how to use the new technologies, institutions must invest in making compliance with the law compatible with the realistic needs of scholars, students, and teachers. The paperwork burden for compliance should not fall on overworked teachers, or it will not get done. Somewhere between the polarities of destroying copyright altogether and invoking Draconian restrictions on reproduction, the parties involved must develop a workable solution to their claims to conflicting rights. If the free and open exchange of ideas is to survive the transition to the digital age, artists, museums, educators, and publishers must cooperate. We cannot anticipate the coming changes. They are here.

NOTES 1. Mary Beth Peters, remarks delivered on September 21, 1995, at the “Teleconference on Multimedia Fair Use Guidelines: The Educational Gateway to the Information Age.” 2. Ibid. 3. Draft, “Fair Use Guidelines for Educational Multimedia,” Fair Access Working Committee, Consortium of College and University Media Centers (CCUMC), in “Multimedia Fair Use Guidelines: The Educational Gateway to the Information Age,” pp. 8–10. 4. “Multimedia Fair Use Guidelines: The Educational Gateway to the Information Age” (September 21, 1995). 5. Barbara Hoffman, CAA Counsel. “Digital Technology, Cypberspace and the Arts,” College Art Association News (May/June 1995), p. 7. 6. Barbara Hoffman, “Fair Use Revisited,” College Art Association News (September/October 1995), p. 5.

Copyright: Fair Use or Foul Play

by Karlene M.McLaren Visual Resources, Vol. XII, pp. 343–352 Reprints available directly from the publisher Photocopying permitted by license only

© 1997 OPA (Overseas Publishers Association) Amsterdam B.V. Published in The Netherlands under license by Gordon and Breach Science Publishers Printed in Malaysia

The Congress shall have Power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries[.] (United States Constitution, Article 1, Section 8)

Copyright is a topic that students, classroom teachers, and administrators have a tendency to delegate to the school’s librarian to worry about, when in reality it is a topic for discussion, debate, and concern for all of the educational community. Teachers, for the most part, are unaware when they are breaking the law. They presume that it is all right to reproduce materials for classroom use just because there is no intention to resell the copied materials. Students also seem oblivious to how copyright law affects their projects and presume it is all right to incorporate something originally produced by someone else and to call it their own. School principals seem content to let the school’s librarian and teachers “take care of” knowing what is legal or what shouldn’t be done. The superintendent thinks there has been an in-service course on copyrights and copywrongs for everyone in the district. The school board will, in all probability, not give it much thought until a district or local area incident brings it to their attention. None of these groups can afford to be lackadaisical in their knowledge of copyright law and fair use. Copyright is the body of law that concerns the ownership and use of works in the areas of literature, music, and art. The purpose of copyright is to enrich our society’s wealth of culture and information. In the Constitution, the Founding Fathers gave Congress the power to enact copyright laws.1 The U.S. copyright law traces its roots to British censorship laws of the sixteenth century. After nearly a century and a half, licensing laws were left to expire, but in 1710 the British Parliament enacted the Statute of Anne, and it is the basic philosophy of this statute that has dominated the U.S. law of copyright for most of the nation’s history.2

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The United States Congress first exercised its constitutional power “to promote the progress of science” by “securing for limited times to authors…the exclusive right to their…writings” in 1790. Then in 1909, Congress enacted the Copyright Act that dominated the twentieth century; an act “inartfully drafted and lacking important definitions—and enacted before the invention or widespread commercial use of the phonograph, motion pictures, radio and television, the photocopy machine, the computer, and a wide array of communications media…”3 The United States Congress last fully revised the law in 1976, and it took effect on January 1, 1978—the Act for the General Revision of the Copyright Law, Chapters 1 through 8 of Title 17 of the United States Code, together with Transitional and Supplementary Provisions, enacted as Pub. L. 94– 553, 90 Stat. 2541 on October 19, 1976.4 The Copyright Act of 1976 abolished commonlaw copyright and made federal copyright exclusive from the moment a work is created. The 1976 act was amended in 1989 (elimination of the notice requirement) and again in 1990 in order to make U.S. law conform to the Berne Convention, the major international copyright convention. Admittedly, copyright law is not simple. It is extremely technical and its application can vary greatly from one situation to another. Nonetheless, there are some useful guidelines available that provide general overviews of what it means. The law is designed, written, and interpreted to protect the interests of both the copyright holder and the user of copyrighted materials. It provides for the fair use of materials, but while fair use is a privilege, it is also a source of considerable confusion. No one has a definitive, legally binding answer on what is “fair.” Congress deliberately created an ambiguous fair use statute that gives inexact parameters—fair use determinations depend on the circumstances of each case. Section 107 of the 1976 Copyright Act offers four factors to consider when determining whether a use is fair: (1) the purpose of the use, including a non-profit educational purpose; (2) the nature of the copyrighted work; (3) the amount of copying; and (4) the effect of the copying on the potential market for, or value of, the original work.5 The fair use of the copyrighted work, including such use by reproduction in copies or phonorecords for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an automatic infringement of copyright. However, accepting restrictive positions on copyright issues, by not claiming fair use, is an expedient way to address the issue of copyright with minimal exposure to liability. A good understanding of copyright law will minimize the risk of lawsuits. However, the Supreme Court has held that “fair use is a mixed question of law and fact.”6 If the use is commercial rather than nonprofit, it is presumed to be unfair and to have a likely adverse influence on the market for the plaintiff’s work.7 Again it must be emphasized that in the courts fair use decisions are made on a case-to-case basis, but only after a claim of infringement has been introduced. For this reason classes of potential fair users have come to rely on sets of guidelines to determine what is most likely to be deemed fair. Congress could not define a statutory provision to resolve the issue of photocopying by educational institutions for classroom use, so the more ambiguous elements of Section 107 (where fair use is defined) are resolved on a case-by-case basis. The statute allows using copyrighted materials for “teaching (including multiple copies for classroom use)” as among the fair uses sanctioned by the statutory drafters. However, the court must consider not this one, but all of the circumstances involved in an educational copying

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case. Section 107 “is not intended to be interpreted as any sort of not-for-profit limitation on educational uses of copyrighted works.”8 Some guidelines for educational copying have been negotiated by representatives of educators and publishers. These purport to state the minimum degree of copying contemplated by fair use. These guidelines and the four factors in Section 107 were the catalyst for a court of appeals to rule against classroom copying by a teacher in Marcus v. Rowley, 695 F. 2d 1171 (9th Cir. 1983). It is the only reported case, to date, on that subject.9 Materials copied for teaching purposes by a profit-making enterprise are viewed by the courts in a very unsympathetic manner. In Basic Books Inc. v. Kinko’s Graphics Corp., 758F Supp. 144 (E.D.Pa. 1983), the court ruled against claims of fair use when the defendant prepared and sold to students booklets containing substantial segments of copyrighted books, without securing permission from or paying license fees to the copyright owners.10 One must also keep in mind that just because a work is unpublished, it does not mean that it is not protected by copyright, nor does the absence of a copyright notice necessarily put the work into the public domain. A finding of fair use can be made upon consideration of the four factors for both unpublished works and those without a copyright notice. All four factors must be considered in the determination.

CLASSROOM GUIDELINES There are two sets of fair use guidelines included in the copyright law; guidelines on copying from books and periodicals for teachers and students in nonprofit educational institutions, and guidelines on educational uses of music. The word teacher is meant to include not only educators but librarians and other instructional specialists working in consultation with teachers.”11 The materials that may be subject to fair use copying under certain circumstances are excerpts from books, newspapers, periodicals, musical, graphic, and audiovisual works. Off-the-air taping also may be fair use.12 In applying the guidelines, three standards must be considered: brevity, spontaneity, and cumulative effect. Brevity is the quantitative measure of what might reasonably be considered minimum fair use. Spontaneity means the copying is done at the instance and inspiration of the individual teacher, and that the inspiration and decision to use the work and the moment of its use for maximum teaching does not allow time for a reply to a request for information.13 The third consideration, cumulative effect, means that there is no intention to make a collection of the reproduced materials. These guidelines are put to the test repeatedly in the classroom. The teacher who copies a poem, prose, or short story to be used one year and has found it successful and wanted to use it again, would possibly need to ask permission to use it again the next. Assuming spontaneity the first year, there would be ample time to ask permission of the copyright holder to use it again the next year. And what about duplicating pages from an out-of-print textbook to send to an absent student or duplicating pages from a different grade level workbook for the student who needs extra help? The out-of-print textbook pages would in all likelihood be acceptable if it would have been appropriate to make a copy for that student if he were in the classroom. However, the different grade level workbook might be considered fair use only if its use was an isolated instance and not a

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regular practice. Workbooks are considered consumable material in the guidelines and may not be reproduced.14 Another activity teachers need to be careful with is activity packets. The importance of giving credit where credit is due and getting permission to use material was shown in the above-cited case of Marcus v. Rowley, 695 F. 2d 1171(1983). This scenario tells the story of an out-of-control, domino effect, comedy of errors. Scrutiny was brought to bear on the assembly of a “Learning Activity Package” put together by Shirley Rowley for her students’ use. Unfortunately for Ms. Rowley, she went beyond borrowing the ideas she picked up in an adult education class taught by Eloise Marcus. Shirley had purchased a 35-page booklet prepared by Eloise for that class. Shirley then incorporated 11 pages of it in a 24-page “Learning Activity Package” she compiled for her own students to use. Shirley did not ask for permission to use those 11 pages, nor did she credit or acknowledge Eloise as the owner of a copyright with respect to those pages.15 From there, the domino effect took over. One of Ms. Rowley’s students’ parents enrolled in Ms. Marcus’s class, noticed the similarity between the two booklets, and accused Ms. Marcus of plagiarizing Ms. Rowley’s work. The end result was that Ms. Rowley and her employer found themselves in federal district court defending themselves against a copyright infringement action and having to pay for the oversight of not giving credit to or asking permission for the work used. A non-profit educational purpose does not automatically compel a finding of fair use, and courts have held that a copier’s use is no less an infringement because he or she is a teacher.16

SHEET MUSIC GUIDELINES Classroom uses of music and some types of performances are subject to a slightly narrower definition of “nonprofit.” In a joint letter dated 30 April 1976, representatives of the Music Publishers’ Association of the United States, Inc, the National Music Publishers’ Association, Inc, the Music Teachers National Association, The Music Educators National Conference, the National Association of Schools of Music, and the Ad Hoc Committee on Copyright Law Revision developed a set of fair use guidelines. The text of the “Guidelines for Educational Uses of Music” states that its purpose is to outline the minimum and not the maximum standards of educational fair use under Section 107, and notes the possibility of possible future revisions. It lists permissible uses and prohibitions. The committee believed that these guidelines are a reasonable interpretation of the minimum standards of fair use and that teachers would know that copying within the guidelines was going to be consistent with fair use as they interpreted it. A. Permissible Uses17 1. Emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course. For example, “shortly before a school band is to play a concert, the music teacher learns that six students have lost their music. The teacher is then entitled to make replacement copies for the performance. Later, the lost music would have to be found or purchased again.”18

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2. For academic purposes other than performance, multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a part of the whole which would constitute a performable unit. The number of copies shall not exceed one copy per pupil. 3. For academic purposes other than performance, a single copy of an entire performance unit that is, (1) confirmed by the copyright proprietor to be out of print or (2) unavailable except in a larger work, may be made by or for a teacher solely for the purpose of…preparation to teach a class. 4. Printed copies which have been purchased may be edited or simplified provided that the fundamental character of the work is not distorted or the lyrics, if any, altered or lyrics added if none exist. In other words, a choral or band director cannot make a new arrangement of a popular song, and reproduce enough copies of the arrangement for members of the choir or band. The fundamental character of the work would have been altered and would then exceed the bounds of fair use. 5. A single copy of a sound recording (such as a tape, disc or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher… Music teachers may tape performances for the purposes of student evaluation or analysis. However, if one copy is made for each student, the possibility of infringement exists as the guidelines state that “a single copy” may be made. B. Prohibitions19 1. Copying to create or replace or substitute for anthologies, compilations, or collective works. 2. Copying of or from works intended to be “consumable” in the course of study or teaching… 3. Copying for the purpose of performance, except as in A(1). 4. Copying for the purpose of substituting for the purchase of music, except as in A(1) and A(2). 5. Copying without inclusion of the copyright notice which appears on the printed copy. As always, when there is a copyright question, the safest course for educator and/or student to follow is to consult the guidelines which have been established pursuant to the law and which allow for certain educational uses of music and musical works. The guidelines were not intended to limit the types of copying permitted under the standard of fair use. They pertain to recorded music as well as to sheet music. It should be noted that the guidelines state there may be instances where copying that does not fall within the guidelines may nonetheless be permitted under the criteria of fair use.20

COMPUTER SOFTWARE GUIDELINES

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Copyright protection for computer programs has been available since 1964. Section 117 as amended in 1980 (P.L. 96–517), now “allows the owner of a program to make or authorize the making of a copy or adaptation provided that it is an essential step in the use of a program and that it is [made] for archival purposes only and would be destroyed if the original was sold or given away.”21 This gives schools the freedom (1) to make an archival copy to guard against destruction or damage through mechanical failure, but not one to be used as a second copy; (2) to make adaptations necessary to use the program correctly; and (3) to add features to the program, just as long as it is not sold or given away without the author’s permission. Programs in the public domain can be freely used because they are not copyrighted. The term “shareware,” it should be mentioned, is not synonymous with “public domain;” it signifies a method of distribution. Some shareware programs are copyrighted, while others are not. “Downloading” involves the transmission of data from remote or host computers to the user’s on-site storage device. While there is agreement that downloading much of a database is infringement and downloading a few records is not, decisions on use in between these ends of the continuum rest upon the circumstances of the individual case. The expanding use of multimedia electronic materials by teachers is a cause for special concern when it comes to copyright violation, because most of the time teachers are unaware they are infringing copyright says Anne C.Lewis, Washington Correspondent for Education Digest.22 Michael Sullivan, executive director of the Agency for Instructional Technology states, “The current fair-use provisions of the copyright law do not adequately address electronic publishing, [and] shareware… information.”23 As one progresses through the electronic age, learners—whether teacher or student— must be actively involved in using electronic information, and for this there must be adequate guidelines to insure fair access to materials. A 1992 report from the now closed Congressional Office of Technology Assessment recommended that librarians and others participate in developing guidelines on fair use and library use of computer software.24 The lack of reliable guidance on the fair use of software has resulted in producers and users alike, relying on license agreements for delineating rights and obligations.

OFF-THE-AIR COPYING OF TELEVISION PROGRAMS The increased availability of videotape equipment that can be used for recording television programming off-the-air has led schools to use commercial and educational television programs in the classroom. The intent is to record programs off-the-air to be replayed at times more convenient for classroom use. Under Sections 108 and 118 of P.L. 94–553, educational institutions were given the right to record newscasts and certain other broadcasts. The period during which a program may be shown is 10 days. During that time a program may be shown once “in the course of relevant teaching activities.”25 After the 10 days, an instructor has another 35 days in which to review the tape. At the end of that time, the tape must be erased. Regardless of the number of times a program is

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broadcast, it can only be taped once for a teacher. Copies should not be made indiscriminately, and should be part of an instructional activity. No guidelines for classroom use have been developed with respect to off-the-air taping of copyrighted audiovisual works incorporated in radio or television broadcasts, although it has been recognized that the fair use doctrine has some limited application in this area. The use of excerpts from copyrighted works for the purpose of educational activities may be a fair use. However, in a copyright infringement action by producers and distributors of film and videotape educational materials against a nonprofit cooperative organization funded by school districts for the purpose of providing educational services to over 100 schools, “the large scale practice…of copying, without authorization…was held an infringement of the plaintiffs’ copyrights.”26 The issue of copying other television and radio programs for nonprofit classroom use continues to be worked on. The fair use doctrine has some limited applications in this area, but the development of detailed guidelines is what is needed. Justice Sandra Day O’Connor has said, “Copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work… This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.”27 Copyright protects the expression of an idea but only in the form in which ideas are “fixed.” With new technology bursting before us, educators must become more aware of what constitutes “copy-rights” and “copy-wrongs,” as well as fair and foul use, in order to avoid unintentional breaking of the copyright law.

NOTES 1. Art I, Sec 8, Cl 8. 2. R.A.Gorman, Copyright Law, Federal Judicial Center (1991) pp. 1–2. 3. Ibid., p. 2. 4. U.S. Copyright Law. Title 17 of the United States Code (revised to March 1, 1991). (Washington, D.C.: Government Printing Office, 1991). Preface. 5. Gorman, op. cit., p. 95. 6. Harper & Row Publishers, Inc. v. Nation Enters, 1985. 7. Gorman, op. cit., p. 97. 8. Fisher v. Dees, 794 F. 2d 432 (9th Cir. 1986); Walt Disney Prods. v. Air Pirates, 581 F. 2d 751 (9th Cir. 1978); Gorman, op. cit., p. 99. 9. Gorman, op. cit., p. 100. 10. Ibid., p. 100. 11. The new copyright law: Questions teachers & librarians ask. (Washington, D.C.: National Education Association 1977, 2nd printing, American Library Association 1978), p. 32. 12. Ibid., p. 31. 13. Ibid., p. 34. 14. Ibid., p. 41. 15. S.E.Gillen, “Copyrights and copywrongs: A teacher’s guide to safe copying,” The Balance Sheet (Sept/Oct 1988), p. 27. 16. Marcus v. Rowley, 695 F.2d 1171 (1983). 17. United States Code Annotated (USCA). Title 17, Copyright 1977 (110–118 and supplement 98–101). (St. Paul, MN: West Publishing Co. 1977), p. 115.

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18. Talab, R.S. Copyright and instructional technologies: A guide for fair use and permission procedures. (Washington, D.C.: Association for Educational Communications and Technology, 2nd. ed. 1989), p.12. 19. USCA, op. cit., p. 115. 20. S.Wertz, “Using copyrighted music in public performances,” Tech Trends, Vol. 38, No. 5 (1993), p. 11. 21. Talab, op. cit., 14. 22. A.C.Lewis, “Copyrighted Technology,” Education Digest, Vol. 60, No. 1 (Sept 1994), p. 72. 23. Ibid. 24. K.D.Crews, Copyright law, libraries and universities: Overview, recent developments, and future issues (working paper). (San Jose, CA: Association of Research Libraries, 1992). 25. Talab, op. cit., p. 6. 26. Encyclopaedia Britannica Education Corp. v. Crooks; D.P.Van Knapp, American Jurisprudence, 2d. Vol. 18 (pp. 426 631, 439–441). (Watertown, New York: The Lawyers Corporation Publishing Co. 1985), p. 431. 27. D.J.Valauskas, “Copyright: Know your electronic rights!” Library Journal (August 1992), p. 40.

OTHER REFERENCES Crews, K.D. “Federal court’s ruling against photocopying chain will not destroy ‘fair use’.” Chronicle of Higher Education (April 17, 1991), A48. U.S. Copyright Law. Title 17 of the United States Code (revised to March 1, 1989). Circular 92. (Washington, D.C.: Government Printing Office 1989).

Fair Use/Museum Use: How Close is the Overlap?

by Stephen E.Weil Visual Resources, Vol. XII, pp. 353–359 Reprints available directly from the publisher Photocopying permitted by license only

© 1997 OPA (Overseas Publishers Association) Amsterdam B.V. Published in The Netherlands under license by Gordon and Breach Science Publishers Printed in Malaysia

Notwithstanding occasional threats from the estates of a number of European artists, several artists’ rights organizations headquartered in Paris or New York City, and a scattering of others, remarkably few actions for copyright infringement have ever been brought against museums in the United States that collect and/or display works of contemporary visual art and that prepare and distribute reproductions of that art in a wide variety of formats. Two reasons may be adduced for this. First, it can fairly be claimed that most works of contemporary visual art that have passed out of the artist’s ownership are in the public domain as a result of having been published without notice. Until recently, that was certainly the case for works so published that originated in the United States. Arguably, it was also the case for works so published that originated elsewhere. Second, even in those instances where a work of visual art is protected by a copyright, only rarely will that copyright have been registered with the Copyright Office in Washington, D.C., thus negating any possible award of statutory damages or attorneys fees and relegating the copyright owner to a series of remedies far too insubstantial to justify the considerable expenses to be anticipated in bringing an action for infringement. Given those impediments, there has been little need for museums that deal with contemporary art to rely upon or even to consider closely the extent to which fair use might provide them with a successful defense against a claim of copyright infringement. In the last decade however, those impediments have begun to dissolve and, in time, they well may disappear altogether. Under the Berne Convention Implementation Act of 1988, works of art published on or after March 1, 1989 no longer require notice in order to be accorded copyright protection. Thus, with every passing year, an ever-larger proportion of the works of art with which these museums regularly deal is covered by copyright and will continue in that coverage for many years to come. Beyond that, with the GATTgenerated Uruguay Round Agreements Act of 1994 now in effect, tens or even hundreds

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of thousands of works of contemporary art originating outside the United States have been dramatically removed from the public domain and restored to copyright protection for periods that may endure to dates as distant as 2064. Finally, many observers believe that it is only a matter of time before the formal requirements linking statutory damages and legal fees to registration will be repealed by one or another copyright reform act. In this emerging situation, museums that deal with works of contemporary art will need to consider far more closely than hitherto which uses of such works may be deemed to be “fair” and which uses may be deemed to be infringing. Immediately evident is that not every possible use that a museum might make of a work of art will be deemed to be fair. What intuition suggests, rather, is that such uses will array themselves along a spectrum anchored at one end by examples that may be considered indisputably “fair” (for example, illustrations printed in a scholarly text) and at the other end by examples that may appear to be clearly “unfair” (for example, the preparation and distribution of a same-size, same-medium three-dimensional reproduction of an editioned sculpture of which the living artist herself still retains copies that she is contemporaneously attempting to sell). To sort out of the vast range of possible museum uses along this spectrum—publications of other kinds, slides, transparencies, postcards, posters, notecards, address books, sheet reproductions, calendars, films, teeshirts, jigsaw puzzles, coffee mugs, videodiscs, Internet web sites, CD-ROMs, and many, many more—a number of interesting questions will need to be addressed. Given that most museums are fundamentally educational in purpose, it ought to be reasonable to assume that many of the uses they make of works of art will meet the threshold test of Section 107 of the Copyright Law (i.e., that they are for a purpose “such as criticism, comment… teaching…scholarship or research”). Proceeding beyond that to consider the fairness of such uses, some of the questions pertinent to the four factors that Section 107 sets out as guidelines might be as follows: – Regarding factor one: “[T]he purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes[.]” In determining the “purpose and character” of a mu-seum’s reproductive use, how relevant is the number of reproductions that it distributes? In the past, at least one of the New York-based artists’ rights organizations has argued that quantity is relevant, i.e., that the use of a work of art to illustrate a scholarly exhibition catalogue produced in an edition of 1,000 might concededly be a fair use while the same use in an identical exhibition catalogue produced in an edition of 100,000 was not. What was apparently being argued here was that this second use would be of a “commercial nature,” thus allegedly reversing what might otherwise have been an “educational” and pro-museum finding under factor one. Whatever force such an argument may once have had must surely, however, have been undercut by the Supreme Court’s decision in Campbell v. Acuff-Rose. If the purely commercial distribution of 2 Live Crew’s parody of Roy Orbison’s “Pretty Woman” was not deemed too commercial to be a fair use, then the sale of 100,000 Matisse catalogues ought to present a court with no worse a case. In the fair use context, the fact that a particular use has an undeniably commercial aspect may no longer be so damning as once was thought. – Regarding factor two: “[T]he nature of the copyrighted work[.]” This factor has traditionally been understood as requiring a distinction to be made between a primarily

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“creative” work (a novel, for example) which may be accorded greater copyright protection and a primarily “factual” one (for instance, a telephone directory) that may be considered less eligible for such protection. So understood, it would almost always weigh against museums on the grounds that a museum’s very interest in a particular work of art is compelling evidence of that work’s creative content. Must this factor, though, be so narrowly construed? Might not factor two also be interpreted to mean that the nature of the copyrighted work is to be considered in relation to the nature of the allegedly infringing use? So interpreted, factor two would allow a court to distinguish between the preparation and distribution of an 8″×10″ black-and-white photographic copy of a large, colorful painting by Henri Matisse and the preparation and distribution of an 8″×10″ photographic copy of an original 8″×10″ black-andwhite photograph by Robert Mapplethorpe. To the extent that common sense determinations of fair use are to be preferred over highly technical ones, such an interpretation of factor two might prove to be an appealing one. – Regarding factor three: “[T]he amount and substantiality of the portion used in relation to the copyrighted work as a whole[.]” Here is perhaps the most intriguing question of all. In dealing with the reproduction of a work of visual art, what is the “portion used” that is to be compared in “amount and substantiality” with “the copyrighted work as a whole?” Consider a 4″ by 6″ printed black and white postcard that depicts in its entirety an 8′ by 12′ heavily impastoed and vibrantly colorful painting on stretched canvas. Does such a postcard really “use” all of the painting, or does the omission from the postcard of the painting’s scale, canvas support, paint surface and color mean that what it is using is something considerably less than all. Might we not think of such a postcard as little more than a thin, pale summary or condensation of the larger and more imposing original? Might we not even analogize such a postcard to the quotation of a brief passage excerpted from a longer text? If so, how different would the case be if the postcard were printed in color? What if the postcard had been painted rather than printed? What if the painting had not been so large, but postcardsized to begin with? Is the case of the postcard ever, sometimes, or always the same as that of a full-scale replica painted on a canvas support? Assume, though, for argument’s sake that this “quotation” argument is not persuasive and that the postcard must be treated as a potentially infringing derivative work because the whole of the painting has been “used.” Such an adverse finding on factor three would still not necessarily be conclusive. Although some may argue that the reproduction of a copyrighted work in its entirety per se precludes a finding of fair use, there are cases (Sega Enterprises, Ltd. v. Accolade, Inc.; Universal City Studios, Inc. v. Sony Corp. of America) in which that was found not to be so. Regardless of how it is approached, this question of how factor three applies to works of visual art remains fundamental and fascinating. What a great irony it would be if art museums—which normally refuse to make postcards of details from a work of art on the grounds that to do so would be a serious misrepresentation of the artist’s intent—were to be instructed by the law that the production and sale of postcards limited to the details of a work of art was a benign and protected fair use while the production and distribution of postcards that depicted that same work in a way that was closer to

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the artist’s original intent would be an actionable infringement! Whom would that serve, and how? – Regarding factor four: “[T]he effect of the use upon the potential market for or value of the copyrighted work[.]” Imagine here that the copyrighted work is a painting held in a museum’s permanent collection. In the case of a unique object already owned by a museum, how is factor four to be applied? This seems to be one of those instances in which a body of law that evolved around infinitely reproducible classes of things (books, films, software programs) capable of distribution to a mass market has little or no fit with an object that exists as a singleton and that may not be for sale. There is neither any market nor any market value for a work of art (like the Mona Lisa) that a museum has no present intention to sell, which is just why such works are generally described as “priceless.” Ought factor four then be applied instead to what might actually be for sale, i.e., derivative works (or the right to make such derivative works) prepared from a not-for-sale original? There is certainly some authority for that. Another look at Campbell v. Acuff-Rose, however, suggests that such an application of factor four might require a further inquiry as to whether and to what extent the copyright owner was actually exploiting or could reasonably be expected to exploit the market for the kind of derivative work claimed to be an infringement. Translated into museum terms, the question of whether a museum-produced postcard of a copyrighted painting from its collection infringes the artist’s retained copyright might then turn in part on a factual inquiry as to whether the artist herself has customarily exploited or could likely be expected to exploit the market for such a postcard. The question is not the large theoretical one “Might she ever?” but the smaller theoretical one “Is she likely?” How museums might fare under this factor-by-factor analysis would depend upon the relative weight accorded to each factor. To the extent the first and fourth factors are given the greatest weight, museums might be expected to do well. Factors two and three might be more problematic. Rather than entwining themselves so deeply in such an analysis, however, those seeking to secure museums the broadest possible right to deal with copyrighted works of art might find it wiser to take a different tack. Much could be gained by adopting (and urging more courts to adopt) the approach to fair use explored in recent years by federal Judge Pierre N. Leval, an approach that treats fair use not as an exception to copyright’s overall objective but, rather, as being wholly consistent with that objective. If copyright is designed, as Leval views it, “…to stimulate activity and progress in the arts for the intellectual enrichment of the public,” then what is basically required in order to determine whether any particular use is a fair one is not some narrow consideration of the copyright owner’s monopolistic property rights but, rather, a more expansive inquiry into what public purposes are served, and at what cost, by the specific use under scrutiny. The fundamental question, as formulated by Leval, ought to be as to whether that particular use is “…of a character that serves the copyright objective of stimulating productive thought and public instruction without excessively diminishing the incentives for creativity.” Such a use would be a fair use. For a particular use to satisfy the first part of Leval’s formulation, it must also be what he terms “transformative,” i.e., it must “…employ the quoted matter in a different manner or for a different purpose than the original. A quotation of copyrighted material that

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merely repackages or republishes the original is unlikely to pass the test.” Is that not exactly what, for example, a museum-produced postcard of an original painting does? It neither repackages nor republishes the original, as might a full-scale painted replica. To the contrary, as the end product of several intervening technologies (principally photography and printing) it constitutes a transformed (albeit greatly diluted) version of the original in a new form that can be broadly distributed at a modest price—something impossible with the unique original which can only be seen in one place at any one time—while in no way affecting the market for the work from which it quotes. The only circumstances in which the production and distribution of such a postcard might diminish any “incentives for creativity” would be if the artist’s expectation of creating a derivative version for the postcard market had been among the factors that impelled the original creation of the underlying work. If so, then just as in traditional fair use analysis, factor four would come into play to make the use competitive and potentially unfair. Thus approached, a very large part of what museums have customarily produced and distributed would appear to fall well within the safe haven of fair use. Only two exceptions seem readily apparent. One would be those objects (coffee mugs, desk sets, perhaps even tee shirts) whose stimulative/instructional aspect appears to be so minimal that their production and distribution might arguably be said to fail to serve the objective of copyright. Museums ought not risk the danger of making adverse law in the defense of such trivial uses. The other exception would be those products (the same-size threedimensional sculpture reproduction or the copy photograph of Mapplethorpe’s original photograph) that might actually compete with the copyright owner’s own production— the very situation contemplated by factor four. Left largely unimpaired by this kind of an approach would be the right of museums to make fundamentally educational use of copyrighted contemporary art materials that they own and/or display in a variety of ways and to do so without fear that they will thereby be found to be infringers under the Copyright Law of the United States. Whether such uses might nevertheless be found infringing in other jurisdictions (to which, for example, museums might export catalogues and other materials) is beyond the scope of what is considered here.

