july11b.indd C&RL News July/August 2011 404 Copyright uncertainty is a fact of life on most American campuses today. Emerg- ing information technologies offer users new ways to make use of and share copyrighted content while spurring questions about the legality of these new uses. Powerful content providers seed fear of infringement suits, prompting users to seek, and often pay for, permissions whether necessary or not. Users with knowledge of copyright exceptions may lack confidence in their judgment, hesitating to exercise their legitimate rights under the law. Even those ready to apply Fair Use in their daily practices may prefer adherence to arbitrary but familiar numerical ”guidelines” rather than puzzle through a four factors analysis. As leading providers of campus copyright support, librarians understand the costs that copyright uncertainty can impose on their communities. Disregard for copyright may put the institution at risk of costly and embarrassing legal action. Conversely, cau- tious risk management approaches aimed at avoiding litigation may add administrative expenses to the institution in the form of un- necessary licensing fees and time-consuming permissions seeking. Of equal concern are the costs to scholarship and teaching that “hyper compliance” introduces. Unwarranted constraints on the use of copyrighted materi- als may compromise the quality of teaching or research, curtail library services and cul- tural programming, and thwart innovation by scholars and students. A climate of copyright uncertainty undermines an essential part of the campus mission: the production, dis- semination, management, and preservation of knowledge and culture. Librarians also recognize that copyright education is not enough, on its own, to re- move all of the ambiguities intrinsic in the law. Enhancing constituents’ understand- ing of copyright does not necessarily lead them to exercise their options with clarity and wisdom. What is needed in addition is a mechanism to raise their comfort-level and confidence, empowering them to as- sert their rights under the law. It is for this purpose that the self-help movement has emerged as an important element of campus copyright support. The term copyright self-help refers to deliberate actions by either copyright own- ers or users to assert their rights under the existing copyright system. Self-help works outside the legislative and judicial process, yet remains compliant with the law. Law professor Ben Depoorter, writing in Tech- nology and Uncertainty: The Shaping Effect on Copyright Law, explains that copyright uncertainty can “lead to a greater reliance on self-help efforts by content providers and users” who, in pursuit of their objec- Gail P. Clement The copyright self-help movement Initiatives in the library community scholarly communication Gail P. Clement is outreach librarian in digital services and scholarly communication at Texas A&M University Libraries, e-mail: gclement@library.tamu.edu Contact Mike Furlough—series editor, assistant dean for scholarly communications, and codirector of the Office of Digital Scholarly Publishing at Penn State University— with article ideas, e-mail: mfurlough@psu.edu © 2011 Gail P. Clement July/August 2011 405 C&RL News tives, can not wait for “judicially or legis- latively established certainty.”1 In the library context, the self-help con- cept refers to collective actions by practi- tioners to maximize the balancing features in American copyright law. These features include the various limitations to owner’s rights and the provision for a public do- main. Copyright self-help complements scholarly communication initiatives that help campus authors retain the rights to reuse and share their own publications. In combination, both types of collective com- munity action serve to maximize allowable uses of copyrighted materials (or identify public domain materials) in order to fuel scholarship, innovation, education, and culture. However, scholarly communication approaches generally work on the “supply side” of the copyrighted corpus to open up content available for scholarship and edu- cation, as exemplified by SPARC’s “Author Rights” campaign and ARL’s “Author Rights in Content Licenses Working Group.”2 By contrast, copyright-self help works on the “demand side,” helping communities of practice collectively exercise their rights to leverage the corpus in ways deemed reasonable by their own members. Currently, there are three established activities within the library community that can be characterized as self-help initiatives. The purpose, history, status, and