Reference_H-Fair_Use_Final_Version.pdf

LO Policy for Fair Use of Copyrighted Materials

Submitted by:

Dee Clarkin, Head, Collection Access Section, Public Services Division Judith Eannarino, Head, Selection Unit, Collection Development and Acquisitions Section, Technical Services Division Loren Frant, Deputy Chief, Public Services Division Christie Moffatt, Manager, Digital Manuscripts Program, History of Medicine Division

Submitted on March 14, 2013 Revised on April 1, 2013, April 10, 2013, September 26, 2013, March 4, 2014

Reviewed:

Martha Fishel_________________________________________________________ 4/25/14 Working Group Sponsor, Chief, Public Services Division Date

Jerry Sheehan____________________________________________________________4/25/14 Assistant Director for Policy Development Date

Approved:

Digital Program Oversight Group (DPOG) Members Date

Joyce E. Backus_________________________________________________ 5/1/14 Associate Director, Library Operations Date

Contents Introduction

Summary of LO’s Proposed Policy

Standard Copyright Statement and Registration of Objections

Background Research and Data Collection

Structure of this Document

Definitions

Principle 1: Supporting teaching and learning with access to library materials via digital technologies . 6

Summary of Findings from LO Interviews

LO Position

Rationale

Principle 2: Using selections from collection materials to publicize a library’s activities, or to create physical and virtual exhibitions

Summary of Findings from LO Interviews

LO Position

i. Rationale

Limitations

Enhancements

Opportunities

Principle 3: Digitizing to preserve at-risk items

Summary of Findings from LO Interviews

LO Position

i. Rationale

Limitations

Enhancements

Opportunities

Principle 4: Creating digital collections of archival and special collections materials

Summary of Findings from LO Interviews

LO Position

i. Rationale

Limitations

Enhancements

Opportunities

Mass Digitization

Provide online access to HMD’s Historical Audiovisuals Collection (HAV)

Principle 5: Reproducing material for use by disabled students, faculty, staff, and other appropriate users

Summary of Findings from LO Interviews

LO Position

i. Rationale

Limitations

Enhancements

Opportunities

Principle 6: Maintaining the integrity of works deposited in institutional repositories

Summary of Findings from LO Interviews

LO Position

i. Rationale

Principle 7: Creating databases to facilitate nonconsumptive research uses (including search)

Summary of Findings from LO Interviews

LO Position

i. Rationale

Limitations

Enhancements

Opportunities

Principle 8: Collecting material posted on the World Wide Web and making it available

Summary of Findings from LO Interviews

LO Position

i. Rationale

Limitations

Enhancements

Opportunities

Appendix A: Charter

Group Description

Business Case

Group Membership

Scope and Deliverables

Meetings and Communication

Appendix B: Bibliography

Appendix C: Interviews

Staff Interviews

Senior Staff Interviews

Introduction This is a proposal for a Library Operations (LO) policy on fair use practices. It takes as its starting point the 2012 Association of Research Libraries (ARL) document “Code of Best Practices in Fair Use for

Academic and Research Libraries” (which has been vetted by librarians around the country, ARL legal counsel, and legal consultants), and supplements it with current and historic fair use practices across LO.

While the ARL Code describes eight scenarios which are of urgent interest to librarians and on which ARL authors and librarians have reached consensus, it does not address every possible application of current or future fair use rights within LO. Similarly, this policy is not intended to limit fair use applications in LO to these scenarios. The policy likely will evolve over time as LO continues its consideration of fair use practices.

Codifying fair use practices in LO will promote efficiencies in current projects, such as the digital programs, as well as future endeavors. Supporting the growth of digital programs reflects implementation of the Transforming Access to the Collection priority of the Library Operations Strategic

Plan 2010-2015.

This proposal addresses LO projects only; it does not extend to initiatives of other NLM program areas, such as the National Center for Biotechnology Information. In the future, this policy might also be evaluated for broader application within NLM.

Summary of LO’s Proposed Policy

LO adopts the fair use principles set forth in ARL’s Code of Best Practices in Fair Use for Academic and

Research Libraries (henceforth referred to as “the Code” or “the ARL Code”). By adoption, the Working

Group intends that LO will rely on the Code to inform and guide interpretation of Fair Use as it is applied to LO projects.

While LO agrees with the ARL Code as a starting point for the development of an LO-wide Fair Use policy , it is important to distinguish LO’s general environment from those of other ARL members, the majority of whom are academic libraries. These differences, particularly the absence of faculty and students, as well as a less-defined user base generally, may qualify how the Code is applied to LO practices. Therefore, while several of the principles lend themselves to immediate use in LO projects, others are adopted for potential future applicability (see table below). Hence, this policy is intended to apply both to current activities and to future practices in LO.

Adopting these principles neither limits nor obligates LO. It is likely that staff will be able to make persuasive arguments for fair use that go beyond this proposed policy and the ARL Code, which, “is not a comprehensive or exhaustive guide to all possible applications of fair use in and around libraries”1.

