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Draft
Letter in support of overturning the
Sonny Bono Copyright Term Extension Act
last edit:
4/2/2002 3:21pm est
by Robert A. Baron
The following paragraphs describe the consequences (often
unintended) of the Sonny Bono Copyright Term Extension Act (CTEA) on the
activities of certain scholarly communities -- most notably on art historians and
those that depend upon collections of images for research, teaching, and
low-budget academic publishing. The aim of this tract is to offer examples,
evidence and a conceptual framework that would support CTEA being overturned --
consistent with the goal of Eldred v. Ashcroft, currently before the Supreme Court.
As an independent art-historian/scholar concerned about the diminishing availability of images
for use in teaching and scholarship
I can report that the Copyright Term Extension Act poses a real and viable threat to the accessibility
and assembly of image
resources needed by education, research and academic publishing, with
far-reaching and varied consequences. Under the Copyright Term Extension Act, image resources that had been scheduled to enter the public domain are now held back by twenty years. Most of these images are pictures of works of art and architecture that are
currently in the public domain, while others depict works which would have been
scheduled to enter the public domain. Many of these images are useful, even necessary for teaching, research and for scholarly publishing, but have no significant market value because
practitioners of the for-profit exploitation of images
have newer
color photographs with which to satisfy the current commercial demand for exquisite art reproductions.
Accordingly, there is little or no market for the hundreds of thousands of fine quality photographs perfectly suitable for academic purposes. They remain
commercially unavailable because the demand for them individually is not sufficient to
meet the threshold required for profitability. It may seem paradoxical
that while they have little or no commercial value they may yet be crucial to
the teaching of art history. [See submission by Christine L. Sundt.]
The market for reproductive photographs of this sort is highly stratified, with commercial, advertising and trade book needs demanding the highest quality and most expensive images. Specialized vendors
serve a second tier among image resource clients, helping feed lower quality but
still relatively new images to non-profit educational users. But, vendors, by themselves can
adequately serve only a fraction of academic needs and therefore
must limit their offerings to those reproductions most frequently requested or
to those they believe will be in sufficiently high demand to warrant the expense
of development. Students, teachers, scholars and the general public form a third market tier. They tend to acquire images or views not otherwise obtainable though vendors, and do so, when permitted, by presuming that their copying qualifies under fair use doctrine
and by searching public domain resources or securing them by other means.
For the purposes of this essay we may note that each of the
strata cited above may be divided into two or more classifications, by-and-large
reflecting the technical quality of their reproduction. These manifest mostly in terms of
resolution or size. For the present purposes, we may identify one group as those
digital images (and their analog cognates) that are released by copyright owners
on the Internet (or via other media) under the presumption that no significant
commercial use can come of them. These include small images found on museum
websites, for instance, and so-called "thumbnail" images used for minimal
identification purposes. Such images may be useful for personal purposes, but
they have little or no classroom functionality. Among other problems, at the
resolutions provided, they contain insufficient information to project well in
classroom settings and offer insufficient detail or reduced color palettes that
compromise their authority when exhibited in class. No matter what the source,
adequate classroom and
research use requires the option of utilizing high quality reproductions.
Classroom versions taken under "fair
use" that compromise these elements for the sake of diminishing their commercial value,
that is, by reducing their resolution or scale, may not suffice for their
intended purpose. Clearly, education requires the freedom to create
its media to its own standards, and for that reason needs the kind of free unencumbered
uncompromised access
permitted by free access to works residing in the public domain. [note]
Unfortunately, academic image repositories (art department "slide rooms") are finding
that the process of building and maintaining their collections
is coming under continually increasing inhibiting pressure, as university counsels refuse to
allow image curators to build collections by exercising any form of statutory fair use.
[note]
One frequent consequence of the confluence of these two opposing forces is that
many image collections composed of analog (slide-based) images are beginning to atrophy from age-based attrition and
are paralyzed from lack of acquisition, making the departments they serve unable to respond adequately to both
traditional image requirements and to new trends in teaching. Digital collections are similarly stymied, but are
being brought under even increased pressure; for, while the traditional practice of
"fair use copystand photography" is tolerated in many institutions, with
increasing frequency counsel prohibit the
production of digital media from current collections. [note]
Beginning in the 1920s art books containing suitable images for today's second and third-tier needs experienced a renaissance in development.
