COPYRIGHT RESOURCES PROJECT:
Working with Copyright–Protected Materials in a Digital Environment

BAM/PFA WEBSITE

COPYRIGHT RESOURCES PROJECT

COPYRIGHT RESOURCES PROJECT
SURVEYS AND RESULTS

During the course of the project, CineFiles staff designed surveys to help us better understand the needs and practices of both content providers and copyright holders regarding the use of copyright-protected materials in the digital environment. Below you will find links to pages containing results of our survey and descriptions of our survey design and methodology, as well as links to the surveys themselves.

Survey Design, Methodology, and Results
Survey of Content Providers

Survey of Copyright Holders

Survey Texts
Content Providers Survey Form

Follow-Up Telephone Interview Questions for Content Providers

Copyright Holders Survey (original)

Copyright Holders Survey (revised)

Content Providers Survey Results

Survey of Content Providers

Survey Design and Methodology
In 2003, during the first phase of the project, we designed a survey to help us collect data on the types of organizations involved in image database management, descriptions of their collections, and the ways in which they address copyright issues. We consulted with experts in survey design and in digital image databases to determine our list of questions. We decided to create a relatively short survey, as we felt this would produce the best result. Our final survey of content providers includes seventeen questions and was made available as an online document so that responses could be easily compiled and tabulated in a FileMaker Pro database for later analysis.

We created a separate FileMaker Pro database to collect the names and e-mail addresses of institutions and individuals we wished to survey. These included participants in workshops such as “Copyright in the Digital Age” and “School for Scanning”, institutions that have received IMLS grants to develop digital image databases, and database managers listed in the Clearinghouse of Image Databases. We e-mailed this group a request to complete our survey and also posted the request to the mcn-l and Imagelib listservs. From these efforts, we received forty-eight responses. We e-mailed a second request two months later and received twelve additional responses, for a total of sixty.

Results
Complete survey results are available here. As the results indicate, the great majority of respondents were from nonprofit academic institutions, museums, and libraries, involved with digitizing a wide range of materials. Among the respondents, 93% work with large collections numbering more than 50,000 items, with 28% planning digital image archives numbering more than 100,000 items. However, most respondents still had a lot of work ahead of them; ten respondents had completed at least 98% of their planned digitization, forty-four had completed less than 50%.

While thirty-one respondents work primarily with public domain materials and thirty-one concentrate on those for which their organization holds copyright, twenty-five work with materials under the copyright protection of another party. (Respondents often checked more than one response, creating totals that are higher than the number of respondents.) Thirty-five of those working with copyright-protected materials request permissions to make materials freely available, while twenty-five pay licensing fees and five negotiate technological strategies, such as password protection, to restrict use of copyright-protected materials. Twenty-two respondents were satisfied with the effectiveness and cost-efficiency of their permissions clearance process, while twelve were not. Many respondents commented that the high labor and administrative costs needed to clear and track permissions discourages them from working extensively with protected materials.

Follow-Up Telephone Interviews
Next, we identified survey respondents who work with copyright-protected materials and who indicated their willingness to be contacted with additional questions. We conducted eight follow-up telephone interviews—five with art museum staff members and three with staff from libraries. (Please see telephone interview questions.) These interviews were very informative, providing a wealth of detail on the practices of individual institutions, and giving us useful referrals to resources (many are included in the resource list on this website).

Several of the phone interviewees mentioned the legal precedent established in the Kelly v. Arriba Soft case (http://caselaw.lp.findlaw.com/data2/circs/9th/0055521p.pdf) that allows the display of thumbnail images under fair use. Many institutions digitizing art images therefore display thumbnails to the general public without clearing rights, and restrict full-size images to in-house use. Others discussed the concept of risk assessment as “a big part of copyright work.” A number of institutions display images with ambiguous copyright status, but will, of course, take such images down if they are contacted by the copyright owner. In general, those who are grappling with securing permissions agree that it is a time-consuming and labor-intensive process, and therefore, they must allocate adequate time and resources to imaging projects that involve working with protected materials.

Survey of Copyright Holders

Survey Design and Methodology
As we continued to collect data from content providers, we also developed a survey for copyright holders. This survey had two objectives; first, to learn more about each copyright holder’s policies regarding granting permissions, and second, to seek permission to display documents in CineFiles. From past experience in rights clearance, we knew we would get much better results by contacting copyright holders by phone rather than in writing, so we formulated the questions in the form of a phone script.

