Chapter 19—
Licensing, Copyright, and Fair Use
The Thesauron Project (Toward an ASCAP for Academics)
Jane Ginsburg
The Thesauron Project takes its name from the ancient Greek term meaning treasury or inventory.[1] This project envisions the creation of a digital depository and licensing and tracking service for unpublished "academic" works, including working papers, other works-in-progress, lectures, and other writings that are not normally published in formal academic journals. A centralized digital clearinghouse for this material confers a number of benefits on the academic authors and on users, particularly users of university libraries, including students, professors, and other researchers.
First, a centralized depository offers a more systematic and convenient means to discover the unpublished literature than does wandering around individual professors' or departments' Web pages. The depository's detailed and dynamic catalog of its works, identifying new and revised submissions, will significantly enhance the accessibility of this material.
Second, academic authors may not always have a significant financial stake in the electronic exploitation of their works (whether the works are unpublished or published; in the latter instance, many academics may have assigned all rights to publishers-sometimes inadvertently). But academics do have a very significant glory interest. A depository that undertakes what one might call "prestige accounting" for the authors adds an important feature and may serve as an incentive to participation.
What is "prestige accounting"? It is the tracking of use in a way that would permit authors to interrogate the depository to learn if and how their works are being used, for example, on reserve or in course packs at identified universities, for identified courses. Currently, academic authors generally do not know, apart from general sales figures (if they receive any), what has been the dissemination of their works. With some prodding of publishers, one might find out which bookstores placed orders for the book and thus infer which schools were using the work.
However, this kind of information is not generally available (or, at any rate, disseminated) for photocopied course packs, even when rights are cleared.
Third, and especially important to the digital environment, a service of this kind would add considerable value if it could ensure that the digital version made available is authentic. Many works may be traveling on the Web, but the user may not (or should not) be confident that the document downloaded is completely consistent with the work as created. This quality control is particularly significant when many different versions (e.g., prior drafts) are accessible at multiple Internet sites (not all of them with the author's permission).
Defining the thesauron universe
What Kinds of Works Will the Thesauron Depository Include?
At least as an initial matter, the depository will be confined to unpublished works such as drafts, lectures, occasional pieces, conference proceedings, masters theses, and perhaps, doctoral dissertations. This definition should help avoid possible conflict with publishers (or those that are the copyright holders of works written by academics) who are or will be undertaking their own licensing programs. Moreover, the universe of "unpublished" works may grow as that of formal academic publications shrinks.
Whose Works Will Be Included in the Thesauron Depository?
Any academic (term to be defined; e.g., anyone with an institutional IP address) who wishes to deposit a work will be welcome to do so. There will be no screening or peer review.
Participating authors will register with the Thesauron depository and will receive a password (Thesauron registration information will also be relevant to terms and conditions and to authenticity; the password will tie into use reporting; see IIC, IVA, VB, infra).
Deposit
Entry of Works
Deposits must be made by or under the authority of the author (if living) or successor in title (if dead); the depository will not accept submissions from unauthorized third parties.
Deposited works should be sent in HTML format.
Upon depositing, the author will supply information necessary to cataloging the work, including author name and the title of the work, and will categorize the work for the Thesauron catalog by selecting from LC classifications and sub-classifications supplied on menu screens (see also IIIC, infra).
Every work deposited in Thesauron will automatically receive an identifying
ISBN-type number ("Thesauron number"). The number will be communicated to each author upon deposit as well as maintained in the catalog.
Exit of Works
The author, upon submitting the work, may demand that it self-delete from the depository by a date selected. Any document so designated should bear a legend that indicates at what date it will no longer be included in the depository.
The author may also demand deletion from the depository at any time. The catalog (see IIIC, infra) will indicate the date that a work has been deleted and whether it has been replaced by an updated version. A morgue catalog will be established to keep a record of these deletions.