Conversely, it may be prudent not to apply fair use to specific projects even though the policy supports

1 Code of Best Practices in Fair Use for Academic and Research Libraries 3 https://wiki.nlm.nih.gov/confluence/display/HiringProcResrc/LO+Strategic+Plan+2010-2015

it. The Code states, “Exercising fair use is a right, not an obligation. There will always be situations in which those entitled to employ fair use may forgo use or obtain permission instead.”2

This proposed policy applies to LO projects regardless of format. According to the Code, “The fair use doctrine draws no blanket distinctions among different media or among different formats.”3 To be sure, new court rulings, technologies, and library practices will emerge. This changing landscape will require that LO periodically evaluate and update this policy. The working group also expects that this Policy will require further development through LO Division-level policies and procedures. To support these activities, we recommend the establishment of an LO Copyright working group to keep abreast of current developments and serve as an informal venue to evaluate ideas for fair use-based projects. We expect that this Copyright working group would eventually extend outside of LO to include representatives from other NLM divisions in order to share information and ensure consistent practice across NLM.

Principles LO’s Proposed Position

Principle 1: Supporting teaching and learning with access to library materials via digital technologies

Adopt for potential future applicability

Principle 2: Using selections from collection materials to publicize a library’s activities, or to create physical and virtual exhibitions

Adopt this fair use principle

Principle 3: Digitizing to preserve at-risk items Adopt this fair use principle

Principle 4: Creating digital collections of archival and special collections materials

Adopt this fair use principle

Principle 5: Reproducing material for use by disabled students, faculty, staff, and other appropriate users

Adopt this fair use principle

Principle 6: Maintaining the integrity of works deposited in institutional repositories

Adopt for potential future applicability

Principle 7: Creating databases to facilitate nonconsumptive research uses (including search)

Adopt this fair use principle

Principle 8: Collecting material posted on the World Wide Web and making it available

Adopt this fair use principle

Standard Copyright Statement and Registration of Objections

LO should consider creating a standard copyright statement that will accompany all Web resources. This model is already in place for NLM’s Privacy Policy. An implementation team (membership to be determined) should review the current NLM Copyright Information page to see if it is sufficient to serve as the standard, or if it should be edited or updated. The implementation team should also review other

LO copyright statements, such as HMD’s Patron Guide to Copyright and Historical Materials and

Historical Collections Copyright Information, BSD’s Copyright Information & Downloading National

Library of Medicine Data, and the MedlinePlus Copyright Information page. The implementation team also might find it helpful to review copyright notices from other areas of NLM, such as the PMC

Copyright Notice and the Bookshelf Copyright Notice.

2 Code of Best Practices in Fair Use for Academic and Research Libraries 9 3 Code of Best Practices in Fair Use for Academic and Research Libraries 12 http://www.nlm.nih.gov/privacy.html http://www.nlm.nih.gov/copyright.html http://www.nlm.nih.gov/hmd/copyright/ http://www.nlm.nih.gov/hmd/help/reference/copyright.html http://www.nlm.nih.gov/databases/download.html http://www.nlm.nih.gov/databases/download.html http://www.nlm.nih.gov/medlineplus/copyright.html http://www.ncbi.nlm.nih.gov/pmc/about/copyright/ http://www.ncbi.nlm.nih.gov/pmc/about/copyright/ http://www.ncbi.nlm.nih.gov/books/about/copyright/

In addition to considering a standard copyright statement, LO should consider a standard statement and form for copyright owners to register objections. The ARL Code states that “providing copyright owners with a simple tool for registering objections to use of copyrighted works” strengthens a library’s fair use claim4. The implementation team might also consider standardizing the initial responses to objections and standardizing the research and decision-making process for responding to objections.

Background Research and Data Collection

To create this proposed policy, and as part of the 2012 LO Digital Program strategic initiative, LO convened a short-term working group (see Appendix A: Charter).

This proposed policy incorporates findings from background research as well as from interviews with several LO staff members.

After carefully reading the Code, the working group viewed ARL’s introductory videos, including Code of

Best Practices in Fair Use: Rollout Webcast, Jan. 26, 2012, Introducing the Code of Best Practices in Fair

Use for Academic and Research Libraries, Part 1 and ARL Member Library Directors on Putting the Code to Work. The videos, in which the Code’s authors describe the research and vetting process and elaborate on each principle, enhanced the group’s familiarity with and understanding of the Code.

To understand current and historic fair use practices within LO and to explore opportunities that might result from a new fair use policy, the working group interviewed several LO staff members (listed in

Appendix C: Interviews). The working group invited all interviewees to view the rollout webcast in group viewing sessions, to orient them to the Code before their interviews.

Structure of this Document

This proposal is modeled after the structure of ARL’s Code, which is organized around eight principles of accepted and vetted library practices for fair use of copyrighted materials.