future prospects of each initiative are reviewed below. Code of best practices in fair use The “Best Practices in Fair Use” initiative helps practitioners expand their Fair Use rights to use copyrighted content without permission or payment. It is particularly geared for communities with an educa- tional, cultural, or scholarly mission where the first factor—purpose and character of the use —weighs heavily in favor of fair use. Two keystone principles of the “Best Practices in Fair Use” approach are:3 1. That courts have tended to defer to community standards of reasonable practice when they are clear and well documented 2. That recent court cases have signaled a more expansive view of Fair Use through the concept of “transformativeness” when copyrighted content is reused, remixed, or recontextualized in ways not intended by the original creator At the heart of the “Best Practices in Fair Use” initiative are the codes themselves: “consensus statements of what kinds of unlicensed use of copyrighted materials are necessary and reasonable” for the work of a particular community of practice.4 To date, nine codes have been developed in disciplines from media studies publishing to dance. This work has progressed under the guidance of two scholars from Ameri- can University: law professor Peter Jaszi, director of the Program on Information Justice and Intellectual Property, and com- munications professor Patricia Aufderhe- ide, director of the Center for Social Media. Development of each code starts with research into community practices and concludes with drafting a document that is ultimately endorsed by the community. Within the library community two codes are now under development. In Fall 2007, the ALA Video Roundtable established the Best Practices for Fair Use and Video Working Group to discuss and devise “a statement by and for librarians reaffirming the application of the fair use doctrine to the educational use of video collections.” Progress of this group continues during and between ALA conferences.5 More recently, the Association of Research Libraries (ARL) began to develop a Code of Best Practices in Fair Use for Academic and Research Li- braries, thanks to funding from the Andrew W. Mellon Foundation. Project leaders from ARL and American University are working with librarians across the United States to identify areas of consensus within several key areas of library practice: support for teaching and learning; support for scholar- ship; preservation; exhibition and public outreach; and serving disabled communi- C&RL News July/August 2011 406 ties. Phase One of the project, involving interviews with practicing librarians, cul- minated in publication of the report Fair Use Challenges in Academic and Research Libraries.6 Phase Two, involving confidential dis- cussions with librarians from a variety of institutions and functional areas, continues until September 2011. As a participant in one focus group, I observed that areas of consensus did emerge through the at-times heated discussion of scenarios and what- if’s. Project leaders did not seek to resolve the points of divergence among the dozen librarians in our session. Rather, they fo- cused on practices which all participants agreed were clear-cut examples of fair use in the library context. The Code of Best Practices in Fair Use for Academic and Research Libraries will be released in early 2012, followed by an implementation and outreach phase. According to ARL, “the project team is confident that a code of best practices that describes key concepts and values derived from the law and actual librarian practice will better serve research and academic librarians, and will in turn benefit the patrons and the educational institutions they serve.”7 Well-Intentioned Practice for Putting Digitized Collections of Unpublished Materials Online The Well-Intentioned Practice initiative offers library and archives professionals a “practical approach to identifying and resolving rights issues that is in line with professional and ethical standards.”8 Its ul- timate aim is to significantly increase online access to unpublished materials—the raw materials of scholarship—by taking some reasonable risks on behalf of learning and research.9 Led by OCLC Research staff in collabo- ration with members of the RLG Partner- ship, this initiative launched with the 2010 invitational workshop “Undue Diligence: Seeking Low-risk Strategies for Making Collections of Unpublished Materials More Accessible.”10 Experts from archives, special collections, and the law convened at this event to discuss