Rec'd izona Interlibrary Loan University of Ari 8/23/2022 2: 2:31 PM. University of Arizona Library SSTOE:Unnensty Bhd (ea0yorreess ete.azu (ODYSSEY 160 135 238 61LL ‘tag azone age ILL #: -19431920 TAU Reference #: Journal Title: Moving image and sound tollections for archivists Article Author: Article Title: Legal and Ethical Issues Volume: Issue: Month/Year: 2017 Pages: 41-50 (cannes an tconraht nae fr Engen mal Adress: ILL- Lending Borrower: RAPID:ALM srw: 209002 IEA Gall #; PN1993.4 .C58 2017 Location: Main Library Main Library Regular Shipping Address: NEW: Main Library University Library ILL Box 870266 Tuscaloosa, AL. 95487-0266 Fax: Notice: This material may be protected by Copyright Law (Title 17 U.S.C.) Paged by /__(iitiats) Reason Not Filled (check one}: ZI NOS 1 NFAC (GIVE REASON) LACK VOLUMENISSUE 0 PAGES MISSING FROM VOLUMECHAPTER 3 Legal and Ethical Issues overview Legal and ethical sues rite at every stage inthe wok ofthe archivists before and afer aceasioning & collection, during arrangement and description, and at rescarcher access the collection, whether iis through a web browser ora libearys video terminal. This chapeer wil ot attempx co impar al egal and chil considerations an archivist mas make. Osher resoures, sich at Menai Behrnd-Klode and CCistopher}. Prom etd voime, Right in the Digital En, provide thorough overview of he topic! However, this chaper wl offer some imporcan legal and ethical considerations especially 2 they rate to moving image and sound collections. COPYRIGHT BASICS ‘When it comes to audiovisual recordings ike incerviews created afer February 14,1972, copyright law irate that work is copyright protected forthe if of the erator plus 70 yeas? When a work is copy- ‘ightd, ie gves the copyright holder certain right. This inhides the right ro make copes ofthe work and dhe ight to perform the work publicly, among other rights. As soon aan inteviewer it the sop button on tape or dig recorder anyone who has contributed original creative work to that recording has copyright protection. Although the undedyng facts of ecording like an ot history may not be copytightable, the particular expression ofthe oral hisory—such athe creative arangement of words,2 Moving Image snd Sound Collections fot Archivists sentencrs and pararaphs—is copyightble The same appli to musical wots interview, and other creative works. If corporate Body or organ rests the work, the durin ofthe copyrights 95 ye from ts pblcaton ot 120 years fom date of eatin, whichever comes fist.” ‘Unoreunaey fo sound recordings things re not so saightorwad fr eordings efor ebay 14,1972 which are no covered by federal coptigh lw but ar ofen covered by sate aor and common lw Heather Brion noes that "when managing colton with sound recordings ities «st assume ta they remain unde copyright” However, Calambia Law School prosor Jae Beck wis that "eeaing gel copis of pre-1972 unpubl eon soley for presation purposes is cxremelyulkly be actionable under stat la cil ximinal’® In he eport Beck nals the state laws in Cloris Mio, Michigan, New Yo, and Virginia and highligh iene in the law tha impact pe-1972 sound reontngs: she alo wes eal aes o explore thir implcions fora number of diferenrypes of recordings, sch ado interviews, ol histori, and nteriow by journalists. This source should be consed when acempting 2 make pre-1972 sound reorings sale digitally ‘Afi thecopight ends the workers the public domain, whee the xlsv rights of the copy Fight owner end Typielly, work rested fore 1923 at inthe public domain’ Ac his pin, anyone isablero copy the work for whatever se they dem ft Creiing the authori an tia bt no ees say legal obigation ofthe user COPYRIGHT AND DONOR AGREEMENTS. Because ofthe extensive amount of ime a work remins in copyright work made by a young penon ‘an ealy be under copyright for 135 years—it important for archives o get nr only physical owner- Ship of moving image and sound records but also copyright. Getting copyright ofthe work allows for Algal reformatting ofthe work and greater cise in making the work avaiable online. A simple donot forms included in gure 3-1 that ransfers both physical ownership and copyright. Many