Terms and Conditions
With each deposit, a participating author who wishes to impose terms and conditions on use of the work may select from a menu of choices. These choices will include:
What kind of access to permit (e.g., browsing only)
What purpose (e.g., personal research but not library reserve or course packs)
Whether to charge for access, storage, or further reproductions
Access
What Users May Access the Thesauron Depository?
As a starting point, access will be limited to university-affiliated (or research institute-affiliated) users. These users will make their first contact with Thesauron from their institutional host in order to establish a user ID number from which they may subsequently gain access from both institutional and noninstitutional hosts (i.e., work or home).
When registering, the user will indicate a user category (e.g., professor, postdoctoral, graduate, undergraduate) and disciplines (research and teaching subject matter areas); this information will be relevant to the depository's catalog and tracking functions (see IIIC, VA, infra).
A second phase of the project would extend access to independent scholars who do not have institutional affiliations. At a later date, access to the depository might be expanded to the general public.
Conditions on Use
When registering, the user will encounter a series of screens setting forth the general conditions on using Thesauron. These conditions include agreement to abide by the terms and conditions (if any) that each author has imposed on the deposited works (e.g., the author permits browsing and personal copying, but not further copying or distribution). The user will also agree that in the event of a dispute
between the user and Thesauron, or between the user and a Thesauron author, any judicial proceeding will be before the U.S. District Court for the Southern District of New York (or, if that court lacks subject matter jurisdiction, before the New York State Supreme Court) and will be governed by U.S. copyright law and New York law. (The choice of forum and of state law assumes that Thesauron will be established at Columbia University.)
How Will Users Know Thesauron's Holdings?
The depository will include an electronic catalog searchable by keyword or by Boolean logic. The catalog will also be organized in a scroll-through format employing LC subject headings. The catalog will be dynamic so as to reflect new submissions or revisions of material (and will also indicate when an author has deleted material from the depository).
The catalog will be dynamic in another way. Along the lines of SmartCILP (Current Index to Legal Periodicals) and similar products, it will regularly e-mail registered users with information about new submissions in the subject matter categories that the Thesauron user has requested.
How Will Users Access Material from the Thesauron Depository?
After finding the requested work's Thesauron number in the general on-line catalog or in the e-mailed updates, the registered user will click on the catalog listing or type in the Thesauron number to receive the work.
It is also possible to envision links to specific works in the depository from online course syllabi or other on-line reading lists.
In addition to the general conditions screens encountered on first registration with Thesauron, the terms and conditions (if any) pertinent to each work will appear on the initial screen prefacing each work. In order to access the rest of the document, the user will be obliged to click on a consent to those terms and conditions.
Authenticity
Delivery from the Thesauron Depository
Documents in the depository will be authentic when submitted by the author. The depository will add digital signatures or other marking material to identify the author, the work, and its date of submission.
Subsequent Generations of Documents Originally Obtained from the Depository
The Thesauron project does not now contemplate attempting to prevent users from making or circulating further copies of works obtained from the depository. But it is important to provide the means for anyone who obtains a document of
uncertain provenance to compare it with the authentic version to ensure that no alterations have occurred. Thus, if a registered user has obtained a copy from a source other than Thesauron, the user should verify that copy against the version in the depository.
Tracking
Identification of Uses
Registered users will respond to a menu screen indicating the purpose of their access, e.g., library reserve, course pack, personal research.
Reporting
Registered authors will have electronic "prestige" reports that they may interrogate at any time to learn:
The number of hits each deposited work has received
The source of the hit (institution, department, user category-names of users will not be divulged)
The nature of the use (library reserve, course pack, research)
Billing
If the author has requested payment for access or copying, the registered user will need a debit account to access the work; the debit would be credited to the author's account. These operations may be implemented through links to a participating bank.
Other potential applications of thesauron
As currently conceived, Thesauron's universe is unpublished academic works. But once all its features have been put into place, Thesauron could either expand its holdings or work in tandem with copyright owners of published works to supplement whatever rights clearance system the publisher has devised. Similarly, in situations in which authors have not assigned their copyrights or have at least retained electronic rights, Thesauron could work together with collective licensing agencies, such as the Authors' Registry, to supplement their rights clearance and reporting mechanisms.