We soon realized that this approach—inquiring first about policies and next requesting permission to display documents in CineFiles—was less effective than we hoped, as the copyright holders generally did not want to take the time to answer survey questions. We therefore adjusted our methodology to first concentrate on requesting permission to display materials in CineFiles, and then asking policy questions later in the conversation in a more indirect way, as demonstrated in the revised script. This approach proved much more fruitful and still allowed us to collect significant data on copyright holder policies and practices.

Process and Workflow
As these interviews were conducted by phone and not online, our copyright permissions analyst kept detailed written accounts of her process and the copyright holders’ responses so we could easily compile and analyze qualitative and quantitative statistics on this aspect of the project. We tracked this information in a Filemaker Pro database set up to manage digital rights data and data specific to this grant project. In addition to transcribing interviews and compiling statistical data on type of organization, type of document, etc., she also tracked the length of time taken to research current copyright holders’ contact information, contact them and request permission, conduct follow-up conversations or correspondence, and obtain a final answer. Our process and workflow activities can be found here.

Results
In the course of our survey, we contacted 265 copyright holders whose materials are represented in Pacific Film Archive’s CineFiles database of film documentation. The group was made up largely of for-profit organizations (43%) and freelance writers (42%), with the rest being academic institutions (4%), museums (4%), libraries (3%), other nonprofit entities (3%), and government institutions (1%).

Generally, large organizations such as newspapers or magazines have permissions departments that handle copyright clearance. In some other cases an editor would handle our initial request and subsequently hand it off to the legal department. In the case of freelance writers, it was up to them individually to grant or deny permission.

As we were working from documents indexed in CineFiles that were primarily originally published in large newspapers and journals, we usually started with these publishers. We were often referred to the writers themselves, who in many cases retained copyright, hence the large percentage of freelance writers we contacted in the group described above.

Among the documents for which we sought clearance, 37% were film reviews, followed in prevalence by other newspaper articles (17%), book excerpts (14%), periodical articles (13%), film showcase program notes (10%), film distribution publicity materials (5%), and film festival program notes (4%).


Of the copyright holders, 16% surveyed had a written copyright permission policy, and of those with a written policy, the overwhelming majority were large newspapers or book publishers. Regarding our question as to whether the institution retains rights to its material or it reverts to the author, in the case of virtually all of the newspapers and periodicals we surveyed, the answer to the question was not simply one or the other. In nearly all cases, there were "staff" writers and "freelance" writers at a given newspaper or periodical, and the rights to staff-written material were retained while the rights to most freelance written material reverted to the author (as upheld in Tasini v. New York Times).

When asked about existing points of access for an organization's material, 83% of the respondents had no infrastructure in place for archiving or retrieving their copyrighted material. Eight percent offered the option of allowing us to provide links to archived articles on their website free of charge. Four percent informed us that their material was available at the site of an archiving service such as dowjones.com or ProQuest (where there would be a fee for accessing the material). Another 4% archived the material on their own website but charged a fee for its access, and 1% had material on their site that was password-protected and required a subscription for access. Although no entity we interviewed contracted with an online copyright clearance center to clear copyright for their material, many individuals use such centers to seek permissions to reproduce individual works in university course readers, for example.

Use of Digital Rights Management Technology and Methods
Through this survey, we hoped to learn whether technological restrictions, such as tethering (permitting documents to be accessed for a specific length of time), providing read-only access, or using other digital rights management methods, would predispose more organizations to grant permission to use their copyrighted materials. However, the organizations or individuals we interviewed were by and large either too big or too small to address this question in a meaningful way. Most larger organizations had very specific policies that generally did not address such technologies, while smaller organizations and institutions were neither equipped nor interested in such approaches. Approximately 1% of respondents were initially receptive to the suggestion of our adding password protection to our site, but in all cases, it ultimately made no difference in their decision to grant or not grant copyright clearance for our use. In many cases, however, where publishers do not want us to display our digital scans of their documents, they do encourage us to link to copies of articles on their websites, which can be done legally without specific permission.

Case-by-Case Basis
Most organizations we surveyed still handle copyright permissions on a case-by-case basis, which allows them a great deal of flexibility and control in the use of their materials. Unfortunately, however, this means that the effort to identify, locate, and negotiate with copyright holders remains the burden of content providers.

Conclusion
Our survey of copyright holders led us to conclude that new digital rights management technologies were not currently significantly impacting the use of these types of copyright-protected materials in the digital environment. The rapid speed of technological change and the major improvements in digital rights management on the horizon may well spur future change. At present, however, traditional copyright clearance methods, coupled with persistence, still offer the best outcome.