CAA News Today
CAA Participates in Roundtables on “Orphan Works and Mass Digitization”
posted by Anne Collins Goodyear — March 26, 2014
On March 10–11, 2014, the United States Copyright Office (USCO) held a series of public roundtables in Washington, DC, exploring the question of “Orphan Works and Mass Digitization.”[1] Collectively, these discussion panels constituted a follow up to a Notice of Inquiry circulated by USCO in the fall of 2012, in response to which CAA filed reply comments in March 2013.[2] Given CAA’s long advocacy of legislation to offer protection to those individuals and institutions using orphan works, and after consulting with CAA members familiar with concerns related to orphan works,[3] I represented the organization in two sessions, one addressing the “Types of Works Subject to Orphan Works Legislation, Including Issues Related Specifically to Photographs” (Session 4) and the other “Types of Users and Uses Subject to Orphan Works Legislation” (Session 5).[4]
“Orphan works” constitute a class of materials for which no copyright owner can be located.[5] They have long posed a thorny challenge for scholars or artists who might seek to reproduce them, but who cannot locate the creator or a source from which to license them for purposes not considered “fair use.” As a publisher of leading journals—Art Bulletin and Art Journal, and caa.reviews—and an advocate for its members who might similarly seek to use orphan works, CAA has consistently argued in favor of orphan works legislation that 1) would significantly limit the liability of a user of an orphan work who had executed a diligent search for the work’s copyright owner, and 2) provide a safe harbor for not-for-profit cultural institutions, engaged in non-commercial activities, that had exercised similar care and that took steps to cease the infringement. At the same time, CAA has spoken to the importance of the attribution of the work and has argued that if a copyright holder comes forward that rights holder be entitled to a reasonable licensing fee if, indeed, the use is not considered “fair” as allowed under the law.
Consistent with positions taken by CAA previously, the organization argued that all copyrighted works, including photographs, should be protected by orphan works legislation. Photographs, which can be notoriously difficult to associate with their makers, have proven particularly tricky as a group of objects, actually being excepted from a directive, intended to facilitate the non-commercial public interest use of orphan works, passed by the European Union.[6] However, not to consider photographs as part of the larger category of orphan works would be extremely limiting from the perspective of CAA given the strong interest of its members in sources of visual information. Categorically excluding photographic and other works of visual art from orphan works eligibility would disadvantage users of images, including artists, scholars, and publishers, who would face continued risks of being sued for copyright infringement despite being unable to determine the identity of the copyright owner at the time of their use. The purpose of orphan works legislation is to mitigate the legal risk of using works that are part of our shared culture. It is because those risks can have chilling implications, adversely affecting creative work by artists and scholars, that CAA has been committed to support orphan works legislation.
Given the diverse range of purposes to which copies of orphan works might be put by its members, CAA has argued that both commercial and non-commercial uses of such material should be protected, given the extraordinary difficulty of teasing apart such interests. Because artists (like scholars) can be both creators and users of copyrighted items, they may seek to make and market work incorporating reproductions of orphan works. In similar fashion, academic or independent scholars or museum professionals make seek to illustrate orphan works in publications made available for sale. While recognizing that a voluntary registry (or registries) of copyrighted works, such as photographs might be useful, CAA does not endorse requiring such registration, nor does it feel that the terms of a “diligent search” for the holders of copyright of orphaned works should be prescribed, arguing instead that the best approach to such research would be better determined on a case-by-case basis.
Although previous legislation, S. 2913 (the Shawn Bentley Act) faltered in the House of Representatives in 2008, and was thus not enacted into law, USCO is now reexamining the potential value of pursuing orphan works legislation anew—both with regard to the occasional or isolated use of orphan works as well as mass digitization. These efforts reflect the influence of new technology and ongoing litigation, such as cases concerning Google Books and the HathiTrust, where mass digitization was found by the US District Court for the Southern District of New York to constitute “fair use.”[7]
The growing reliance of many libraries and archives upon the principle of “fair use” as a justification for digitization has led USCO to consider whether this defense obviates the need for orphan works legislation. CAA has argued that this is not the case, recognizing that some uses of copyrighted material may not constitute “fair use.” Thus CAA continues to appreciate the value of such legislation to clarify the class known as “orphan works” to protect the needs of its membership, even as it advocates for the development of best practices guidelines for the fair use of copyrighted material.