Costs of implementation and maintenance
Initial Setup
The primary initial costs will be in acquiring hardware to accommodate the depository and in creating or adapting the software for the various components of
the system: author registration; deposit; cataloging; user registration; use tracking and reporting; billing. It will also be important to publicize Thesauron to potential participating institutions, authors, and users; some portion of the initial budget should be allocated to this promotion.
Maintenance
Because most of the information in Thesauron is author-or user-generated, the maintenance costs should be largely limited to general system maintenance and gradual expansion of disk storage. It may be desirable to provide for part-time help line assistance.
Paying for Thesauron
It will be necessary to seek a grant to support the initial setup of and publicity for the system. The maintenance and help line costs should be covered by a modest subscription from participating institutions in exchange for the service of receiving and delivering works into and from the depository.
If the payment feature becomes a significant aspect of Thesauron, a portion of the access or copying charges could go to defray maintenance expenses.
Appendix A The Thesauron Project: Annotated Bibliography of On-line Sources
Compiled by Deirdre von Dornum, J.D., Columbia, 1997.
Defining the Thesauron Universe
What Kinds of Works Will the Thesauron Depository Include?
1. See University of Texas Copyright Management Center (www.utsystem.edu/OGC/intellectualproperty/ ) for overview of "Faculty as Authors, Distributors and Users: The Roles of Libraries and Scholarly Presses in the Electronic Environment."
Whose Works Will Be Included in the Thesauron Depository?
1. General information on universities and copyright: Copyright Management Center at copyinfo@indiana.edu.
2. For definition of "educator," see Educational Fair Use Guidelines for Digital Images 1.4, available at www.utsystem.edu/OGC/intellectualproperty/imagguid.htm.
3. The WATCH file (Writers And Their Copyright Holders), a database of names and addresses of copyright holders of unpublished works primarily housed in libraries and archives in North America and the United Kingdom: www.lib.utexas.edu/Libs/HRC/WATCH.
4. Hypatia Electronic Library, a directory of research workers in computer science and pure mathematics, and a library of their papers: http://hypatia.dcs.qmw.ac.uk.
Deposit
Entry of Works
1. Existing depository: CORDS (lcweb.loc.gov/copyright/): U.S. Copyright Office's electronic system for receipt and processing of copyright applications; working with small number of representative copyright owners to establish digital depository.
2. How to assemble depository: ACM has guidelines for electronic submission of works to start a depository (www.acm.com ).
Terms and Conditions
1. Copyright Clearance Center (www.copyright.com ): has templates of rights and pricing schemes; individual publishers fill in specifics.
2. JSTOR (www.jstor.org/about/license.html ): model licensing agreement.
Access
What Users May Access the Thesauron Depository?
1. European Copyright User Platform (accessible via arl.cni.org/scomm/sum .html ) has a grid model for legitimate access considering the following dimensions:
a. type of library: national, university, public, and so on.
b. whether user groups are open (the general public), closed (a specific subset who have a formal relationship with the organization), or registered (individuals who have authorized passwords).
c. types of permissible activities, including digitization and storage, viewing, downloading, copying, exporting, and so on.
2. Project MUSE (Johns Hopkins University Press) (128.220.50.88/proj_descrip/rights.html): allows access through universities only to faculty, students, and staff (access expected to be enforced by subscribing universities).
3. University of Texas system (www.utsyem.edu/OGC/intellectualproperty /l-resele.htm) discusses restriction of electronic distribution of copyrighted materials to enrolled students.