Art Museums and Copyright: A Hidden Dilemma

by Peter Walsh Visual Resources, Vol. XII, pp. 361–372 Reprints available directly from the publisher Photocopying permitted by license only

© 1997 OPA (Overseas Publishers Association) Amsterdam B.V. Published in The Netherlands under license by Gordon and Breach Science Publishers Printed in Malaysia

Suppose the Folger Shakespeare Library began to collect performance fees for The Tempest. Or the Mozarteum told the Metropolitan Opera it couldn’t do an abridged, English-language version of The Magic Flute. Or the Mark Twain Memorial charged royalties on new editions of Tom Sawyer. On the other hand, suppose the New York Public Library happening to own a copy of an out-of-print novel by John Updike, decided, without consulting author or publisher, to issue a reprint for its patrons. To anyone even slightly familiar with copyright law and the idea of public domain, these imaginary scenarios will seem outlandish. Yet, comparable practices have been routine at American art museums for decades. Although policies vary widely from institution to institution, art museums have traditionally claimed broad rights over the reproduction of works of art in their collections—far more rights than analogous institutions outside the art world. Art museums in the United States have traditionally acted not only as caretakers of works of art, themselves, but as proprietors of all reproduction rights for those works as well. Typically, museums charge fees for such things as photographing works of art, renting color transparencies, providing black-and-white copy prints, and for all sorts of reproduction rights as may be applied to the publication of scholarly articles, to the covers of novels or to CD-ROMs, for instance. Different fees are charged for different types of use; scholars and non-profit organizations are typically charged less than commercial publishers. Usually, photographing works of art in the museum’s collection is restricted in some way: either photography by non-museum staff is not allowed at all, or else outside photographers are asked not to publish their photographs without the museum’s permission. In addition to collecting fees, art museums, acting as aesthetic guardians for what they consider cultural artifacts, usually seek to control the way the works in their collection are published. Often, they prohibit cropping, the use of details, graphic effects such as overprinting, and any other alteration to the image they have provided. Certain types of

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uses, including commercial advertising, are prohibited. Some museums require publishers to clear color proofs. And many museums direct anyone reproducing art from its collections to use the museum’s own attribution, title, and credit line when the work is published. Recently, those outside the museum world have begun to argue with these practices. Publishers have questioned museums’ right to place so many restrictions on publishing art works, works which publishers consider to be in the public domain. Art historians have found that museum useage fees, which authors usually have to pay out of the publisher’s advances or grants, often eat up any financial return they might otherwise have expected from their books and articles. Both publishers and scholars complain of what they find to be complicated and inconsistent procedures for obtaining reproduction rights from different institutions. Finally, artists, and particularly artists’ estates and agents, have begun to claim that they, not the art museums, legally control reproduction rights to many works in museum collections. Various organizations, including the College Art Association, the Getty Trust, and the American Association of Museum Directors, have lately tried to mediate in the growing constellation of increasingly heated disputes. So far, only modest progress has been made: museums continue to insist on exercising their traditional rights, scholars and others continue to question them, and, accordingly, there is still enormous confusion around the issue. This article will focus on some of the most basic problems in the copyright of art work in museum collections, ignoring, in the interests of length and clarity, such related issues as “fair use,” “first sale,” contractual rights, and digitizing. I am not an attorney, nor have I at any time set out to make myself an authority on copyright law. As a long-time museum staff member, editor and producer of art books, writer, designer, university and college employee, publishing contract negotiator, and contractor with illustrators and photographers, however, I probably have a wider practical experience of copyright matters than many. This article will start with three general observations on the nature and history of copyright: 1. The development of copyright law has been driven by technology, most notably by the invention of the printing press, followed by the invention of photography, the phonograph, the movie camera, radio, television, and, finally, computers. These inventions make it possible to reproduce original works mechanically or photographically, instead of manually, which, in turn, allows people to profit from the distribution of inexpensive copies of the original work. The ease with which mechanical copies could be produced, and the high profitability that accompanied selling inexpensive copies to a mass market, brought on the problem of what to do about counterfeit editions, which, in turn, resulted in the creation of laws to protect the ownership rights of authors and publishers. These laws, in effect, created a new kind of property where none had existed before—a kind of property that, as the rise of entities like Microsoft Corporation illustrates, has come to dwarf the value of property in its more tangible forms. At the same time, governments created laws to regulate the distribution of printed material (to control, for example, the dissemination of pornography or seditious writings).

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Changes in technology have not made copyright “obsolete,” nor does the translation of a work from one technology to another, by photographing, digitizing, or tape recording it, in any way change the copyright status of the original or of any copies. On the contrary, new technologies have made copyright ownership progressively more important and more profitable, even as the control of the copying itself becomes more and more complex. 2. Modern copyright law is designed to encourage the creation of original works by giving the creators of those works monopoly control over copies of the original for a limited period of time. After that period expires, the rights belong to everyone; that is, the work enters the “public domain.” 3. Although Article I of the U.S. Constitution makes provision for copyright protection, in international copyright law, the United States was a renegade for most of its history. Until the end of the nineteenth century, American publishers were legally free, under U.S. law, to pirate almost any work of foreign literature they wished. (Students of Charles Dickens may recall his frequent complaints about unauthorized American editions of his work, for which he received not a penny in royalties.) When the Berne Convention, which provided for the recognition of copyright across national boundaries, was established in 1886, the United States did not sign. The 1976 U.S. Copyright Act was one of several twentieth-century laws designed to bring the United States into partial conformity with the Berne Convention, but until the 1980s, for example, it was still impossible to copyright an English-language book in this country unless it was printed in the United States. The United States did not fully adhere to the Berne Convention until 1989, following yet another revision of the U.S. copyright law in 1988.1 These historical points have all had an impact on the current state of confusion that surrounds the copyright of works of art. Because the need for modern copyright laws started with the invention of the printing press, these laws have tended to be written for literary work and then adapted, not always well, to other media. The parts of the U.S. copyright law that did not conform to international copyright conventions affected, in particular, the copyright of visual works. This means that the 1976 law had a disproportionate effect on the copyright of works of art in this country, and has led to a disproportionate amount of confusion in this area. Prior to 1976, U.S. law assumed that the copyright of works of art automatically transferred with ownership of the work. The 1976 law reversed this: copyright of a work of art was now assumed to stay with its creator unless explicitly transferred by the artist to the new owner. This was the assumption that had long applied in Europe but not in the United States. In nineteenth-century Europe, new mass markets for art reproductions meant that reproduction rights frequently had a higher market value than the original work of art and were traded as a separate commodity.2 American museums had generally assumed that they owned the copyright to works in their collection or at least the right to make copies of those works. (In fact, some artists had retained copyright under the old law by written contract.) Nearly twenty years after the change in the law, its full implications have yet to sink in. Although many museums still assume that they have broad copyright powers over most of the works in their collections, many copyright experts outside the art world now assume the opposite: that

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most works in museum collections are either in the public domain or else copyright belongs to someone else. My own introduction to this discrepancy took place in the early 1980s, while I was producing an important exhibition catalogue of a major twentieth-century artist’s drawings for an art museum affiliated with an Ivy-League university. At the time, many American museums, including all the other venues for the drawing exhibition, believed that the copyright claims of artists’ heirs over works in museum collections were without basis. The university’s attorneys, for whom museum concerns were not a high priority, thought otherwise. Under the new law, ownership of the physical work of art meant nothing to copyright. Unless we had documented evidence to prove that the copyright had transferred with the object, we had to assume that the heirs were within their rights in demanding royalties. The copyright officials in Washington I consulted confirmed this emphatically. Against the protests of the other museums, who had been trying to keep a united front, we dealt with the artist’s heirs and acknowledged, at least tacitly, their agents (at the time, VAGA-SPADEM) in the publication. Subsequently, the university’s policies have developed and changed and museums have moderated their claims over works still covered by copyright. Whenever possible, many museums attempt to obtain from the artist full or partial copyright of works entering their collection. Copyright to a small, but slowly growing number of contemporary works in museum collections is now owned by the museums, or held jointly with the artists. Museums frequently include a disclaimer in their photograph reproduction permission forms that, in effect, warns those who reproduce images from the museum that they may also need to seek permission from other copyright holders and that the museum accepts no responsibility for possible violation of the copyright of third parties. Such disclaimers now seem rather ironic. The copyright law gives artists broad control not only of copies of their work, itself, but also of any derivative work that modifies it, interprets it, or incorporates it into a larger work. This control would certainly extend to photographs of the original work. If the museum is within its rights in making and distributing a photograph of a work, then, it would seem, no disclaimer is necessary. If the museum is not within its rights, then even making and selling the photograph of the work without permission of the copyright holder is probably an infringement. More complex issues surround the copyright of works of art which have entered the public domain. In copyright guidelines drawn up for another publishing project, the attorneys at my university held that one could assume that any work by an artist that has been dead for fifty years or more is in the public domain. This guideline meant, in effect, that most works of art created by the late-nineteenth century (including, for example, all works by the Impressionists) could be reproduced without violating the artists’ copyright. In addition, the attorneys held that if a work had been repeatedly reproduced without permission of the copyright holder, and that if there was no evidence of the copyright holder ever protesting the violation, one could assume that the work had entered the public domain by “laches.” Laches, the attorneys explained, is the common law provision that holds that if a right is violated repeatedly and the owner is held to be negligent for not protesting those violations, then that right can no longer be enforced. For example, if a land owner has allowed his neighbors to cross his fields on the way to town for many years, he cannot then erect a “No Trespassing” sign and expect them to obey it. Laches

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has a history in U.S. law as a defense in cases of patent and trademark violation— intellectual property issues closely related to copyright.3 Laches is potentially, at least, a very powerful strategy to apply to visual copyrights. Many of the most famous twentieth-century works, published repeatedly without acknowledgement of the copyright holders, may be said to have entered the public domain in this way. Although most museums acknowledge that many art works in their collections are themselves in public domain, they attempt to control reproduction of those works by controlling their photographs of them. Some museums do not allow outsiders to photograph their collections at all. Others allow visitors to photograph only with restrictions, including a stipulation that they not publish or distribute them. As noted above, museum photographs are commonly distributed with a series of restrictions on how they may be used. Many, though not all, museums assume that they own copyright to the photographs they take of works of art in their own collection and believe that they can control reproduction of works in their collection by controlling the rights to these photographs, which are usually taken by staff photographers covered by “work-for-hire” copyright rules. Current readings of the law suggest that this assumption is far from secure. Even if such photographs are copyrightable, however, museum control over the public domain images they depict is far from airtight. For one thing, even if copyrightable, photographs of works of art themselves enter the public domain when copyright expires (or, potentially, when laches applies). For copyrights owned by an unknown person or by a corporate entity, some authorities make the assumption that copyright expires seventy-five years after first publication. (Publication is defined as the distribution of material copies of the original.) This means that an increasing flood of photographs—from art journals, catalogues raisonnés, museum publications, and the like are now entering the public domain. If the photographs of works are in the public domain, the works themselves, of course, must also be in the public domain; such works, it would seem, may legally be copied, distributed, and published by anyone. The photo archives of many older museums, as well as the photo study and slide collections of many libraries, contain thousands of photographs that will eventually fall into this category as well. To this growing body of photographic material outside museum control might be added all the photographs of public domain art works taken by private owners, galleries, or auction houses, among other sources, prior to those works entering museum collections. As time passes, these often overlooked resources could form a rich source for images that may be freely reproduced and distributed without citing or referring to the current owner of the work of art. Contrary to their assertions, it is not entirely clear that museum photographs of their own public domain collections are copyrightable. Under the 1976 law (section 102), copyright applies to “original works of authorship fixed in any tangible medium of expression.” Originality is very important to copyright protection: important court cases have held that copyright law does not protect either direct copies of public domain original works or compilations of facts. For example, in Feist Publications, Inc. v. Rural Telephone Service Co. (499 U.S. 340 [1991]), the U.S. Supreme Court, going back to Article I of the Constitution, ruled that alphabetical “white page” telephone directories, as

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mere compilation of facts and not original creations, were not copyrightable: “The constitutional requirement [for copyright protection] necessitates independent creation plus a modicum of creativity. Since facts do not owe their origin to an act of authorship, they are not original and, thus, are not copyrightable.” The copyright status of the museum photograph is thus highly ambiguous. Few deny that many photographs are “original works of authorship” and thus are protected by copyright. But what of a museum photograph, whose sole reason for existence is to record the “facts” of an original work of art? Since the “facts” of the original work of art recorded in a museum photograph clearly do not owe their origin to the museum photographer, the museum photograph also may not be copyrightable or at best copyrightable only in part. The museum photograph may have required enormous skill and effort to create, but both Feist and other court cases more directly related to works of art have ruled that such skill and effort is irrelevant to copyright protection: only originality counts. Legal decisions are divided on the amount of originality needed for copyright protection. In at least one case, even a handmade copy was ruled not protected.4 Museums might also seek copyright protection for museum photographs by claiming them as “derivative works,” defined in the 1976 law as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” Such derivative works may be covered by copyright; however, if they are, it would be in the form of a so-called “thin” copyright, applying only to those elements of the derivative work that differ from the original. Some authorities consider the claim of “thin” copyright a dubious one at best. As Section 103b of the 1976 law puts it, “The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material” (emphasis added). Section 103b goes on to say that the copyright for a derivative work “is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.” In other words, ownership of copyright for a derivative work cannot be used to control copyright in the original work on which the derived work is based. Section 103b was clearly drafted primarily with literary work in mind. It is quite easy to distinguish the footnotes, introduction, and original illustrations in, say, a new edition of Shakespeare’s sonnets from the sonnets themselves. The sonnets are in the public domain and can be freely copied and distributed independently from any new material, for which copyright belongs to its creators. In the case of a museum photograph, it is not nearly so easy to separate the derivative parts from the original. If the museum photograph is copyrightable as a derivative work, exactly what parts of it are covered? Clearly not the original work; but is the scale, the flatness, the resolution, the arrangement of pigments in the photograph, print or transparency protected in some way? And are such differences intentional “adaptations” or “transformations” of the original, or are they merely the unavoidable by-products of limitations in photographic technology? Museum photographers usually attempt to come

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as close to the original work as possible, and museum publishing guidelines are drawn up with faithful reproduction as the primary goal—prohibiting, for example, such “transformative” practices as the use of details or inaccurate color. As museums approach their goal of absolute verisimilitude, do they not also diminish any copyrightable parts of their photographs and reproductions to negligible amounts? If they do, then does the difference between the museum photograph and the original work eventually reach de minimis, that is, a difference so small that the law will no longer recognize it? The copyrighted status of the museum photograph is further compromised by the fact that it also fits the 1976 law’s definition of a copy—namely, a material object “in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” If the museum photograph of an art work in the public domain is a derivative work, it may be copyrightable in part. If it is simply a copy, however, it is not copyrightable at all. A final blow to museums’ broadest claims may well be contained in laches. Even if the museum photograph is a copyrightable, derivative work, museums have not been especially vigilant about protecting these rights. Although artists, and more particularly artists’ estates and agents, have begun to take steps to ensure that they do not lose their rights by laches or through related principles of negligence, museums often know of violations which they choose to ignore. For example, scholars, usually inadvertently, sometimes publish museum photographs without obtaining permissions. College and university slide libraries, and even museum slide libraries, duplicate museum slides and make slides from publications. In these arenas users sometimes claim they have rights to copyrighted materials under the “fair use” provision written into the copyright law; but, from the point of view of the copyright owner, such uses are either infringing actions until proven otherwise or, more likely, infringements they choose not to pursue. And, although most museums try hard to follow the publishing guidelines of other museums, many fail at least some of the time. The guidelines are often confusing and vary widely; the time limitations of publishing on a deadline make some guidelines difficult, if not impossible, to honor; and provisions for attribution and the like sometimes conflict with the normal needs and standards of scholarship. Museums have also been known to use images on loan in advertisements and promotions without proper authorization or have used details, attributions, and other alterations prohibited by loan and reproduction contracts. Although they are aware of them, museums generally do not rigorously pursue violations of their photographic reproduction contracts. It seems unlikely that they will do so in the future. For one thing, monitoring and pursuing copyright violations is timeconsuming and expensive, and museums, faced with diminishing resources, do not have the staff time to spare for such nonessential activities. For another, most of the violators are within the interdependent art world family of art historians, art journals, art publishers, college and university libraries, and other museums. Museums are naturally reluctant to sue, for example, a leading authority on Renaissance art or a major university over copyright violation; they prefer to overlook all but the most egregious violations.

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Finally, many museums and their legal advisers may be reluctant to take such cases to court for fear the decision will go against them and establish unwelcome precedents, like Feist, that do not support their claims. Unfortunately, should museums begin to prosecute violators of their copyright provisions they may find that, even if they exist in law, they may have evaporated under laches or related principles from other areas of intellectual rights law. It seems clear from the foregoing that U.S. Copyright law, from the Constitution on, provides little support to attempts, by art museums, to control, in perpetuity, reproductions of works of art in their collections. Nor does the art museum’s traditional mandate of preserving, exhibiting, and educating about works of art suggest that they should be allowed to control the free distribution of public domain images. These are, like the works of Shakespeare and Twain, public property. Do museums have the exclusive right to profit from the reproduction of works of art that they own? The Constitution gives this “exclusive right” only to “authors and inventors” and then only for “limited times.” For works in the public domain, museums have as much a right to profit by such reproductions as anyone else, but probably not much more. In the case of works not in the public domain, that exclusive right properly belongs to the artists and their heirs until they voluntarily transfer them to someone else. Finally, do museums have the right to control the manner in which works of art are reproduced? Copyright law gives this right first to the artist and the artist’s heirs, and then, when copyright has expired, to the public as a whole. Just as the public has the right to produce terrible (as well as excellent) performances of Shakespeare at will, so it should have the right to use and misuse the works of Rembrandt, Raphael, and Monet. Scholars and others writing about a work of art in the public domain, under the first amendment, should have the right to say what they wish, including using their own attribution if they disagree with the owners, without fear of reprisal over reproduction rights. After that “limited time” when they are under the protection of their creators, each work of art must, like a child grown up, face posterity on its own. American art museums have often looked to reproduction rights as a way to subsidize their basic operations. But maintaining such rights and managing requests for photographic material, are complex, costly, and time-consuming. Museums might well be better off if they consigned many of these functions to other sorts of institutions. They then could concentrate instead on new photography of their own collections, for which demand will continue regardless of copyright status, and on museum-shop reproductions and adaptations, most of which are protected by copyright. Such arrangements might also avoid years of fruitless debate and fratricidal conflict among museums, scholars, art libraries, and publishers which otherwise could be in front of us. Intellectual property is just that: a form of property invented by the human intellect. Unlike a piece of land, the boundaries of an intellectual property cannot be surveyed and fenced, and thus it is not always easy to see what is private and what belongs to the world at large. Because to us most works of art are also real, physical, ownable pieces of property, intellectual rights boundaries for the visual arts are even harder to determine. The confusion over visual copyright will continue until all parties understand that the realms of visual property are not one but two, each with its own rights and rules.

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NOTES 1. For my understanding of the history of international copyright law and its relationship to U.S. law, I am particularly indebted to conversations with the Dutch copyright authority Herman Cohen-Jehoram of the University of Amsterdam. The bibliography on the subject includes Sam Ricketson, The Berne Convention for the Protection of Literary and Artistic Works (1987). William S. Strong, esq., an intellectual rights attorney in practice in Boston, has been an invaluable guide to copyright issues in general; see also William S.Strong, The Copyright Book: A Practical Guide (Cambridge, Massachusetts: MIT Press, 1981 and later editions). Neither Mr. Strong nor Professor Cohen-Jehoram, I should add, has been in any way involved in the preparation of this paper or in any of the examples it cites. 2. See Robert Hughes’ fascinating article, “On Art and Money,” New York Review of Books (Dec. 6 1984), pp. 70–7. 3. Aside from the legal advice I was given in the cited instance, I have not extensively researched the issue of a laches defense in copyright cases and do not know of specific instances of laches being used in as a defense in a case of violation of visual copyright. There is a significant bibliography on the principle of laches as applied to patents and trademarks in the literature of the legal profession. 4. For a summary of some cases relevant to these issues, see Dennis S.Karjala, “Copyright and Misappropriation,” 17 U.Dayton L.Rev. 885 (1992) and “Copyright in Electronic Maps,” 35 Jurimetrics J. 395 (1995).

Fair Use of Digital Art Images and Academia: A View from the Trenches of the Conference on Fair Use (CONFU)1

by Barbara Hoffman Visual Resources, Vol. XII, pp. 373–392 Reprints available directly from the publisher Photocopying permitted by license only

© 1997 OPA (Overseas Publishers Association) Amsterdam B.V. Published in The Netherlands under license by Gordon and Breach Science Publishers Printed in Malaysia

As an initial participant in the Conference on Fair Use (CONFU)2 that has been meeting in Washington, D.C. since September 1994 under the auspices of the United States Department of Commerce, I have been asked to comment on that process as well as provide a more general discussion on issues relating to the fair use of digital image archives for teaching, scholarship, and criticism in the context of the National Information Infrastructure. To do so, it is necessary to begin with a brief discussion of copyright basics.

COPYRIGHT BASICS The primary objective of copyright is not to reward the labor of authors, but “[t]o promote the progress of Science and useful Arts.” To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work… This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.3

Congress has implemented this constitutional mandate in Title 17 of the United States Code of Laws. Grounded in Article I of the Constitution, the copyright law clearly

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recognizes the interrelationship between commerce and the progress of the arts and sciences for the well-being of our society. As one copyright specialist noted: The genius of United States copyright law is that it balances the intellectual property rights of authors, publishers, and copyright owners with society’s need for the free exchange of ideas. Taken together, fair use and other exemptions allowing certain uses of copyrighted works without permission, were incorporated in the Copyright Act of 1976, and constitute indispensable legal doctrines for promoting the dissemination of knowledge, while ensuring authors, publishers, and copyright owners protection of their creative works and a return on their economic investments. The preservation and continuation of this balance in the new digital environment is essential to the free flow of information and the development of an information infrastructure that serves the public interest. The loss or diminution of these provisions in the emerging information infrastructure would harm scholarship, teaching, and the operation of a free society.4 The Rights of the Copyright Owner in a Copyrighted Work To be protected under current U.S. copyright law, a work “must be an original work of authorship fixed in a tangible medium of expression.” Works of visual art—a painting, a photograph, a sculpture—are protected by copyright, ideas or facts are not. The creator of a work is considered its “author,” unless the work is “a work for hire.” The copyright law grants to the author exclusive rights of use and control for a limited period of time. The requirements for, and duration of, copyright protection vary, depending on the law in effect when a work was created. Under the 1909 Act, an author could secure copyright by publishing a work with the required copyright notice. He could then obtain registration of his copyright by depositing two copies of the work with the Copyright Office. If the author never reproduced his work for sale, he could secure copyright registration by depositing one copy of the work with the Copyright Office along with his claim of copyright. This statutory copyright endured for twenty-eight years, and was renewable for another twenty-eight years. The current Copyright Act was enacted October 19, 1976 and became effective January 1, 1978, and provides currently for a duration of life of the author plus fifty years. Thus, the simple act of creating an original work in a “fixed” medium including the electronic, gives the author copyright in the work. Under Section 106 of the Copyright Act of 1976 (the “Act”), the copyright owner has the exclusive right (1) to reproduce the work in copies or phono records, (2) to prepare derivative works based on the copyrighted work (which includes the right to recast, transform, or modify), (3) to distribute copies by sale or other ownership transfer, or to rent, lease, or lend copies, (4) to perform the work publicly, and (5) to display the work publicly.5 In addition, authors of works of visual art protected under Section 106A have the right to claim authorship (attribution) and to prevent the use of their name in conjunction with certain modifications of the work and the right to prevent alteration of their work (integrity). As

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will be discussed more fully below, the application of such rights in the NII or GII is not clear.6 A copyright owner may divide monopoly rights in the work in a number of ways: inter alia by the type of use and/or media exclusivity or non-exclusivity, territory or duration and thus may only grant a right to a specific media or platform (e.g., CD-ROM for IBM) or a specific location (i.e., site license). Copyright holders are customarily reluctant to agree to broad transfers of rights to future unknown technologies. The grant of rights to an educational institution to use an image in one medium or for one purpose does not necessarily permit its use in other ways. In particular, ownership of a copy does not necessarily convey any of the bundle of intangible rights of copyright and without such grant of rights, license, or an available defense or exception to those rights, the owner of a copy can not reproduce, alter, or perform the copy. When museums, stock houses, galleries, archives, or publishers license an image, often they are providing access to a particular copy of the image which may or may not be entitled to separate copyright protection, and are not necessarily providing a license in the underlying rights of the image. A rights holder is often concerned with control over the exploitation of the image not only to benefit from future technologies, but also, as with the custodians of art and architectural images, to preserve the integrity and authenticity of the image. A copyright owner’s rights are limited in several respects under existing law. The “first sale” doctrine permits the owner of a copy of a work to sell or otherwise dispose of the work. Thus, the owner of a CD-ROM of the Barnes Collections masterpieces would be free to sell the CD-ROM, but not to copy the copyrighted images on the disk. Similarly, the owner of a work of visual art may display it to the public at the place where it is located. Section 109 of the Copyright Law provides: Notwithstanding the provisions of Section 106(5) [which grants copyright owners the exclusive right to display publicly copies of a work], the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located. Section 110(1) permits the performance or display of a copyrighted work in the course of face-to-face teaching activities in a classroom or similar place of instruction. Due to its “face-to-face” requirement, this provision may not protect the telecommunications transmission and subsequent digitization of programs embodying copyrighted works. Section 110(2) permits the performance of a nondramatic literary or musical work or display of a work, by or in the course of a transmission, if (A) the performance or display is a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution; and (B) the performance or display is directly related and of material assistance to the teaching content of the transmission; and (C) the transmission is made primarily for

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(i) reception in classrooms or similar places normally devoted to instruction, or (ii) reception by persons to whom the transmission is directed because their disabilities or other special circumstances7 prevent their attendance in classrooms or similar places normally devoted to instruction, or (iii) reception by officers or employees of governmental bodies as a part of their official duties or employment. This means that copyrighted drawings, slides, maps, or art prints may be transmitted to a remote site without constituting an infringement; movies, videos, and other audiovisual works may not. Audio tapes of musical performances would be allowed, but not audiovisual tapes of musical performances. Section 110(2) does not apply to the performance of an audiovisual work.8 Despite the restrictions imposed by Section 110(2), audiovisual works can only be transmitted to an electronic network where the use and the portion of the work transmitted is such that it meets the fair use provisions of Section 107. Fair use applies concurrently with and in addition to Section 110(2). Neither Section 110 nor fair use under current interpretations provide complete insulation for universities that wish to digitize copyrighted images and to produce multimedia works for distribution, for subsequent copying, for lending to students for later viewing, and for future use as well. The balancing of the Copyright Act is apparent in the special exemptions for libraries and archives in Section 108 and in proposed amendments permitting digitization of images for archival and preservation purposes. Many have expressed concern that the special exemptions for libraries in Section 108 of the Copyright Act are no longer relevant in the digital era. Libraries, of course, may make fair use of copyrighted works pursuant to the provisions of Section 107. Section 108, however, provides additional exemptions specifically for libraries and archives. On the one hand, there are those who believe that since the licensing of transactions of works in digital form will be a feature of the digital distribution systems of the future, there is no need for library exceptions. Each copying transaction will be cheap and libraries can simply pay for all of the copying in which they engage. On the other hand, there are those who believe that unrestricted copying in libraries should be the rule, without the special conditions and limitations set forth in Section 108. Legislation introduced in both the House and Senate based on the recommendations of the Working Group on Intellectual Property Rights of the Information and Infrastructure Task Force chaired by the Hon. Bruce A.Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks (the Working Group) has preserved this balance in the proposed legislation. The bill amends the current exemption for libraries to allow the preparation of three copies of works in digital format, and it authorizes the making of a limited number of digital copies by libraries and archives for purposes of preservation. Fair Use The most significant and, perhaps, murky of the limitations on a copyright owner’s exclusive rights is the doctrine of fair use. Fair use is an affirmative defense to an action for copyright infringement. It is potentially available with respect to all manners of unauthorized use of all types of works in all media. When it exists, the user is not required to seek permission from the copyright owner or to pay a license fee for the use.