This document details LO’s proposed position on each principle – either adopt this fair use principle or adopt for potential future applicability A rationale is given for the position on each principle.

In addition, this document summarizes interview findings for each principle, and addresses ARL’s suggested limitations and enhancements, which qualify each adopted principle. According to the Code, the limitations “should be observed to assure that the case for fair use is strong”5. In addition, if applied, the enhancements can further strengthen the case for fair use6. The Code states that enhancements

“are laudable when they will not cause undue hardship but are not prerequisite to support a strong fair use rationale.”7 This document elaborates on ARL’s limitations and enhancements for each adopted principle by providing LO’s position, thus localizing the limitation or enhancement to current or future practice in LO.

4 Code of Best Practices in Fair Use for Academic and Research Libraries 16 5 Code of Best Practices in Fair Use for Academic and Research Libraries 11 6 Code of Best Practices in Fair Use for Academic and Research Libraries 11 7 Code of Best Practices in Fair Use for Academic and Research Libraries 11 http://www.youtube.com/watch?v=OUGh_631Nbs http://www.youtube.com/watch?v=OUGh_631Nbs http://www.youtube.com/watch?v=9jrAMR94mcQ http://www.youtube.com/watch?v=9jrAMR94mcQ http://www.arl.org/pp/ppcopyright/codefairuse/cobp-directorvideos.shtml http://www.arl.org/pp/ppcopyright/codefairuse/cobp-directorvideos.shtml

Finally, this document addresses potential opportunities – such as prospects for innovative projects, and increased efficiencies in existing projects – that may accrue to the Library’s benefit with the adoption of each principle.

Definitions

This section defines key terms used throughout this document.

Copyright: “Copyright is a form of protection provided by the laws of the United States (title 17, U. S.

Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works8. This protection “…arises automatically once the original work is fixed in a tangible medium of expression…. It does not require that a copyright notice be placed on the work, that the work be published, or that the work be deposited or registered with the Copyright

Office or any other body.9 It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope. Sections 107 through

122 of the 1976 Copyright Act establish limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability. One major limitation is the doctrine of “fair use,” which is given a statutory basis in section 107 of the 1976 Copyright Act. In other instances, the limitation takes the form of a “compulsory license” under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions”10.

Donor Agreement: a contract establishing conditions governing the transfer of title to documents and specifying any restrictions on access and use11

Fair Use: The right “to use copyrighted material without permission or payment under some circumstances, especially when the cultural or social benefits of the use are predominant”12

License: Copyright owners can grant permission to third parties to exercise one or more of the exclusive rights of copyright ownership. This is usually done through granting the third party a license to use the work.13

Risk Management: “A healthy approach to policy making that seeks to enable important projects to go forward despite inevitable uncertainty by identifying possible risks (legal and otherwise) and reducing them to acceptable levels”14

Section 108: A section of Title 17, U.S.C., which allows libraries to make copies of materials for preservation, private study, and interlibrary loan. Sect. 108(f) (4) states that libraries may also take

8 Copyright Basics 1 9 Frequently Asked Questions About Copyright 6 10 Copyright Basics 1 11 http://www2.archivists.org/glossary/terms/d/deed-of-gift 12 Code of Best Practices in Fair Use for Academic and Research Libraries 1 13 Hirtle, et al 130 14 Code of Best Practices in Fair Use for Academic and Research Libraries 10 advantage of Sect. 107 (Fair Use). The ARL Code of Best Practices contrasts Sect. 108 and Fair Use (Sect.

107), particularly regarding digitizing to preserve at-risk items15.

Technical Protection Measures (TPMs): TPMs “help ensure that material intended for a particular institutional audience is confined to that audience […] TPMs come in many varieties; for a library’s purposes, less obtrusive ones (password protection or watermarking) may be as or more appropriate than, for example, encryption.”16

Transformative use: The material is used “for a broadly beneficial purpose different from that of the original”17. “Uses that repurpose or recontextualize copyrighted content in order to present it to a new audience for a new purpose can qualify as well.”18

15 Code of Best Practices in Fair Use for Academic and Research Libraries 17 16 Code of Best Practices in Fair Use for Academic and Research Libraries 11 17 Code of Best Practices in Fair Use for Academic and Research Libraries 8 18 Code of Best Practices in Fair Use for Academic and Research Libraries 8

Principle 1: Supporting teaching and learning with access to library materials via digital technologies “Principle: It is fair use to make appropriately tailored course-related content available to enrolled students via digital networks.”19

Summary of Findings from LO Interviews

• The MEDLARS Management Section (MMS) develops online tutorials and online courses. MMS makes online tutorials freely available to the public on the NLM main Web site. In addition, MMS creates online courses and training materials for the NLM Training Center. Courses available from the NLM Training Center include PubMed for Trainers, PubMed for Librarians, TOXNET, and The

Librarian’s Guide to NCBI. The NLM Training Center requires students to register to take courses.