4. Virginia Tech (ei.cs.vt.edu/courses..html) digital library in use for computer science courses.
Conditions on Use
1. Nontechnological means of control
a. University of Texas system (http://www.utsystem.edu/OGC/intellectualproperty/rsrvguid.htm ) suggests: retrieval of works in electronic reserve systems by course number or instructor name, but not by author or title of work.
b. ASCAP (www.ascap.com ): collective on-line licensing for all copyrighted musical works in ASCAP's repertory; does not allow reproduction, copy, or distribution by any means (enforced contractually, not technologically).
2. Technological devices
a. CORDS (lcweb.loc.gov/copyright/): individual digital works will be assigned "handles" that code for access terms and conditions established by rights holders.
b. Ivy League (www.cultech.yorku.ca/projects/docs/ivymain.html ): Canadian consortium of companies, universities, and rights clearance organizations; employs encryption, fingerprinting, tagging, and copy prohibition to enforce limitations on user and use.
c. IMPRIMATUR (www.imprimatur.alcs.co.uk/ ): U.K. consortium in development for copyright managed Internet server; interested in using numbering system and cryptography to limit access.
d. Technology providers (information available through IMPRIMATUR site or www.ncri.com/articles/rights_management/ifrro95.html )
How Would Users Access Material from the Thesauron Depository?
1. Course syllabi/electronic reserve lists
a. For summary of fair use and academic environment, see arl.cni.org/aau/IPi.html#Background. For a computer science-oriented digital library aleady in use with computer science courses at Virginia Tech, see ei.cs.vt.edu/courses.html.
b. model charters of electronic reserves: University of Kentucky (www.uky.edu/Libraries/elecrestf.html ); Duke (http://www.lib.duke.edu/access/reserves/intro.htm )
c. links to further info: www.columbia.edu/~rosedale.
2. General search engine
a. The Computation and Language E-print Archive, an electronic archive and distribution server for papers on computational linguistics, natural language processing, speech processing, and related fields, is accessible by a variety of means, such as: title/author search; abstract number; most recent acquisitions; form interface searches. See http://xxx.lanl.gov/cmp-lg/.
Authenticity
Delivery from the Thesauron Depository
1. CORDS (lcweb.loc.gov/copyright/): authenticity initially verified by Copyright Office, and then guaranteed.
2. Clickshare (www.clickshare.com ) operates across the Internet as an authentication and payment facilitator.
Subsequent Generations of Documents Originally Obtained from the Depositor
1. ACM project (www.acm.org ): very concerned about authenticity of documents.
Tracking
Reporting
1. Copyright Clearance Center (www.copyright.com ): currently licenses on behalf of over 9,200 publishers, representing hundreds of thousands of authors; collects usage information from meters (appears to be volume and billing rather than specific use) and reports to rights holders.
2. Technological devices: Clickshare (www.clickshare.com ) operates across the Internet as an authentication and payment facilitator; can also provide user profiling and user-access verification services. Publishers maintain their own content on their own Internet server; the Clickshare software enables the provider to track and receive royalties from users who click on content pages; the publishers retain the copyrights.
Billing
1. Authors' Registry (www.webcom.com/registry/ ): accounting system for paying royalties to registered authors for electronic media uses.
2. ASCAP (www.ascap.com ): collective on-line licensing for all copyrighted muscial works in ASCAP's repertory; four different rate schedules (on-line service providers select one).
3. Publication Rights Clearinghouse (National Writers' Union) (www.nwu.org/nwu/ ): rights to previously published articles by freelance writers sold to fax-for-fee database. PRC sets royalties and forwards to authors when articles used, minus 20% fee.
4. Corbis (www.corbis.com or www.corbisimages.com/ ): licensing of digital images.
This project was developed by Jane C. Ginsburg, Morton L. Jankldow Professor of Literary and Artistic Property Law, Columbia University School of Law, in consultation with James Hoover, Professor of Law and Associate Dean for Library and Computer Services, Columbia University School of Law; Carol Mandel, Deputy University Librarian, Columbia University; David Millman, Manager, Academic Information Systems, Columbia University; and with research assistance from Deirdre von Dornum, Columbia University School of Law, class of 1997.