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Determining fair use is not subject to a bright line test. Based originally on judicial decision, Congress codified the doctrine in the Copyright Act of 1976. Section 107 of the Copyright Act of 1976 does not define fair use. Instead, the preamble to Section 107 sets forth certain illustrative examples such as teaching, scholarship, and research as examples of a fair use and instructs that this use be considered together with four interrelated factors to determine whether the use made of a work in any particular case constitutes fair use. The mere fact that an image may be used for broad purposes of education does not mean that a use is “fair.” The Supreme Court has stated that all four statutory factors must be considered without favoritism and that fair use must be considered on a case-bycase basis. The doctrine is described as an “equitable rule of reason” in the legislative history of Section 1079 and as the embodiment of the delicate balance of the statutory scheme to promote free dissemination of information, “thereby benefiting the public by allowing the second author through a good faith productive use of the first author’s work…[to create] a new, original work…” The contours of fair use in the academic environment currently have been shaped by carefully selected test cases brought by book and journal publishers to establish broad principles in areas where substantial license revenues were at stake. Thus, although there are no cases analyzing the fair use of visual materials for teaching, scholarship, criticism, or research, such decisions as Kinko and Texaco placed a limited interpretation on the application of fair use in the context of learning and research. An Association of American Publishers letter to copy-shop owners advises “that Kinko’s means that absent permission from the copyright holders, the copying of excerpts from copyrighted works into course anthologies which are distributed to students infringes the copyright in the works excerpted.” This trend toward limiting fair use was recently reversed by the Supreme Court in Campbell v. Acuffī Rose Music. The U.S. Court of Appeals for the Sixth Circuit in Princeton University Press v. Michigan Document Services, Inc. on the precedents of Feist and Campbell v. Acuff Rose Music, permitted as fair use, course pack copying on much the same facts as Kinko. The reasoning of that case has been criticized by some copyright scholars. The opinion was ultimately withdrawn based on the granting of a motion for reargument. An important issue in the case is the weight to be given to evidence of lost permission fees as an element of market effect in determining whether a use is “fair.” Permissions have generally been sought by publishers for the use of visual materials. Museums’ positions on fair use often depend on the nature of their collections, with modern or contemporary art museums taking a strong fair use stance vis-a-vis artists’ collecting societies like SPADEM, VAGA, and ARS. In developing visual resources collections, slide curators have usually not sought permission for a number of reasons, including the difficulty in establishing copyright ownership and in finding the appropriate copyright holder authorized to grant such permissions, the nature of the use and the user, and because the use of the visual materials was limited to one individual or institution. When slides have been purchased from vendors with restrictions, the restrictions imposed by vendors have generally been adhered to. In a statement issued in May of 1983, slide vendors stated: All slides of art or architecture—whether originals or duplicates—are the original creation of the company producing them, and/or the owning

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institution, artist and photographer. These slides are thus protected under International Copyright Laws. Such slides are sold under the express condition that they are to be used for teaching and studying purposes only and may be projected via normal slide projector for classroom and lecture use. No purchased slides may be reproduced or transmitted by any other means, electronic or mechanical, including photocopy, slide duplicator, video recording, or any information storage and retrieval system now known or to be invented, without permission in writing from the producer. As a further clarification, since these slides are produced for the specific purpose of teaching, scholarship and research, the normal “fair use” clause allowing single copies to be made by individuals for these purposes does not apply. Since virtually the only market for these slides is comprised of the very teachers, students, scholars, and visual resource people who would be interested in copies, and any copying activity whatsoever is a form of direct damage to the producer of the original image. Therefore, any unauthorized copying of slides must be considered in violation of copyright law and in violation of professional ethics. Any authorized copying must be agreed upon in writing.10 The application of Section 107 requires an analysis of its two paragraphs. The second paragraph lists four non-exclusive factors for determining whether a use is fair: They are (1) the purpose and character of the use, including whether for commercial or nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used, and (4) the effect of the use upon the potential market for or value of the copyrighted work. The four fair use factors “are to be…weighed together, in light of the objectives of copyright ‘to promote the progress of science and the useful arts’.” As Judge Pierre N.Leval noted at a meeting of the College Art Association on the subject of appropriation art in 1994, as to the first and second factors, the statute tells us nothing about what kind of purpose and character of the secondary use, and what kind of nature of the copyrighted work, will favor or disfavor a finding of fair use. In my view (which is not necessarily shared by other judges and copyright scholars), a study of the pattern of decisions reveals that courts have placed great importance on the first factor— the purpose and character of the secondary use. An important question has been: Does this appropriation fulfill the objective of the Copyright Law to stimulate creativity for public instruction? Is the appropriation transformative? Does it use the appropriate matter in a different way or for a different purpose from the original? Appropriation that merely repackages the original will not pass the test. If, on the other hand, the appropriative use adds to the original, if the original is transformed in the creation of new information, new attitudes, new aesthetics, insights and understandings, that is the type of appropriation that the fair use doctrine intends to protect. Many other types of critique and commentary also fairly require quotation to communicate their message. An art historian or critic who seeks to make a point about an artist’s work cannot effectively do so without showing illustrations. 1. [T]he purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.

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Who is the user? What are the uses—cataloging, teaching, scholarship, research, or criticism? The courts have placed great importance on the purpose and character of the secondary use and whether the use is “transformative” and consistent with the goals of the copyright law to stimulate creatively for public instruction. The U.S. Supreme Court has said that “[t]he enquiry here may be guided by the examples given in the preamble of §107…” Campbell v. Acuff-Rose, 114 S. Ct. 1164, 1170 (1994). Since the preamble lists as an example “teaching (including multiple copies for classroom use),” and since whether or not the use is “for nonprofit educational purposes” is listed in factor one, it is clear that this factor favors the educator who makes, or who has another make, copies including single art images, only for classroom use. Education is an important public purpose;—educational use promotes the progress of knowledge and the public interest. Thus the use of copyrighted material including images for teaching, research, and criticism is more likely to be considered fair use under factor one. For example, in Texaco, the Court of Appeals for the Second Circuit in holding Texaco liable because its research scientists made copies of articles from learned journals for research purposes, was careful to note that its holding was not applicable to research carried on by non-profit institutions. Nevertheless, there is no general exemption for education, and factor one must be analyzed in conjunction with other factors. For example, many artists, photographers, and illustrators may gain substantial revenues from licensing images for text books at the secondary and college level. 2. [T]he nature of the copyrighted work. Factor two is a recognition of the fact that there are three types of copyrightable works: (i) creative or predominantly original works, (ii) compilations; and (iii) derivative works. Thus the Supreme Court has ruled in Campbell that factor two “calls for recognition that some works are closer to the core of copyright protection than others…” Copyright law gives greater protection to certain classes of works that embody more creativity, such as fiction, photographs, poetry, and art images, compared with more factual materials. The more creative a work is, the greater is its protection. When it comes to original works of art, factor two will almost always go against a finding of fair use because of the innately creative nature of art. Also if a work is unpublished, copying it is less likely to be considered a fair use (though the fact that it is unpublished does not by itself bar a finding of fair use, if such a finding is made upon consideration of all the other factors taken together). On the other hand, the status of a digitally photographed public domain work or “curatorial photography” is unclear. Is there sufficient originality to qualify for copyright protection in the photograph of a public domain work? What is protected? Is the copyright thin? As noted previously, digital image archives are composed of many different types of works. Each category of work is more appropriately analyzed separately. For example, a photograph of a Renaissance work of art might provoke a different analysis than a photograph by Dianne Arbus or Richard Avedon, or a threedimensional sculpture. 3. [T]he amount and substantiality of the portion used in relation to the copyrighted work as a whole.

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As Judge Leval noted, “the third and fourth factor direct a court’s attention to how much of the work can be taken and how serious a harm has the taking inflicted on the value of the original work. The amount that can be copied as a matter of fair use is a logical function of the first two factors, the purpose of the use and the nature of the work.” For private or personal use there may be occasions when the entire work may be copied.11 In determining the amount copied for fair use purposes, it is appropriate to subtract any unoriginal or uncopyrightable materials. This conclusion follows from the U.S. Supreme Court in Feist Publications v. Rural Telephone Co. Normally courts look at both the quantitative and qualitative amount that is taken. The use of a pictorial, graphic, and sculptural work will usually involve the whole work. Nevertheless, the Supreme Court in Campbell v. Acuff Rose recently held that this factor would not necessarily be determinative and must be considered in light of the purpose and use of the new work. In Acuff the Supreme Court suggested that the extent of copying can provide an insight into the primary purpose of copying, and cautioned that there was a need for more particularized inquiry about the amount taken. Also, the Supreme Court acknowledged in Acuff “the facts bearing on this third factor will also tend to address the fourth factor of market harm.” 4. [T]he effect of the use upon the potential market for or value of the copyrighted work. Prior to the U.S. Supreme Court’s decision in Campbell v. Acuff-Rose, lower courts deemed this to be the most important of the four factors. As Judge Leval noted: That last factor has been seen as particularly important. It stresses the commercial nature of the copyright, which seeks to protect the ability of authors and artists to make a living from their work. Copying that interferes with that ability is disfavored; if the copies furnish the public with a substitute for the original artist’s work, so that the public will buy the appropriation rather than the original, such copying is unlikely to be found fair use. But where the appropriation is a salute, or a jab, in the direction of an admired or reviled icon, and that salute or jab will not become a commercial substitute for the original, this kind of appropriation may well pass the test of fair use.12 The Supreme Court in Campbell made clear, however, that it is only one of four factors to be considered, and it is to receive no greater weight than the others. The Supreme Court has also stressed the need for evidence about markets for particularized licenses, “the market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop.” Thus, the fact that an artist or photographer may license her images but refuses to license an image because of negative critical commentary of the image, should not cause this factor to weigh against fair use, since rarely is there a market for licensing for parody or negative critical commentary. The duration of the use and the degree of dissemination are also relevant concerns under factor four. For example, the analysis of factor four considerations may vary as a function of whether the image is transmitted over the Internet: (i) for distance learning; (ii) for use by other institutions; (iii) for use by students off-campus.

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The four factors are not exclusive and other relevant factors may be considered. Such factors include whether or not the work is available. The work may be unavailable, for example, because it is out of print or because of excessive price. Under 17 U.S.C. §108, Limitation on Exclusive Rights: Reproduction by Libraries and Archives, the rights of reproduction apply to the entire work if it is determined “on the basis of reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price….” 17 U.S.C. §108(e). Images appearing in even the most basic art history textbooks are often unavailable from commercial vendors. Christine Sundt notes that “while many images are sold commercially, still many more, such as plans, maps, diagrams, reconstructions, and the like, are not.”13 Many images for courses in art outside of the European tradition are not readily available from vendors. “Furthermore, it is often impossible to determine if an image is available from a commercial source because reference tools or indexes to images currently do not exist.”14 Therefore this factor may weigh in favor of fair use for visual images when the availability of text excerpts may lead to a different conclusion. Fair use may be considered along a spectrum of uses. Copying and using copyrighted artwork for commercial purposes or broad distribution—such as replicating an image on a tee-shirt or incorporating copyrighted images into commercial multimedia products or illustrations in textbooks and distributing many copies or selling them, or simply displaying them on the World Wide Web, or reproducing the original artwork as a poster or postcard—is much more likely to be considered a copyright infringement than using the same images or works in a “classroom” for teaching or in a critical, scholarly article about the artwork in question, or using thumbnail images for a visual on-line catalogue, or using copyrighted images in academic course assignments, or in fulfillment of degree requirements such as a term paper, thesis, or dissertation. Due to the potential ambiguities inherent in a fair use analysis of the Copyright Act of 1976, four sets of guidelines covering educational photocopying and videotaping were agreed to between libraries, educators, and publishers at the time the Act was passed and in 1981. The result has been, in certain circumstances, a quantitative gloss on the construction of fair use and library copying privileges. For instance, the Classroom Guidelines generally permit the copying, for educational purposes, of short extracts of works, provided that the copying is spontaneously done or requested by the instructor (and the copies are neither used nor remade repeatedly over time). The Classroom Guidelines, entitled “Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions,” are a part of the legislative history of the Copyright Act of 1976.15 They were the result of negotiation and agreement among the Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision of the Authors League of America, Inc., and the Association of American Publishers. Thus, the Classroom Guidelines are not readily adaptable to the teaching or study of art and art history, which depends on critical discourse in images, in either the print or digital media and where hundreds of images may be used in a single class. Authors, and copyright holders, in theory, enjoy the same copyright protection in cyberspace as in other media; digital image files are equivalent to paintings, photographs, and other works, and, if displayed or copied without permission, implicate the right of reproduction and display. However, this simple fundamental concept is not so easily applied in cyberspace. What does and doesn’t constitute the making of a copy?

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Reproduction under clause (1) of Section 106 is to be distinguished from “display” under clause (5). For a work to be “reproduced,” its fixation in tangible form must be “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” Thus, the showing of images on a screen or tube might not be a violation of clause (1), although it might come within the scope of clause (5). Is the mere display of an image on a video monitor a technical violation of the copyright law? Is the transitory storage of an image in a computer memory a copy? What rights of adaptation and reproduction exist for users who download images? Does the right to display accompany transmission of a digital image. Must a subsequent appropriation or collage acknowledge its sources? Does the first sale doctrine apply to a lawfully acquired digital transmission? The authors of the recent “White Paper” issued by The Working Group on Intellectual Property Rights, chaired by Bruce A.Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks, concludes that temporary storage of a computer file in memory constitutes copying for the purposes of copyright, as does “scanning,” “uploading,” and “downloading.” The proposed amendment to the copyright law which creates a right of distribution by transmission, blurs the distinction between the right of display, reproduction, and performance. Thus, the copyright owner’s exclusive rights to reproduce the work, to display a work publicly, and to distribute the work by transmission, are implicated in many NII transactions. Whether such acts are unlawful copying is a separate analysis, including application of concepts such as “substantial similarity,” fair use, and implied consent to the copying and use. When is there sufficient added authorship to a public domain work to create a protected derivative work as in some digitization or photography processes? If the underlying image is protected, permission is needed to create copies and derivative works. What is fair use in cyberspace? The Working Group in its “Green Paper” created the Conference on Fair Use “to determine whether educational or library guidelines of a similar nature [to those developed in 1976] might prove attainable in the NII context.” The Working Group added further that “should the participants in the Conference on Fair Use fail to agree on appropriate guidelines, the Working Group may conclude that the importance of such guidelines may necessitate regulatory or legislative action in that area.” Without question, making digital images accessible through electronic networks or the WWW and the distribution and display of such digital images at multiple workstations with the possible downloading and printing of copies of such images raises significant copyright issues. The complexities of the electronic environment and the growing potential for implicating copyright infringements, as well as the exciting opportunities provided by the new technologies for study and training, raise the need for a fresh review of fair use and a discussion of the other issues noted above. Traditionally, an art history lecture may average fifty to one hundred images from different sources world wide. What is fair use of these images? To what extent can educational institutions digitize existing slide libraries? Building electronic image archives by scanning copyrighted images in slide collections without permission may implicate the right of reproduction, and if mounted on electronic educational networks of an educational institution may mean public display or performance. Without a defense of fair use or a statutory exception, the wholesale digitizing of slide libraries and archives may constitute copyright infringement.

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It becomes significant in this respect to identify, not only the various categories of images, but also the various sources of acquisition. These archives have been assembled over an extended period of time through various means. Some of the contents of slide archives are governed by contract and licenses; others are derivative works, and others are in the public domain. In addition, images in archives often have multiple layers of authorship (i) an underlying copyrighted work; (ii) the photograph and (iii) digitization. Finally, simply because an underlying image may be in the public domain does not necessarily mean that a reproduction is in the public domain or can be copied. The following questions are pertinent (i) was the work restored under GATT; (ii) was the work published; (iii) was it a”work of the U.S. government” as defined in 17 U.S.C.; (iv) is the reproduction a protected derivative work.

CONFERENCE ON FAIR USE The Conference on Fair Use is being facilitated by the Patent and Trademark Office as an outgrowth of recommendations in the “Green Paper” of the Working Group that representatives of the school and library communities meet with representatives of the copyright holder community to see if guidelines for fair use in public libraries and schools could be developed. The meetings began in September 1994 and have continued monthly until February 1996, when meetings of the whole were held less frequently in favor of smaller working groups on several issues such as image archives, distance learning, and electronic reserves. At the first meeting the participants agreed “that it would not be useful to take the existing guidelines for use of print materials in non-profit educational institutions, or off-air taping of televisions programs, and simply modify them for the new digital world. They agreed that the electronic environment is very different from the environment in place when the earlier guidelines were drafted in the mid-1970s. For instance, several of the existing guidelines refer to use in a classroom—but today’s learning environment involves remote locations, dorm rooms, home-based learning, distance learning within a state or region, and the like. Further, electronic works have different properties from print and are frequently sold under different terms.”16 The dynamics of the group meetings was aptly expressed by Douglas Bennett, Vice President of the American Council of Learned Societies of which the College Art Association (CAA) is a member. Bennett states: Several dozen organizations participate in the work on CONFU. It is difficult to give a precise number because new participants continue to arrive and some have drifted away, but perhaps 50 or 60 organizations have been steadily involved. Many are organizations that represent publishers and other copyright holders. Users of copyrighted materials are principally represented by library organizations. Publishers worry that networks and digital technology open the door to users transmitting millions of illegal, perfect copies across the globe with just a few key strokes. On this worry, fair use is an open door to renegade behavior that will undercut the financial viability of publishers. Librarians

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have a very basic worry as well. Librarians worry that the new technology will be used to create a world which is strictly pay-per-view. There will no longer be any fair use, nor any sharing of materials among users or institutions. Though seldom expressed in bald form, these two very large worries dominate CONFU, one from each side. Their scale and breadth have tended to be corrosive of practical solutions for particular problems. There are also some seldom-expressed hopes that participants bring with them into the discussions. Publishers hope that the new technology will bring new efficiencies, possibilities for publishing on demand, relief from the need to hold inventory, and new possibilities for deriving additional income from previously-published materials. Librarians hope that the technology will allow them to work out new strategies for sharing materials, and provide a foundation for cooperative collection development. These hopes are rarely expressed for fear of sparking the corresponding worry from the other side. Something else slowing progress is shared awareness that the technology continues to evolve very quickly. No one wants to enter into an agreement which will be rendered unfavorable to them by a quick shift in what the technology makes possible. The College Art Association saw itself as a middle player in the Conference and through its Intellectual Property Committee chaired by Christine Sundt and myself reached out to various CAA constituencies as well as to interested organizations in order to develop a position for the organization. CAA is a publisher of journals, thus a rights holder. It also represents art historians and visual resource curators, who are voracious users of copyrighted images, and museums and artists who, themselves, are rights holders. The method of the CONFU was to have interested parties present a discussion of issues on a particular topic and then proceed to a discussion of scenarios and guidelines on selected issues. More than twenty discrete issues and sub-issues were initially identified for discussion and subsequently were considered by CONFU participants in varying degrees of detail. Six issues have been isolated for intensive discussion and negotiation: electronic reserves, interlibrary loan/document delivery, distance learning, multimedia, software use in libraries and visual image archives. The participants of CONFU have established November 30, 1996 as a reasonable target date for either producing separate voluntary guidelines covering each of the six issues noted above or for determining whether it is currently possible to do so. The initial issue discussion for visual images was presented by Christine Steiner, then of the Smithsonian; Virginia (Macie) Hall, from the Visual Resources Association (VRA); and Christine Sundt, from the College Art Association. In my capacity as CAA Counsel, I was asked to collaborate with Ms. Hall on developing fair use scenarios. Ms. Hall also demonstrated the use of visual images and various web sites. Most participants at CONFU had little or no understanding of visual images and their use. The presenters for each topic of scenarios were asked to identify those scenarios which all agreed were fair use, those that were not fair use and those about which the presenters could not reach agreement and/or represented gray areas. For example, Ms. Hall and I were generally in

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agreement that under most circumstances the following examples, more likely than not, were fair use: A. A professor at a nonprofit educational institution sets up a course using the World Wide Web (WWW) so that only students registered in the course can view the display of text and images. Students access the images and accompanying text either at workstations in the library that are used for accessing reserve materials or by dialing into the campus network from home for viewing on their personal computers. The course web page provides copyright management information, if available, and use restrictions which indicate that the images may not be downloaded, copied, or distributed for uses beyond research, study, and teaching. B. A nonprofit educational institution makes available to students for study and review on the campus network images displayed during lectures in several courses. The course listings change each semester, and courses that are repeated may utilize different images. Text written by the professors for each course accompanies the images. The “Home Page” containing the course listings begins with a disclaimer which states specifically that the images are not to be copied in any form and that use is restricted to college/university faculty, staff and students. Use is restricted as follows: (i) workstations and computers physically on campus can access the course listings and images; (ii) dial-up use is permitted with appropriate user identification; (iii) anonymous and unauthorized remote access is denied. C. A university library slide collection creates a visual on-line catalogue for the images in its collection. The database is searchable by a number of fields including the source. The source information may be full bibliographic imprint plus page or figure number, or vendor name, address, and order number. Images from vendors are not displayed in the catalogue without written permission of the vendor. The image identification is linked to its image facsimile via low resolution, thumbnail images. The Home Page on the WWW carries the standard copyright disclaimer and advises users not to download the images. The catalogue is accessible through WWW. On-campus users may view larger images (currently averaging 1/3 MB) when the thumbnails are not of sufficient clarity. Such larger resolution images are not available beyond the institution’s secure network environment. In addition to helping faculty and students affiliated with the institution locate images, the on-line visual catalogue has the potential to fulfill other needs as well. For example: (i) A professor selects groups of images from the on-line catalogue to put on reserve on the secure campus network for student review. (ii) An instructor displays electronic images from the on-line catalogue in face-to-face teaching in a course offered by the educational institution. (iii) The face-to-face electronic course is distributed to other campuses in the university system via closed network. (iv) The face-to-face electronic course is digitally taped for students who may have missed class or who want to review the presentation. The scenarios were discussed and then were followed by several draft sets of guidelines for discussion developed by the CAA counsel. Developing consensus guidelines was not an easy task where the point of departure on the publishers side was “the only fair use is holding up a book containing the images in front of the classroom.”