In these volumes new high quality photographs appeared, and older high quality images were republished. Publishers such as Phaidon and photographers like Max Hirmer and his predecessors began to populate these volumes with images
that were copied the world over for the teaching of art history. Image supply
houses like Alinari made significant contributions using image collections that
were begun in the mid nineteenth century. These works
would soon have been set to enter the public domain in order newly to satisfy the needs of many academics and students.
However, because of CTEA they are being held in captivity, as it were -- held in limbo, their quality
and utility notwithstanding, because they are not available through licensing programs and because any effort to license individual images
on a case-by-case basis is at best prohibitively expensive or just
administratively impossible. Thus when they are made available,
the sum of fees charged plus administrative costs cannot match typical academic
prices. Yet, educators, scholars and students still need easy access to these materials.
[note]
As time passes, the opportunity to build relevant public domain resources will be compromised by educational institutions having to resign themselves to using inadequate site-licensed, potentially ephemeral,
pedagogically compromised, highly restricted resources that
over the long term will come to them at a high price. Site licensed image materials only fulfill a small fraction of actual needs and at best respond slowly to classroom requirements. They tend to reflect what the licensor would prefer teachers use for teaching and not what teachers really do need. They are not preferable for many other reasons, including their framework of restrictive licensing provisions, and for the way they restrict use to a narrow academic community -- meaning that they are not available in a meaningful way to the general public and not available to the large numbers of scholars and
part-time teachers who work outside of the educational establishment and maintain no permanent academic affiliation.
If work on building open unrestricted public domain image archives for academic teaching and other purposes does not begin soon, the opportunity will fade as the only other
online alternative -- site licensing -- becomes more entrenched.
Were public domain image resources easily available, the upward pressure on the
cost of scholarly research, teaching and scholarly publishing could be relieved
somewhat. The cost of image rights is now so high -- even for copyrighted images of public domain works -- that publishers are cutting the size of their catalogues and tending to favor works that they believe are most likely to be profitable. In the traditional business model of the scholarly press, profitability is not a prerequisite to academic publishing. Publishing profitable works is one ingredient of the mix needed to balance the losses derived from the production of important but unprofitable works. The consequences of this new amalgam are far-ranging. Unable to find publishers for their scholarly research, faculty members are having increased difficulty meeting requirements for tenure and promotion.
Returning the pre-CTEA schedule of entry to the public domain will help create a viable market alternative to the de facto monopoly in
sales and licensing of reproductions of individual works of art currently held by owners, vendors and their agents.
To this end, several years ago I joined with a group of like-minded people expecting to mine (among other resources) the ever-increasing numbers of quality photographs already in and expected soon to enter the public domain. We called this project the
Academic Image Cooperative. I held the position of project manager.
One of our key missions was to collect public domain images and donated images of public domain objects.
These were to be published on the Internet to be used freely by the public
and by the artistic, educational and scholarly communities without either cost or license
restriction. One principle aim of the project, of course, was to come to the aid of art history image collections currently under virtual siege, so that they could acquire usable resources without having to take copyrighted materials under the claim of "Fair Use." As noted above, for institutions, Fair Use as a collection-building tactic is becoming ever more unavailable under the overly-cautious scrutiny of university counsels whose goal of protecting their institutions from
hypothetically remote liabilities weighs significantly against the avowed educational mission of those institutions.
The unavailability of fair use as a publishing defense affects the content of books. Because cautious publishers of art books, routinely refuse to claim fair use in their enterprises, substitution of public domain images whenever feasible
are expected to prove less threatening to academic and commercial publishers, alike. At the same time, access to public domain alternatives might
deflate the ambitions of the few unscrupulous image vendors who take unfair advantage of a scholar's need to publish
his or her works to retain their academic positions. Academics are frequently required personally to bear the cost of image acquisition and rights. We have been told of cases where the cost of securing rights to
individual images in a second edition of a popular book has risen ten-fold
-- a not unexpected consequence of a monopoly interest responding to high
demand. It is understandable why authors of popular art history books frequently publish at a loss -- even when
their books are popular and when they receive royalties.