artists, including photographers and filmmakers, among others, are hesitant #0 give over their copyright. One method to work around this is to sek 2 bequest, which includes che donation of copyright chrough a will Fora discussion of this issue and ways ro alk about it with prospective donors, see chapter 6, "Imteractions with Moving Image and Sound Producers.” For pase donations, if copyright was noe transfered via a donor agreement, or if no formal donor agreement was signed: itis posible to go back to donors and get chem to sga a new agreement chat also anes copyright. For deceased copyright owners, the copyright is managed by the estate Fr the length ofthe copyright (ypiclly seventy years afer death). The “eae” often refers wo dhe deceased donor’ spouse or children. A wll can also designate copyright conta for she donors work. When an ‘esate or creator cannot be located or contacted, a work then Becomes an orphan work. The Socery of American Archivists provides a useful woflow for determining ia work should indeed be considered an orphan work?Legal and Ethical sues o Front Runners New York PO Box 230087, ‘Ansonia Station [New York, NY 10023 Donor Agreement herby donate the eolesion described below to Archives of Front Runners New York (FRNY).a¢ untested gif, and transfer to Archives of FRNY legal tide and copyright to the contents in ‘asfaras hold them, except for any limiting conditions specially stated below. ‘agee that any materi inthe election which are not to be rind by Archives of FRNY shal bbe disposed of by Archives of FRNY a iscsi or shal be returned to me or my designe if 19 sted below, Collection description Liming conditions or resticions: Donor ame, mailing addres and email adress Signed by: Donor sgnarare Dae ‘Accepted by FRNY History and Archives committee representative: Prin name Signarure Dae Figure 3-1. snp donor em ht rons physical ewnerip ond copyright“ Moring image and Sound Collection or Archiv, COPYING COLLECTIONS WHEN COPYRIGHT IS NOT TRANSFERRED In some cases, copyright cannot be cured because the donor or ett is unknown or cana be reached In this ae, there ae options for doing digital reformatting and some very limited online access. Under Section 108 ofthe Copyright Act of 1976, up to thre copies ofa work can he made if thee ae significant preservation concer” This would be in cass where a replacement copy cannot be obained through the market, and the ably to preserve the work inhibited by deteriorating or obsolete media Much of tenithcentury audio and video media are on deteriorating cases, 30 reformating for preservation sake not such a legally risky endeavor for a nonpofic archives witha public service om- pponent'* When 2 wok is eformarte wo. dig format for preservation rexons, edocs no necessarily ‘mean that cca then be pu online and thus published globally Rather, the dgilly preserved copy can bbe accessed in much the same way asthe deteriorating copy—on-ste at an archives fc" Section 107: Fair Use Despite he imitations of setion 108 ofthe Copyright Act, section 107—or the ir we sectionals some limited options for making copies of copyrighted work. Fairs allows for copying small amounts ‘of copyrighted work and making ic avalable wo researcher if four citer are me: ‘+ Purpose: educational and schoatly us, crc and commentary, news poring, transfor- mative use, parody ‘+ Natu: published work, factual or nonfiction base, important ro educational objectives ‘+ Amount small portion ofthe work appropriate for educational purpose ‘+ Bfece mo effect on the markt forthe work Note thar ll our eteria mus be addressed eo satisfy the conditions for fir ws. Kenneth Crews, the fomer director ofthe Copyright Advisory Office atthe Columbia University Libraries, has devel ‘oped checkin that can be sed to evaluate if pice of copyrighted work mess the fur criteria and ths is amenable ro fie we.” Although the lw doesnot define whar i “small amount” ofa woe, iis sometimes defined by those looking to make us offi se 2 10 percent ofa work.” Homever, this may be fi too much of work, especily fit it a commercal work Stanford Universi "Proposed Fuatonal Guideline on Fri Use” for students and faculey