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On December 6, 1995, the CAA counsel presented a revised set of guidelines. After almost a three hour discussion on the various issues raised by the guidelines, including those raised in the first part of this article, it was decided to break into a small working group to discuss the guidelines. Surprisingly, representatives of the Getty Art History Information Program which had not previously participated in any prior CONFU discussions, appeared at this meeting to defend licensing. Other new players emerged on the scene. CAA brought in the American Association of Museums (AAM) and the Association of Art Museum Directors (AAMD) who also surprisingly had not participated in the prior eighteen months of discussions. The counsel for the National Endowment for the Humanities (NEH) and the National Endowment for the Arts (NEA) who had been asked to comment on all prior drafts but who had declined, suddenly became a vocal participant in organizing the small working group, together with the Library of Congress’ Mary Levering, who also participates as a consultant to the Getty Educational Site Licensing Project and was responsible for the participation of the Library of Congress in that project. Many original participants were not consulted about the first working group meeting. The dynamics totally changed with a new agenda and a new set of documents for discussion. The Getty and AAM suddenly became active players, along with the Library of Congress. Given the Getty’s project and its view that fair use was unimportant in a licensed world, it is not surprising that a strong emphasis on licensing began to appear in the revisions of the draft guidelines. Whatever the benefits of licensing, and these are many, licensing schemes should not be permitted to drown out the concept of fair use. The fact that some uses are free should be reflected in any licensing fee. Most frustrating in the process was the continued addition of new groups with new agendas. Rather than making these groups fit in, each time the meetings went to ground zero. After eighteen months of discussion on fair use, the small working group spent an entire morning discussing the four statutory factors, without any reference or discussion of the prior text or meeting. Again new participants were brought in. The rules kept changing. Another cause of frustration was the fact that the development of multimedia guidelines was delegated to the Consortium of College and University Media Centers (CCUMC) which met monthly and claimed both the status of CONFU and independence from it. Because the work of this group included digital images, by its nature it would influence the development of the CONFU guidelines for digital image archives. Needless to say the sheer number of meetings involved made it virtually impossible for any nonWashington based, non-bureaucrat or non-lobbyist to participate fully in all the meetings. The familiar Washington saying, “feeling lonely, call a meeting,” was used in abundance. As previously noted, the issues relating to fair use for the creation and use of digital databases based on existing image archives and collections for teaching, research, and criticism are complex. Any development of guidelines must be based on an informed analysis of the way in which digital images may be used for the teaching of art history.17 Use of digital images even for educational purposes depends on an analysis of the rights connected with each image and may require permission. Particularly difficult issues involve scanning of images initially taken from books (subject to a fair use analysis), copy versus curatorial photography, and the use of images of works by contemporary artists, particularly those who gain substantial revenue from licensing. In addition, guidelines developed for multimedia and distance learning will also have an impact on

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and be read in conjunction with the guidelines developed for the fair use of visual image archives. For example, the latest draft of the distance learning guidelines applies to Section 110 and states in part: “Because of the specific limitations contained in Section 110 there may be a higher burden of demonstrating fair use beyond Section 110(2).” This is perhaps the most challenging and interesting area for guidelines development. What uses will emerge as fair uses, if any, from these meetings? Perhaps it is easier to identify which uses are not fair uses: general unrestricted Internet uses of works currently in copyright, and commercial uses such as Photoshop samples of copyrighted images seem to be gaining consensus as not fair use. Among the general conditions which attach to those uses deemed “fair,” there seems to be agreement among most participants that these conditions should include (1) attribution—including the artist’s name, the title of the work, date, size, medium and photographic copyright notice, (2) notice of use restrictions, and (3) copyright management information. It is likely that the guidelines will also include a provision dealing with alterations in part sourced in artists’ rights concerns (droit moral). Authors, artists, and other copyright holders have serious concern in maintaining the integrity of their works which should be respected. In this connection both integrity as well as research concerns do not support the use of a low resolution standard as a criteria of fair use. The most recent set of Educational Fair Use Guidelines for Digital Images is divided into five parts: (1) Introduction; (2) Image Digitization and Use by Educational Institutions; (3) Image Digitization and Use by Educators, Scholars and Students; (4) Important Reminders and Fair Use Limitations Under These Guidelines; and (5) Transition Period For Pre-Existing Analog Image Collections. In addition to a general unexceptional introduction on fair use, the draft guidelines try to achieve consensus guidelines and solutions in two areas: (1) the digitization of existing (non-digital) analog slide collections, and (2) fair use of newly acquired analog images. At the time this article went to press, it seems unlikely that the academic user community will agree to the Guidelines. In part, this stems from the difficult and unworkable burden imposed upon smaller digital libraries and archives; in part, because the minimum consensus set forth in the Guidelines seems more restrictive than current court decisions on fair use warrant (even though fair use requires case-by-case analysis—the courts do not decide on a tabula rasa) and finally, because of the uncertainty of the direction and potential of technological development. As Leila W.Kinney, Electronic Editor, College Art Association, and Co-Chair, Committee on Electronic Information (CEI), stated in commenting on an earlier draft based on a CAA survey: We appreciate the improvements in this draft, notably its “decriminalization” of the use of digital imagery for educational and scholarly purposes (though not, regrettably, a straightforward acknowledgment of the legality of fair use), its recognition that digital thumbnails have no intrinsic or commercial value, its allowance for spontaneity in teaching and the corresponding dynamic nature of the digital materials required for classroom use, and its provision for a 7-year transition period for pre-existing collections. However, so many issues remain unresolved that we cannot recommend endorsement. As Jeffrey Muller (Brown University) put it, the bottom line is that “our teaching is

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going to be hurt.” There really was little ambiguity on this basic point: “The guidelines as currently proposed are unworkable and will preclude the market some seek to exploit” (David Newman, Brookhaven College). However, I must stress that this process has, more than anything else, revealed that it is premature to produce any guidelines at this time. The technology is dynamic and evolving, and teaching with digital imagery and producing digital works of art are both in an experimental, rapidly developing phase. Attempting to finalize guidelines before the issues are sorted out in the various educational, commercial, and legal domains would be counterproductive. The guidelines, if adopted, should clarify some current issues. For example, there seems to be consensus that under the rubric of fair use a student may use a copyrighted digital image in a class project or thesis with proper attribution and acknowledgement and use the thesis or project in conjunction with graduate applications and student exhibitions, and that an educator may place copyrighted digital images on the university-based local server for access by students for instructional purposes. Other limiting conditions will be included, no doubt. If there are guidelines, it is almost certain that they will represent the minimum on fair use and that in many instances further counsel and advice should be sought on a case-bycase basis.

NOTES 1. The views expressed in this paper are my own. They do not necessarily represent the views of the College Art Association or any other organization with which may name may be associated. 2. As counsel for the College Art Association, I represented it at the CONFU meetings, being particularly concerned with the issues surrounding the fair use of visual images. The initial presenters of this subject were Christine Steiner, Smithsonian Institution (then), now Getty counsel, Virginia (Macie) Hall, Visual Resources Association and Christine Sundt, College Art Association. 3. Justice Sandra Day O’Connor. Feist Publications, Inc. v. Rural Telephone Service Co. 499 US 340, 349(1991) 4. Mary Levering (for the United States Copyright Office) at the College Art Association annual convention, San Antonio, Texas, 1995. 5. Under Section 101 definitions, to “display a work” is defined to mean “to show a copy of it, either directly or by means of a film, slide, television, image or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.” 6. See the “White Paper,” Intellectual Property and the National Information Infrastructure (September 1995), Proposed Amendment to Sec. 17 U.S.C. §106(3). 7. “Special circumstances” include daytime employment and distance from campus that may interfere with daytime attendance at regular classes. The 94th Congress (2d Session) House of Representatives Report 94–1476 of the Committee on the Judiciary states, “There has been some question as to whether or not the language in this section of the bill is intended to include instructional television college credit courses. These telecourses are aimed at undergraduate and graduate students in earnest pursuit of higher educational degrees who are unable to attend daytime classes because of daytime employment, distance from campus, or

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some other inter©ening reason. So long as these broadcasts are aimed at regularly enrolled students and conducted by recognized higher educational institutions, the committee believes that they are clear within the language of Section 110(2)(C)(ii).” 8. “‘Audiovisual works’ are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.” 9. The Report of the Committee on the Judiciary of the House noted that any precise definition of fair use was impossible and said that the endless variety of situations and combinations of circumstances that can arise in particular cases precludes the formulation of exact rules in the Statute (H.R. Rep. No. 83, 90th Congress, 1st sess. 29–30(1967). 10. “Clarification on Copyright from the Slide Producers’ Association,” May 1983, in the Slide Buyers’ Guide, 6th edition (Englewood, Colorado: Libraries Unlimited, 1990), pp. xviii–ix. 11. Sony Corp. v. Universal City Studios, 464 U.S. 417(1984). 12. Judge Pierre N.Leval speaking on a panel on Appropriation Art at the Annual Meeting of the College Art Association, New York, New York February 16, 1994. 13. Christine Sundt, “A Visual Resources Advocacy Statement,” Visual Resources, current issue, and at URL: http://oregon.uoregon.edu/csundt/cweb.htm 14. Ibid. 15. H.R. Rep. No. 6, 94th Cong., 2d Sess. 68 (1976). 16. Carol Rischler, Report of AAP. 17. Charles S.Rhyne, “Computer Images for Research, Teaching and Publication in Art History and Related Disciplines,” Visual Resources, Vol. 7, No. 1, pp. 19–51.

Fair Use and Digital Image Archives: A Report on the National Information Infrastructure Conference on Fair Use1

by Virginia M.G.Hall Visual Resources, Vol. XII, pp. 393–399 Reprints available directly from the publisher Photocopying permitted by license only

© 1997 OPA (Overseas Publishers Association) Amsterdam B.V. Published in The Netherlands under license by Gordon and Breach Science Publishers Printed in Malaysia

INTRODUCTION This paper summarizes the proceedings of the National Information Infrastructure (NII) Conference on Fair Use (CONFU) meetings as they pertain to visual resource archives; it discusses the scenarios and guidelines being developed for fair use of digitized images, and examines the impact this might have on visual resources collections. As well, it discusses the issues of copystand photography and fair use in slide and image collections, both analog (as the managers of visual resources collections may now be calling their slide and photograph archives) and digital.

BACKGROUND The Fair Use Conference2 was convened in September of 1994, at the time public hearings were held on the “Green Paper,” entitled Intellectual Property and the National Information Infrastructure. The “Green Paper” was produced in the summer of 1994 by the Working Group on Intellectual Property Rights, chaired by Assistant Secretary of Commerce and Commissioner of Patents and Trademarks, Bruce A.Lehman.3 This was part of a larger effort of the Information Infrastructure Task Force (IITF) formed by President Clinton in February 1993. Sandra Walker, then President of the Visual Resources Association (VRA), attended both the public hearings and the first conference meeting and presented statements to them. After these initial meetings, I was asked to attend the subsequent meetings of the Fair Use Conference in her place and to chair the VRA Intellectual Property Rights Committee.

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These meetings began in October 1994 and are ongoing. It is expected now that the CONFU meetings will continue through the spring of 1996. Attending the conference are representatives from more than sixty different interest groups from the commercial, public, and educational communities. At the initial meetings we identified issues that we felt should be considered. These issues include Distance Learning, Multimedia, Licensing, Electronic Reserves, Use of Software in Libraries, Preservation, Interlibrary Loan (including Document Delivery and Electronic Sharing), International Concerns, and Image Archives. Working in groups we developed issue statements, scenarios and guidelines. Barbara Hoffman, legal counsel for the College Art Association, Christine Sundt, from the University of Oregon, and I have worked together, taking the advice and input of many others, to develop the statements, scenarios and guidelines for fair use of digital images and digital image archives.

THE PROCESS The first task was to develop an issues statement. It was clear after some initial discussion in the meetings, that the practices and concerns of the managers of visual resources collections were generally unfamiliar to most of the representatives. Our immediate goal was to define terminology, to describe what constitutes an image archive in both a real and a virtual sense, to explain the mechanics and goals of teaching, study and research in fine art and art/architectural history courses and to explain how slides and digital images in visual resource collections are used to achieve those ends.4 It will be noted here, and discussed later, that controversy arose over the description of the practice of making and archiving slides from art reproductions in books and journals. In fact, this practice is proving to be a major obstacle to reaching a consensus on photocopying guidelines. In April, we presented a set of scenarios describing situations that we felt should be mutually acceptable as fair uses. In all, thirteen such scenarios were developed, based on input from curators and librarians about actual digital projects around the country. Names were changed to protect the innocent and/or guilty. In some cases we made hypothetical additions to reflect specific issues that we felt should be discussed. For the most part, however, these scenarios represented actual uses of digital image collections. Included were examples of image collections used for specific courses, of searchable image databases dedicated to research, of slide archives used for multimedia projects, of chain art projects, and of images for use by scholarly electronic journals. Each of the scenarios assumed a nonprofit, educational use, included statements concerning proper use, and incorporated security features and guidelines for limited and controlled access. The greatest debate arose over whether the course-based scenarios (i.e., the use of digital images for review by students taking art history courses) met the guidelines for classroom use of copyrighted materials. We believe that the requirement that copying be “spontaneous” is impractical for the preparation of visual course materials, be they digital or otherwise. Again, the practice of using slides and digital images made from books and journal illustrations was challenged. At the June meeting, discussion on the scenarios continued and we presented an initial set of draft guidelines. These were refined and presented to the meeting on December 6 in a document written by Barbara Hoffman. This draft included an introduction to the legal

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history of fair use, the pertinence (or lack thereof) of existing guidelines for the fair use of digital images, a glossary for the definition of appropriate terms, examples of use that should be permitted, examples of limitations, and guidelines for use of digitized materials. The group spent several hours working through the document, and continued to discuss the guidelines at the February 28 meeting. In the intervening period, a smaller group of CONFU representatives interested in image archives issues, began meeting to discuss the problems presented by the proposed guidelines while attempting to find some areas of consensus. Having given a synopsis of what has transpired in the CONFU meetings, I would like to turn this discussion to the question of what impact these meetings will have on educators, scholars and librarians. What will be achieved with these guidelines? The starting point for the draft submitted by Barbara Hoffman is the assertion that the doctrine of fair use, the guidelines for fair use in classrooms, and the CONTU guidelines5 were all developed without specific consideration of the nature and use of images, and thus are neither appropriate for the teaching and study of art nor suitable for the creation and maintenance of associated visual resource collections. Based on the four factors that must be considered for fair use, (1) purpose and character of the use; (2) nature of the copyrighted work; (3) amount and substantiality of the material used; and (4) the effect of use on the potential market, the following arguments have been developed: if the visual resources collection is in a nonprofit educational institution and the project is for scholarly/educational purposes, the first factor is satisfied. We maintain that straightforward “curatorial” photographs of works of art in the public domain are not copyrightable, thus factor two often does not apply. The third factor (amount and substantiality) is usually understood to mean that only a small part of a whole work may be “fairly used.” Obviously for works of art, the whole image must be used to be comprehensible. If images are scanned from books, then it must be determined whether the use is a market substitution for the book itself (factor four). Many books used for copystand photography are purchased by the library, slide collection, or faculty member for the express purpose of creating slides. One may argue therefore, that in these circumstances, the practice of copying actually helps make a market for the publication. Further, as the classroom guidelines have frequently been used as a model in the CONFU meetings, it is hoped that some reevaluation of those guidelines will be considered in light of the unique characteristics of the study of fine art and art and architectural history. Classroom guidelines that limit fair use of illustrations to one illustration from any single source—a minimalist interpretation of factor three—are, obviously, too restrictive and would inhibit the educational mission. For example, courses are often taught that focus upon a single artist. In these cases there are likely to be only a limited number of commercial slides available and a limited number of publications that contain examples of that artist’s work. Similarly, the right to claim fair use for images used only spontaneously in the classroom is one guideline that must be reexamined to accommodate the way materials are prepared for course-based use; the inappropriateness of the spontaneity guideline is especially apparent in light of the new technologies. During the process of formulating the scenarios and guidelines, it has frequently been suggested that a “resolution ceiling” be used as a means of controlling misuse of images, and as a method to resolve the fair use question. Although no image provider should be dissuaded from using this tactic, to incorporate such a ceiling into guidelines could be

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counter-productive. Technology changes so rapidly that no one can predict what a reasonable resolution ceiling might be, and having such a ceiling may inhibit the ability to utilize new technology in the future. As we negotiate the challenges to the guidelines, undoubtedly, concessions will be made in order to reach a consensus. It is already clear that the guidelines will insist that network access to digitized study collections containing copyrighted material must be restricted and secured. If such collections are intended for more than temporary instructional purposes, they are, in fact, permanent learning resources, and permission for use of copyrighted materials in them may be required. Acknowledgment of sources and notification prohibiting downloading, printing, and modification could also be required. Documentation of works of arts will be specified. Images of twentieth-century works of art pose particular problems since their copyrights may still be active. Additional questions may be raised by other uses of images, such as the manipulation of images to create new works. Finally, one of the most challenging problems to be faced in these negotiations may be responding to the opposition to the long-standing practice of making slides from book and journal illustrations, and using those slides to produce digital images.

COPYSTAND PHOTOGRAPHY AND FAIR USE IN DIGITAL AND “ANALOG” IMAGE COLLECTIONS Still unresolved is the issue of the validity of copyright claims on the photography of art works that are, themselves, in the public domain. This topic is an interesting one, and one that has been raised in these meetings. In my opinion a “straightforward” photograph of a work of art in the public domain is not copyrightable. This view is based upon the standards defined by statute used to determine if a work may be copyrighted: (1) “The work must be original in the sense that the author produced it by his own intellectual effort, as distinguished from merely copying a preexisting work.” (2) Although “…[t]here is no requirement of novelty, ingenuity, or esthetic merit,…the work must represent an appreciable amount of creative authorship.”6 It is my position that there is insufficient creativity involved in a work of copy photography to warrant copyright. There are of course, counter-arguments. Obviously, photographers take a different view by claiming that choice of materials, lighting, exposure, etc. turn the reproduction into an original work of art.7 That claim can be countered by the fact that technical expertise is not necessarily creativity nor a copyrightable entity. Certainly for the purposes of the visual resources curator or librarian, the best slide is the one that most accurately reproduces the work of art to be studied, not the most creative interpretation of that work. When we examine the criteria for fair use, we must also look at factor four—the effect of the use on the potential market. It is clear to curators of visual resources collections, that a market for photographs in book and journal illustrations does not necessarily or readily translate into a market for slides and/or digital images. While most collections may need a slide of the Mona Lisa, how many collections require slides, for instance, of the Early Christian fresco cycle in San Felice in Ceri, Italy? Vendors of slides cannot afford to offer many unusual items of interest to specialists alone. Because slides for all of the images users of visual resources collections need are not available commercially,

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visual resource collections initiated the practice of making slides from books and journals. Although representatives of publishing companies, museums, and photographers groups maintain that denial of copyright on photography of art works will deprive them of a market, the simple truth is that visual resources curators and librarians are only looking for the best possible image. Most are happy to purchase that image if it is commercially available. Usually it is not. Possibly, slide vendors, museums, and publishers will ultimately need to rely, in some cases, on other means of intellectual property protection. Licensing schemes are among such possibilities, but it must be emphasized that existence of a licensing scheme does not preclude claiming fair use. When scenarios for image use by digital archives were presented at the CONFU hearings, the practice of making slides from illustrations in books was discussed. One attorney for a commercial interest questioned whether there really were educational institutions with visual resources collections consisting of a large percentage of slides made by copy photography. Has such ignorance meant bliss for the slide curator/librarian? Quite possibly there has been no legal challenge to this practice because there has not been a likelihood of significant monetary gain—the constituency is small; the practice is relatively unthreatening. It is generally perceived that a few curators or educators make a few slides from a few books. The development of digital media may change everything. Quite likely the threat commercial interests feel from the development of new technologies, by which it is possible that more people may use (and potentially misuse) images, and the promise of new markets may make a legal challenge to routine copystand photography not only financially feasible, but strategically necessary. The courts may be needed to resolve these issues. Will guidelines help? Certainly, guidelines will be extremely valuable to educators, librarians, and curators in determining how to utilize these new digital technologies. However, one must be aware that even when one adheres to guidelines, there is always the possibility of a legal challenge to any practice condoned in them. Guidelines are no more than the manifestation of an informed (legal) opinion about what constitutes reasonable use. Fair use is clearly being questioned in the digital environment. A reading of the “White Paper” is sobering enough; the positions taken by the commercial interests represented at the CONFU meetings make it obvious that long-standing practices claimed as fair use are likely to be challenged. Will there be no such thing as fair use on the NII? Given the current conservative legislative trend on the issue, this may be a question that the courts will be addressing for years to come.

NOTES 1. This paper was first presented in modified form at the Southeastern College Art Conference in Washington, D.C., in October 1995, and then again at the College Art Association Conference in Boston, in February 1996. 2. The Conference on Fair Use (CONFU) was sponsored by the U.S. Department of Commerce, Working Group on Intellectual Property Rights, and the National Information Infrastructure, chaired by Bruce Lehman, U.S. Patent & Trademark Office. 3. Replaced by the “White Paper” in September 1995. 4. It should be noted that our focus has been on the use of art and architectural images and archives, because historically, slide and photograph collections in educational institutions

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have been amassed for the teaching of fine arts and art/architectural history. This is not to say that other types of image archives do not exist or should not be considered. It is to be hoped that any guidelines ultimately agreed upon will be broad enough to encompass other types of images used by other disciplines. The use of art related images, however, presents particularly complex intellectual property rights problems. Often there are several “layers” of rights claimed—on the object itself, on reproductions of the object, on the ownership of the object, and on the publication of the object. It is often difficult to determine rights and to obtain permissions for use of reproductions of art works. 5. The Commission on New Technological Uses of Copyrighted Works (CONTU) was established in conjunction with the 1976 copyright act. The CONTU guidelines are formally known as “Educational and CONTU Guidelines: Agreement on Guidelines for Classroom Copying in Not for Profit Educational Institutions with Respect to Books and Periodicals.” See Marybeth Peters, General Guide to the Copyright Act of 1976 (Washington, D.C.: Library of Congress, 1977), Appendix 3. 6. Peters, op. cit. 7. Robert A.Baron, posting to the VRA Internet discussion list ([email protected]) on Slide Scanning, September 29, 1995.

The Visual Surrogate as Intellectual Property: the Clinton Administration’s “White Paper” and its Implications for Visual Resources Collections

by Caron L.Carnahan Visual Resources, Vol. XII, pp. 401–408 Reprints available directly from the publisher Photocopying permitted by license only

© 1997 OPA (Overseas Publishers Association) Amsterdam B.V. Published in The Netherlands under license by Gordon and Breach Science Publishers Printed in Malaysia

From its beginning, the law of Copyright has developed in response to significant changes in technology. Indeed, it was the invention of a new form of copying equipment— the printing press—that gave rise to the original need for copyright protection. Repeatedly, as new developments have occurred in this country, it has been the Congress that has fashioned the new rules that new technology made necessary. (Sony Corporation v. Universal City Studios Inc., 1984)1

This statement, excerpted from the 1984 Sony Corporation v. Universal City Studios, Inc. case, is as relevant today as it was a decade ago. This was the so-called “Betamax” case in which the Supreme Court decided that off-air taping of a television broadcast for viewing at a later time was a fair use. This was an important decision for many reasons, but most importantly because it emphasized the importance of fair use by redefining it to be compatible with a new technology. Since the Sony case, technology has advanced at a truly astonishing rate. It is indeed ironic, but not surprising, that the Betamax is now obsolete. In 1984, the IBM Personal Computer was less than five years old, and the Macintosh had just been introduced. The precursor to today’s Internet, the government sponsored ArpaNet, was in place and being utilized by the Department of Defense, government contracted scientific research laboratories, and increasingly by scholars. Today the network spans the globe and gives us access freely and often without limits to

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a variety of information only before imagined. But as with the Betamax, the activity on the Internet and the World Wide Web and the computer applications which give us access to them, have shown that the law of copyright is once more in need of redefining. Many fear, though, that in this redefinition fair use will cease and be supplanted by a pay-perview system for digital materials. The “White Paper,” more formally titled Intellectual Property and the National Information Infrastructure, was released to the public on September 5,1995. It was developed by the Working Group on Intellectual Property Rights, a subcommittee of the Information Infrastructure Task Force, chaired by Assistant Secretary of Commerce and Commissioner of Patents and Trademarks, Bruce A.Lehman. The charge of the Working Group has been to scrutinize existing copyright law in light of the capabilities of new technologies and the National Information Infrastructure (hereafter referred to as NII or the Internet) and to suggest necessary alterations to that law.2 The so-called “Green Paper” represented the draft presented to the public by the Working Group. The “White Paper” is the committee’s final report. Before delving into the content of the “White Paper,” a brief synopsis of copyright law as it currently exists would be instructive. Copyright is covered by Title 17 of the United States Code and attempts to strike a balance between authors of “original works of authorship,” and others wanting to use or build upon those works. The law provides certain “exclusive rights” for creators. These rights include the following: the right to reproduce the copyrighted work; the right to create derivative works based upon the copyrighted work; the right to distribute for sale to the public copies of the copyrighted work (which includes rental, lease or lending); and the right to public performance or display of the copyrighted work. The purpose of these exclusive rights is to encourage authors to create by protecting their right to ownership and their right to distribute their creations. The law, however, seeks to balance the relationship between copyright owners and consumers of copyrighted works by limiting the exclusive rights of the copyright holder. Sections 107–120 of the Copyright Act allow for certain uses of copyrighted materials by the public without the express consent of the copyright holder. Of the six types of limitations, three are of primary interest to visual resources professionals: fair use, effect of transfer of a particular copy or phonorecord (commonly known as the first sale doctrine), and reproduction by libraries and archives. The doctrine of fair use, Section 107 of the Copyright Act, is familiar to most visual resources professionals. It is the section of the statute which allows for the reproduction of copyrighted works “for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.” The clause then sets forth four factors to use in determining whether or not a use is fair. These are: (a) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (b) the nature of the copyrighted work; (c) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (d) the effect of the use upon the potential market for or value of the copyrighted work. Visual resources professionals have long considered the copystand photography in which they engage, and which comprises much of the collections of slide libraries, to be a fair use above all because of its non-commercial educational nature.

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The second limitation of interest to visual resources curators is found in Section 108 of the statute which allows for certain reproduction by libraries and archives. This section allows a library or archive to make and distribute a single reproduction of a copyrighted work, under certain conditions. Libraries are also allowed to make a copy of a work if it is to replace a copy which was legally obtained and is no longer available for a reasonable cost. The third limitation on exclusive rights of interest to our community is the effect of transfer of ownership of a particular copy or phonorecord, known as the doctrine of first sale. The first sale doctrine allows us to sell, loan or dispose of legally obtained copyrighted works, as long as there is no profit involved. Non-profit institutions, such as libraries, are able to lend copyrighted materials purchased by them under this limitation. With this very basic view of some of the landmarks of the law, let us turn to the “White Paper.” Aside from the actual implications of the “White Paper,” it is an eminently readable and interesting document containing much useful information. It begins with a descriptive history of the formation and charge of the Information Infrastructure Task Force. The paper then shifts focus to the NII, describing in convincing terms the potential of this network to “enhance our lives,” by providing worldwide access to cultural, educational, governmental and commercial resources.3 However, a primary tenet of the Working Group is that, if the intellectual property laws do not adequately protect the work and the economic incentive of creators of these valuable resources, then the creators may not be willing to offer their works on the Internet. As a result, the potential of the NII to provide global access to works of authorship will not be realized, and the public will suffer. Creativity, according to the Working Group, will be stimulated only if the exclusive rights of the authors are protected and enforceable by law. Before enumerating the NII-related issues which the Working Group views as in need of revision, the authors of the “White Paper” state: “The Working Group believes that weakening copyright owners’ rights in the NII is not in the public interest; nor would a dramatic increase in their rights be justified.”4 This statement is truly interesting, because throughout the remainder of the document, the Working Group consistently recommends that the rights of copyright owners need to be tightened by virtually eliminating two of the limitations on exclusive rights—fair use and the first-sale doctrine, and by reducing the library reproduction allowance. The “White Paper” contains a very detailed examination of the U.S. copyright law, and includes the issues raised by technology and the NII. The Working Group thoroughly compares issues such as copying and distribution as defined by the current law, with the contemporary implications of similar functions in the realm of computers. One fervently debated issue on the Coalition for Networked Information’s copyright listserv has been the Working Group’s definition of a digital copy. The “White Paper” cites the 1976 Copyright Act, case law, and the CONTU Final Report, and maintains that in essence a copy is made whenever a digital file is accessed by a computer for “more than a very brief period.”5 To illustrate this point, let us retrace the electronic steps I took in downloading the “White Paper” in order to write this essay. I accessed the U.S. Patent and Trademark’s home page, found the document and clicked on it. I then e-mailed it to myself, and printed it. According to the Working Group’s definition of a digital copy, I made three copies in this process. The first occurred when I accessed the document.

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When the document enters the RAM of a computer, the Working Group maintains that a copy is made. The second copy occurred when the document appeared in my e-mail inbox. The third, of course, when it was printed on paper. (Another copy may be created within the printer’s cache, just prior to appearing in print on paper.) If the courts were to uphold the Working Group’s interpretation of digital information fixed in RAM as a copy, then any browsing of copyrighted materials on the NII for which one does not have permission or license could be considered to be infringing. The “White Paper” offers a lucid explanation of such issues as international intellectual property law, treaties, organizations, the Global Information Infrastructure, and U.S. patent and trademark law, trade secret and privacy with regard to current and future commercial uses of the NII. It is in this area, some have argued, that the “White Paper’s” pro-commerce colors fly boldest. The final segments of the report offer strategies for protecting or policing copyrighted works on the NII. The first advocates using technological controls, such as registered logon and password sequences. Other more complex methods of controlling access to materials, such as encryption, which scrambles the digital file and requires an alphanumeric character string known as a key to unscramble the file, and steganography, which allows for the embedding of a hidden message into a digital file are discussed. The Working Group stresses the need for increased public awareness and education of U.S. citizens in the area of intellectual property rights, especially on the NII. It suggests a curriculum which would begin on the elementary school level, teaching our children the concept of “electronic citizenship.”6 Not to exclude the technologically less-experienced, the Working Group offers an intellectual property education plan for those outside the school systems as well. Finally we come to the Working Group’s recommendations for amending the Copyright Act. The first recommendation is to expand the exclusive rights of the copyright owner to include public transmission of “copies or phonorecords” of copyrighted works. The Working Group does point out that there is a difference between “public” and “private” distribution, and that private transmission would not be unlawful. To use the “White Paper’s” example, it would not be unlawful to send a legally obtained copyrighted work to someone privately by way of e-mail. The ultimate result of this recommendation would be to eliminate unlimited copying and transmission on the Internet. To gain access to copyrighted material on the NII, it would be necessary to obtain the permission of the copyright owner or their authorized distributor, and be willing to pay whatever licensure fee they determine. The Working Group’s second recommendation is that the definition of a transmission be rewritten to equate transmission with reproduction. This applies to digital transmissions where a copy of the transmission exists on the sender’s computer as well as on the receiver’s. The third recommendation calls for another revision of definition. It proposes that the term “publication” as defined in Section 101 of the Copyright Act be amended to specify that the distribution of digital copies to the public by transmission constitutes publication. Again, the distinction between private and public transmissions is important. A private transmission of a work would not qualify it as a publication.