It is clear that were "fair use" to be widely accepted as a means
of acquiring images for teaching and for collection development, a vital public
domain would still be necessary to insure that artists, teachers and scholars
have full rights to use, publish, manipulate and otherwise mine the potential
suggested by these works. In essence, for this constituency "fair use" just
functions as a stop-gap measure until a work as matured into the public domain.
Classroom teaching is a process that traditionally is related to
scholarly publishing and to research. An intimate relationship exists between
what is published, the images used in publications and what appears in the
classroom. While the methodology is traditional, the materials used will include
a full range of published resources from classics of the discipline to the
current literature. Eileen Fry, Visual Resources Curator at Indiana University
put it this way:
in a visually-based discipline, like art
history, scholarly ideas can only be communicated and TAUGHT, if the images from
the scholarly publication can be shared with the students. If the specific
images used by scholars cannot be shared as a part of the publication of the
work, then their scholarship cannot be used, built on, and discussed. [note]
At the Academic Image Cooperative, our public domain resources in time would have included the large collections of original object photographs now held by individuals, sympathetic repositories, archives and libraries, and, as well, the many quality images found in scholarly art books
and journal articles that rose to the public domain when their terms in
copyright limbo expired.
Obviously, a project of this dimension can only be developed into a useful resource over a long period. Luckily there were many who gladly
were ready to volunteer their time, their effort and their expertise to grow and tend this useful cooperative resource. The success of image resources such as we proposed will be a direct function of the critical mass of images
we managed to collect
and their quality when combined with a successful acquisition strategy. Images of the most crucially needed works must begin
to be accessioned now to be useful. Accessioning
of course must be an ongoing process. If works from the pre-CTEA public domain
were available now, one should expect that in 5 to 10 years this digital repository would have collected enough images
from enough areas to become a universally useful tool servicing both pedagogic and research needs.
Unfortunately, the Copyright Term Extension Act added 20 years to the time one would have to wait until some of the best and most useful resources could be accessioned, and in that time, one expects that other resources -- namely, licensed resources, that is sources distributed in a highly undemocratic and preferential manner -- would have put together the necessary critical mass of images to
compromise the feasibility of a new competing public domain repository.
But
with images offered at a much higher price than they would have cost if
taken
from the public domain, such licensed resources would have curtailed the
evolving domain of scholarship and chilled the output of many potential creative scholars. Success in this endeavor depends in no small degree upon the opportunity of the moment. Now is the time to grab opportunity by the forelock.
Many of the works that would have appeared in our public domain repository are already firmly
entrenched in the "commons of the mind." As "key monuments" of civilization and as universal touchstones that help us mark the passage and meaning of our world, they should also be available whenever needed for any purpose a user might desire and not
be subject to restrictive, preferential,
mutable and ephemeral license agreements. This family of human creativity
-- this intellectual commons should be owned by none other than those who who
need it.
Interestingly, release of those images that would have been entering the public domain will not seriously compete with the commerce in supplying images for many commercial publications. Today's
advanced image technology makes the black and white and older color images of works of art
as they appeared in the 1930s and 1940s commercially unacceptable for many for-profit uses.
Indeed, as Christine Sundt has noted, these older images
are vital art historical documents, sometimes even more important than newer
images. Thus, it is
the domain of education and scholarship in which their value lies. Indeed, while
scholars joyfully pick through the detritus of the printing and graphics
industries, these are the very materials that the Copyright Term Extension Act
has frequently placed beyond our reach -- the unintended consequence of
copyright owners trying to preserve the economic equity of their intellectual
property.
The temporary grant of copyright given in the Constitution implies the creation of a vital public domain. It acknowledges that creators, themselves, rely on the public domain for their own work and therefore owe a debt to society and to the public
as compensation for their temporary grant of copyright. The public domain is not what is left over after copyrighted works have been differentiated; rather, it is
the status of what exists before works are awarded the limited monopoly we call copyright. Taking works from the public domain or readjusting their scheduled entry into the public domain
arguably constitutes a
private taking from what amounts to a public trust without any balancing compensation
to the public. For these works of which we speak it is wrong to assume that the status of continued copyright will enhance their availability to society.