CAA intends to submit comments related to the roundtable by USCO’s filing deadline of April 14th. Should any CAA members wish to offer thoughts related to this topic to be considered in relation to such a filing by CAA, please contact Executive Director Linda Downs (ldowns@collegeart.org) or President Anne Collins Goodyear (AGoodyear@bowdoin.edu) by April 7th.
Endnotes
[1] For more information on this event and other Notices of Inquiry by the US Copyright Office (USCO) on this topic, please see: http://www.copyright.gov/orphan/. Transcripts and video of the roundtables will be posted when they become available on the website of the USCO.
[2] CAA’s submission of these comments is described in CAA’s resources on “Intellectual Property and the Arts” which provides a link to these comments: http://www.collegeart.org/ip/orphanworks.
[3] For their generosity with their time and expertise, I thank Jeffrey P. Cunard, Christine L. Sundt, Judy Metro, Doralynn Pines, Eve Sinaiko, Linda Downs, and Betty Leigh Hutcheson. Chris Sundt and Jeff Cunard generously provided comments on earlier drafts of this posting, for which I am grateful. CAA’s long history of involvement with orphan works is detailed in CAA’s recent submission of comments, prepared by CAA counsel Jeffrey P. Cunard, on Orphan Works and Mass Digitization to USCO, in March 2013; please see: http://www.copyright.gov/orphan/comments/noi_11302012/College-Art-Association.pdf. http://www.collegeart.org/ip/orphanworks.
[4] Due to the strong outpouring of interest in the topic, participation by each organization had to be limited, and CAA prioritized these sessions.
[5] Further discussion of orphan works can be found on CAA’s website under “Intellectual Property and the Arts,” at http://www.collegeart.org/publications/ow.
[6] These challenges and the directive passed by the European Union are discussed in the February 10, 2014 USCO Notice of Inquiry for Orphan Works and Mass Digitization, available at http://www.copyright.gov/orphan/. See specifically the discussion of the topics raised by Session 4: “Types of Works Subject to Orphan Works Legislation, Including Issues Related Specifically to Photographs.”
[7] For more information on these decisions, including links to them, please see: See http://www.publicknowledge.org/files/google%20summary%20judgment%20final.pdf and Andrew Albanese, “Google Scanning is Fair Use Says Judge,” Publishers Weekly, October 11, 2012. http://www.publishersweekly.com/pw/by-topic/digital/copyright/article/54321-in-hathitrust-ruling-judge-says-google-scanning-is-fair-use.html. I thank Chris Sundt for recommending these resources.
Proposed Amendment to the CAA By-Laws
posted by Anne Collins Goodyear — January 13, 2014
Dear Colleagues:
Thank you for your membership in the College Art Association. Starting on January 6, 2014, CAA will open its online election. Not only do we have an excellent slate of six candidates to be considered for Board service, but we request your vote on a proposed amendment to the By-laws of College Art Association.
The amendment grows out of a detailed analysis of CAA’s current membership structure, and reflects the results of a recent member survey evaluating the most highly valued aspects of membership. Based on this study, designed in part to assess the needs of contingent faculty, the Board determined that it made sense to streamline the numerous categories of membership now in place and to develop a structure based on benefits rather than on income. Some of the new benefits that will be made available include online journal access, additional online access to a non-CAA publication published by Taylor & Francis (the new co-publisher of CAA’s journals), and JPASS access at a fifty percent discount, as well as discounted, part-time membership for contingent faculty.