strategies for analyzing and developing acceptable risk behaviors. Their recommendations were documented in Well-Intentioned Practice for Putting Digi- tized Collections of Unpublished Materials Online.11 This document offers guidance for selecting collections, seeking permis- sions, establishing policy, and working with future donors. It may also be useful in determining whether a collections is suitable for digitization. The document also offers model language for deeds of gift to ensure that future donations can be put to as many uses as possible.12 Leaders of the Well-Intentioned Practice initiative see a community of practice form- ing around their document. For example, members of the Triangle Research Libraries Network have developed and published their own rights strategy based on the ap- proach.13 Additionally, the Well-Intentioned Practice document has been supported or endorsed by several professional organiza- tions, including the Art Libraries Society of North America and the ACRL Rare Books and Manuscript Section (RBMS), and has been implemented by more than a dozen library deans and directors. It will be shared with the archival community at the 2011 Society of American Archivists conference.14 Expanding the Public Domain with Hathi Trust’s Copyright Review Management System The Copyright Review Management System (CRMS) offers a reliable and streamlined method for reviewing works with ambigu- ous copyright status held in the HathiTrust digital library. The ultimate goal of this initiative is to make available online, in un- restricted fashion, as many full-text works as legally possible. At present, the project focuses on establishing the public domain status for digitized books published in the United States between 1923 and 1963. All July/August 2011 407 C&RL News books ingested into the HathiTrust system are reviewed in the Copyright Review Management System and, if determined to be in the public domain, are immediately released to the public in full-text format.15 CRMS is included as a copyright self- help project because it relies on “library crowd sourcing” to remove copyright un- certainty. While initiated as an IMLS-funded initiative of the University of Michigan, the project involves the participation of librarians from across the HathiTrust col- laborative. Partners share responsibility for submitting digitized volumes to the HathiTrust system and for providing ac- curate cataloging to facilitate detection of those books eligible for CRMS review.16 Additionally, several partner institutions contribute staff time and expertise to assist with the copyright review process. In this way, CRMS serves as a community-based registry of copyright evidence available to any decision maker looking to clarify the copyright status of a U.S. published book. As of May 1, 2011, nearly 135,000 vol- umes have been reviewed for copyright status in the CRMS with more than half (72,000+ volumes) determined to be in the public domain. Additionally, at the time of this writing, University of Michigan an- nounced plans to expand their efforts to clarify the copyright status of HathiTrust books. Their new orphan works project will expedite the process for identifying works with no extant copyright owner. The library will publicize bibliographic information about the orphan works identi- fied, “providing ‘parents’ the opportunity to claim them.”17 Conclusion The copyright self-help movement empow- ers librarians and their campus constituents to make day-to-day copyright decisions with greater clarity, confidence, and wis- dom. As a result, our communities can become better equipped to advance their work of scholarship, teaching, learning, and innovation. In this way, copyright self- help enables libraries and the institutions they serve to fulfill the true purpose of American copyright: the sustained creation of knowledge and culture for the advance- ment of all society. Notes 1. B. Depoorter, “Technology and Un- certainty: The Shaping Effect on Copyright Law,” University of Pennsylvania Law Re- view 157 (June 2009): 1,831-1,868. 2. Scholarly Publishing and Academic Resources Coalition (SPARC) “Author Rights initiative,” accessed May 30, 2011, www.arl. org/sparc/author/; Association of Research Libraries (ARL), Author Rights in Content Licenses Working Group, accessed May 30, 2011, http://authorrights.wordpress.com/. 