using commercial works in an educational capacity suggest 2 max- ‘mum of thirty seconds for music and lyrics anda maximum ofthe minutes for video and film works" ‘These number are an atempt to operationalize and provide guidance on the fr-use requirement of “small amount.” ‘Since court ulkimately make decisions on what is fir we and what isnot, archives looking to employ fir use will never know if hey are uly “nthe clea” Ths, lawyers such as Briston who work in the archival domain advocate For rkemanagement approach A risk-averse archive would want to avoid making available small amounts of commercial works or works that implicate litigious persons.i Ethical Las “% ‘Mates such as ecordngs of noncommercl,nanceative evens ae safer opportunities fo archives to uy to eerie thei ir we rights, ‘Many ofthe legal cases regain fir we of copyrighted work have implicated univers reserve ‘pstems, rather than copes made from archival mater For example, several publishers sued Georgia ‘Sate University in 2008 for “pervasive, fagrane and ongoing unautorined dsrbaton of copyrighted ‘mae through the library’ eeserve stem. Although the court largely found tha the uivescy was within the bounds ofr use, the cate tok yeas to resolve, and appeals continue.” Fortunately, there are no such high-profile cases implicating archives. The downside of no having such cout dei sons inthe archival domain is chat the bounds of ir we have not been Fly Bed out Despite the opportuites opened up by fr use, there are some limitations tha wll be discus inthe fllowing sections LAYERED RIGHTS Moving image works and some audio works are notorious for having complicated eights, with much ofthe complication stemming fom layered rights. Layered rights occur when 2 segment of audiow- sual media implicates multiple rights holders" Although a copyright owner may transfer his or her righ to an archives, there canbe other tights embedded inthe work tha the donor does or have and eannoe transfer, Before attempting to distribute copies of 2 wor, iis important figure out if there ar layered, Fighs in the work. This includes boh case where the donor has signed a copyright transfer agreement ane asc where the whole work is intended for online disuibuion or clips of a work are being wed nine. Hopefly if there ae copyrighted works within another wot, the donor has transfered to the archives the paperwork that outlines the permisons ro we thes other works embedded inthe donated ‘work not, you may want avoid providing dig acces to works that include copyrighted songs oF arworks ifthe permission clearance ar nor cert outlined, For example when puting cogehes lips, itmay be sensible o avoid pare of the work thar use popular music or profesional sports footage (which is often owned by corporations suchas the National Football Leagu) EXAMPLE CASE: EYE ON THE PRIZE . (One ofthe mor infamous cass of complex layered sights—and the ability of thi insu vo stymie a work use—isthe film Ej on te Prize, one ofthe most comprchesive documentary films about the American civil rights experince, which was broadeast on PBS in 1987.” The film included 120 song ties, footage fom 93 archives and 275 sill photographs. When the film was made, licenses for we ofthe material were negotiated for only five years: When the cesing agreements expited in the mid 1990s the flim became undisribuable. Another notable right sue relates tothe ability use the image of Dt. Martin Lather King Je, whichis concolled by his eae. The us ofa cclebriy'simage does ‘not implicate copyright law but rather publcy righ, which allow person or higher esate ro contol ‘th use of hier image in a commercial capaci Unlike privacy rights tha nd at death, personality Fighs carry on afer death and can be conrlled by an esate“6 Moving Image and Sound Collections for Archivists [A segment ofthis fila chat illustrates the sue of layered rights occurs in the episode in which De King sta sings him the song “Happy Bithday.” The song has only recently entered the public domain, and thus the copyright owner wanted payment forthe us ofthe copyrighted work atthe time the ights were being resecured" Combined withthe licensing ofthe archival