• MMS currently seeks permission when including journal articles or screen captures of Web sites in online courses, online tutorials and training materials. The Section plans to continue this practice.

• MMS also seeks permission to use screen captures of Web sites from other libraries to include in online tutorials, online courses and training materials. The Section plans to continue this practice in order to maintain open communication and good relationships with these libraries.

• The History of Medicine Division (HMD) Exhibition Program seeks permission for all contemporary and historic materials including copyrighted and out of copyright items used in exhibitions and in online resources developed by educators. The program sometimes includes older materials without obtaining permission if staff cannot determine the copyright or locate the copyright owner. They do this based on fair use and a risk assessment.

LO Position

Adopt for potential future applicability

Rationale

LO agrees with this principle. However, it has limited applicability to LO’s current operations. As described in the ARL Code, this principle addresses a traditional academic or research environment where enrolled students taught by faculty or instructors in courses covering a fixed period of time need access to course-related materials. With the exception of the NLM Training Center, NLM has neither enrolled students nor faculty; and educational materials developed by NLM are made available for free, online, to anyone, at any time.

Currently, MMS and HMD seek permission to include materials in their online tutorials or online resources developed for educators. Both program areas plan to continue this practice in order to foster good relationships with other libraries and with institutions that lend materials for NLM exhibitions.

Although MMS staff realizes that fair use allows the inclusion of screen captures from other library Web sites in online tutorials and support this fair use principle, they will continue to ask permission in order to be collegial and establish collaboration with other libraries.

19 Code of Best Practices in Fair Use for Academic and Research Libraries 14 http://nnlm.gov/ntc/

Likewise, the HMD Exhibition Program will continue to seek permission for all contemporary materials included in online resources developed for educators. The Exhibitions Program develops these modules following museum best practices, which differ from library best practices.

Principle 2: Using selections from collection materials to publicize a library’s activities, or to create physical and virtual exhibitions “Principle: It is fair use for a library to use appropriate selections from collection materials to increase public awareness and engagement with these collections and to promote new scholarship drawing on them.”20

Summary of Findings from LO Interviews

• NLM Exhibition Program staff adheres to museum best practices concerning copyright. All materials that are not in the public domain are cleared for permission before they are used in any exhibit, analog or digital. Most of the content included in an NLM exhibition is borrowed from outside individuals or institutions. Exhibition staff negotiates for the widest possible use of the loaned object, or collection item, from the copyright owner. If the permission is denied, the object is not used. The Exhibition Program exists within the larger community of museums and exhibitors and must continue to maintain excellent relations with individual donors and other collections in order to maintain NLM’s reputation as a reliable institution.

• NLM exhibition staff performs extensive research and due diligence, and may decide to use older material in an exhibition, with a disclaimer statement, if no rights holder can be found.

Contemporary items, however, are never used without permission.

• Other HMD staff follows a similar practice for Profiles in Science; permissions are sought for all items. However, if the copyright holder cannot be found, the item may be used if a risk assessment concludes that the item is low risk. In these cases, HMD staff posts a disclaimer statement.

• Exhibition staff has exercised fair use regarding exhibits and online collections in a limited number of ways. For example, NLM’s Harry Potter exhibit utilized quotations from J. K. Rowling’s works.

Educational materials created from the Harry Potter exhibition referred to Harry’s hair and eye color in order to explain genetics concepts.

• The largest example of a fair use online resource is the Images from the History of Medicine (IHM) collection. While the vast majority of images in IHM are in the public domain, permissions have not been sought for in-copyright images. A copyright statement accompanies each image. The copyright statements are “The National Library of Medicine believes this item to be in the public domain”, “Copyright status must be investigated before publishing or commercial use” and “This item may be under copyright protection. Please ask copyright owner for permission before publishing.” Additionally, NLM removed watermarks from all the images about five years ago when the collection was moved to a new digital platform. Legal counsel was consulted and LO and Library management agreed with the move to non-watermarked images. Images from IHM are routinely featured in the NLM e-Clips e-mail distribution as a way to highlight the collection.

• Interviews with the HMD Chief revealed future plans for publicizing HMD collection items and HMD staff activities. HMD is now publishing an active and comprehensive blog, “Circulating Now.” HMD also plans to continue working with OCPL to generate regular press releases featuring images from collection items. In planning future promotional activities, HMD would like to stay flexible and

20 Code of Best Practices in Fair Use for Academic and Research Libraries 16 consider fair use as an alternative to clearing permissions for using in copyright items in a blog post or press release.

LO Position

Adopt this fair use principle.

i. Rationale

While certain aspects of exhibit work in LO are conducive to a fair use analysis, there is strong consensus that the current museum best practices of seeking permissions for copyrighted items will continue in the

NLM Exhibition Program. Limited reliance on fair use, such as utilizing quotations or taking a photograph of an item and transforming its use into an exhibit, will continue when considered appropriate by exhibition staff. Other HMD program areas plan to rely on fair use more extensively in future efforts to publicize the Library's activities, or to create exhibitions. The fair use of NLM’s archival and special collections materials in online collections, which may be considered in some cases to be permanent, digital exhibits, is discussed and supported under Principle 4.