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The Working Group then advocates that transmissions coming into the U.S. from abroad be considered to be both an import and a distribution, and that the importation provisions governing other imports should apply to works on the NII. Next, the Working Group suggests that Section 106, which delineates the exclusive rights of the copyright owner, be revised to include transmission of sound recordings as a protected form of distribution, and to expand the law further to define the transmission as a public performance. Under the current law, only the composer of the notes and the lyrics of the music receives compensation for the public performance of the music. Neither the producer nor the performer receive per performance royalties. Under the proposed amendment, all parties would be compensated per usage. The sixth recommendation is to allow certain occurrences of digital copying by libraries. The Working Group suggests that libraries be permitted to make three copies of a digital work, provided that only one copy is in use at a time. Further, additional copies of the work can be made for preservation, but only if the original digital reproductions are unavailable. The next proposal seeks to allow dissemination of Braille, large-type, audio or “other types” of works formatted for the visually impaired. The law would allow for the translation of copyrighted works from traditional media into a form accessible to these individuals, provided the original copyright owner did not make this format available during the first year following publication of the work. The final three recommendations clarify the existing criminal penalties for blatant copyright violations, request the creation of a new chapter to the Act which would make it illegal to create or distribute equipment designed to circumvent digital security utilized by copyright owners, without the permission of the owner, and to prohibit any software or device which tampers with the copyright management information attached to a digital file. It is evident that the “White Paper’s” agenda is to nurture and protect commerce on the NII and the GII. There will be global access to digital information, but on a pay-per-use basis. This legislation, if passed, will grant copyright owners the exclusive right of distribution, as well as the right to charge any amount of money for licensure of their works. Further, the “White Paper” recommends that copyright owners utilize copyright management software to detect noncompliance with the law, and urges criminal action against anyone tampering with or attempting to evade such protection mechanisms. Bulletin Board Service and Internet access providers will be expected to police their services to identify users whose accounts contain potentially infringing materials. It is clear that the Clinton Administration is attempting to claim the NII for the so-called copyright industry which includes publishers, and the producers of movies, music, and software. The ramifications of the Working Group’s proposed legislation for the visual resources profession, and education in general are disturbing. Two of the limitations on the exclusive rights of copyright owners in the existing law would be limited to the point of extinction. A major concern is the lack of acknowledgment by the Working Group of the existence of fair use in the NII The “White Paper” talks about fair use in its discussion of existing law, but makes no provision for its maintenance in the proposed legislation. Many questions remain unanswered: who will make the determination as to whether or not a use is fair? Publishers? The Courts? Does the consumer have the option

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of appeal? If so, to whom is that appeal directed? Can a decision be made in time for tomorrow’s class? But the central question for fair users is singly this: How can anyone claim fair use when any use requires an advance payment and/or permission? Fair use is a defense against a claim of copyright infringement. If users cannot infringe, it is impossible to claim fair use and benefit from the rights and privileges afforded to fair users. Rather than extending the rights of the copyright industry, the Working Group would have done better to draft sensible guidelines for fair use to help clarify the existing rights of an increasingly sophisticated public—a public which now publishes. Another limitation to the exclusive rights of copyright holders which is at risk is the first sale doctrine. According to Pamela Samuelson, a respected intellectual property attorney, in her forthright exegesis of the “White Paper” published in the January 1996 issue of Wired magazine, this legislation will eliminate the consumer’s right to sell, give away, loan, or otherwise dispose of a legally purchased copy of a copyrighted work.7 Consumers who attempt to exercise their right to use their legally obtained copies will encounter two pitfalls. First, the Working Group’s first recommendation for amendment to the existing Act calls for the distribution right of digital documents on the NII to be exclusively that of the copyright owner. Second, in the transfer process, the consumer’s computer will make several copies of the work, which under the new law would be infringing. If the first sale doctrine is eliminated, the consumer who purchases a copyrighted work through the NII does not, in fact, own anything. They have simply licensed a copy which resides on one computer and cannot be shared or sold. The final area of concern is the Working Group’s library exemption recommendation. On the surface, it appears to be an attempt, however slight, on the part of the Working Group to include the interests of the academic community. In reality it is a thinly veiled attempt to cover the fact that libraries are losing the crucial right to circulate their documents. On the NII, digital documents belonging to libraries which have obtained legally produced copies of copyrighted works will not be allowed to circulate them. The recommendations set forth in the “White Paper” will have a negative impact on visual resources collections and on education in general. Access to information on the Internet may become restricted to those who can afford to pay for it, while those who cannot are destined to become the oft-cited “have-nots.” As present and future consumers of digitized images, the visual resources community should work together toward cooperative intercollegiate uses of the Internet. We must continue to be organized and heard through our representation.

NOTES This paper was given at the Visual Resources Association annual meeting in Boston on February 24, 1996, and included in the conference proceedings in the VRA Bulletin, number 2, Summer 1996. The page numbers cited herein correspond to those of the electronic version of the “White Paper.” The page numbering in the paper edition published by the Information Infrastructure Task Force may vary. 1. Sony Corp. v. Universal City Studios, Inc., 464 US 417 (1984). 2. See U.S. Information Infrastructure Task Force. Working Group on Intellectual Property Rights. Intellectual Property and the National Information Infrastructure: The Report of the

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Working Group on Intellectual Property Rights, Bruce A.Lehman, Chair (September 1995), p. 2. 3. Ibid., p. 5. 4. Ibid., p. 12. 5. Ibid., p. 18. 6. Ibid., p. 134. 7. Pamela Samuelson, “The Copyright Grab,” Wired, Vol. 4, No. 1 (January 1996), p. 134.

Moral Rights and Exhibition Rights: A Canadian Museum’s Perspective

by Barbara Lang Rottenberg and Rina Elster Pantalony Visual Resources, Vol. XII, pp. 409–419 Reprints available directly from the publisher Photocopying permitted by license only

© 1997 OPA (Overseas Publishers Association) Amsterdam B.V. Published in The Netherlands under license by Gordon and Breach Science Publishers Printed in Malaysia

INTRODUCTION The rapid growth of the Internet and, in particular, the World Wide Web has provided museums with opportunities to reach new audiences in new ways. Multimedia, whether standalone or networked, may open the door to museum collections and to the wealth of information currently locked in files and archives. In this new environment, issues such as copyright are very much at the forefront. What constitutes fair dealing (fair use in the U.S.), browsing, moral rights, and exhibition rights (display rights in the U.S.), are constantly debated. Museums, eager to take advantage of new media, are left to grapple with such issues. The legal system is left playing a game of catch-up, trying to determine the rights of authors and users in this new forum. It will take many years until the law has come to terms with the globalization of the use of creative works. This paper examines the application of Canadian copyright law from the perspective of the museum as primary user, i.e., where museums, eager to create CD-ROMs and web sites on the Internet, post digitized images of artistic works. Two types of copyright exist in Canadian law which differ substantially from U.S. copyright law: moral rights and the exhibition right. These two types of copyright will be introduced, making reference to U.S. law to illustrate certain differences and similarities. Four examples will be used to illustrate how such copyright issues affect museum practices when posting digitized images of artistic works: 1) an object in the public domain, 2) an object not in the public domain, 3) an Inuit object and 4) a photograph.

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Canadian Copyright Law Canada’s first Copyright Act dates to 1832 as a statute of Lower Canada where the theory of intellectual property emphasized protection of authors’ property rights. The British North America Act of 1867, Canada’s Constitution, gave the federal government jurisdiction over copyright. In 1921, Canada’s present Act was passed, coming into force in 1924. Canada’s current copyright legislation is modelled after legislation in the United Kingdom in force in 1911 and has gone through only a few substantive amendments.1 Moral rights and exhibition rights were added to Canadian copyright law in the first major revision in 1988, commonly known as Phase I amendments to copyright. At the time this article was being finalized, the government released extensive revisions in a new phase of copyright reform, Phase II. Phase III is contemplated for the near future and will address issues such as digital information.

MORAL RIGHTS Both Canada and the U.S. have moral rights provisions in their respective legislation governing copyright; however, the scope of one law is vastly different from the scope of the other. Both countries developed moral rights in response to international pressures. Canada and the U.S. wanted to become members of international conventions governing copyright and, notably, the Berne Convention requires that member countries provide for moral rights. Article 6bis of the Berne Convention is used as the basis for the development of moral rights. It states that independent of an author’s economic rights (such as straight copyright), even if copyright is transferred, the author still has the right to claim authorship of the work, to object to any distortion, mutilation, or other modification, or other derogatory action imposed on the work which would be prejudicial to the author’s honour or reputation. Moral rights conferred to the author are maintained after the author’s death, at least until the expiry of the copyright, and can be exercised by the author’s heirs.2

WHAT ARE CANADIAN MORAL RIGHTS? By contrast to the U.S. approach to moral rights, which as a legal concept is reflected in a panoply of federal and state legislation,3 Canadian moral rights are established by the Canadian Copyright Act.4 Section 14(1), in conjunction with Section 28.2, provides that moral rights apply equally to all works which are copyrightable. Such works include paintings, sculpture, engravings, and photographs, irrespective of whether the work was created for commercial or exhibition purposes. This is in contrast to the U.S. Visual Artists Rights Act of 1990 where the application of artists’ rights is limited. Moral rights in the U.S. do not apply in the case of photographs produced for commercial purposes, nor for artistic

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works created under work-for-hire, nor when works of art are created initially for advertisement or promotional purposes.5 Moral rights protect the reputation of the artist and continue even after the copyright has been assigned or sold. Moral rights cannot be assigned or sold, but they can, however, be waived. Finally, moral rights run for the length of the copyright and continue to apply even after the artist has died. An artist’s heirs can, therefore, enforce an artist’s moral rights. Canadian moral rights are based on the Berne model and can be divided into the right of association, the right to remain anonymous and the right of integrity. In the case of association, an author has the right to be (or to refuse to be) given credit for his or her work and may also use a pseudonym. Additionally, the author has the right to (or the right to refuse to) have his or her work associated with a cause, organization, or situation.6 In the case of integrity, if a work is to the prejudice of the honour or reputation of the author, either distorted, mutilated, or otherwise modified, then the author’s right of integrity has been violated. This guarantee includes the right to prevent changes, distortions and mutilations of a work.7 Special consideration is given to upholding moral rights for artistic works, such as paintings, sculpture, engravings, and photographs. For such works, prejudice is deemed to have occurred if the work is modified, mutilated, or distorted. Prejudice does not have to be proven.8 When museums wish to post images of artistic works on standalone support or on the Internet, the questions that museums must address are the following: 1) Do moral rights apply, 2) Will such posting violate the artist’s moral rights, and 3) Should U.S. users care if other jurisdictions impose moral rights in a more rigorous fashion than imposed in the U.S. In the U.S., it is clear from the Visual Artists Rights Act of 1990 that artists’ rights, similar to moral rights, do not apply to copies of artistic works; rather, they apply to originals. U.S. legal scholars have determined that the Act will not likely have a material effect on multimedia products. It is possible, however, that other rights in U.S. copyright law will have more of an effect in limiting the use of a work, such as the right of publicity, which can stop a user from distorting a copy of an artist’s work and from using the copy in a mass media campaign without the artist’s prior consent.9 Although some Canadian scholars have attempted to argue that moral rights apply only to the original visual work of art itself, Section 14 of the Canadian Copyright Act does not make any distinction between the original work and copies thereof. Furthermore, the Berne Convention provides that the intention of moral rights is to protect an artist’s “honour and reputation.” This may be used to argue for a wider interpretation of the provision. The language used in the Convention does not limit the application of moral rights to the original work; accordingly, an artist’s reputation can be said to be discredited whenever a copy of the original work is in any way improperly attributed or distorted without the prior consent of the artist. Finally, it should be noted that Canadian moral rights, as in the Berne Convention, but in contrast to the U.S. Visual Artists Rights Act of 1990, apply to all types of copyrightable works, and not just to artistic works. If an author of a book had his or her

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work distorted or used without associating his or her name, it would not matter if it were the original manuscript or the copy that was distorted.10 Since posting digitized images can in some instances call for cropping or result in colour distortion, the moral right of integrity may come into play. Museums must often ensure that reproductions, whether photographic or digital, do not misrepresent or distort an artist’s visual message in any significant way. This obligation may become a problem when a museum attempts to protect an image from being downloaded by placing a low resolution version of it on the screen.11 This issue will be more fully explored in the case study portion of this paper. Finally, why should U.S. users care about moral rights when they post or access artistic works in Canada? The digitization of images produces global access to an artistic work. The international implications of moral rights can create difficulties for the commercialization of products in countries where moral rights apply. The Berne Convention requires that member countries provide each other with “national treatment.” This means that American artists have the same legal rights in Canada as Canadian artists. Furthermore, because the provisions of the Berne Convention require courts to apply their own domestic law, the results of adjudication may depend on where an artist seeks protection, i.e., where the action is initiated.

EXHIBITION AND DISPLAY RIGHTS In the United States, the display right is the right held by the copyright owner to control the public display of copies of his or her work. The purpose of the display right is to control the economic impact of such displays. In other words, if copies were displayed without the copyright holder’s consent, it could affect the number of reproductions the copyright holder could sell.12 U.S. copyright law also provides limited exceptions. A copy of a work can be displayed by other than the copyright owner as long as the copy was made with his or her consent, displayed directly to the public or by projection one image at a time, and so long as viewers are present “where the copy is located.” “Where the copy is located” is ambiguous. Scholars and case law have interpreted it to mean that viewers must be present in the same physical surrounding as the copy, even if they cannot see the copy directly.13 Thus, closed circuit television projection of a painting in a gallery amphitheatre is permitted. Unlike the U.S. display right which applies to copies, the Canadian exhibition right applies to both copies and originals. Section 3(1)(g) of the Canadian Copyright Act defines the exhibition right as the ability to control the public presentation of an artistic work created after June 7, 1988. Artistic works include paintings, sculptures, works of artistic craftsmanship, architectural works, photographs, engravings, or drawings. Plans, maps, and charts are excluded. In essence, the exhibition right provides artists the right to control the public exhibition of their work and to receive royalty payments for the exhibition as long as the work was created after June 7, 1988. There are some limitations. The exhibition right does not apply to works being sold in commercial galleries, by dealers or on display in government commercial art banks, such as the Canada Council Art Bank.14

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The exhibition right has not been tested in Canada and it remains to be seen how it will be used in conjunction with the information highway. It is possible, however, that it may have an effect on how and whether museums will post digitized images of recent works on their web sites or engage in producing “virtual exhibitions.” It is interesting to note that the U.S. Lehman Report, “The White Paper,” indicates that the public display right is extremely significant for the NII (National Information Infrastructure). Lehman states, …many NII uses would appear to fall within the law’s current comprehension of public display. Whether such acts would be an infringement would be determined by separate infringement analyses.15 Examples This section of the paper will use hypothetical case studies to explore the implications of copyright on four types of objects: an object in the public domain, an object not in the public domain, Inuit tribal art and a photograph.

PUBLIC DOMAIN In Canada, as elsewhere, copyright generally lasts for the life of the author plus fifty years.16 At the end of fifty years, the work is said to be in the public domain. In principle, the owner of the object or anyone else can then use a copy of it without legal restriction. In practice, however, museums choose to restrict photographic reproductions of their works. Although they cannot hold copyright in objects in the public domain, they can hold copyright in the photographs that they take of those objects.17 For years, museums have generated revenue by selling the rights to reproduce their photographs. With the increased use of digital images, new concerns arise regarding licensing, appropriate fee structures and the quantity and quality of reproductions. For these works, moral rights and exhibition rights have no effect because they expire with copyright.

OBJECTS NOT IN THE PUBLIC DOMAIN Works of art not in the public domain present a more complex situation. In addition to traditional economic rights, Canadian museums must also determine whether the exhibition right applies. Museums must also provide for the artist potentially exerting his or her moral rights. The reader will recall that the 1988 Amendment to the Copyright Act instituted both moral and exhibition rights. Moral rights apply to all works subject to copyright, while exhibition rights apply to artistic works created after June 7, 1988. In acquiring a work subject to copyright, museums will generally negotiate which rights they wish to acquire. Occasionally, artists may choose to benefit the institution though the outright transfer of copyright. More often, museums will seek to obtain licenses for use and reproduction and, in the case of works produced after June 1988, for exhibition rights.

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In the case of production and reproduction rights, these need to be spelled out quite clearly. One oddity of current Canadian law restricts the ability of museums to photograph works even for internal collections management purposes.18 Accordingly, licensing agreements must include reproduction for internal purposes as well as reproduction for distribution and sale. An institution must also consider whether it wishes to “communicate the work to the public by telecommunication”19 and license electronic rights accordingly. Often, with contemporary art, these rights will have to be negotiated on a project by project basis rather than through a blanket agreement. Exhibition rights are clearly a priority for museums, for without them, museums are limited in how and under what circumstances they can present a work. This not only affects a museum’s exhibition programme, but also its loan activities. Negotiating exhibition rights may involve an increase to the price of acquisition, sometimes in the order of five percent. In other cases, payment is provided when a work is selected for a temporary exhibition. Given cuts to museum budgets, there is some debate as to whether this extra cost will reduce the number of works that museums can acquire. Another issue is curatorial freedom. Artists may choose not to permit display of their work if in disagreement with the curator’s thesis or with other features of the exhibition. Although the institution of moral rights is quite recent, the rights acquired—the right of integrity, the right of association, and the right of anonymity—are not new to museums. Many museums do not seek a blanket waiver of these rights as they feel it is their responsibility as custodians to respect and enforce these prerogatives. Under certain circumstances, however, issues may arise. In the case of digital imaging, for example, where images can be readily copied and altered, museums need to ensure through careful licensing practices that an artist’s moral rights will be respected. Similarly, an artist could argue that the association of his or her work with a particular corporate sponsor was prejudicial. An artist’s right to anonymity also overrides the interests of scholarship.20 Finally, as stated previously, it is important to remember that moral rights and, for that matter, exhibition rights apply to the gamut of artistic creation, and not just to the traditional fine arts. Maps, charts, and plans are the only exception to exhibition rights; they may be exhibited without obtaining permission.

INUIT ART Although Inuit art is subject to the same rules of copyright as all other art, the practice of managing distribution through community cooperatives adds an interesting dimension. Inuit artists are best known for their prints and sculpture. The former art form (and sometimes the latter) are managed through cooperatives. In most cases the cooperative acts as an agent for the artists who hold copyright, although, in one case, the organization itself holds power of attorney. Generally, Inuit artists will not assign copyright, so that reproduction rights must be negotiated on a project by project basis. Since the institution of exhibit rights, some museums have returned to the cooperatives to license exhibition rights in return for a fee. Given the vast size of Canada’s north there are sometimes difficulties in locating individuals. Also, as with much ethnic art, it may be difficult to identify actual artists as names are not always attached to works. Cooperatives go a long way in resolving these challenges.

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PHOTOGRAPHS As noted above, Canadian law is quite restrictive regarding the use of photographic reproductions of artistic works, limiting photography even for internal museum purposes. Other special conditions regarding photographs apply to the length of the term and to the holder of copyright. Unlike the duration of copyright for other artistic works, copyright in photographs runs fifty years from the date of production of the initial negative (or the first image if there is no negative). The copyright holder is the owner of the initial negative and may not always be the photographer. In the case of a commissioned photograph, for example, the person commissioning the photograph is the first owner of copyright. Previous descriptions of moral and exhibition rights are applicable to photographs, but many questions remain as to their meaning in the digital environment. One of these has already been mentioned: Do low resolution or poor quality images potentially violate an artist’s moral right of integrity? Clearly, an institution wishing to post an image on its web site would be well advised to obtain permission from the copyright holder. Although some artists enjoy the publicity they receive through the Internet, there are others who have requested removal of images of their works because they disliked the poor quality achieved there. Another significant issue is whether digitization is an act analogous to photography and, if so, who holds copyright in a digital image? One criterion for determining whether a work is copyrightable is the originality of the work. The Copyright Act emphasizes this prerequisite by stating that “…copyright shall subsist in Canada…in every original literary, dramatic, musical and artistic work…”21 Although the definition of originality is not defined in the Act, Canadian courts on a number of occasions have adopted the following originality test: …the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work—that it should originate from the author.22 Canadian courts have also used a number of criteria to determine originality; for example, the “work must originate with the author; the work must not be a copy of another work; the work must be the fruit of an independent, creative effort rather than a mechanical or automatic arrangement; and the author must use skill, experience, labour, taste, discretion, selection, judgement, personal effort, knowledge, ability, reflection, imagination.”23 In reviewing the above criteria, it would be possible to argue that the copyright in a digital image created by scanning a photograph should remain with the holder of copyright in the photograph. However, pending new copyright legislation or judgements by the courts, museums must be careful. The onus is on them to protect their interests through careful contracting, should they decide to license their photographs for multimedia production. Museums should also be aware of the differences between U.S. and Canadian law in the area of originality. It is possible that objects which attract copyright in Canada may not attract copyright in the U.S., since U.S. jurisprudence tends to place greater emphasis on creativity.24

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CONCLUSION Copyright has always been of concern to Canadian museums, but it has grown increasingly important since the 1988 amendments to the Copyright Act and the institution of moral and exhibition rights. The development of multimedia and the increased commercial interest in museum content have also heightened this awareness; in fact, efforts by commercial firms to license museum images have leant a degree of urgency to the matter. Museums are increasingly motivated by the desire to use technology to reach new audiences. At the same time, they wish to protect their rights and the rights of the artists whose works they own. They also wish to generate revenue. Given these motivating factors, many museums have developed considerable expertise in the administration of copyright and licensing. Nevertheless, there is a need for the museum community to work together, to voice its concerns as new legislation is developed and to educate itself on issues of licensing. The Canadian Museums Association (and other associations) have played a leadership role in this regard. The Sample CD-ROM Licensing Agreement for Museums developed by MUSE Educational Media and distributed by AAM provides a useful framework for museums intending to license material for a CD-ROM in the United States. Thanks to the gracious permission of MUSE and the AAM, the Canadian Heritage Information Network, in 1996 will produce a Canadian version of a CD-ROM licensing agreement. It will be interesting to compare the differences between the U.S. and Canadian versions.

NOTES 1. A.A.Keyes and C.Brunet, Copyright in Canada, Proposals for a Revision of the Law (Canada: Consumer and Corporate Affairs, 1977), p. 3. 2. Sam Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886–1986 (Great Britain: Centre for Commercial Law Studies, Queen Mary College, University of London, The Eastern Press, 1987), p. 455. 3. For a full discussion on the history and development of US copyright law on moral rights, see David Nimmer, and Mellville B.Nimmer, Nimmer on copyright, a treatise on the Law of Literary, Musical, and Artistic Property and Protection of Ideas (New York: Mather Bender, 1994), par. 8.102 to 8.116, 8D. 02 and 8D. 06. 4. The Copyright Act, S.C. 1988, Ch. C-42. 5. Nimmer and Nimmer, op. cit. 6. The Copyright Act, op. cit., Section 14. 7. Lesley Ellen Harris. Canadian Copyright Law, 2nd edition (Toronto: McGraw, Hill, Ryerson 1995), p. 116. See also Snow v. The Eaton Centre Ltd. (1982) 70 CPR (2nd) 105 (HCJ). 8. Harris, op. cit., p. 117. 9. Harris, op. cit., p. 117; Fred Greguras, “Copyright Clearances and Moral Rights,” article prepared for Softic Symposium ’95 (November 30, 1995). 10. Harris, op. cit., p. 219; “Ensuring A Strong Canadian Presence on the Information Highway,” Canadian Content and Culture Working Group Report (Government of Canada Publication 1995). 11. Ibid. The Canadian Content and Culture Working Group concluded that moral rights must be maintained on the information highway and especially noted the right of integrity. p. 35. 12. Nimmer and Nimmer, op. cit., para. 8.20(B). 13. Ibid.

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14. Harris, op. cit., pp. 111–113. 15. Bruce A.Lehman. Intellectual Property and the National Information Infrastructure, The Report of the Working Group on Intellectual Property Rights (Washington, D.C.: US Patent and Trade Mark Office, September 1995), p. 72. 16. The Copyright Act, op. cit., Section 6. 17. Ella Agnew, Legaleasy (Ontario Association of Art Galleries in Collaboration with the Canadian Museum Association, 1991), p. 21. 18. Ibid., p. 28. Phase II amendment to the Copyright Act may address this problem. 19. The Copyright Act, op. cit., Section 1(f). 20. Agnew, op. cit., p. 31. 21. The Copyright Act, op. cit., Section 1. 22. Harris, op. cit., p. 19. 23. Ibid. 24. Glen Bloom, “Legal Affairs and Management Symposium,” Canadian Museums Association (March 1996), p. 417.

Canadian Visual Resources and Canadian Copyright

by Linda Bien Visual Resources, Vol. XII, pp. 421–434 Reprints available directly from the publisher Photocopying permitted by license only

© 1997 OPA (Overseas Publishers Association) Amsterdam B.V. Published in The Netherlands under license by Gordon and Breach Science Publishers Printed in Malaysia

INTRODUCTION Since 1924 “An Act respecting copyright,” The Copyright Act (R.S., c. C-42, s. 1) has been law in Canada. When the Copyright Act came into being it was to be more than a decade before xerography would be invented. Since then there has been a revolution in media distribution systems. Kodak first introduced 35mm colour transparency film in 1937. Sound recording was developed during World War II. Ampex produced the first practical videotape recorder in 1956. The 914 Xerox copier came on the market in 1960,1 and floppy disks for data storage arrived in the 1970s. In all this time, in the face of a revolution in copy technology, the law did not change. However, since at least the 1960s, use of these new technologies for reproduction kindled discussion about revisions to the Copyright Act. In recent years bootleg copying of audio and video recordings and computer programs caused industry to increase pressure on the Government for greater protection, and finally in 1988 the first of two phases of Canadian copyright revisions, Bill C-60 “An Act to amend the Copyright Act and to amend other Acts in consequence thereof,” received Royal Assent. Section 71 of this bill established licensing bodies for the “Collective Administration of Copyright” in order to collect royalties. These bodies are known as copyright collectives. At this point, among image users the fear of prosecution for copyright infringement began to increase. Visual resources collection practices were coming under increasing scrutiny. A proposal to incorporate the concepts of fair use and special classes of users into the law put forward in a White Paper by the Association of Universities and Colleges of Canada (AUCC) was deferred to Phase II. However, Phase II revisions, which are intended to include categories of users exempt from copyright restriction,2 have been postponed again and again. Most recently they were scheduled for January or February 1996 but Parliament was adjourned February 2.

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The following report is largely based on the efforts that the Canadian Visual Resources Curators (CVRC) Copyright Committee has made in response to this situation. (The effects that the partially revised Act and the impact of delays in passing Phase II legislation have on libraries, museums and archives differ from those on image collections, and will not be addressed here.) The CVRC Copyright Committee members represent slide producers, museum, university, and government visual resource collection managers and other users of visual resources. Conflicting interpretations of the Copyright Act and related licensing agreements make it very difficult for Canadian visual resource collections and their home institutions to agree about how (or even whether) to continue making slides from books, although this practice is such a fundamental means of obtaining slides when commercial slides are not available or not feasible to obtain.3 The great surge of interest in digital storage and delivery of images raises additional questions. CVRC, with support from ARLIS/NA (Art Libraries Society/North America) and the VRA (Visual Resources Association), became actively involved in trying to clarify the situation and in lobbying for exemptions. What follows is a brief summary of CVRC’s involvement in the proposed revisions, in the enumeration of copyright issues affecting Canadian visual resources, and in the role played by Canadian copyright collectives. The report culminates with an overview of the current predicament of visual resources collections across the country.