In this case, just the opposite is true; these are the works that enterprise will fail to commercialize in any meaningful way. Under continued copyright, legal access to these works places considerable administrative hardship on would-be users who must often trace unknown copyright owners
in vain and pay fees incommensurate with their intended use.
The Copyright Term Extension Act, in this case, doesn't merely delay the accessibility of images, but gives those who want to create licensed resources for research and education, unfair advantage in the
quest to provide freely useable resources. In addition, it stymies grassroots self-help efforts and imposes a market-based economy over a discipline that tends to be uncomfortable living
within
a value system created by a for-profit community.
Additionally, those who license images under copyright to users will always be able to serve up better newer images,
ones more likely to exploit advanced and useful access devices. Their clientele are those who can afford the cost or who
require the more advanced means of access and display; but, in their economic model, of necessity
in doing this they must be prepared to ignore all those
potential clients whose needs and resources differ and whose pocketbooks are
thereby placed under greater strain than those found in the
high-end commercial marketplace. The public domain exists in part to serve this under-served strata -- those who, otherwise, would be locked out of access.
In this regard, the public domain is the safety-net of a democratic society. It
must be preserved and not wantonly removed in an effort to serve unrelated
interests.
This writer is no expert in commercial law, but it seems to me that by limiting, through extension of copyright, access to these crucial materials, the
consequences foster nourishment and preservation of a seeming cartel of copyright holders, who, through lengthened copyright terms, restrain trade in properties that should be accessible to the public. The net effect is not just to deliver additional revenue to copyright holders, but to
isolate parts of society that will, in effect, have little or no access at all. By expanding their
own alleged "property rights" into territories that should be the public domain -- by extending their monopoly into this area, such copyright combines are practicing economic strategies that have been discredited long ago; we might
justly call them "copyright colonialists."
The harm affects not only independent scholars and isolated institutions, but all those people who quest for knowledge and who wish to express their ideas and opinions outside of the limitations imposed by traditional institutions of learning and research. In short, at some point term extension becomes inimical to the most sacred goals of a free society. We may have already passed that point; it is
high time to reverse course.
Indeed, it is time to restore the constitutionally mandated balance between the interests of creators and users -- remembering that creators, themselves, are key users of intellectual properties and
rely just as much as anyone, if not even more than anyone else, upon a vital accessible public domain.
Robert A. Baron
===========================
Robert A. Baron
mailto:robert@studiolo.org
http://www.pipeline.com/~rabaron/
http://www.studiolo.org
NOTES:
[note]: Portions of this paragraph
are derived
from an idea submitted by Eileen Fry 4/1/02.
[return to text]
[note]: Leigh Gates, the Slide Librarian at the
MacLean Visual Resources Center, Ryerson Library of The Art Institute of Chicago
reports that in the years 2000-01 only 31% of their slide acquisitions derived
from vendors, the remaining of their more than 9,000 images acquired during that
period was photographed from books, presumably under the assumption that their
image repository -- used for the museum's educational programs and for research
-- may claim fair use in copying. No statistics were supplied to break these
"fair use" images into works belonging to the public domain and works
unencumbered by copyright claims. Ms. Gates writes: "I hope that you can use
data like mine to argue against the benefit of allowing increased terms of
copyright determine the availability of images we are using for teaching.
Although I have a healthy acquisition budget, we still rely heavily on images in
the public domain or under fair use to support our museum and school needs."
Many institutions, not as wealthy as the Art Institute of
Chicago, offer a different perspective. Sometimes image acquisition requests can
not be filled by lack of sufficient funds for this purpose. Mark Braunstein, who
tends the visual resources collection at Connecticut College, reports that once
they were able to fill about half their teaching needs through purchases through
vendors, but in the last years they have had to depend wholly on "copystand
photography." Many of these images are of works in the public domain.