footage andthe ight for the use of De. Kings image, a complerof layered sights needed wo be overcome to rerlease the work Forrunately—and through massive fund-raising ffort—the rights to the entire film were restored and the fm is dsributed today PRIVACY Archives have dhe potential to enable the voaton of individual privacy, uch a when 3 rcacher goes through bores of videos onsite or browses content made available online chrough finding id racer access took Privacy ca be violated when a intentional intrsion into a peso’ scsion ot iat pri vate airs causes pychological disues.” For example, assume pany A donates a recowing of phone ‘conversation berwen party Aand party B, and party C listens to this recording that is avaiable onsite aan archives Puy B finds ot abou this an fel distressed by the violation of his privacy, and could charge party A with violating hight privacy. ‘When an archives pus information online, iti no longer acting as simply keeper of ater people information, iis also acting as a publisher By putting information onlin, an archives could enable ‘defamation, whichis defined as having four elements: “() making 2 fle and defamatory statement purporting ro be fact about another person or entity, (2) by words or publication to thi peso, (3) through the fault or negligence ofthe writer or speaker, 4) causing har to the subject ofthe ace rment.® Although the archives i not making the dfaming statment, i could involuncay ace asthe “publication oa third person.” It's not problematic to have ecoring with defaming satementsin an archives, but when the statements ae published onlin, the archives could be interpreted a his thied pty To complicate things Further, when puting information online, an archives acts not only 252 publisher bur also 2 global publisher, which exposes the archives ro the lw of Forcign counties ‘A related complication is not 0 much 3 legal sue but rather an ethical sue that presets itself because of the affordancs of the web. When archives make audiovisual reconds available onne, they often include basic metadata, suchas the names of speakers included in videos. People havea tendency 0 Google themselves, and they may find records of themselves that they may have agreed to inthe psst—even signing donor agreements—but have since changed dei minds about. These donors offen ‘make arguments elated tothe newfound avalabily of the record “I never knew that these videot ‘would be made available online—how was [o know th the Internet would exist in 19892" In these ‘asc, the donor is happy ifthe records remain in abscrity—in the archival equivalent of some base mentor attc—but isles than comfortable with them a clic away This isa vey valid argument, andi ismore ofan ethical ase than a legal one, because asumes thatthe donor has signed over ownership and copyright tothe archives. In cases such as this i bes 10 just remove the offending video from the web at quickly as posible, and let the donor know. Alternatively, reaching out vo donors (or hei sae) proactively before puting material online can help eliminate this sueLegal and Ethical ues ” EXAMPLE CASE: RECORDED INTERVIEWS Tn my clases, [expose my stants to a vain of legal and ethical iste through couse projects chat involve ral collections. In one project had setup an opporaniy for sadents wo work with dancer and dance journalist co establish digital archive for het. Tis involved reformatting recorded interviews that were on compact audiocaete and creating an online presence forthe dig archive. However, before his online presence could be erated, 2 number of gal ists needed ro be considered. “The dance journals had interviewed dancers, creating audi recordings of heir conversations. She then transcribed and edited che conversations and published them in dance magazines and books. Asis ‘common with journalists, she did not seck copyright transfer from the interviewee. Her ownership of the tapes on which the converstons were recorded was notin question. As she bought the apes herself ‘she could transfer the ownership ofthe tapes to an archives. However, since the interviewees had not cexplicily transferred the copyright of chee iterviews, the