Limitations

ARL Code Limitations21 LO Position

“Full attribution, in a form satisfactory to scholars in the field, should be provided for each work included or excerpted in an exhibit, to the extent it can be determined with reasonable effort.”

Providing attribution for items is already a standard exhibit practice and will be continued.

“The amount of any particular work used and the format in which it is displayed should be appropriate to the illustrative purpose, i.e., tailored to support the goals of the exhibit or other illustrative project. The use of a work (other than a single image) in its entirety is likely to require a special level of justification. Similarly, larger-scale, high-resolution images should be displayed only when appropriate to the pedagogical or illustrative purpose of the exhibit.”

The amount of a particular work used and format is currently controlled by permissions. Exhibition staff may occasionally conduct risk analysis for older in-copyright material where copyright owners cannot be found; limited use of the item with a disclaimer statement may be deemed appropriate.

“This principle does not apply to the sale of souvenirs or other nonprint merchandise in connection with an exhibit.”

NLM does not sell souvenirs or other exhibit items.

Enhancements

ARL Code Enhancements22 LO Position

“For publications such as catalogs of exhibitions, the case for fair use will be stronger when the material is offered to the public without charge, or on a cost-recovery basis.”

NLM does not sell any exhibit items.

“Where library websites are concerned, fair use claims will be enhanced when libraries take

NLM already took the step to remove watermarking from IHM pages – regardless of

21 Code of Best Practices in Fair Use for Academic and Research Libraries 16 22 Code of Best Practices in Fair Use for Academic and Research Libraries 16-17 technological steps, reasonable in light of both the nature of the material and of institutional capabilities, to discourage downloading.”

copyright status. The decision to incorporate technological barriers in future publicity efforts can be determined on a case-by-case basis.

“Fair use claims will be further enhanced when libraries provide copyright owners a simple tool for registering objections to use of copyrighted works, such as an e-mail address associated with a full-time employee.”

LO will provide copyright holders with a means for reporting objections to electronic access to their materials, and respond promptly to such objections.

“Fair use arguments will be enhanced when curation is overt and visible rather than implicit – for instance, when commentary is being provided on the illustrative objects, whether by means of express written or spoken commentary by critics or curators, through selection and juxtaposition of works in a larger context, or both. For example, when exhibited works and excerpts are viewable online in isolation from the larger exhibit or display, it may be helpful to use graphical cues or navigation elements to ensure that visitors who find the item via a deep link can perceive and easily move to the larger exhibit of which the item is part.”

All NLM exhibits are highly curated and contain graphical cues and navigation elements to link them to the overall context of the exhibit.

Opportunities

Adoption of this fair use principle allows LO to expand publicity efforts. HMD publicity and promotional activities are in the planning stages, and other parts of LO may decide to expand current publicity efforts through NLM news announcements, press releases, and social media communications. LO staff may want to contribute fair used materials to NLM’s Facebook page or to feature the Library's products and services on an NLM YouTube channel, for example. A reliance on fair use to support these current and future efforts will greatly expand the possibilities for building public awareness of the Library's collections.

Principle 3: Digitizing to preserve at-risk items “Principle: It is fair use to make digital copies of collection items that are likely to deteriorate, or that exist only in difficult-to-access formats, for purposes of preservation, and to make those copies available as surrogates for fragile or otherwise inaccessible materials.”23

Summary of Findings from LO Interviews

• The Preservation and Collection Management Section (PCM) and HMD exercise the provisions of

Section 108 to make replacement copies of published collection materials for preservation purposes.

Section 108 constrains this activity in a number of ways. First, the materials must be currently deteriorating or exist in obsolete formats. Second, staff must determine whether a fairly priced unused copy is available for purchase. Third, only three copies may be made. Finally, the use of digital replacement copies is restricted to on-premises patrons.24

• These provisions have allowed NLM to preserve historical video and motion picture collections that currently are stored in obsolete formats (such as U-matic) and replace them with DVDs.

• An HMD conservation expert creates “surrogate” copies for exhibition or display in order to protect fragile originals, whether they are published or unpublished, or to display a cover and a contents page simultaneously. However, this is considered a normative conservation practice, rarely involves the reproduction of an entire work, and is not a digital copy.

• All LO interviewees expressed concern about the lack of a means of authenticating patrons, and how that might affect potential adoption of the fair use principle.

LO Position

Adopt this fair use principle.

i. Rationale

Preservation of NLM’s collections to support future scholarly work is a core function of LO. Adoption of this principle represents an important step which would allow the Library to take preservation action on at-risk collection materials before they begin to deteriorate, which will be of particular value to electronic and audiovisual formats. Waiting to preserve such items until they begin to deteriorate will put these items at great risk for loss.

