A. Preservation
The public is losing valuable cultural works that could otherwise be restored and preserved for future generations. A number of comments submitted to the Copyright Office have addressed the need for public and private organizations to have the ability to preserve and provide public access to culturally valuable works. Most did not exist in multitudes of copies like other books or records, and often there is only one surviving copy of a work. There is clear evidence that important cultural works are being lost rapidly. For example, the Center for the Study of the Public Domain at Duke Law School, discussed in some detail the importance of preservation of films of long-term historical and cultural value. See Comment 0596. Among others were the UCLA Film and Television Archive, the National Film Preservation Foundation, the American Historical Association, and the Library Copyright Alliance.
Libraries and archives: The Library of Congress was built around the fundamental premise of preservation. It states forthright that its mission “is to make its resources available and useful to the Congress and the American people and to sustain and preserve a universal collection of knowledge and creativity for future generations.” Mission Statement, Library of Congress. Libraries and archives hold a cherished position within the framework of current copyright law. They are the only means of preservation of and public access to socially, culturally, and historically important works. In light of the fundamental educational role archives and libraries play in society, they enjoy special exemptions from the strictures of copyright law under section 108 of the Copyright Act.
Film and Television: The world of film & television is replete with orphan works. These include silent films, independent films, documentaries and newsreels, films of historical, educational, and regional importance, films by and about ethnic and minority groups, animation, experimental work, video art, and independent or community video. Unfortunately, the physical media on which many moving image works are created are easily susceptible to physical deterioration. See eg., Letter from Larry Urbanski, Chairman, American Film Heritage Association, to Senator Strom Thurmond Opposing S. 505 (Mar. 31, 1997) (stating that as much as 75% of motion pictures from the 1920s are no longer clearly owned by anyone, and film preservationists as such cannot obtain the necessary permissions to preserve them).
Mass Digitization Projects: Digital technology clearly enables libraries, archives and museums to fulfill their the traditional functions at higher levels of efficiency, integrity, and operability; however, current copyright law--through measures intended to protect against piracy and copyright infringement--severely limits its use by presenting tremendous legal risk for those willing and able take traditional function into the digital medium. The current regime severely limits the ability of digital archives to legally preserve and disseminate orphan works. See JSTOR's Comment 0680. Preservation of web-based content also poses a significant problem because of its ephemeral and transient nature. See Internet Archive Reply 0129
The Library of Congress has embraced the advances of digital technology. For example, in the 1960's they led an effort to develop a standard format for Machine-Readable Cataloging (MARC), and in the 1980’s to develop a standard for the search and retrieval of information over networks (Z39.50). These standards are basic building blocks in today’s online library catalogs.” Caroline R. Arms, Historical Collections for the National Digital Library, Part I, D-Lib Magazine, April 1996.Software: Organizations oftentimes depend on software for years after the company that produces the software goes out of business. These works are often orphans and it is difficult or impossible to find anyone who will support the software. Like website and other ephemeral content, software and formats can become obsolete and unsupported alarmingly quickly, and the term of copyright for software is effectively perpetual for most practical purposes. Copyright restrictions that lead to the loss of support for these environments can lead to effective loss of the works as well, and thus loss of large and valuable corpuses of information. See Ockerbloom Comment 674, Gwozdz Comment 382
Researching on your own:
Library Digitization Projects and Copyright Extremely accessible for legal novices and excellent for librarians and archivists. Written by Mary Minow with numerous links and resources on everything from digitization to Section 108 and Fair Use. She does a great job summarizing how to evaluate the copyright status for works chosen for digitization projects and the problem with orphan works.
Library of Congress Website and Database
Begin by reading the Library of Congress' comment on orphan works which discusses a number of relevant preservation topics and gives interesting examples. Besides having an online catalog of over 110 million works, the website links to resource sections on digital preservation, reports and speeches and publications.
National Digital Library Program (NDLP) Contains many interesting articles addressing the challenges of providing direct access for users to the Library’s resources and archiving the World Wide Web. The program's mission is to develop a national strategy to collect, archive and preserve the burgeoning amounts of digital content, especially materials that are created only in digital formats, for current and future generations.