3. Peter Jaszi, communication to ARL Best Practices Focus Group, January 7, 2011, San Diego, CA. ; P. Aufderheide, B. Butler and P. Jaszi, “Judges Ask: Did you transform the use?,” Fair Use in Research Li- braries (November 13, 2010), accessed May 9, 2011, www.arl.org/bm~doc/mm10fall- butler-jaszi.pdf. 4. Center For Future Civic Media, Recut, Reframe, Recycle: An Interview With Pat Aufderheide And Peter Jaszi (Part One), ac- cessed May 9, 2011, civic.mit.edu/blog/henry /recut-reframe-reccle-an-interview-with -pat-aufderheide-and-peter-jaszi-part-one. 5. ALA Video Round Table, accessed May 9, 2011, vrt.ala.org/wiki/index.php?title=VRT _Best_Practices_for_Fair_Use_and_Video _Working_Group. 6. P. Adler, B. Butler, et al., Fair Use Chal- lenges in Academic and Research Libraries (December 20, 2010), accessed January 14, 2011, www.arl.org/bm~doc/arl_csm _fairusereport.pdf. 7. Association of Research Libraries, “Code of Best Practices in Fair Use for Academic and Research Libraries,” accessed May 9, 2011, www.arl.org/pp/ppcopyright /codefairuse/index.shtml. 8. OCLC, “Well-Intentioned Practice for Putting Digitized Collections of Unpublished (continued on page 415) July/August 2011 415 C&RL News process and something I’m still working on. Audience building is altogether a different topic, and I won’t fully address it here. Briefly, however, I noticed that while using Twitter, the more you post the more people find you and follow you. The system I described above ensures that your account will be regularly active and that people will notice you. This is akin to talking louder and more often than other people in a meeting; more people listen to you. Additionally, your RSS items/tweets/ Facebook posts might not get click-throughs right away, but these clicks can accumulate over time. Tweets, indeed, automatically be- come searchable as they are posted, hence forming a giant pool of information, a catalog of public consciousness, if you will—as if the things you had screamed at that meeting were somehow searchable. Looking at the Twitter Feed stats, for instance, I initially recorded very few click-throughs on these items, but I later discovered that they had subsequently been used. My only explanation is that people on Twitter somehow found them while searching the platform. Twitter being used as a search engine was something new to me, but it makes sense. After all, lots of people share interesting resources on there. Ultimately, I believe that this 2.0 market- ing is beneficial to our library since it raises awareness of our collections outside the immediate Yale environment. It should be said, however, that many of our followers are Yale people and/or Yale institutional bodies. Hence, our setup also increases their aware- ness of local resources. Yale libraries have unique collections and raising awareness ultimately results into more “foot” traffic at our premises or electronic traffic (i.e., refer- ence questions via e-mail). In this social media world I once heard, “showing up is half the work,” but posting frequently is also key to building an audi- ence and attracting people to your unique resources. Note 1. twitterfeed.com. Materials Online,” accessed May 10, 2011, www.oclc.org/research/activities/rights /practice.pdf. 9. OCLC, “Undue Diligence: Seek- i n g L o w - r i s k S t r a t e g i e s f o r M a k - ing Collections of Unpublished Ma- t e r i a l s M o r e A c c e s s i b l e , ” a c c e s s e d May 10, 2011, www.oclc.org/research /events/2010-03-11.htm. 10. Ibid. 11. See Note 8. 12. OCLC, “Introduce Balance in Rights Management,” accessed May 10, 2011, 13. The Triangle Research Libraries Network’s Intellectual Property Rights Strat- egy for Digitization of Modern Manuscript Collections and Archival Record Groups, accessed May 31, 2011, www.trln.org/ IPRights.pdf 14. Society of American Archivists, “Ses- sion 204: Rights, Risk and Reality: Beyond “Undue Diligence in Rights Analysis for Digitization,” accessed May 10, 2011, saa. archivists.org/Scripts/4Disapi.dll/4DCGI /events/231-Thu.html?Action=Conference _Detail&ConfID_W=231. 15. “HathiTrust Rights Status Assignment Process, Updates and Recommendations, April 12, 2010,” accessed May 16, 2011, www.cdlib.org/services/collections/massdig /docs/Rights_Assignment.pdf; “CMRS Proj- ect Description,” accessed May 16, 2011, hathi.vufind.lib.umich.edu/imls-national -leadership-grant-crms. 16. “US Federal Government Documents in Hathi Trust, Challenges and Opportuni- ties,” accessed May 16, 2011, www.arl.org /bm~doc/mm11sp-wilkin.pdf. 17. “MLibrary Launches Project to Iden- tify Orphan Works,” accessed May 16, 2011, www.lib.umich.edu/marketing-and -communications/news/mlibrary-launches -project-identify-orphan-works. Individual quoted is UM lead copyright officer Melissa Levine. (“The copyright..., cont. from page 407)