Module 12 Prompts | Copyright & Other Legal Issues

My partner in crime for this lawfully important discussion is ravynchloe.  She will be adding some additional questions/thoughts to what I have here in a separate post.

The end of the analog-only era has created a lot of grey area and, at times, publishers and corporate interests have claimed much digital territory that, based on what libraries had rights to do in the analog realm, should belong to libraries.

This week’s readings had me thinking about the power and importance of big institutions like HathiTrust and DPLA that can afford to challenge copyright and licensing laws. In many ways, these organizations provide a critical voice for libraries as the legal boundaries shift around who can scan, copy, distribute, search and view works in the digital environment. The DPLA article hints at this part of their mission and the article about the Authors’ Guild vs. HathiTrust court case really makes explicit how helpful, even essential, these big, well-funded institutions are in fighting for the rights of digital libraries.

Question #1: How important are institutions like DPLA and HathiTrust in the struggle to transfer the benefits of fair use to digital libraries?

Related to that, here’s a quote from the last paragraph of the Hathi case article:

Too often, users with high, good, socially- and legally-valued purposes make the choice not to engage in a use because it is “too risky” to rely on fair use. Every time that happens, fair use shrinks and becomes more brittle.

Question #2: Do you know of any specific examples where an institution or project you’ve been involved with (or know about) might have opted not to engage in a digital use because it was too risky?  What calculations were made to determine the risk was too high?

The DPLA Legal Issues Wiki ( includes a list of “Questions for
Discussion” that are pretty broad but perhaps we could muse about the answers to these two that I thought were especially thought provoking:

Question #3: Within the bounds of existing law, what can libraries do to digitize their collections and make at least some parts of in-copyright works publicly accessible?

Question #4: Should the DPLA even bother adhering to copyright law?

I am looking forward to this discussion.

[Brian’s pet project alert!

As a musician who frequently draws on archival recordings of traditional folk music I have often been frustrated by the barriers often put up around artifacts that I feel like should be our common cultural heritage. I’ve only just scratched the surface in my own understanding of what is required to get permission to publish a field recording of a singer recorded in, say 1924, by a folk song collector.  This is something I’d also love to discuss if anyone else is interested.  I’m actually working on getting appropriate permission to make my Assignment 2 collection, which is of LOC-held field recordings made in 1924, public.  I think all I need is permission from a family member of the singer in this case….]


3 responses to “Module 12 Prompts | Copyright & Other Legal Issues

  1. Brian, thank you for sharing these thoughts. I am taking Information Policy & Ethics, and our coursework has focused on copyright and how the law has skewed against individuals, in part due to large organizations (like the RIAA or MPAA) bringing massive lawsuits against individuals with little means. The definition of fair use is interpreted rather narrowly these days, and so to answer what I see as your most important question: It is *imperative* for organizations like DPLA and HathiTrust to fight for a better definition of fair use. DPLA and HathiTrust are still libraries, so they’re not exactly rolling in dough, but they have important backers with means — like the major research university we all attend! — who can make a difference.

    There is a movement among corporate interests in this country to, as Dan Cohen says, “lock up content for extreme time horizons, and make it hard for libraries to store and share digital content.” Legal reasoning has been on that side for awhile (you can read John Tehranian’s somewhat-useful, somewhat-boring “Infringment Nation” for more info on that struggle) but the work of HathiTrust and DPLA is making strikes back toward what I see as commonsense interpretations. I’m not a “information wants to be free, don’t pay for anything!” type but I also think it’s appalling that it’s starting to be impossible to find folk songs from the 1920s because someone’s great-grandson doesn’t want them out there.

  2. Thanks for your great comments and views Stevie. Just to be clear about the folk song case, I’m not very upset about content of that nature being locked up because a great-grandson doesn’t out in the public. In fact, if that is the only barrier, and there IS a known great-grandson to contact, that actually seems like an ideal situation. The problem is when there is no known person to contact (as in orphan works) or when things are inaccessible not because of family objections but because groups like RIAA or MPAA are using the digital shift to claim more than their fair share of turf (=profits).

    I’m working on this amazing project to bring to light these 1924 recordings of a Minnesotan man singing 33 old folk songs. They were buried in a rather un-catalogued, un-identified state at the LOC. If you’re interested, here’s the (quite encouraging, I thought) response I got from my contact there when I asked about producing a CD and/or making them available online:

    “As for publishing the sound recordings on a CD, the Library retains no proprietary rights regarding the use of recordings in its collections. All performance rights remain with the performers or their estates. Are you aware of any living relatives?

    The digital library idea is interesting and might be something we could pursue … though again, AFC will not be able to put these online in the near future. Other than being sure there aren’t any permissions issues to deal with the Dean family, there wouldn’t be anything to prevent you from creating and hosting an online presentation of these materials.”

    Lucky for me, I do have contact info for two of the singer’s distant relatives (he had no children so they are descendants of his siblings). I’m waiting to get my LIS879 assignment two done so I can show it to them and ask for permission to make it public!

    [AFC= American Folklife Center at the Library of Congress]

  3. I recently came across an article on NPR that talks about the Child ballads, 17th- and 18th-century Scottish and English folk songs collected by and named after Harvard professor Francis James Child.

    The article does not discuss fair use or copyright, but the value of these elements is apparent in the telling of how these songs have been loved and performed through the years by folk singers, rock bands and today’s contemporary songwriters.

    “Child published the songs he collected in a 10-volume opus called The English and Scottish Popular Ballads…‘What he wanted to do was create a critical edition of these texts that could be studied by scholars, and it was for scholars, initially…But in time, the books reached a wider audience and became a giant sourcebook for singers and musicians…’” (

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