Jane Darcovich, Director of the Architecture & the Arts Slide
Library of College of Architecture and the Arts at the University of Illinois at
Chicago writes of the exigencies of preparing images in time to meet faculty
teaching schedules, noting that there is often insufficient lead time to allow
for acquisition from vendors. They rely heavily upon the public domain and "fair
use" to acquire imagery to meet curricular needs. Other writers have underlined
how teachers will frequently require a specific view or detail or angle of a
work of art in order to demonstrate a point in class, and that the generic
images that populate vendor catalogues [and image supply houses] do not necessarily suffice. Specific
images from the public domain often must be assembled and retained for these
needs. Such images may have few useful purposes except to satisfy that one teacher's
specific needs. The specificity of teacher requirements makes hunting through
often unillustrated vendor catalogues particularly unrewarding. Pressed for time
"copystand photography" helps fulfill all image needs, both public domain and
"fair use" acquisitions, and, as cited elsewhere, helps connect what
is taught in class with the literature of art and art history.
Eileen Fry of Indiana University reports that for February 2002,
of the approximately 280 images requested, only one could have been acquired
from a vendor. Ms. Fry contrasts the activities associated with "rational
collection development" with the need to fulfill requests by faculty for
specific courses. The first mission permits long-term planning and may rely
heavily upon images offered by vendors, while the second is accomplished in an
atmosphere of emergency. Andrea Frank of Boston University, in contrast to the
reports above, indicates that image requests for teaching art history have
decreased over the last few years and attributes this attrition to faculty
repeating unrevised course offerings and to the increased use of digital images
created by faculty themselves. In her case vendor purchases have increased as
older, fading images, are being replaced with newer, higher quality images
offered by vendors. Laura M. Ponikvar, the Slide & Reference Librarian at the
Cleveland Institute of Art reports that the majority of their image acquisitions
derive from vendor catalogues. When teachers tend to use the same images year
after year for advanced courses or when they begin to provide their own images,
one must wonder under what pressures they endure to result in a stagnation of their curricular
growth and that forces them to bypass use of the school's visual resources collection.
This writer has been told of people hired to teach part time without being told
that the school will not make slides for them out of fears of being cited for
copyright infringement. Nor would they buy slides. The teacher was expected to
create visual resources on her own time, out of her own pocket. In another
school, for fear of being caught as an infringer, the entire slide collection,
built over decades using "copystand" photography was transferred to a faculty
member -- presumably because an individual scholar would be less vulnerable to
infringement judgements.
In most of the above examples vendor supplied images, for a
variety of reasons, comprise only a small fraction of needed images. Most
institutions cover their needs by relying heavily on "fair use," or put another
way, by assuming that their uses will not excite infringement challenges from
copyright owners. With increasing frequency one hears of reports of schools
being prohibited from claiming fair use. In their cases, at great, often
crippling expense, they must acquire rights and/or rely on the availability of
public domain images. With expanding length of copyright, and the shrinking of
the public domain that walks hand-in-hand with it, the destruction to
educational goals and to scholarship becomes ever more obvious. Further on this
topic see the anonymous testimony of a visual
resources curator.
[return to text]
[note] Departments
required by counsel to obtain rights to every work in their collections are
understandably shy about admitting that they are engaged in an expensive (and to
them) unnecessary and wasteful endeavor. One such department (requesting
anonymity) is being forced to obtain rights for every image they digitize from
their slide collection. Thus far, identifying rights holders have taken on the
average about one hour per image. The school copyright office actually handles
the requests. They have no contingency plans for dealing
with outright denial of rights, high cost of rights, or situations that will
occur when they can't locate a rights holder, nor do they know how long the
cycle from asking to receiving permission will last. In this case, the fair use
privilege was not allowed in order to protect the school from liability which
might fall upon them because commercial sources of art images were available --
even though they might not meet the educational requirements of the syllabus or
teacher. The inability to obtain rights might force dropping certain works from
their curriculum -- no matter how central that work may be to the subject matter
of the course. No figures are in yet on the cost of this operation.
Internet discussion list conversation and other sources have
noted how long it takes to secure rights or even to receive a response from an
initial inquiry. The planning process for rights acquisition, while tolerable
for publication calendars, cannot be accommodated to teaching schedules,
especially when faculty is part time and may only know what they will be
teaching a week or two before classes begin. Access to an expansive and vital
public domain will help solve at least some of the problems cited. [See
further.]
[return to text]
[note] Refer to
testimony of an anonymous visual resource curator, hyper-linked
here.
[return to text]
[note] In an email dated 4/1/02.
[return to text]
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