Limitations

ARL Code Limitations25 LO Position

“Preservation copies should not be made when a fully equivalent digital copy is commercially available at a reasonable cost.”

This prohibition tracks current LO practice under Section 108 and would be continued if LO adopted this fair use principle.

“Libraries should not provide access to or circulate original and preservation copies simultaneously.”

LO would continue this restriction, which follows current LO practice under Section 108. For example, original historic U-matic films that have been copied onto DVD are stored at Iron

23 Code of Best Practices in Fair Use for Academic and Research Libraries 18 24 http://fairuse.stanford.edu/commentary_and_analysis/2003_11_hirtle.html 25 Code of Best Practices in Fair Use for Academic and Research Libraries 18

Mountain. Simultaneous access to the original and preservation copies would not be provided if LO adopted this fair use principle.

“Off-premises access to preservation copies circulated as substitutes for original copies should be limited to authenticated members of a library’s patron community, e.g., students, faculty, staff, affiliated scholars, and other accredited users.”

NLM does not have “authenticated members” as this term is understood by LO staff and management. LO currently restricts circulation of preservation DVDs to onsite patrons. However, if LO plans to make the Digital Repository the container for copyrighted preservation-level digital files, on-premise access restrictions might be built into the Digital Repository through future planning and development efforts.

“Full attribution, in a form satisfactory to scholars in the field, should be provided for all items made available online, to the extent it can be determined with reasonable effort.”

If NLM adopted the fair use principle, LO should consider developing a standard format for attribution to accompany online materials.

Enhancements

ARL Code Enhancements26 LO Position

“Fair use claims will be enhanced when libraries take technological steps to limit further redistribution of digital surrogates, e.g., by streaming audiovisual media, using appropriately lower-resolution versions, or using watermarks on textual materials and images.”

NLM’s Digital Repository only contains public domain material. Therefore, it was designed to facilitate downloading via each item’s “Resource Page.” If NLM ever considered adding copyrighted material under the fair use principle, it might be necessary to adopt technological limits to downloading such as those mentioned in the enhancement. This would require additional planning for and development of the Digital Repository.

“Fair use claims will be further enhanced when libraries provide copyright owners a simple tool for registering objections to use of digital surrogates, such as an e-mail address associated with a full-time employee.”

If NLM adopted the fair use principle, it might be necessary to integrate the standardized method for registering objections recommended earlier in this document within the Digital Repository.

Opportunities

Exercising fair use provisions instead of Section 108 for digital preservation would present a number of advantages to LO. First, exercising fair use would also allow LO to move beyond Section 108’s three-copy limitation. LO could create more than three copies, which is a best practice for digital preservation.

Second, fair use would allow LO to preserve fragile copyrighted monographs and serials, before they deteriorate. Third, applying this fair use principle would allow LO to plan for replacing DVD copies of audiovisuals and films, which might degrade or rely on obsolete players. Fourth, LO might apply this fair use principle to digitize films and videos for posting in the Digital Repository. A key concern regarding this principle is that NLM does not have an “authenticated patron community”27 for whom access to

26 Code of Best Practices in Fair Use for Academic and Research Libraries 18-19 27 Code of Best Practices in Fair Use for Academic and Research Libraries 18 preserved digital materials can be restricted. LO may want to consider offering only on-premise access to copyrighted content in the Digital Repository, as well as implementing technological barriers to reproduction of digitally preserved copyrighted content. Last, LO may look to other containers for digitally preserved materials in the future: adopting this fair use principle will provide a flexibility of approach that will support future preservation activities.

Principle 4: Creating digital collections of archival and special collections materials “Principle: It is fair use to create digital versions of a library’s special collections and archives and to make these versions electronically accessible in appropriate contexts.”28

Summary of Findings from LO Interviews

• The Images from the History of Medicine (IHM) database is an example where the principle of fair use has already been applied. Since April 2009, IHM has provided free access to high resolution, un-watermarked images from NLM’s Prints and Photographs collection to researchers and the public.

NLM takes the position that providing online access to these digitized collection materials is transformative as the collective value of these resources for scholarly research is significantly different from the original purpose of the individual items. The decision to provide this content online was vetted through NIH attorney Dick Lambert; to date, NLM has not received any complaints from rights holders.

• For digitization efforts where we are currently seeking permissions, such as for NLM’s Profiles in

Science, the response from copyright holders has been overwhelmingly positive.

• Staff stated that there are text and non-text collection materials they are unable to digitize and make available to researchers and the public online because of the substantial time investment required to request and obtain permissions.

• Adopting this principle will enable NLM to increase researcher and public access to archival and special collections materials. Currently, the majority of NLM’s special collections and archives are available to onsite researchers only.