CVRC INVOLVEMENT IN CANADIAN COPYRIGHT REVISION While there is not any appreciable difference between Canadian and American copyright law relating to the use of digital technology, the ramifications of complying with the Copyright Act in Canada for making slides are different. Without first obtaining permission, Canadians are prohibited from making copy slides of the same material that their American counterparts traditionally acquire from books under the claim of “fair use.” The Canada Copyright Act of 1924 makes an exception to copyright compliance only for “fair dealing,” not for “fair use” as in the U.S.4 The “fair use” concept of our American colleagues “is somewhat more liberal, and susceptible of a broader interpretation, than is the fair dealing concept in Canadian law…[T]he ‘fair use’ concept acknowledges scholars and university students as a special class of users, and provides that ‘fair use’ of a copyrighted work for purposes of scholarship or research is not an infringement of copyright.”5 Canada’s “fair dealing” clause states that “any fair dealing for the purposes of private study, research, criticism, review or newspaper summary” is permitted without having to seek the permission of the copyright holder. However, neither private study (use by one single person only) nor research seems to include library or visual resource collection acquisition or classroom use. In Canada, museums and universities are considered to be public places and, as such, the copyright restrictions applying to display (or projection) in public apply to them as well. In fact, in 1989 CVRC members were told by a representative of the Copyright Directorate in Communications Canada that classroom teaching would be considered public performance.6 Fortunately, that interpretation was

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shortlived. In the United States the “fair use” and “libraries and archives” provisions (Sections 107 & 108) of the Copyright Revision Act of 1976 “have been interperted to allow a reasonable amount of permission-free copying where there is clearly no infringement on the rights of the copyright owner.”7 Canadian visual resources curators maintain that similar provisions added to the Canadian legislation would relieve current limitations on the access and use of visual materials. This is particularly important since, in Canada, as in other countries adhering to the Berne Convention, copyright is intrinsic to original works and need not be registered; yet, the creator, as defined by the government, must be consulted before the work is copied. The requirement to obtain permission from unregistered owners places a great burden on potential users. In our opinion museum visual resource collections should be considered educational resources. We suggested that the Act should permit copying for non-profit educational purposes. The exemption clause could be revised by adding just two words to paragraph 27(2A), to allow any fair dealing for the purposes of [teaching, education,] private study, research, criticism, review or newspaper summary. In this way, without having to specify whether the copies were to be from books to slides or to electronic media, visual resource collections would be able to pursue their mandates without legal obstructions. CVRC members regard restrictions on the making of visual materials such as slides for teaching as a barrier to art education that provides artists and other copyright holders no significant financial benefits. A Copyright Act that acknowledges and protects artists’ rights should not sacrifice intellectual freedom. In general, we support changes to the Act that give creators greater control over the integrity of their works. We also support improved financial compensation for artists for the use of their work. However, while in favor of the principle that creators and publishers need financial encouragement to produce, we maintain that free use of visual resources for non-commercial purposes most effectively serves the mutual goals of the artistic and academic communities. We believe that visual resources are essential for research, lecture and classroom use, for study and discussion, and for exchange and dissemination of visual information. “Obtaining slides through copy[stand] photography does not impinge on a creator’s moral or economic rights, but rather serves to promote the creator’s work.”8 The official policy of Canadian visual resources collections is to credit the sources of such slides, acknowledging photographers of original art work and the holders of copyrights and moral rights of the publications from which the photographs have been taken, in full consideration of the fact that the actual copyright holder is often unknown or difficult to determine. In a 1990 Brief to the Commission of Inquiry on Canadian University Education, the CVRC asserted, “The Copyright Act should serve neither to create nor to perpetuate barriers to improving the quality of University education.” We argued that the present Copyright Act places unreasonable administrative and fiscal burdens on institutions in this climate of budget compression. There is not sufficient staff and time available to

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comply with these demands. The present Copyright Act forces professional ethics to conflict with users’ needs and with supervisors’ directives. In 1993, as members of the Consultative Committee on Cultural Industries Policy reviewing proposed Phase II revisions, we commented extensively on Phase II drafting instructions in regard to the particular needs of visual resources collections. We sought congruent legislation for collections located in “educational institutions” and “libraries and archival institutions” for acts that do not infringe copyright. It would be clearer and more practicable to have the same regulations apply to all visual resources collections. In the proposed version we observed a bias in favour of print media and printed text to the detriment of images. There was also a certain technological fixity that neglected new technologies. There was no reference to the digitization of images and their transmission over computer networks. To us these lacunae were inexplicable, since no Phase III legislation had yet been mentioned. (One could imagine that if Phase III were to address such matters, and it took as long as Phase II to get to Parliament, the revised law would not yet be in place by the year 2005!) The Canadian Visual Resources Curators Copyright Committee opposed removing all restrictions on educational institutions that wish to reproduce works for visual presentation and projection. Such license, we felt, could jeopardize the livelihood of slide producers upon whom we depend. We feel permission should be required to allow slides to be copied in the same or other image formats. To us there is a crucial distinction between making a slide from, say, a traditionally published format and duplicating a copyrighted slide produced by a slide supplier who has obtained and paid for rights and licenses to make, distribute and/or sell that slide to us. A workable means of obtaining unavailable slides through copy photography is obviously necessary, but commercial slide producers must have means to protect their rights in order to stay in business and continue to provide resources. Any law that obliges curators to clear copyright for each individual published image needed as a slide is obviously not workable. The length of time required, the amount of paperwork involved and the sort of fees charged to commercial clients make such undertakings prohibitive. Because copystand photography is frequently needed at short notice, locating the legal copyright holder before classroom or lecture use of an image is usually impossible. Such frustrations will only be exacerbated when electronic image capture, storage and transfer become common. Nor will it jeopardize the livelihood of book and journal publishers to allow visual resources collections to practice copy photography. Reproducing published illustrations as slides is not likely to inhibit sales of these publications. The purpose is merely to make simultaneous viewing by groups of people possible during lectures. Some art publishers, themselves, have asked us not to contact them for permission each time a slide is needed for a class lecture. This practice places unwanted administrative burdens on them. CVRC members desperately need exemptions for this, but have no wish to undermine legal recourse for slide suppliers who provide hard to obtain professional quality visual documentation. We even suggested specifically mentioning 35 mm slides in the revisions to further insure protection for slide producers.

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LICENSING BODIES: COPYRIGHT COLLECTIVES Rather than addressing the needs of special classes of users, Phase I revisions to the Copyright Act specifically cater to commercial interests. Enabling legislation for licensing by copyright collectives was intended to be a panacea for all users. The response to every query we made to Government was that we should contact the collectives. The thinking in 1989 was that blanket licenses would enable “quick and easy access to a vast repertoire of protected works, including artistic and literary composition from which [libraries or educational institutions] can make photocopies or slides, for a specified time period at a set royalty rate.”9 Unfortunately copyright collectives did not function well for visual resources collections because, among other problems, procedures for our needs were not established and the collectives were not effective in providing access to visual material required. The publishers who were represented by the collectives were not the publishers of works we needed to use, and the artist copyright collectives represented only a small percentage of the artists in our collections. Indeed, very few Canadian artists belong to copyright collectives, as most probably is the case in other countries as well.10 At first it was not clear how many collectives there would be, whom they would represent, and how they would function, or how they were to be contacted. There are several collectives that serve the needs of visual resources. The largest and most important of these is the Canadian Reprography Collective (CRC), CANCOPY, a licensing body which deals with reproductions of published works, including art books and periodicals. At the end of 1995 CANCOPY had negotiated license agreements for all but 31 community colleges in Canada and, with the cooperation of AUCC, all degreegranting universities outside Quebec.11 In the province of Quebec, universities are licensed by the Union des écrivaines et écrivains Québécois (UNEQ) which has a reciprocal agreement with CANCOPY.12 There are two types of licenses available: transactional and comprehensive. The latter authorizes copying based on quantitative criteria, thus making access more immediate, although records must still be kept. Set fee payments are reconciled periodically. CANCOPY was established in 1989 to administer reproduction rights and to collect and distribute royalties. Thirty percent of their revenues are collected from postsecondary schools. By May 1996 all title-specific income for the past six years should have been distributed, after which a twice-yearly schedule of royalty payments will be instituted.13 From CANCOPY’s perspective nothing is in the public domain, although I daresay it would be pretty safe to copy from incunabula. Out-of-print works are the only ones which may be copied in their entirety (with prior permission). VIS-ART, inaugurated in 1985, is a member of CANCOPY. This copyright collective for visual artists claimed to represent more than ten-thousand artists in its repertoire, including those from other countries by international agreements with affiliated societies. Despite agreements with SPADEM and ADAGP in France and similar organizations administering artists’ rights in the rest of Europe, most artists represented appear not to be those of interest to visual resources collections. For example, only five of the ninetysix 20th-century Italian artists in the Concordia Slide Library were listed in VIS-ART’s

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repertoire. An analysis made in 1990 showed that the repertoire listed less than 20% of living and recently deceased artists from nine countries represented in the Slide Library. Fewer than 5% of Concordia’s 3000 North American artists were represented by VISART, including less than 1% of the artists found in Artists in Canada.14 Furthermore, updated listings have not been forthcoming, although one was supposed to have been published in 1993. Since Marcel Duchamp is listed in the repertoire, permission was sought from VIS-ART in 1990 to make a slide for deposit in the Concordia Slide Library from a book published in the United Kingdom. After phone calls and an exchange of FAXes for record keeping, permission was granted and the transactional fee of $5 was waived.15 It has never been quite clear whether the right to make a slide from this book has already been guaranteed through the license that Quebec universities have with UNEQ. One might expect tariffs to be collected by all copyright collectives, but from a letter to this author from the National Director of CANCOPY16 specifically dealing with slides of living artists, one gathers that VIS-ART may license institutions to collect royalties on behalf of artists. In such a case the visual resources collection is asked to contact the institution holding an artist’s work to negotiate with it for slides. Other alternatives are to contact living artists directly for slides or to make slides from published sources (in which case one would hope to have a comprehensive license from CANCOPY). Further complicating the issue of copyright administration for living artists is the fact that Canadian Artists Representation/Le Front des Artistes Canadiens (CARFAC) is said to act on behalf of 1,000 members. This well-established artist organization—long representing the interests of Canadian artists—once planned to administer copyright for its members. In addition, the Société de Droit d’Auteur en Art Visuel (SODAAV) represents 200 artists in the province of Quebec. Representatives from CANCOPY, VIS-ART and CARFAC participated in a roundtable at Queens University in 1991,17 but no satisfactory answers useful to visual resources collections came from that encounter. In an effort to assess the response of living artists to Phase I legislation and to determine which were in fact represented by copyright collectives, in 1991, artists were surveyed through CVRC institutions and the Universities Art Association of Canada (UAAC). A significant majority of artists responding to this survey were not represented by any collective.18

PRESENT SITUATION REGARDING COPYSTAND PHOTOGRAPHY At present it is still unknown when the promised Phase II revisions will be presented to the public and will go before Parliament. Nor do we know whether some or all Canadian visual resources collections will be included among the special classes of users defined by statute. Copy photography and digitization of images continue in visual resources collections in Canada within the constraints of Phase I legislation. As stated above, all Canadian and Quebec Universities with visual resources collections have licensing agreements with CANCOPY and UNEQ. Confusion still abounds. In 1994 and the spring of 1995 exchanges on the CVRC Internet electronic discussion list revealed that even with licensing, clarification is still

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needed on what conditions must be met for compliance. Not all Canadian visual resources collection managers had even received copies of licensing agreements. Surprisingly, interpretations of these agreements are at odds with one another. The costs of record keeping are unknown; they have not been analyzed or assigned equitably. Responsibilities for collection of fees and responsibilities for reporting are not uniform. The fee structure can vary from one institution to another. The plight of collections outside licensed institutions has not been resolved. CANCOPY licenses cover copystand photography but not digital scanning. Guidelines are inconsistent. Through the CVRC discussion list in January 1995 we discovered that a CANCOPY advisor had told one curator she could copy 10% of the images in a publication, while another curator had permission to copy only 10% of the pages. UNEQ permits copying 10% or 25 pages of a work, whichever is less, for teaching purposes at Quebec universities. Brenda MacEachern posted a message to the CVRC list pointing out that Frederick Hartt’s History of Italian Renaissance Art has 843 images on 696 pages so following these conflicting guidelines, “[h]ypothetically, Hildegard could make 84.3 slides and I could make only 69.6 slides. This is a significant difference for the two institutions… I sure would like to see some consistent rulings on these issues.” The April 1995 issue of Positive, A Newsletter for Visual Resources Curators in Canada (edited by Brenda) contained a message from the licensing manager (PostSecondary Division) of CANCOPY, explaining that CANCOPY licenses permit 10% of the pages of a book to be copied whether each page has a number of images, or one image spread over 2, 3 or 4 pages. The fee structure for copying, however, is fifty cents per slide, so the number of slides made must be reported for purposes of reconciliation of charges. Most importantly, “Clause 6 of the agreement governs the production of slides. It states that no slides shall be made of published works ‘IF TO THE KNOWLEDGE OF THE LICENSEE A SLIDE OF THE WORK IS AVAILABLE FROM THE ARTIST OR FROM THE ENTITY THAT OWNS THE WORK AT A REASONABLE COST AND WITHIN A REASONABLE TIME FRAME.’ It is expected that you would check on the availability of the image as a slide and pay a reasonable market cost for the slides.”19 CANCOPY assesses no fee for making a single transparency of an image for an overhead projector. CANCOPY does not represent postcard, calendar, or ‘novelty’ publishers. Although CANCOPY has a reciprocal agreement with UNEQ the repertoire of publishers belonging to UNEQ is inclusive while CANCOPY lists excluded publishers. There is every indication that the Copyright Act permits legal copying of material from publishers who do not belong to copyright collectives if it is carried out under the conditions set forth by the collectives. If this were not the case most Canadian visual resources collections would be in an untenable position since many publishers of slide sources do not seem to be members of either CANCOPY or UNEQ. There still remain several unresolved aspects to CANCOPY licensing as applied to visual resources collections. In the same article in Positive quoted above, Barbara Stevenson of Carleton University (one of the more active members of the CVRC Copyright Committee) says, “It strikes me that every time you copy an image from a book, you’re copying 100% of something.” She then raises the issue of intellectual freedom: “…CanCopy is saying… ‘You can teach such-and-such, but not so-and-so on the next page because that’s over the page limit.’ It seems to me that such prohibitions

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raise important questions to the academic freedom of our faculty.” She hopes that future contracts with CANCOPY will address such issues. Another troubling subject regarding copy collectives was touched upon in the above report. Visual resources collections are well aware that frequently publishers, themselves, do not own copyright in the images reproduced in their publications. Consequently, there is no guarantee that the fees collected for copystand photography will be distributed to the rightful copyright owners of individual images, nor is there a guarantee that the copyright holders of images or illustrations have even agreed to be represented by CANCOPY or that they have accepted the licensing structure. In fact there is every reason to believe that they have not been consulted at all. The questions then arise, why report this type of use, why is CANCOPY collecting fees for it?

PRESENT SITUATION REGARDING DIGITALIZATION A pilot project to digitize French impressionist works for the Université de Québec à Montréal (UQAM) library OPAC could only go forward because all 2000 slides involved were photographed by a UQAM instructor who gave permission for this use of his or her slides. Similarly, in her article, “Copyright and Slide Digitizing at the University of Victoria,” Karen McDonald reports, “We decided that we would concentrate our efforts on images that had the fewest copyright barriers, that is, slides for works where the image itself is no longer under artist copyright, and where only the photographer’s copyright applies.”20 In this case, agreements to permit digitization were reached with various slide suppliers, and three levels of security were set up to enforce the specific rights granted by each vendor. The highest level of security limits use of the images to student and faculty study within the History in Art Department at UVic. Today, some collections are beginning to seek routine permission to copy images for non-commercial purposes when they acquire slides from individual artists and galleries, even though they have no immediate plans to use the permission granted. Here, at Concordia, such permission or refusal is carefully recorded for each slide in the database for potential future reference. Clearly, copyright problems are a deterrent to undertaking non-commercial art related projects in Canada. It is not financially feasible to use original photography for such projects. One instructor of visual arts recently related how Laval University had to abandon a proposed course on how small businesses can create their own publicity. Advertisers refused to allow their images to be critiqued in the televised classes. The instructor could not even afford to publish a textbook on her subject because of the expense involved in tracking down individual copyright holders of images she needed for the book.21 In February 1996 there was yet another cabinet shuffle in Ottawa. Another new Minister of Canadian Heritage with another new staff is going to start looking at Phase II all over again, that is, if she has time between her concerns about funding the CBC and staffing the tollbooths on the information highway. The CVRC Copyright Committee is assembling documents anew to submit once more to the new staffer responsible for our dossier (as soon as we find out who that person is), and once more we are getting ready to

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carry some slides over to Canadian Heritage/Patrimoine Canadien so they can understand what we are talking about. Plus ça change, plus c’est la même chose.

ADDENDUM On Friday, April 26, 1996, Canadian Heritage and Industry Canada jointly introduced Bill C-32, “An Act to Amend the Copyright Act,” (otherwise known as the Phase II revisions) in the House of Commons of Canada during the 2nd Session, 35th Parliament. (The following Thursday, the Minister of Candian Heritage resigned over the non-related issue of the Goods and Services tax. Hopefully this will not affect the fate of the amendments very much.) Now that the legislation has been introduced, we have a chance to see what has been proposed. The Bill will eventually go to committee where the public will have an opportunity to comment on the amendments. The “five components to this legislative package”22 do not include among the revisions any reference to digital copy technology and transmission. The Canadian Copyright Act will indeed have to be subjected to a third phase of revision, although the process has not yet been officially announced. The government website refers to revisions as a “work in progress” as if this would palliate the situation. Among the Phase II revisions there are proposed exceptions “to ensure access for certain type of users of copyright material”23 “for reasons of the greater public interest.”24 The exceptions found in Part III (Infringement of Copyright and Moral Rights and Exceptions to Infringement) begin by enhancing current exceptions for “fair dealing for private study, research, criticism, review or newspaper summary” by requiring citations. The amendments go on to extend the existing exceptions also to include (a) Persons With Perceptual Disabilities, (b) Non-Profit Educational Institutions and (c) Libraries, Archives, and Museums. The following quoted Article refers to “Reproduction for instruction. 29.4 (1) It is not an infringement of copyright for an educational institution or a person acting under its authority to make a copy of a work (a) onto a dry-erase board, flip chart or any other thing on which written material may be displayed, or (b) as an image projected using an overhead projector or similar device for the pupose of education or training on the premises of an educational institution.” 29.4 (3) further restricts this exception by stating that it does not apply if a work is commercially available in a medium and of a quality appropriate for the purpose referred to above. The exceptions for Libraries, Archives, and Museums are directed toward “Management and maintenance of the collection.” The amendments also specify Libraries, Archives, and Museums in Educational Institutions. The legislative drafters’ perspective conflicts with the CVRC contention that Libraries, Archives and Museums are in themselves serving an educational purpose. In other words, the legislation has not caught up with the fact that the missions of many collections have evolved from guardianship to providing access to museum materials. However, rather than using this note to critique these amendments which may change radically before becoming law, I refer the reader to the URL where may be found (1) the bill itself, (2) a press release and (3) the fact sheet called Legislative Highlights:

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http://www.pch.gc.ca/pch/c32/bill-e.htm. The site may be accessed in French by keying in “bill-f” instead of “bill-e,” or by clicking on the “francais” button on the homepage.

NOTES 1. Xerox Corp owns University Microfilms Intl. (UMI), R.R.Bowker and several textbook publishers. 2. According to a note in the Bulletin of the Canadian Association of University Teachers (CAUT/ACPPU Bulletin, p. 10), certain copyright holders seem to be demanding removal of all exceptions. Nevertheless, as recently as February 1996 following the cabinet shuffle, there were assurances from the Heritage Ministry that there will be exemptions. 3. An October 1993 survey of 34 institutions in Canada showed that 96 percent of academic and 57 percent of museum and gallery collections included slides made by copy photography— although, after Phase I legislation, the number of university collections continuing this practice dropped to 76 percent and two of the four museums responding had dropped the practice, entirely. MacEachern. 4. Also, in contrast to U.S. law, moral rights are delineated. Canada has been signatory to the Berne convention for a long time. 5. Gaudet, p. 6. 6. In June 1993, Communications Canada was renamed Canadian Heritage/Patrimoine Canadien. 7. Quote from a letter to The Honourable Marcel Masse, Minister of Communications, from the Visual Resources Association, Aug. 23, 1990. 8. Quote from a letter to The Honourable Marcel Masse, Minister of Communications, from Canadian Visual Resource Curators, May 25, 1989. 9. Quote from a letter to Clive Phillpot, President of ARLIS/NA, from The Honourable Marcel Masse, Minister of Communications, December 20, 1989. 10. An analysis of the repertoire of VIS-ART seemed to indicate that at most, perhaps 30 percent of the 20th C. artists in Concordia’s Slide Library were represented by their country’s copyright society. 11. Briefly from CANCOPY, p. 2. 12. Quebec is a distinct society which functions differently from the rest of Canada. Legal Counsels and Secretaries-General of Quebec universities are members of the Conference of Rectors and Principals of Quebec Universities (CREPUQ). CREPUQ taskforces meet frequently and advise on relations with the provincial government. Through CREPUQ’s efforts, Quebec universities had Provincially subsidized licenses as early as 1990 to copy parts of works (of the Quebec authors represented by UNEQ) in an agreement transparent to the user. A reciprocal agreement is supposed to be in effect between CANCOPY and UNEQ. 13. Briefly from CANCOPY, p. 3. 14. L.Bien, “Concordia Fine Arts Slide Library.” 15. Unfortunately the costs of staff time and resources such as the phone and FAX were not calculated. 16. Letter from Edith Yeomans, then National Director of VIS-ART Copyright Inc. and CRC, to Linda Bien, April 18, 1990. 17. “Roundtable on Copyright Collectives: Help or Hindrance? Coup de Main ou Coup de Grâce?” Conference of the Universities Art Association of Canada (UAAC), Kingston, Ontario, Queens University, November 1991. 18. 187 artists from 19 institutions answered the questionnaire. A useful result of the survey was the inclusion of contacts for a number of these living Canadian artists in the May 1991 Guide to Sources for Canadian Visual Resource Collections edited by Brenda MacEachern.

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19. Positive, Vol. 19, No. 2 (April 1995), p. 6. 20. McDonald, p. 6. 21. Cossette. 22. Highlights, Para 1. Available on the WWW at URL: http://www.pch.gc.ca/pch/c32/bille.htm 23. Ibid. III. Exceptions. Para 1. 24. Ibid., Exceptions Backgrounder, Para 2.

SOURCES (Cited works are marked with an asterisk.) “Barriers to Improving the Quality of Canadian University Education, Copyright Act,” Positive, Vol. 15, No. 4 (September 1991), pp. 3–5. Bien, L. “Canadian Copyright Law and Visual Resources Collections, Positive, Vol. 14, Nos. 2 (July 1990), pp. 2–10 & No. 3, pp. i–vii. *Bien, L. “Canadian Visual Resources Curators Survey of Artists on Copyright Final Report,” Positive, Vol. 15, No. 4 (September 1991), pp. 3–5. *Bien, L. “Concordia Fine Arts Slide Library: A Comparative Study of Holdings with VIS-ART Copyright Inc., International Repertoire of Artists and Pseudonyms, January 1990” (with the assistance of Miriam Fabijan), Positive, Vol. 14, No. 4 (September 1990), pp. 2–4. *Briefly from CANCOPY: The Newsletter for CANCOPY, the Canadian Copyright Licensing Agency, Vol. 3 (Fall/Winter 1995). An Act to amend the Copyright Act and to amend other Acts in consequence thereof, Chapter 10 (4th Supp.) R.S., c. C-60. 1988, Queen’s Printer for Canada. *Chapter C-42. R.S., c. C-30, s. 1. An Act respecting copyright, 1985, Queen’s Printer for Canada. *Cossette, C. “Le droit d’auteur et les arts visuels,” CAUT/ACPPU Bulletin, January 1995, p. 10. *Gaudet, B. “A Proposed Policy for Copyright Compliance,” Concordia University Background Paper, Revised Dec. 1988. *McDonald, Karen. “Copyright and Slide Digitizing at the University of Victoria,” Positive, Vol. 18, No. 3 (July 1994), pp. 5–7. *MacEachern, B. “Results of Copyright Survey,” Positive, Vol. 18, Nos. 1 & 2. (Feburary 1994). *McKenna, F.E. “‘Mark-Up’ Session of ss. 108 in the Kastenmeier Subcommittee,” April 15, 1976. Memorandum to SLA members. “West Coast Educators/Creators Voice Concern Over Amendments to the Copyright Act,” Positive, Vol. 14, No. 1, pp. 4, 7–8.

REVIEWS

Visual Resources, Vol. XII, pp. 435–442 Reprints available directly from the publisher Photocopying permitted by license only

© 1997 OPA (Overseas Publishers Association) Amsterdam B.V. Published in The Netherlands under license by Gordon and Breach Science Publishers Printed in Malaysia

Copyright, Public Policy, and the Scholarly Community, edited by Michael Matthews and Patricia Brennan. Washington DC: Association of Research Libraries, July 1995. 56 pp. $7.00 ISBN-0-918006-27-9.