journalist could not ane he copytighc of such interviews to an archives or crete copies of her owa tape for online distribution. “The students went ahead and digitized the tps, noting thatthe rapes chemseves were degrading and digiation was a preservation meaeue, Rather than putting the entire set of ecordings online the ‘las decided to make small amounts ofthe interviews availble online for educational and schoily te about 10 percent ofthe work)” For example, iky-minute recording would yield sic minute lip that could be played onthe web, The students reasoned tha since the interviews had already been ‘published in print, the interviewee! privacy would noc be violated. Should researchers want to sen to {al inerviews, they could contac the journalist and she could let them listen to he fl copies, In this ease, eudens considered going back o orignal interviewees and securing copyright ransler forms, However, base ofthe ime consis, no copyright forms were secured. The webs crated by che sradens hasbeen available online since 2011. In thi ime, thas noc eised any objections from interviewees, and n interview clipe have ben removed. As with all applications of fire. archiviss can ‘only sy the aren the clear” when the copyright lps, which can take wll over a hundred years. For ‘this reason, cher i alway pou of fture “akedown” request. Asa judges the only person who ‘an realy sy if you applied fi use cone, you have ro rely on your understanding ofthe law, pst sppliccions of fir use by other archives, and any ouside lea sistance that you can obtain. The safest ‘option to offer no even small clipe onlne but this i abo dhe least asserive se of an archives righ, DIGITAL MILLENNIUM COPYRIGHT ACT Copyright law has been sow to change, and much oF is governed by a predigal understanding of ‘how information, knowledge, and culture ae related. Despite this, some leiation hasbeen passed that acknowledges digital information, specially dhe Digital Millennium Copyright Act (DMCA) of 19982 The DMCA introduced several noteworthy elements for those managing moving image and sound collections in archives “This law introduced the takedown noice or leer, which copyright ownes can send 0 web hosts that ate making thei copyrighted work available online. Asan archives, you can both send and reccve such lees, You would send a takedown leer if work tha is copyrighted bythe archives or parent inscicution i wed in away that votes the donor aprement. However, many archives do not go to“ Moning Image and Sound Collections for Archivists ‘ret lengghs to enforce their copyrights, at ute ea primary objective of mos archives. Archives may labo receive takedown notices. When rciving sucha noice, tis important co defend che work if it meets the conditions fr fir us. Ifyou determine that che way the work is used not fir us eg 190 ‘mach ofthe works presented onlin) then the work should be removed from the web quickly and the copyright holder notified ofthe change ‘The DMCA alo introduced an important provision tha dsallows the circumvention of any encryption technology used to protect digital content. Many commercial works ceaed on DVD ot Blu-ray may use encryption. Fortunately, CDs do not have encryption technology bil in, bu other Formats ike MiniDisc sometimes do have encryption enabled, Although hackers have since figured out the enceyption keys for DVD and Bluray, making the decryption proces relatively suaighdorward, it «ould be volton of DMCA to derypt an encryped dis, even for preservation purposs.” ‘Whereas DMCA proven all encryption tampering, exemptions for fie use—which must be applied for every tree years to che librarian of Congress allowed dcerypton of DVDs and Bli- ‘ays fortis purpose ™ Sach decryption could nce student ut of short lps in multimedia projects for educational purposes Despite this exemption, there tno explicit exemption for ripping” a DVD or Bl-ty for preserve ‘ions sake. However, itis unlikely tobe avery sky acsivty a longa the “ripped content allows the logic of section 108 ofthe Copyright Act: the dic wa ripped because a replacement copy could not be obtained in the market, and there ae preservation iss withthe original