Digitization & Preservation Online Resource Center
If you're looking for general information on copyright, digitization and preservation relative to "best practices," of libraries.
Articles:
The National Film Preservation Report of 1993
Congress established the National Film and Preservation Board to study the problem of film preservation and orphan works. This report, heavily cited by various comments, found that 50 percent of films made before 1950 have deteriorated and over 90 percent of movies from before 1929 have disintegrated. The task of preserving orphan works was found to be the most urgent
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The Television and Video study found that some 25 years of American state and local history from news, film and videotape were destroyed from 1950 to 1975 ; and the potential for deterioration and technological obsolescence in video makes it a particularly vulnerable medium
Alicia Ryan, CONTRACT, COPYRIGHT, AND THE FUTURE OF DIGITAL PRESERVATOIN Winter, 2004. 10 Boston University Journal of Science 152. Great discussion on why libraries and archives need an explicit right to ensure that their best preservation efforts to reproduce publicly available web pages will be legally acceptable. This would go a long way toward giving digital preservation a more certain legal footing.
Peter Lyman , School of Information Management and Systems University of California, Berkeley Problem Statement: Why Archive the Web? Also contains links to various preservation consortiums and research studies.
It's About Time: Research Challenges in Digital Archiving and Long-term Preservation April 12-13, 2002. Sponsored by the National Science Foundation and the Library of Congress.
"[C]opyright law ultimately serves the purpose of enriching the general public through access to creative works." Fogerty v. Fantasy, Inc., 510 U.S. 517, 526 (1994)
As mentioned in the Center for the Study of the Public Domain Comment 596 , there is a direct relationship between preservation and access, especially for orphan materials. Securing funds needed for preservation is often difficult, since the uncertain copyright status of orphan materials means that they cannot be made available for many types of uses. Overwhelming research suggests that limiting orphan work accessibility stifles ingenuity. A digital artist explains that “while my work depends on good copyright protection … streamlined access to orphaned works is an invaluable multiplier to creativity.” Comment 0051. Current Copyright law provides that copyright arises whenever a creative expression is fixed in a tangible medium, regardless of registration, notice or renewal. This means that letters, books, diaries, research notes, music, film, photographs, any creative effort that has been fixed in any tangible medium, is eligible for orphan status.
Libraries and archives collect and preserve publicly available works, both traditional and transient, for the future use of historians, researchers, scholars, and the general public. Generally, 17 U.S.C. § 108 (b) and (c) allow libraries and archives to make digital copies for preservation (unpublished) and replacement (published), subject to certain conditions. Without the ability to provide public access to these collections, however, the laudable preservation efforts of archives and libraries nationwide are significantly less useful. Interest evaporates when they learn that digital files may not be made available outside the library premises. Funding sources are generally not available for such limited projects.
Researching on your own:
Internet Archive or The Online Books Page
Great resource to see how creative works can be entered into comprehensive catalogs and databases within reach of the nearest Internet connection, and disseminated digitally so that they are as ubiquitous as books. Also see their respective comments, Internet Archive 0657 and The Online Books Page 0674
Center for Social Media Pat Aufderheide and Peter Jaszi published articles and the and created the film: Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers. Excellent film and articles discussing rights clearance problems that force filmmakers to make changes that adversely affect—and limit the public’s access to--their work.
Articles:
Miriam Nisbet, Library Copyright Alliance Comment on Orphan Works. "The inability to locate copyright owners to clear the rights in their works prevents libraries from providing broad public access to the information in their collections, and prevents library patrons from making transformative uses of these works." This comment is filled with great examples from libraries and archives across the nation.
Report on Copyright and Digital Distance Education published in 1999, identified several "problems with licensing" that educators asserted in attempting to use copyrighted materials in digital formats, including that "it can be time-consuming, difficult or even impossible to locate the copyright owner or owners."
Hannibal Travis, PIRATES OF THE INFORMATION INFRASTRUCTURE: BLACKSTONIAN COPYRIGHT AND THE FIRST AMENDMENT, 15 Berkeley Tech. L.J. 777 (2000). This article has great sources for why copyright extension could even further "reduce the ability of archivists and film distributors to restore and distribute old films."