Given America’s current obsession with intellectual property and copyright law (evidenced by ongoing policy hearings, a glut of conference sessions, intensified frequency of legal precedent reportage, and mainstream press journal articles), it would be easy to dismiss a small booklet published more than a year and half ago as either out of date, insubstantial, or both. That would be a huge mistake, for this pamphlet contains a wealth of insight and exposition into the delicate relationship between intellectual property and higher education. Although one might expect a publication on this topic from the active Association of Research Libraries (ARL), the product is so clear and concise, yet assertive, that it brings joy and relief, however short-lived, to the fear-struck librarian, the worried visual resources curator, and hesitant art historian. Assembled within its mere fifty-six pages are five papers, three appendices, and a foreword. Whether commissioned specifically for this publication or existing a priori, all essays are pithy, accessible, informative, and cover a variety of issues relevant to libraries, higher education, and intellectual property. What unites all these papers is their concern for the continued equitable balance between the rights of copyright owners and the rights of librarians and users of information.1 Jerry Campbell’s leadin paper, “Copyright, Public Policy and Digital Libraries: Searching for First Principles,” argues that because so much of the recent intellectual property debate has been based on selfinterest, we need to revert to first principles. Campbell (each author’s professional position and title is cited in the notes) offers this as a first principle: …all human beings have a right to knowledge; that knowledge, like freedom, is not a commodity to be bought and sold; that what we refer to

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as scholarly knowledge should be placed in the public domain at its origin; made as easily and freely available to all as we can make it.2 From that first principle, Campbell takes the position that copyright has outlived its usefulness: Copyright has actually begun to function as an inhibitor to the production and dissemination of knowledge… Copyright is a concept whose time is past… We now have at our disposal the technology to fulfill the promise of extending the most basic human right, the right to knowledge, to all cultures and individuals. And we have the opportunity and the responsibility to argue that knowledge should be withdrawn from use as a commercial commodity and that the intellectual tyranny imposed by its buying and selling be ended.3 This is pretty heady stuff for art information professionals and scholars whose involvement with intellectual property heretofore has often been limited to deciding the correct wording for copyright notices on copy machines, trying to secure and pay for reproduction rights for scholarly publications, or slogging their way through the “White Paper;”4 and for those same professionals who have found themselves intimidated by recent trends toward restricted access to and commodification of information, both visual or textual. The proponents of licensing and sale cite the need to protect museums’ rights and reproduction revenue streams from scholars and students who would poach upon the museums’ control of cultural patrimony. They are also concerned with the ‘inadequate’ display of cultural patrimony without using the absolutely highest quality visual surrogates. As if taking a clue from Campbell’s disappointment with the amount of self-interest in the ongoing copyright debates, Douglas Bennett, in the second essay, shifts the focus from rights or interests to goals and purposes (Bennett’s emphasis). Bennett focuses on three contexts: the nurturing of scholarly communities; the provision of higher education to large numbers of Americans; and free inquiry, or “support for a broad intellectual climate characterized by exploration, inquiry, and creativity.”5 He chooses these three contexts not because they are the only important ones, but because of their special and delicate needs. “What will serve entertainment well is unlikely to serve scholarly communities, higher education, or free inquiry nearly as well.”6 Perhaps that was a direct attack on the “White Paper’s” perceived favoritism toward commercial interests, such as the telecommunications and motion picture industries; perhaps not. Unlike Campbell’s call to end copyright and the commodification of knowledge, Bennett (representing scholars and scholarly societies, which are simultaneously creators and users of knowledge) tries to take a more balanced view. He points to the dire financial straits of higher education while stating that “colleges and universities expect to pay for intellectual property, but they need charges which are affordable and easy to administer.”7 Although he states a willingness to pay, Bennett recognizes that it is important not to have to ask permission, as this stifles the climate of free inquiry. I was heartened to see Bennett refer to several problems directly. One is the pathetic financial position of higher education, already mentioned. Another is a rising tide of anti-

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intellectualism, including willful ignorance and censorship of the Internet. Bennett too, like most of the other authors, cautions against allowing profit-making activities and institutions to shape the electronic future. Ideas and opinions like this are boldly stated in strong, simple sentences—to the point, polemical, didactic—as position papers are meant to be. Statements such as these whet the appetite of higher education professionals: we are accustomed to more, sometimes excessive, substantiation and justification. The third paper also concerns itself with scholarly societies, but focuses on their current dues dilemma. The lure of membership in most scholarly societies has often been membership-priced conference registration and journal subscription rates. As scholarly journals become available electronically, the potential for declining membership is problematical. Author Rudder briefly mentions several steps scholarly societies can take to reduce their heavy reliance on journal subscription dues income. This was the only area in which I wondered whether the brevity of the booklet handicapped the author, for Rudder could have explored the restructuring of scholarly society financing further. Probably it is easier at this point in time to describe the problem, for the solutions are still to be developed. Rudder points out the irony that the electronic environment both contributes to the free exchange of information among scholars while simultaneously eroding the financial base of their scholarly societies. Most ominously, some groups have been making deals with for-profit publishers. Such publishers print scholarly journals, increasing the likelihood that the intellectual property will be dominated by commerce, not scholarship. Such publishers do not necessarily share the values of the societies or, for that matter, of research libraries. Prices of journals are set to insure a healthy profit and increase the already heavy burden on libraries.8 This is but one of many ironies in the booklet, an irony similar to the sort visual resources curators must feel as they limit patron duplication of slides acquired through fair use. Another irony in the visual resources community is that Visual Resources, this journal, is published by one of the for-profit publishers cited above; that many contributors to this special issue manage slide libraries that are highly dependent upon fair use, which in turn are supported by institutions of higher education whose libraries are active suppliers to or recipients of the benefits of the first-sale doctrine, and whose faculty depend on both personal and fair use photocopying and copystand photography from journals; and that each contributor has been asked to forfeit his or her copyright in order to participate in this special issue. The fourth paper, “Coping with Copyright and Beyond: New Challenges as the Library Goes Digital,” discusses the license agreements libraries are being asked to sign when purchasing database collections and on-line access systems. Coupled with Edward Warro’s paper on license agreements9 and my paper on digital permissions in slide libraries10, one can learn most of the questions to ask and issues to be aware of today when purchasing electronic data or permissions. Hersey summarizes the experience of a team of lawyers, librarians, and computer systems personnel at MIT in reaching a mutually acceptable arrangement with Encyclopaedia Britannica for the provision of on-

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line access to the Encydopaedia.11 Issues such as authorized users, whether copying was permitted or not, how to prevent access to unauthorized users, what would happen if a single breaching event of the license agreement by a student occurred, and fee structures are briefly covered. By now we begin to realize that the ARL pamphlet has been adroitly moving away from rhetoric, albeit important and necessary rhetoric, to more pragmatic considerations. One of the more chilling portions of the small booklet is Hersey’s paragraphs on data disclosure statements that can accompany CD-ROM or database licenses. Hersey cites requirements that institutions submit to CD-ROM and database publishers all research papers containing data from their products as well as requirements permitting unlimited use by the database publishers of such papers. Publication restrictions can go so far as to prohibit publishing research disclosing the data itself, even though that data may be in the public domain.12 What Hersey fails to explain is whether she is referring exclusively to scientific and technical databases, such as pharmaceuticals and biotechnology, fields that have some justification for protected information, or whether these informational restrictions have been found in social sciences and humanities products as well. The last paper and first appendix take us into the realm of the Texaco and Campbell decisions and how they relate to fair use.13 In Texaco the District Court held that a scientist at Texaco did not act within fair use when he made isolated, single copies of eight journal articles for his research needs. The Second Court of Appeals not only upheld the decision of the District Court, but found that the scientist’s archiving, or collecting for use as needed, was illegal.14 While the Texaco case arose in the corporate, for-profit environment, and technically is not applicable to the non-profit educational environment, its findings are informative. Crews and Wiant both use the four fair use factors to shed light on the reasoning of both the District and Appellate courts in the Texaco decisions. The first factor is the purpose for which the protected work was copied: The appeals court found that the for-profit character of the company, while relevant, had been overemphasized. Instead, the appeals court focused on the use of the copied articles rather than the user, and defined the purpose of the use as “archival.”… According to the court, he was in effect building a library in his file drawer that potentially competed with purchasing originals from the publisher. (Crews’ italics)15 It is here, under purpose, that Crews compares the Campbell fair use rap parody of Roy Orbison’s song, “Oh, Pretty Woman” case with Texaco. In Campbell, Orbison’s song was ‘transformed’ into a new work or a work of new utility, while the Texaco photocopies were not transformative, merely reproducing the originals. However, as Crews points out, The Supreme Court also made clear in a most important footnote in the Campbell case, and one that we should be heralding wherever possible,

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that the transformative concept may not be necessary in the educational setting.16 Continuing onto the second factor, the nature of the copyrighted work, both Crews and Wiant point out that the courts generally permit greater fair use of factual works. Under the third factor, amount of the original copied, the courts ruled that the articles were whole, independent works, not portions of the entire periodical issue. “Seldom do courts find in favor of fair use when the entire work is reproduced.”17 Lastly, the courts found little effect of the archived photocopied articles on the potential market, but held, nonetheless, that the practice resulted in a loss of payment to CCC, the Copyright Clearance Center. It is here in Crews’ paper that he is especially clear and stalwart. The CCC holds tremendous promise and can provide an enormously valuable service in securing permissions needed for copying that goes beyond fair use. However, the CCC has no business in this fair use analysis. Not only is this analysis from the lower courts dangerous; it is flat out wrong. Our duty under the law is to analyze if a use of copyrighted material is a fair use. If it exceeds fair use, we may then choose to make the royalty payments to the CCC as a means for obtaining permission. In the Texaco decision, the courts reversed this process and examined the availability of the CCC first to determine what might be fair use… In fact, the Campbell case from the Supreme Court tells us that we need to be concerned only about the effect on those markets that the copyright owner is likely to exploit.18 Appendix 1 further amplifies the Texaco decision, enumerating what the courts decided, what the courts left unresolved, and concluding with the reassuring information that the Texaco case “does not apply to copying done in nonprofit educational institutions for educational purposes; and copying done by libraries and archives under Section 108 of the Copyright Act of 1976.”19 Crews places the Texaco decision in the context of NII hearings, while Wiant explains the Texaco decision itself. One could argue that there is some redundancy between the last essay and first appendix. However, I found the reiteration of issues useful. Appendices 2 and 3 contain two widely circulated position papers: the statement of the ARL membership, adopted May 1994, entitled “Intellectual Property: An Association of Research Libraries Statement of Principles” and “Fair Use in the Electronic Age: Serving the Public Interest” from January 1995. Both documents display the same high moral ground and informative content of the essays, and represent important fundamentals for all information professionals. Just as importantly, the principles in these appendices make explicit the assumptions behind the papers in the booklet. In the ARL Statement (Appendix 2), for example, are these seven principles (explicated in the booklet itself): 1. Copyright exists for the public good. 2. Fair use, the library, and other relevant provisions of the Copyright Act of 1976 must be preserved in the development of the emerging information infrastructure.

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3. As trustees of the rapidly growing record of human knowledge, libraries and archives must have full use of technology in order to preserve our heritage of scholarship and research. 4. Licensing agreements should not be allowed to abrogate the fair use and library provisions authorized in the copyright statute. 5. Librarians and educators have an obligation to educate information users about their rights and responsibilities under intellectual property law. 6. Copyright should not be applied to U.S. government information. 7. The information infrastructure must permit authors to be compensated for the success of their creative works, and copyright owners must have an opportunity for a fair return on their investment. Copyright, Public Policy, and the Scholarly Community is a booklet that holds interest from several perspectives. Because it was issued after the “Green Paper” and before the “White Paper,” it is assured of a footnote in the history of late twentieth-century intellectual property development. Its brevity, scope, and span make it rather enjoyable and informative reading. Hopefully it will be more than a footnote and more than informative, that it will have achieved its unstated but apparent goal in educating and informing policy makers about the role of fair use in higher education and scholarship. But it is too soon to assess the impact of the booklet, and if the “White Paper” is any indication, we have to conclude that the booklet has not been widely read or assimilated by members of the Working Group [on Intellectual Property Rights of the National Information Infrastructure Task Force]. In the meantime, given the potential for farreaching effects of intellectual property legislation in education, scholarship, collection development, information retrieval and access, no faculty member, scholarly publisher, librarian, or slide curator can approach the topic of intellectual property without some anxiety these days. The convenience, punch, intelligence, and breadth of ARL’s Copyright, Public Policy, and the Scholarly Community can alleviate that anxiety and inform at the same time.

NOTES Unless otherwise noted, all references are to the essays in the booklet, Copyright, Public Policy, and the Scholarly Community. 1. Betty Bengston (Director of University Libraries, University of Washington), “Foreword.” n. p. 2. Jerry Campbell (University Librarian at Duke University and ARL Past President), “Copyright, Public Policy and Digital Libraries: Searching for First Principles.” p. 3. 3. Ibid., p. 4–5. 4. Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights (“The White Paper”), U.S. Information Infrastructure Task Force. Working Group on Intellectual Property Rights. Bruce A.Lehman Chair (Washington, D.C.: U.S. Patent and Trademark Office, 1995). The “White Paper” is also available from the IITF Bulletin Board at gopher://iitf.doc.gov or via modem at 202–501– 1920. 5. Douglas C.Bennett (Vice President American Council of Learned Societies), “Fair Use in an Electronic Age: A View from Scholars and Scholarly Societies.” p. 9.

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6. Ibid., p. 14. 7. Ibid., p. 12. 8. Catherine E.Rudder (Executive Director, American Political Science Association), “Copyright, Libraries, and the Financial Viability of Scholarly Society Journals.” p. 20. 9. Warro, Edward A. “What Have We Been Signing? A Look at Database Licensing Agreements,” Library Administration and Management (Summer 1994), pp. 173–177. 10. “Fair Use and Licensing Agreements,” VRA Bulletin, Vol. 23, No. 2 (Summer 1996), pp. 73–76. 11. Karen Hersey (Intellectual Property Counsel, Massachusetts Institute of Technology), “Coping with Copyright and Beyond: New Challenges as the Library Goes Digital.” p. 23. 12. Ibid., p. 28. 13. American Geophysical Union, et al. v. Texaco Inc., 802 F. Supp. 1 (S.D.N.Y. 1992), aff’d 37 F3d 881 (2d Circ. 1994). Campbell v.Acuff-Rose Music, Inc., 114 S.Ct. 1164(1994). 14. Sarah K.Wiant (Director of the Law Library, Washington and Lee University), “Appendix I, American Geophysical Union, et al. v. Texaco Inc.” p. 42. 15. Kenneth D.Crews (Associate Professor of Law and Library and Information Science, Director of the Copyright Management Center, Indiana University-Purdue University at Indianapolis), “Copyright Challenges for Libraries and Higher Education: The NII and the Texaco Decisions,” p. 36. 16. Ibid., p. 38. 17. Ibid., p. 39. 18. Ibid., p. 39. 19. Wiant, op. cit., Appendix I, p. 44.

Maryly Snow University of California, Berkeley

AUTHOR INDEX

VOLUME XII

AKIYAMA, KAREN A., Rights and Responsibilities in the Digital Age, 12(3/4):261–267. BARON, ROBERT A., Editor’s Introduction, Summary and Analysis, 12(3):233–259. BEARMEN, DAVID, Co-Author, Museums and Intellectual Property: Rethinking Rights Manage ment for a Digital World, 12(3/4):269–279. BERGSTEIN, MARY, Review, The Very Impress of the Object: Photographing Sculpture from Fox Talbot to the Present Day, Exhibition and catalog by Geraldine A.Johnson, 12(1):73–79. BIEN, LINDA, Canadian Visual Resources and Canadian Copyright, 12(3/4):421–434. BINDA, ANGELA, Review, Interaction of Color, by Josef Albers, CD-ROM, 12(2):229–231. BOWER, JAMES M., AHIP Joins Forces with Research Libraries Group to Improve Art Information Access and Development, News from AHIP, 12(2):199–202. BOWER, JAMES M., Research Agenda for Networked Cultural Heritage, News From AHIP, 12(2): 199–202. BRUMFIELD, WILLIAM C, Photographic Documentation of Architectural Monuments in the Russian North: Vologda, 12(2):135–156. CARNAHAN, CARON L., The Visual Surrogate as Intellectual Property: the Clinton Administra tion’s “White Paper” and its Implications for Visual Resources Collections, 12(3/4):401–408. FAXON, ALICIA CRAIG, Rossetti’s Images of Botticelli, 12(1):53–62. GATES, THOMAS P., Review, Lost Russia: Photographing the Ruins of Russian Architecture, by William Craft Brumfield, 12(2):213–220. GORDON, CATHERINE, Patterns of User Queries in an ICONCLASS Database, 12(2):177–186. HALL, VIRGINIA M.G., Fair Use and Digital Image Archives: A Report on the National Information Infrastructure Conference on Fair Use, 12(3/4):393–399. HOFFMAN, BARBARA, Fair Use of Digital Art Images and Academia: A View from the Trenches of the Conference on Fair Use (CONFU), 12(3/4):373–392. HOURIHANE, COLUM, The Use of Proper Names in ICONCLASS—One User’s Experience, 12(2): 187–197. KESHET, AMALYAH, Fair Use, Fair Trade, and Museum Image Licensing, 12(3/4):281–290.

Author index

173

KESHET, AMALYAH, Letter to the Editor, On Copyright, 12(2):203–206. KOHL, ALLAN, Prospects for a Public Domain Art Image: Resource in an Era of Digital Technologies, 12(3/4):291–296. LAUPICHLER, FRITZ, Photographs, Microfiches, MIDAS and DISKUS; The Bildarchiv Foto Marburg as German Center for the Documentation of Art History, 12(2):157–176. LEE, ANTHONY W., Picturing San Francisco’s Chinatown: The Photo Albums of Arnold Genthe, 12(2):107–134. MCLAREN, KARLENE M., Copyright: Fair Use or Foul Play, 12(3/4):343–352. MASSI, NORBERTO, Review, An Introduction to Iconography, by Roelof van Straten, translated by Patricia de Man, 12(2):207–211. MASSI, NORBERTO, Review, The Ripa Index: Personifications and their Attributes in Five Editions of the Iconologia, by Yassu Okyama, 12(2):207–211. O’DONNELL, ELIZABETH, Review, EmbARK, Image Management Module, Version 1.2, Software by Digital Collections, Inc., 12(1):81–93. PANTALONY, RINA ELSTER, Co-Author, Moral Rights and Exhibition Rights: A Canadian Museum’s Perspective, 12(3/4):409–419. PEARCE-MOSES, RICHARD, Review, Etienne-Jules Marey: A Passion for the Trace, by Francois Dagognet; translated by Robert Galeta with Jeanine Herman, 12(1):99–101. PEARCE-MOSES, RICHARD, Review, Picturing Time: The Work of Etienne—Jules Marey (1830–1904), by Marta Braun, by Francois Dagognet; translated by Robert Galeta with Jeanine Herman, 12(1):99–101. PELIZZARI, MARIA ANTONELLA Bourgeois Spaces and Historical Contexts: Facets of the Italian City In Nineteenth-Century Photography, 12(1):1–18. POIRRIER, SHERRY, Review, Union List of Artist Names: Authority Reference Tool, Print and electronic editions compiled by the Getty Art History Information Program under the direction of James M.Bower, 12(1):67–72. RHYNE, CHARLES, Computer Images for Research, Teaching, and Publication in Art History and Related Disciplines, 12(1):19–51. ROBERTS, HELENE, Review, Flesh and the Ideal: Winckelmann and the Origins of Art History, by Alex Potts, 12(1):103–106. ROTTERBERG, BARBARA LANG, Co-Author, Moral Rights and Exhibition Rights: A Canadian Museum’s Perspective, 12(3/4):409–419. SIMONS, WALTER, Review, Imaging Aristotle: Verbal and Visual Representation in FourteenthCentury France, by Claire Richter Sherman, 12(1):95–97. SNOW, MARYLY, Review, Copyright, Public Policy, and the Scholarly Community, Edited by Michael Matthews and Patricia Brennan, 12(3/4):433–442. SNOW, MARYLY, The Pedagogical Consequences of Photomechanical Reproduction in the Visual Histories: From Copy Photography to Digital Mnemonics, 12(3/4):307–331. SUNDT, CHRISTINE L., A Visual Resources Advocacy Statement, 12(3/4):297–306. TAYLOR, PATRICIA, By Line Drawings Ye Shall Know Them: Consequences of Barriers to Digital Reproduction, 12(3/4):333–341.

Author index

174

THIRIEZ, RÉGINE, Review, Commerces d’Asie: Autochromes & Noir et Blanc, 1908–1927, 12(2): 221–222. THORNES, ROBIN, Protecting Cultural Objects, 12(1):63–65. TRANT, JENNIFER, Co-Author, Museums and Intellectual Property. Rethinking Rights Manage ment for a Digital World, 12(3/4):269–279. WALSH, PETER, Art Museums and Copyright: A Hidden Dilemma, 12(3/4):361–372. WEIL, STEPHEN E., Fair Use/Museum Use: How Close is the Overlap?, 12(3/4):353–359. WEBSTER, MARGARET N., Review, Frank Lloyd Wright: Presentation and Conceptual Drawings, Four CD-ROMs by Luna Imaging, Inc., in collaboration with the Frank Lloyd Wright Foundation, 12(2):223–227.

TITLE INDEX

VOLUME XII

Acronyms, Associations and Corporations, 12(3/4):8–10. AHIP Joins Forces with Research Libraries Group to Improve Art Information Access and Development, JAMES BOWER, News from AHIP, 12(2):199–202. Art Museums and Copyright: A Hidden Dilemma, PETER WALSH, 12(3/4):361–372. Bourgeois Spaces and Historical Contexts: Facets of the Italian City In Nineteenth-Century Photography, MARIA ANTONELLA PELIZZARI, 12(1):1–18. By Line Drawings Ye Shall Know Them: Consequences of Barriers to Digital Reproduction, PATRICIA TAYLOR, 12(3/4):333–341. Canadian Visual Resources and Canadian Copyright, LINDA BIEN, 12(3/4):421–434. Commerces d’Asie: Autochromes & Noir et Blanc, 1908–1927, Review by RÉGINE THIRIEZ, 12(2): 221–222. Computer Images for Research, Teaching, and Publication in Art History and Related Disciplines, CHARLES RHYNE, 12(1):19–51. Copyright: Fair Use or Foul Play, KARLENE M.MCLAREN, 12(3/4):343–52. Copyright, Public Policy, and the Scholarly Community, Edited by Michael Matthews and Patricia Brennan, Review by MARYLY SNOW, 12(3/4):433–442. EDITORIAL, 12(1):vii–viii; 12(2):vii–x. Editor’s Introduction, Summary and Analysis, ROBERT A.BARON, 12(3/4):233–259. EmbARK, Image Management Module, Version 1.2, Software by Digital Collections, Inc., Review by ELIZABETH O’DONNELL, 12(1):81–93. Etienne-Jules Marey: A Passion for the Trace, by Francois Dagognet; translated by Robert Galeta with Jeanine Herman, Review by RICHARD PEARCE-MOSES, 12(1):99–101. Fair Use and Digital Image Archives: A Report on the National Information Infrastructure Conference on Fair Use, VIRGINIA M.G.HALL, 12(3/4):393–399. Fair Use, Fair Trade, and Museum Image Licensing, AMALYAH KESHET, 12(3/4):281–290. Fair Use/Museum Use: How Close is the Overlap?, STEPHEN E.WEIL, 12(3/4):353–359. Fair Use of Digital Art Images and Academia: A View from the Trenches of the Conference on Fair Use (CONFU), BARBARA HOFFMAN, 12(3/4):373–392. Flesh and the Ideal: Winckelmann and the Origins of Art History, by Alex Potts, Review by HELENE ROBERTS, 12(1):103–106.

Title index

177

Frank Lloyd Wright: Presentation and Conceptual Drawings, Four CD-ROMs by Luna Imaging, Inc., in collaboration with the Frank Lloyd Wright Foundation, Review by MARGARET N.WEBSTER, 12(2):223–227. ICONCLASS UPDATE, 12(2):157–197. Imaging Aristotle: Verbal and Visual Representation in Fourteenth-Century France, by Claire Richter Sherman, Review by WALTER SIMONS, 12(1):95–97. Introduction to Iconography, An, by Roelof van Straten, translated by Patricia de Man, Review by NORBERTO MASSI, 12(2):207–211. Interaction of Color, by Josef Albers, CD-ROM, Review by ANGELA BINDA, 12(2): 229–231. LETTER TO THE EDITOR: 12(2):203–206. List of Users of ICONCLASS, A, 12(2):xi–xiv. Lost Russia: Photographing the Ruins of Russian Architecture, by William Craft Brumfield, Review by THOMAS P.GATES, 12(2):213–220. Moral Rights and Exhibition Rights: A Canadian Museum’s Perspective, BARBARA LANG ROTTERBERG and RINA ELSTER PANTALONY, Co-Authors, 12(3/4):409–419. Museums and Intellectual Property: Rethinking Rights Management for a Digital World, DAVID BEARMEN and JENNIFER TRANT, Co-Authors, 12(3/4):269–279. New Look for ICONCLASS: Updated, Upgraded, and on CD-ROMs, A, Editorial, 12(2):vii–x. NEWS FROM AHIP, JAMES M.BOWER: 12(1): 63–65; 12(2):199–202. On Copyright, Letter to the Editor from AMALYAH KESHET, 12(2):203–206. Patterns of User Queries in an ICONCLASS Database, CATHERINE GORDON, 12(2):177–186. Pedagogical Consequences of Photomechanical Reproduction in the Visual Histories: From Copy Photography to Digital Mnemonics, The, MARYLY SNOW, 12(3/4):307–331. Photographic Documentation of Architectural Monuments in the Russian North: Vologda, WILLIAM C.BRUMFIELD, 12(2):135–156. Photographs, Microfiches, MIDAS and DISKUS; The Bildarchiv Foto Marburg as German Center for the Documentation of Art History, FRITZ LAUPICHLER, 12(2):157–176. Picasso: Copies, Forgeries, and Look-Alikes, Editorial, 12(1):vii–viii. Picturing San Francisco’s Chinatown: The Photo Albums of Arnold Genthe, ANTHONY W.LEE, 12(2):107–134. Picturing Time: The Work of Etienne-Jules Marey (1830–1904), by Marta Braun, Review by RICHARD PEARCE-MOSES, 12(1):99–101. Prospects for a Public Domain Art Image: Resource in an Era of Digital Technologies, ALLAN KOHL, 12(3/4):291–296. Protecting Cultural Objects, ROBIN THORNES, 12(1):63–65. Research Agenda for Networked Cultural Heritage, JAMES M.BOWER, News From Ahip, 12(2): 199–202. REVIEWS: 12(1):67–106; 12(2):203–231; 12(3–4):435–442. Rights and Responsibilities in the Digital Age, KAREN A.ALIYAMA, 12(3/4):261–267. Ripa Index: Personifications and their Attributes in Five Editions of the Iconologia, The, by Yassu Okyama, Review by NORBERTO MASSI, 12(2):207–211. Rossetti’s Images of Botticelli, ALICIA FAXON, 12(1):53–62.

Title index

178

Union List of Artist Names: Authority Reference Tool, Print and electronic editions compiled by the Getty Art History Information Program under the direction of James M.Bower, Review by SHERRY POIRRIER, 12(1):67–72. Use of Proper Names in ICONCLASS—One User’s Experience, The, COLUM HOURIHANE, 12(2): 187–197. Very Impress of the Object: Photographing Sculpture from Fox Talbot to the Present Day, The, Exhibition and catalog by Geraldine A.Johnson, Review by MARY BERGSTEIN, 12(1):73–79. Visual Resources Advocacy Statement, A, CHRISTINE L.SUNDT, A 12(3/4):297–306. Visual Surrogate as Intellectual Property: the Clinton Administration’s “White Paper” and its Implications for Visual Resources Collections, The, 12(3/4): CARON L.CARNAHAN, 401–408.