media (eg, satches toa DVD or Blea that threaten is payabiln), CREATIVE COMMONS ‘When a donor ansfrs oan archives the copyright ofa work, one option to promote us of the work {sto apply a Creative Commons license roi" This allows individuals toute the work in way tha ou sec orth in the license withou the need for the user to contact the archives and get writen permision, hus steamlinng the reuse proces. Creative Commons licenses can dictate a variery of user of the work, suchas specifying tha the work can be used in any noncommercial we a ong atthe creators atib- tuted. For work that have layered sigh-—here not all ights may have been secured by the archive of patent institution—archivss should avoid applying such licens, ora least conduct isk analysis before doings, because the archives or parent body only hs the legal authority to license rights that it cleat owns DOWNLOADING MEDIA AND TERMS OF SERVICE Sometimes insctional records sch a videos are made availble olin through socal media ses like YouTube, and the orginal recording medi is chen lost, making the copy on the social media site the ‘only one available. In these cases, it may make sense to try to download the videos. Ifthe wername and pasoword forthe YouTube uploader can be reive, is possible in mose cases wo download the ‘compressed version ofthe video from YouTube. However in cases where the wsername and password ‘cannot be retived, it is possible to use extensions for web browsers like Firefox or Crome that allowLeg and Ethical lee, ” donloading of medi from oc media sts. Too for dings are discuse in chap 10, “Digi Video Calton.” Despite the ably wo downloud, itis guint the terms of evice of mos social mea sites. For cumple, the YouTube Tems of Service sy “You shall not download any Content unk you se “downlod o similar link played by YouTube on the Serie for that Content,” meaning tha ll rdia mus be seamed (or conte) trough tei service This of cours mks sens for comme m2, * jne Meck, Cp nd and aan Dial Pro nd Diino of Unpaid P72 Sad Moog tected rhe Cohen DG Chea en snd orn Rat 200 pore ‘Scope pbl ak face Mp 2,206 ppm USC 2 Hie, "Copg em” * Soc of Ameen ivi, Opt Mr Seton f Bot Pcs oy 2,20 Jn 17, 209 ap ‘cape pare fan pal radon Ap, 2016 bp pos FEE HT * Hew ea a, Vd Rik Sra Ping Comme Vile Calin ii Neu Yok NewYork ‘sheng Lesa 201, heer tlccrlecar de eik SECTIONTO® Goel 2913p peak on pl 7,216 4 hp pm SPICE AER, | ene Crem “Tae Checie” Cope Aviary Ofc, Clam Urey irs, pepighshnb “seer gelesen x omit cae 2016 hu pom © Sanford Unni Lies, Popol Eduction Gio on Fis Use hp ick alenion ‘alensant ec eminon/ Pop ibe en jee Ala 2016s a ise pln, praised o pel. elma Beigo, “Undemding Capri am” “Kae aig Nn Rain ed Ki eal oper nd pri lin Pera ‘2A if gel ep pers ee ro itn penile ea ie epee eFC > io," Capi Lan * ten Hay Rey Cnc y aS ob Tin Seen 72285 rina “cisions amen Shir op yg oad ag 26 Riemann ee Sp ed ae de ope ‘esi. hn bc snd Ryn amaciCleo” min i io Dao NGL RimdAstnd Che) Pn (hap Sosy A Re Ja Gi ln ne th nerf ig nay mare Eig, 2: eth ikea emacs hap eg pm Sehgal a igs SCO Send Rng Ad i Bon Cie Rn te Cn Die nie Dis igs cp el eo Age 3,206 bgt pa REET Dio," Caeane Pergo Ren En Psion een ie nan 3S ls fa trang ‘Spin oucran pom A ehptpemasd RH + Gene Comme bps pro pl 26. etna cS 22M 1 Siitbetom fs ent Llienyeetecoam, pms oe 26 apap AMoving Image and Sound Collections for Archivists ANTHONY COCCIOLO‘The Soi of American Archivists wrmarbirinnecy (©2017 by the Soci of American Archivists Al igh rsrve Pineda the United Sates of Ameri. bray of Congress Cataloging Publication Dats Nunes Cox, Antony aoe Tele Movingimage an und clon fr achivies/ Anon Cos Deeps Chg L: The Soy of Aman Ahi, 2017. ees LOCN 2017025327 (prin) | LCCN 201702662 (ebook |1SBN 274031428959 (pA | IBN 978099182935 (gapcack aap) Sst LCS: lm achive- Handa, mane [Sound ‘hv Handbook: mn Dig pesaion- Handbooks tena | Archiver Management Hand, marly sition LCC P1993. (on) | LOC PN1993.4.C58 207 (i) | BDC 5.79143-d23 Cred able ac hapa lo g/2017025327 ISBN: 978-0.931828-935 (pit) ISBN; 974-0.931828.959 (pd) apie design by Swceney Desi knwcen shaban "Nate Al gure and photogaphs were cet by Amhony Caco une thers stated.