LO Position

Adopt this fair use principle

i. Rationale

NLM users will benefit significantly from the digitization and online accessibility of NLM’s archival and special collections materials, many of which – despite the many digitization efforts within the library – are currently unavailable to researchers off-site. Providing access to these rare and valuable resources in the online environment can be highly transformative, especially when presented as a curated collection of material around a specific creator, theme, era, or topic. NLM has successfully relied on fair use for digitization and online access to the library’s Prints and Photographs collection through IHM, and this practice should extend to other archival and special collections materials.

NLM will continue to abide by any donor restrictions placed on donated materials. To maintain good donor relations, NLM may choose on a case-by-case basis to continue the practice of seeking permissions to create and make electronically available digital collections of archival and special collections materials.

Providing electronic access to digitized special collections materials is further supported in the OCLC position paper, the "Well-intentioned practice for putting digitized collections of unpublished materials

28 Code of Best Practices in Fair Use for Academic and Research Libraries 20 online," which has a long list of supporters, both organizational and individual, including the Society of

American Archivists (SAA), and the Rare Books and Manuscripts Section (RBMS) of the Association of

College and Research Libraries (ACRL), a division of the American Library Association (ALA). See http://www.oclc.org/research/activities/rights/support.html for the full list of supporters. The paper offers suggested language for an institutional-level disclaimer for organizations relying on a fair use justification for digitization and access.

Limitations

ARL Code Limitations29 LO Position

“Providing access to published works that are available in unused copies on the commercial market at reasonable prices should be undertaken only with careful consideration, if at all. To the extent that the copy of such a work in a particular collection is unique (e.g., contains marginalia or other unique markings or characteristics), access to unique aspects of the copy will be supportable under fair use. The presence of non-unique copies in a special collection can be indicated by descriptive entries without implicating copyright.”

LO will not provide access to published works that are commercially available, unless there are unique characteristics about the NLM copy to justify digitization.

“Where digitized special collections are posted online, reasonable steps should be taken to limit access to material likely to contain damaging or sensitive private information.”

LO will follow reasonable steps to protect access to damaging or sensitive private information when providing access to digitized special collections material, adhering to established HMD policies including “Access to Health Information of Individuals” Adopted February 17, 2004; revised May 10, 2004, and the Modern Manuscripts Processing Manual’s “Method of Handling Sensitive Documents” chart, June 15, 2000.

“Full attribution, in a form satisfactory to scholars in the field, should be provided for all special collection items made available online, to the extent it is reasonably possible to do so.”

LO will fully identify the creators of content digitized for online access whenever possible.

Enhancements

ARL Code Enhancements30 LO Position

“The fair use case will be even stronger where items to be digitized consist largely of works, such as personal photographs, correspondence, or ephemera, whose owners are not exploiting the material commercially and likely could not be located to seek permission for new uses.”

LO will not digitize materials when we know the owners are exploiting the material commercially and when the owners are accessible to request permission for new uses.

“Libraries should consider taking technological steps, reasonable in light of both the nature of the

LO will determine the use of technological steps to prevent downloading of digital files by users on a

29 Code of Best Practices in Fair Use for Academic and Research Libraries 20 30 Code of Best Practices in Fair Use for Academic and Research Libraries 20-21 http://www.oclc.org/research/activities/rights/support.html material and of institutional capabilities, to prevent downloading of digital files by users, or else to limit the quality of files to what is appropriate to the use.”

case-by-case basis. LO already provides unrestricted high resolution digital files to researchers via IHM.

“Libraries should also provide copyright owners with a simple tool for registering objections to online use, and respond to such objections promptly.”

LO will provide copyright holders with a means for reporting objections to electronic access to their materials, and respond promptly to such objections.

“Subject to the considerations outlined above, a special collection should be digitized in its entirety, and presented as a cohesive collection whenever possible.”

LO will support the digitization of collections in their entirety, and the presentation of those materials as a cohesive collection. The decision to do so will be determined on a case-by-case basis.

“Adding criticism, commentary, rich metadata, and other additional value and context to the collection will strengthen the fair use case.”

LO will continue to support efforts to provide description and contextual information to digitized special collections material.

“The fair use case will be stronger when the availability of the material is appropriately publicized to scholars in the field and other persons likely to be especially interested.”

LO will continue to publicize the availability of digitized special collections to researchers and the public through relevant NLM communications channels.

Opportunities

Mass Digitization

HMD can begin to digitize special collections materials on a larger scale, i.e., large scale or mass digitization of collections. Collection deeds of gift address the rights for donor-created content, and will guide digitization efforts. In most NLM deeds of gift, the donor’s rights are transferred to the public domain. The donor is rarely the sole rights holder for content in the collection, however, and a reliance on fair use will allow for the digitization of content in the collection that is created by others who are often difficult, if not impossible, to identify and locate for permissions. The availability of such collections online will significantly increase the research value of the collection, and serve to facilitate novel forms of research including queries across large quantities of data (see Principle 7).

Examples of major institutions that are taking advantage of opportunities for mass digitization of special collections materials include the Smithsonian Institution’s Archives of American Art and the University of

North Carolina at Chapel Hill.