SELECTED INDEX OF TERMS NAMES, AND CONCEPTS

Volume XII

Acuff SEE Campbell v. Acuff-Rose Adobe Photoshop™, 231, 391 Akiyama, Karen A., 236, 240–241, 242, 243, 244, 245, 246, 252, 253, 254 Albers, Joseph, 229–231 Alinari SEE Fratelli Alinari (Photographers) American Museum of Natural History, 297 American Society of Composers, Authors and Performers (ASCAP), 333 American Council of Learned Societies, 336 American Association of Museums (AAM), 389 American Geophysical Union, et al. v. Texaco Inc., 378, 380, 439–440 American Association of Museum Directors, 362 Americans with Disabilities Act, 336 Anderson, Maxwell L., 201 Anderson, Domenico (Photographer), 57, 58, 59 Anderson, James (Photographer), 57, 58, 59 Anglicus, Bartholomeus, 95 Apollo Belvedere, 105 Appian Way, Rome, 5 Appropriation, 300, 379 Architectural drawings, 223–227 Architecture, Photography of, 135–156, 213–220, 246–247, 311 Architecture, Russian, 135–156, 213–220 Aristotle, 95–97 Arkhangelsk, Russia, 135 Arnaud, L., 313 ArpaNet, 401 Art and Architecture Thesaurus (AAT), 81, 201 Art education, Art history, and Art historians, 20, 42–43, 53, 73–79, 169, 175, 223–224, 229–231, 237 251, 270, 278, 286–287, 291–296, 297–305, 307–331, 336–341, 343, 344–347, 362, 369–371, 379, 380, 382, 385, 387–388, 390–391, 393–399, 423–424, 435–438, 441 Art Images for College Teaching (AICT), 293, 295 Art in America, 321 Art Institute, Chicago, 297, 312 Art Libraries Society of North America (ARLIS/NA), 294, 327, 422

Selected index of terms names, and concepts

181

Artist Names, 67–72, 160, 177, 391, 427 Artists, 20, 243, 245, 255, 264, 269, 276, 283, 353, 362, 365–366, 369, 370–371, 387, 391, 396, 411–413, 424, 427–428, 430 Artists in Canada, 427 Artists Rights Society, Inc. (ARS), 378 Arundel Society, 55, 60 Association of American Publishers, 378, 383 Association of Art Museum Directors, 389 Association of Research Libraries (ARL), 324–325, 435–442 Association of Universities and Colleges of Canada (AUCC), 421, 426 Augustine, Saint, 95 Avery Index to Architectural Periodicals, 201 Barnes Foundation, Merion, 262 Baron, Robert A., 317 Barsh, Ivan, 150 Barthes, Roland, 123 Bartsch, Adam von, 12(2): vii–viii Basic Books Inc. v. Kinko’s Graphic Corp., 345, 376 Batiushkov, Konstantin, 138 Bearman, David, 236, 237, 241–242, 243, 244, 246, 255–256 Beausoleil, Jeanne, 211–222 Benjamin, Walter, 310–311, 318 Bennett, Douglas, 386, 436 Berne Convention, 243, 353–354, 364, 410–412, 423 Berthier, Gilles Baud, 222 Betamax Case SEE Universal City Studios, Inc. v. Sony Corp. of America Bettmann Archive, 262 Bibliography in the History of Art (BHA), 200–201 Bien, Linda, 239–240, 247, 248–249, 251, 256 Bildarchiv Foto Marburg, 12(2): vii–viii, 157–176, 188 Bohemian Club, San Francisco, 108, 115 Bollati, Giulio, 9 Bondini, Pompeo (Photographer), 5 Books in Print, 319, 320 Botticelli, Sandro, 53–62 Bower, James, 67–72 Boyce, G.P., 55 Braille and copyright, 406 Brassaï (Gyula Halász, Photographer), 74 Braun, Marta, 99–101 Brennen, Patricia, 236, 435–442, 435–442 British Association of Picture Libraries and Agencies, 285 British Museum, London, 56 Brogi, Giacomo (Photographer), 3–4, 6–8, 11–12, 14–16 Brooklyn Museum, 223 Brumfield, William Craft, 213–220 Bryn Mawr College, 312 Buchanan, Robert, 61 Budek SEE Media for the Arts Buel, James, 129

Selected index of terms names, and concepts

182

Burne-Jones, Edward, 56 Burnham, Daniel, 225 Busy, Léon (Photographer), 221–222 Caffi, Ippolito (Painter), 6–7 Cambiaso, Pasquale Domenico (Painter), 9, 11 Campbell, Jerry, 435–436, 437 Campbell v. Acuff-Rose, 355, 357, 378, 380, 381–382, 439 Canada Council Art Bank, 413 Canadian Artists Representation/Le Front des Artistes Canadiens (CARFAC), 427 Canadian copyright, 409–419, 421–434 Canadian Heritage Information Network, 240 Canadian Heritage/Patrimoine Canadien, 431 Canadian Museum Association, 418 Canadian Reprography Collective (CRC), 426 Canadian Visual Resources Curators (CVRC), 239, 422–432 CANCOPY, 426, 427, 428, 429, 430 Carnahan, Caron, 238 Cartier-Bresson, Henri, 75–77 Casts, 310, 311 Cataloguing and classification of visual collections, 160–161, 164–167, 169–171, 187–197, 294– 295, 327, 388 Catherine, the Great, of Russia, 142, 150 Cavalcaselle, Giovanni Battista, 54 Caylus, Count, 106 CD-ROMs, 33–34, 39–41, 167, 169–173, 12(2): vii–viii, 223–227, 229–231, 241, 242, 262, 266, 287–288, 292, 333, 338–339, 354, 361, 375, 409, 438 Charles V, King of France, 95–96 Chinatown, San Francisco, 107–134 Cinematography, 100–101 Clip Art, 265 Coalition for Networked Information (CNI), 324–325, 404 Collection management, 81–93 College Art Association (CAA), 293, 294, 295, 307, 347, 362, 379, 386–387, 389, 394 Color, 229–231 Columbia University, School of Architecture, 313 Commerce d’Asie, 221–222 Commission on New Technological Uses of Copyrighted Works (CONTU), 404 Concordia University, Slide Library, 427, 431 Conference on Fair Use (CONFU), 238, 247, 308, 318, 325–326, 373–392, 393–399 Congressional Office of Technology Assessment, 350 Conservation images, 31–32 Consortium of Art and Architectural Historians (CAAH), 242 Consortium of College and University Media Centers (CCUMC), 242, 324–325, 328, 337, 390 Consultive Committee on Cultural Industries Policy, 424 Copy photography SEE Photographers, Photography, and Photographers; Reproductions Copyright, History of, 343–345, 363–364, 374, 410, 421 Copyright and Fair Use, 12(1): vii–viii, 203–206, 233–442 Copyright Clearance Center, 439–440 Copyright collectives SEE Rights and Reproduction Organizations (RROs)

Selected index of terms names, and concepts

183

Copyright cooperatives SEE Rights and Reproduction Organizations (RROs) Copyright Office, Washington, D.C., 353 Corbis Corporation, 236, 240, 244, 245–246, 253, 261–267 Cornell University, 312 Corneloup, Marie Mattera, 222 Couëtoux, Sophie, 222 Council of Europe, 64 Crews, Kenneth D., 439–440 Crowe and Cavalcasse, 55 Cultural property SEE Copyright and Fair Use Cultural unification, 9, 15, 17 Dagognet, François, 99, 101 Dartmouth College, 312 De Forest, Robert, 109–110 Debord, Guy, 17 Decimal Index to the Arts of the Low Countries (DIAL), 12(2): vii Degas, Edgar, 100 Delogu, Marco (Photographer), 76–78 Department of Defense, Washington, D.C., 263, 401 Detroit Institute of Arts, 262–263 Dewey, Melvin, 312 Dickens, Charles, 363–364 Diebenkorn, Richard, 12(1): vii–viii Digital Future Coalition (DFC), 324–325 Digital images, 19–51, 64, 81–93, 12(2): viii, 167–175, 223–227, 229–231, 235, 249, 257, 261– 267, 269–279, 291–296, 302–305, 317, 335–341, 373–392, 393–399, 404–408, 409, 428, 430–431, 435–436 SEE ALSO CD-ROMs; Internet; National Information Infrastructure (NII); World Wide Web DISKUS (Digital Information System for Art and Social History), 168–169, 171–173 Distance education, 337 Drawings, 310, 315, 318, 340, 376 Duchamp. Marcel, 100, 253, 427 Dumas, Alexandre, 216 Dumas, Roger (Photographer), 221–222 Dunlap Society, 324 Dutertre, A. (Photographer), 222 Earthquake, San Francisco, 1906, 108– Eastlake, Charles, 54 Edison, Thomas, 99, 101 Education Digest, 350 Educational Use of Images SEE Art Education, Art history, and Art historians Educom, 324–325 Electronic Frontier Foundation (EFF), 324–325 EmbARK™, 81–93 Encyclopedia Britannica, 438 Ernst, Max, 100

Selected index of terms names, and concepts

184

Ester, Michael, 19, 224 Ethnic subcultures, 109–110, 116–120, 126–128, 131 Exhibition and display rights, 409, 413–419 Fahrenkopf, Paul, 247 Fair Use SEE Copyright and Fair Use Fakes and Forgeries, 12(1): vii–viii Faldella, Giovanni, 1–2 Feist Publications, Inc. v. Rural Telephone Service Co., 367–368, 378, 381 Fenton, Roger (Photographer), 75–76 Fink, Eleanor, 201 First Sale doctrine, 375, 403, 407 Firth, Francis (Photographer), 314 Flâneur, 114–134 Florence, Italy, 3 Folsom v. Marsh, 309–310 Foucault, Michel, 111 Fournival, Richard de, 95 Fox Talbot, Willian Henry, 1, 56, 78 Frank Lloyd Wright, 223–227 Frank Lloyd Wright Archive, 225–226 Fratelli Alinari (Photographers), 3–4, 6, 9–10, 16, 57, 58–59, 74, 79, 313 Freedom of Speech, 334, 339 Freitag, Wolfgang, 317 Fresco painting, Russian, 138 Fuller-Maitland, William, 54 Gabo, Naum, 74 Gates, Bill, 236 SEE ALSO Corbis Corporation Gender, 105 General Agreement on Tariffs and Trade, (GATT), 354, 385 Genoa, Italy, 2–3, 6–18 Genthe, Arnold (Photographer), 107–134 Germ, The, 59–60 Getty Art History Information Program (AHIP) SEE Getty Information Institute Getty Imaging Initiative, 327 Getty Information Institute, 63–65, 67, 199–202, 276, 389 SEE ALSO Museum Educational Site Licensing Project (MESL) Getty Trust, 362 Gilbreth, Frank, 101 Gilot, François, 12(1): vii Gioberti, Vincenzo, 8 Global Information Infrastructure (GII), 374, 404, 406 Goethe, Johann Wolfgang von, 106 Gordon, Catherine, 12(2): vii–viii Graham, William, 59 Grand Tour, 310 Greek art, 103–106 “Green Paper”, 384, 385–391, 393–399, 441 SEE ALSO “White Paper”

Selected index of terms names, and concepts

185

Grimm Brothers, 296 Guidelines, 237, 248, 329, 337–338, 345, 346–347, 354–357, 365–366, 369, 383, 386–391, 393– 399, 428 Gutenberg, Johannes, 296 Haberman, Jurgan, 11 Hall, Virginia (Marcie), 238–239, 240, 248, 251, 252, 387 Hamann, Richard, 157 Hamann-MacLean, Richard, 160 Hamlin, A.D.F., 313 Harry Ransom Humanities Research Center, Austin, 55 Harthill, 324 Hartt, Frederick, 428 Harvard University, Fine Arts Library, 12(2): vii Hegel, Georg Wilhelm, Friedrich, 106 Herbert, Robert, 115–116 Hermitage Museum, St. Petersburg, 263 Hersey, Karen, 438–439 Heusinger, Lutz, 160–161, 164, 175 HIDA (Hierarchical Information and Documentation Administrator), 166–167, 169, 173–174 Hind, Arthur Mayger, 12(2): vii–viii Hoffman, Barbara, 238–239, 240, 243, 245, 248, 250, 251, 256, 394, 395 Hoppin, James, 313 Horne, Herbert, 54 Howell, Charles Augustus, 59 Hunt, William Holman, 54 ICONCLASS, 12(2): vii–xiv, 164–165, 169–171, 175, 177–186, 187–197, 203–210 ICONCLASS Research & Development Group Leiden/Utrecht SEE Vakgroep computer & Letteren, Utrecht University, Iconographic index, 160, 170 Iconography, 61, 12(2): vii–ix, 201–210 Iconologia, 210–211 Illinois, University of, 297, 312 Illuminated manuscripts, 95–97 Image Directory, 320 Image manipulation, 41–43, 266, 336, 397, 410–412 Images, Availability of, 32–38 Images, Cost of, 38–39, 269–279, 281–290, 295, 326–327, 335, 338–339, 340, 361–362, 428, 437 Images, Use of, 19–51, 53–62, 297–300, 307–331, 336, 393–399 Images and ideas SEE Text and image Industry Canada, 431 Information Infrastructure (NII) see National Information Infrastructure Information and Infrastructure Task Force (IITF), 377, 393, 403, 408 Insight™, 223–227 Intellectual freedom, 245–247, 435–437 Intellectual property SEE Copyright and Fair Use Intellectual Property and the National Information Infrastructure SEE “White Paper” Interaction of Color, 229–231 Interactive multimedia, 266, 270, 287–288, 336–337, 341, 349–350, 409 International Council of Museums, 64

Selected index of terms names, and concepts

186

Internet, 34–35, 235, 266, 267, 286, 302, 335, 336, 338, 339, 354, 401–408, 409, 411, 437 SEE ALSO National Information Infrastructure (NII); World Wide Web Inuit Art, 416 Inventories, 63 lonides, Constantine, 54 Israel Artists’ Association, 283 Israel Museum, 237, 240–241, 281–290 Italian Photographic Society, 3 Italy, 1–18 Ivan IV, of Russia, 136 Jacoby, Trydy Buxton, 72 James, Henry, 2, 13 Jameson, Anna, 55 John of Salisbury, 95 Johnson, Geraldine A., 73–79 Jones, Calvert Richard (Photographer), 4 Jussim, Estelle, 317 Kahn, Albert, 221–222 KAIDIB SEE Mini-Aids Kaluga, Russia, 151 Kandinsky, Vasily (Painter), 154 Kermode, Frank, 110 Keshet, Amalyah, 236, 237, 240–243, 245, 256 Kinko SEE Basic Books Inc. v. Kinko’s Graphic Corp. Kirsch, Joan and Russell, 12(1): vii–viii Klumb, Heinrich (Henry), 225 Knorr, Karen (Photographer), 76, 78–79 Kohl, Allan, 242, 244, 341 Korolevskaya, Russia, 153 Kostroma, Russia, 144 Kremlin, Moscow, 137 Laches, 366–370 Langenheims (Photographers), 313 Lantern Slides SEE Slides and Transparencies Laocoön, 104, 105 Laupichler, Fritz, 12(2): vii–viii Laval University, 420 Lehman, Bruce A., 377, 384, 393, 402 SEE ALSO “White Paper”; “Green Paper” Leonardo da Vinci, 340 SEE ALSO Mona Lisa Leval, Pierre N. (Judge), 357, 379, 381, 382 Levering, Mary, 389 Lewis, Anne C, 350 Leyland, Frederick R., 54 Library of Congress, Washington, D.C., 263, 389

Selected index of terms names, and concepts

187

Licensing, 237, 239, 241, 251, 256, 262, 265–267, 273–279, 281–290, 303, 323, 327–328, 341, 350, 375, 377, 389–390, 425, 426, 428, 436, 438 SEE ALSO Museum Site Licensing Project (MESL) Lightbrown, Ronald, 57, 61 Lippi, Filippino, 53, 54 Long, Richard, 75 Lukomskii, Georgii, 154 Luna Imaging Inc., 223–227 MacCannell, Dean, 116 MacEachern, Brenda, 428 Malraux, André, 77 Mapplethorpe, Robert, 355, 358 Marburger Index, 161–164, 166, 168–175 March, Lorenzo (Photographer), 313 Marcus v. Rowley, 345, 346 Marey, Etienne-Jules (Photographer), 99–101 Market forces, 270–275, 281–282, 364, 398 Marquand, Allan, 313 Masaccio, 53 Massachusetts Institute of Technology, Cambridge, 297, 312 Matisse, Henri, 355 Matthews, Michael, 236, 435–442 McAllister, T.H., Company, 313 McCauley, Anne, 13 McDonald, Karen, 430 McLaren, Karlene, 237–238, 248 McLuhan, Marshall, 270 Media for the Arts, 324 Mellor, J.P., 314 Merchant-Ivory Film on Picasso, 12(1): vii–viii, 203–206 Michalko, James, 201 Michelangelo, 56 Michigan, University of, 297 Microfiche, 161–163, 169, 12(1): vii–viii Microsoft Corporation, 363 MIDAS (Marburg Inventory, Documentation and Administration System), Milan, Italy, 12 Mini-Aids, 324 Miniature Gallery, 324 Minister of Canadian Heritage, 431 Miró, Jóan, 12(1): viii Moby Dick, 249, 305 Molochnow, Russia, 152 Mona Lisa, 12(3–4): Cover, 253, 301, 304, 307, 357 Moral rights, 203–206, 246, 283, 339–340, 391, 409–419 Morris, Jane, 56, 57, 60, 61 Morris, William, 55 Murray, Charles Fairfax, 55, 56, 59, 60 MUSE Educational Media, 276, 418

Selected index of terms names, and concepts

188

Museum co-operation, 167 Museum Educational Site Licensing Project (MESL), 237, 239, 241, 242, 244–245, 256, 276–279, 289–290, 327, 389 Museums, 233–442 SEE ALSO Individual Names of Museums Music, 238 Music copyright, 346, 347–349, 376, 406, 407 Muybridge, Eadwaerd (Photographer), 99–100 Narrative, 110–114 National Archives, Washington, D.C., 263 National Endowment for the Humanities (NEH), 389 National Gallery, London, 54, 223 National Information Infrastructure (NII), 235, 257, 258, 308, 324, 336, 374, 384, 393–399, 403– 408, 440, 441 SEE ALSO Internet Negatives, Photograpic, 160 Negretti and Lambra, London, 314 Neruda, Pablo, 252, 261 New York, 109 New York Times, 246–247 Niobe, 104, 105 Norton, Charles Eliot, 313 Novgorod, Russia, 135 O’Connor, Sandra Day, 350 Okayama, Yassu, 210–211 Orbison, Roy, 355, 439 Oregon, University of, 297 Oresme, Nicole, 95–97 Panama-Pacific International Exposition, San Francisco, 1915, 107–108, 131–133 Panofsky, Erwin, 207 Pantalony, Rina Elster, 236, 240 Pare, Richard (Photographer), 76–78 Passet, Stéphane (Photographer), 221–222 Pater, Walter, 61, 106 Patterson, Ray, 310 Peeble Beach Golf Course, Carmel, 247 Pei, I.M., 246 Pennsylvania, University of, 313 Permissions SEE Copyright and Fair Use; Licensing Philip Haas, 75 Philipps-University. Marburg, Germany, 157, 160, 188 Photo-CD, 295 Photogram, 313 Photographic archives and collections, 155, 157–176, 177–186, 221–222, 225–226, 244, 247, 249– 251, 255, 269, 272, 291, 297–300, 307–329, 367, 388–390, 393–399, 422–423, 428–430, 438, 441

Selected index of terms names, and concepts

189

Photographs, Photography, and Photographers, 1–18, 23–24, 26–30, 53–62, 63–64, 73–79, 99–101, 107–134, 157, 221–222, 237, 244, 263, 269, 276, 299, 308–322, 361–362, 366–371, 381, 390, 393– 399, 428–430 SEE ALSO Architecture, Photography of; Sculpture, Photography of; Reproductions Photo-miniature, 313 Picasso, Claude, 12(1): vii–viii, 203–206 Picasso, Pablo, 12(1): vii–viii, 203–206 Picture research, 272 Plekhanov, Dmitrii Grigorev (Painter), 138 Pliny, 103 Pollack, Jackson, 340 Pompeii, 4 Portraits, 76–78, 109 Positive: A Newsletter for Visual Resources Curators in Canada, 429 Postcards, 354, 356, 358, 429 Postino, Il, (Film), 252, 261 Potts, Alex, 103–106 Pre-Raphaelitism, 53 Preservation and conservation, 218–220 Princeton University, 297, 311 Princeton University Press v. Michigan Document Services, Inc., 378 Prometheus, 252, 256 Protecting Cultural Objects, 63–65 Provenance Index, 201 Public domain, 244, 263, 291–296, 297, 336, 337, 340, 349, 353, 354, 361, 362, 363, 365, 366, 367, 369, 370, 385, 397, 409, 414, 426 Queens University, 427 Racial differences, 116, 126–128, 131–132 Rastelli, Bartolomeo Francesco (Architect), 142 Ray, Man, 74 Reproductions, 55, 157, 237, 243, 249–250, 255, 270, 297–305, 308–322, 334–335, 354–358, 361– 371, 376, 384, 393–399, 402–404, 425 SEE ALSO Casts; Drawings; Photographs, Photography, and Photographers; Postcards Reproductions, Quality of, 24–26, 29–31, 39–41, 245–250, 269, 317, 335, 340 Research Agenda for Networked Cultural Heritage, 199–202 Research Libraries Group (RLG), 200–202 Research Libraries Information Network (RLIN), 201 Ressmeyer, Roger (Photographer), 263 Rice, Shelley, 8 Rights and Reproduction Organizations (RROs), 276–279, 416, 421, 426–428 Riis, Jacob, 110 Ripa, Cesare, 210–211 Robb, D.M., 313

Selected index of terms names, and concepts

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Roberts, Andrew, 201 Rock and Roll Hall of Fame, 246 Rosenthal Art Slides, 324 Rossetti, Dante Gabriel, 53–62 Rossetti, William Michael, 54 Rottenberg, Barbara Lang, 236, 240, 245 Royal Academy, London, 54 Rudder, Catherine, 437–438 Ruskin, John, 55 Russia, 135–156, 213–220 Samuelson, Pamela, 239, 328–329, 407 San Francisco SEE Bohemian Club, San Francisco; Chinatown, San Francisco; Earthquake, San Francisco; Panama-Pacific International Exposition, San Francisco Saint Petersburg, Russia, 142, 145, 150 SASKIA, 324 Scala, 324 Scholarly Use of Images SEE Art Education, Art history, and Art historians Schwartz, Gary, 255 Sculpture, 23–24, 73–79 Sculpture, Photography of, 73–79 Search strategies, 181–186 Sega Enterprise, Ltd. v. Accolade, Inc., 356 Serao, Matilde, 2 Seurat, Georges, 100 Sherman, Claire Richter, 95–97 Shildknekht, V.N. (Architect), 142 Signorelli, 56 Slide Collections SEE Photographic archives and collections Slide Producers’ Association, 323–324, 328 Slides and Transparencies, 30, 34, 36, 37, 38, 39, 247–251, 308, 311–312, 354, 369, 376, 378–379, 388–389, 421–430 Smithsonian Institution, Washington, D.C., 387 Snow, Maryly, 236, 237, 238, 248, 249, 251, 255 Société de Droit d’Auteur en Art Visual (SODAAV), 427 Société de la propriété artistique et des dessins et modèles (SPADEM), 365, 378, 427 Société des auteurs dans les arts graphiques et plastiques (ADAGP), 427 Software, 81–93, 238, 349–350 SEE ALSO Names of individual products Sony Corporation v. Universal City Studios, Inc. SEE Universal City Studios Inc. v. Sony Corp. of America South Kensington Museum, London SEE Victoria and Albert Museum, London Southwest Texas State Univeristy, San Marcos, Digital Teaching Lab, 333 Stael, Madame Germaine de, 106 Standards, 63–65, 67–72 Stange, Maren, 110 Steiner, Christine, 387 Stevenson, Barbara, 429 Stoedtner, Franz (Photographer), 158

Selected index of terms names, and concepts

191

Straten, Roelof van Straten, 12(2): vii–viii, 207–210 Sullivan, Michael, 350 Sundt, Christine L., 237, 248, 249, 254–255, 382, 387, 394 Surrealism, 74 Surrogate images SEE Reproductions Surviving Picasso (Film), 12(1): vii–viii, 203–206 Takehiko, Okamie, 225 Taylor, Patricia, 237, 242, 243, 245, 246, 248 Teitelman, Ed, 324 Television, Copyright of, 350–351 Texaco Decision SEE American Geophysical Union, et al. v. Texaco Inc. Text and image, 95–97, 109–116, 291 Thesaurus of Geographic Names (TGN), 200 Thomas of Cantimpré, 95 Titian, 76 Todd, Frank Morton, 108 Trademarks, 246–247 Tragg, John, 126 Trant, Jennifer, 236, 237, 242, 243, 244, 246, 255–256 Twain, Mark, 2 2 Live Crew, 355 Ultimate Frank Lloyd Wright, 223–224 UNESCO, 64 Union des écrivaines et écrivains Québécois (UNEQ), 426, 428, 429 Union List of Artist Names (ULAN), 67–72, 84, 200 United States Code Annotated (USSCA), 237 Universal City Studios, Inc. v. Sony Corp. of America, 356, 401 Universal Resource Locator (URL), 237, 432 Université de Québec à Montréal (UQAM), 430 Universities Art Association of Canada (UAAC), 428 Urban change, 1–18 User queries, 177–186 Vakgroep Computer & Letteren, Utrecht University, 12(2): vii–viii, 171–172 Vasari, Giorgio, 103 Veillier, Lawrence, 109–110 Venus Medici, 74 Victoria and Albert Museum, London, 54 VIS-ART, 427 Visual Artists and Galleries Association, Inc. (VAGA), 365, 378 Visual Artists Rights Act of 1990, 411–412 Visual resource collections SEE Photographic archives and collections Visual Resources, 438 Visual Resources Association (VRA), 262, 263, 292, 293, 294, 295, 307, 327, 387, 393–394, 422 Vologda, Russia, 135–156 Waal, Henri van de, 169 Walker, Sandra, 393

Selected index of terms names, and concepts

192

Walsh, Peter, 236, 237, 242, 243, 244, 245, 248 Warhol, Andy, 246 Warro, Edward, 438 Weil, Stephen, 236, 237, 238, 242, 243–244, 252 “White Paper” (Intellectual Property and the National Information Infrastructure), 238, 239, 308– 309, 324, 325, 328, 384, 401–408, 436, 441 Wiant, Sarah K., 439, 440 Winckelmann, Johann Joachim, 103–106 Wired (Magazine), 407 Witt Library, Courtauld Institute of Art, University of London, 12(2): vii–viii, 177–197 Wölfflin, Heinrich, 74, 79, 314 Words and images SEE Text and image World Intellectual Property Organization (WIPO), 324 World Wide Web, 175, 201, 202, 264–265, 286, 294, 302, 308, 325, 329, 331, 333, 354, 383, 385, 387, 388, 401, 409 SEE ALSO Internet Wright, Frank Lloyd, 223–227 Yaroslavl, Russia, 135, 218 Zatitskii (Builder), 142 Zola, Émile, 2 Zolotoi, Joseph, 141–142

NOTES FOR CONTRIBUTORS

Typescripts Papers should be sent to the Editor, Helene E.Roberts, or the Technology Editor, Christine L.Sundt. Papers submitted should be consistent with the intellectual guidelines set forth in the “Editorial” published in this journal, Vol. III, No. 2, pp. vii–xv. For questions regarding style or format, consult the current edition of the Chicago Manual of Style. Contributors are encouraged to remember that most occupations and activities are shared by both sexes and should reflect this situation in their writing by avoiding the exclusive use of the masculine gender pronoun when members of both sexes may be involved. Copy to be submitted, in duplicate, should be typed double-space on one side of good quality paper, with wide margins (3cm) all around. Copy may also be submitted in electronic format, on either or standard density floppy disks, in an IBM PC readable format, under any of the following wordprocessing programs: DCA/RFT, Displaywrite, Executive Writer, Leading Edge, Microsoft Word, Multimate, Officewriter, PC-Write, PFS:Write, PFS:Professional, Q&A Write, Samna, Spellbinder, WordPerfect (all releases), WordStar, WordStar 2000, and XyWrite. Do not send data converted to ASCII files. Articles submitted on disk should also be accompanied by at lease one hardcopy version. Submission of a paper to this journal will be taken to imply that it is not being considered elsewhere for publication and that if accepted for publication, it will not be published elsewhere in the same form, in any language, without the consent of the editor or publisher. It is a condition of acceptance by the editor of a transcript for publication that the publishers automatically acquire the copyright in the typescript throughout the world. Reviews Reviews of books, exhibitions or other material should be from 800 to 1000 words unless otherwise specified. The review heading should include title, author, place of publication, publisher, date, number of pages and illustrations, ISBN number, and price. Citations to the book being reviewed may be indicated by page numbers in parentheses in the text of the review. References and Notes Consult the current edition of the Chicago Manual of Style for information of formats for notes, references, and bibliographies. References and other notes should be indicated in

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the text by consecutive superior arabic numbers. The full list of footnotes should be collected and printed at the end of the paper as “Notes” in numerical order. Illustrations Illustrations should be presented as “camera-ready copy,” numbered with consecutive arabic numbers (Figure 1, Figure 2, etc.), have descriptive captions, and be mentioned in sequential order in the text. Keep illustrations separate from the text, but indicate clearly their approximate position within the text. Permission to reproduce illustrations and any other material which has been previously published must be obtained by the author. Preparation: Line drawings should be prepared in black (India) ink on white paper or tracing cloth, with all necessary lettering completed. Photographs must be good original prints of maximum contrast. Color prints or transparencies should be submitted only if the color is necessary to the understanding of the discussion. Captions: A list of captions relating to the illustrations, with relevant numbers (Figure 1, Figure 2, etc.)/should be set out on a separate sheet of paper attached to the typescript. The permission statement provided by the copywight holder should be included at the end of each caption. Proofs The full postal address of the person responsible for reading proofs should be included with the typescript; this will ensure that proofs are not delayed in the post. Authors will receive page proofs (with illustrations) by airmail for corrections. The corrected proofs and the manuscript must be returned to the editor in approximately 48 hours of receipt. At this stage, the author should make only factual or typographical corrections. Proofreading guidelines will accompany the proofs. Authors’ alterations in excess of 10% of the original composition cost will be billed to authors. As a courtesy, 25 offprints will be sent to authors of articles following publication. Additional reprints may be ordered when proofs are returned.

INSTRUCTIONS FOR AUTHORS

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