Provide online access to HMD’s Historical Audiovisuals Collection (HAV)

With a reliance on fair use, HMD can expand efforts to digitize and make available online the Library’s historical film collection. Providing online access to this content will significantly increase the research potential of the collection as films will be presented alongside other related content, including other digitized films, manuscripts, and photographs. The use of the content will vary widely from the original purposes of each individual film.

http://www.aaa.si.edu/collections/online http://www.lib.unc.edu/mss/archivalmassdigitization/index.html http://www.lib.unc.edu/mss/archivalmassdigitization/index.html

Principle 5: Reproducing material for use by disabled students, faculty, staff, and other appropriate users “Principle: When fully accessible copies are not readily available from commercial sources, it is fair use for a library to (1) reproduce materials in its collection in accessible formats for the disabled upon request, and (2) retain those reproductions for use in meeting subsequent requests from qualified patrons.”31

Summary of Findings from LO Interviews

• NLM provides assistive devices and technologies to on-site patrons in the main and HMD reading rooms. In the main reading room, NLM provides a computer that will reproduce in a large font, a computer that has screen reading software installed, and a Kurzweil machine that includes a scanner.

Photocopy technicians assist disabled patrons with copies on request and reference librarians assist with the basic features of the screen reading software and the Kurzweil machine. In the HMD reading room, NLM provides an electronic magnifier device made by Humanware. Patrons can request materials from the collection and then use the appropriate device to avail themselves of the content on-site. In addition, hearing impaired patrons can request assistance from staff familiar with sign language. NLM’s accessibility services are described on the Accessibility at the National

Library of Medicine page on the NLM Web site.

• HMD provides photocopy services and can make enlarged photocopies for patrons. HMD does not retain these photocopies. The Working Group does not recommend that LO retain copies of items made for patrons with disabilities.

• HMD has a procedure for providing fully accessible versions of historical materials that have been digitized and made available online. See the March 2011 procedure: Section 508 Accommodations

Workflow for HMD Digitized Historical Materials. When historical materials are digitized by NLM and posted online, they are accompanied, when possible, by a full text transcript generated by optical character recognition (OCR) technology. Many of the HMD digitized resources are not suited to current OCR or speech-to-text technologies. If a patron requests a fully accessible version of a digitized item, HMD staff evaluates the request and either corrects the full-text transcript that was generated with OCR or manually creates a new full-text transcript. In the case of these materials, HMD has already made the decision to digitize and post them online, so a fair use or copyright determination has already been made. Providing a fully accessible version is not then a distinct fair use decision. The March 2011 procedure does not apply to non-digitized material. The procedure states, “Requests for transcripts of non-digitized materials do not fall under the accommodation. They should be handled according to HMD’s established customer service policies.”

• When NLM sends out an item via Interlibrary Loan, it is up to the receiving library to mediate and manage access to that item by its disabled patron.

LO Position

Adopt this fair use principle.

31 Code of Best Practices in Fair Use for Academic and Research Libraries 22 http://www.nlm.nih.gov/services/onsite/ada.html http://www.nlm.nih.gov/services/onsite/ada.html https://wiki.nlm.nih.gov/confluence/download/attachments/26742288/Section_508_Accommodations_Workflow.pdf?version=1&modificationDate=1303227148000 https://wiki.nlm.nih.gov/confluence/download/attachments/26742288/Section_508_Accommodations_Workflow.pdf?version=1&modificationDate=1303227148000

i. Rationale

LO agrees with this principle to allow for the reproduction of materials in the NLM collection in accessible formats for disabled patrons, in recognition that access to the collection by disabled patrons should be equal to those patrons without disabilities.

LO understands that Section 121 of the Copyright Act (also known as the Chafee amendment) provides that "It is not an infringement of copyright for an authorized entity to reproduce or to distribute copies or phonorecords of a previously published, nondramatic literary work if such copies or phonorecords are reproduced or distributed in specialized formats exclusively for use by the blind or other persons with disabilities." (The meaning of "authorized entity" has been a source of debate among American publishers and advocates for disability rights.)32LO also considers recent developments in U.S. policy regarding the accessibility of published works to users with disabilities. In April 2012 President Obama expressed the United States’ commitment to [an international] treaty that “ensures that copyright is not a barrier to equal access to information, culture, and education for visually impaired persons and persons with print disabilities.” On October 2, 2013 the United States signed such a treaty, the World

Intellectual Property Organization Marrakesh Treaty to Facilitate Access to Published Works for Persons

Who Are Blind, Visually Impaired or Otherwise Print Disabled33, which is intended to increase access to print materials for the world's estimated 340 million blind, visually impaired and other persons with print disabilities. Finally, LO may want to consider coordinating policy and procedures for responding to requests from disabled patrons with the Library of Congress and their National Library Service at http://www.loc.gov/nls/eligible.html.

Limitations

ARL Code Limitations34 LO Position

Libraries should provide patrons with information…