Because changing the membership categories requires amending the By-laws, the Board unanimously adopted a resolution at its October 27, 2013 meeting recommending the amendment to the By-laws available at http://www.collegeart.org/pdf/caa_by-laws_amendment_02_2014.pdf. The Board believes that this change will benefit members and sustain the services the Association provides. The amendment also provides for flexibility in enabling the Association to make further changes to the membership structure as may be deemed desirable in the future.
We encourage you to review the proposed amendment to the By-laws and we urge you to cast your vote on January 6th.
With appreciation of your support of CAA, we look forward to welcoming you at the 2014 Annual Conference in Chicago!
All best wishes for the season,
Sincerely yours,
Anne Collins Goodyear
President, College Art Association
Co-Director, Bowdoin College Museum of Art
Report from the October 2013 Meeting of the Board of Directors
posted by Anne Collins Goodyear — November 19, 2013
From October 24-27, the College Art Association Board of Directors, Editorial Boards, and Annual Conference Committee held their fall meetings to discuss current and future programming.
During a retreat held on Saturday, October 26, the Board met to discuss the development of the 2015-2020 strategic plan and the transition from an income-based membership model to one oriented to benefits. At the upcoming February 2014 meeting, CAA’s membership will have a chance to learn more about the proposed strategic plan and to provide feedback as well as to vote to amend the bylaws of the Association to permit the new membership structure. This will also us to maintain lower rates for students and retired members, provide discounted fees for part-time and contingent faculty, and allow all members greater flexibility in determining what benefits they would like to receive. Likewise, the new strategic plan prioritizes cultivating and serving the membership, placing a strong emphasis on the use of new technologies for enhancing communications from social media to publications to expanding the reach of the Annual conference virtually.
During its meeting on Sunday, October 27, the Board of Directors elected a new director: Debra Riley Parr, who replaces Saul Ostrow, whose term she will complete. It approved a balanced budget for the second half of the FY 2014 and adopted several new resolutions. These include the creation of a new Web Editor position for the Art Journal to support the ongoing development of its website as well as the adoption of several new guidelines developed by its Professional Practices Committees. These comprise: Guidelines for CAA Interviews, Guidelines for Part-Time Professional Employment, Guidelines for Presenting Works in a Digital Format, Standards for Professional Placement, and a Statement Concerning the Deaccession of Works of Art. At the request of the Committee on Women in the Arts, it approved a revision to the committee’s charge, which now designates:
“The Committee on Women in the Arts (CWA) promotes the scholarly study and recognition of women’s contributions to the visual arts and to critical and art historical studies; advocates for feminist scholarship and activism in art; develops partnerships with organizations with compatible missions; monitors the status of women in the visual arts professions; provides historical and current resources on feminist issues; and supports emerging artists and scholars in their careers.”
The Board heard updates on two signature projects: the ongoing development of its Best Practices Code for Fair Use in the Creation and Curation of Artworks and Scholarly Publishing in the Visual Arts and the digitization of its publications. With respect to CAA’s Fair Use Code, the first phase of the project is close to completion, with an Issues Report distilling the results of interviews with 100 thought leaders in the field, a survey of CAA membership, and a literature review, due to be released in early 2014. CAA’s Committee on Intellectual Property will devote its annual session at the Annual Conference to this topic, at noon on Saturday, February 15th.
The Board also learned that CAA’s negotiations with Taylor and Francis to serve as a copublisher for its journals were close to conclusion. Thanks to this agreement, which is now complete, as recently reported, CAA will be able to digitize its print journals, Art Journal and The Art Bulletin and to offer caa.reviews open access. Both The Art Bulletin and Art Journal will also continue in printed form.
It also turned its attention toward the future. To this end, the Board heard from Kathleen Fitzpatrick, Director of Scholarly Communications at the Modern Language Association about the MLA’s new Humanities Commons. CAA will consider whether it might make sense to partner with MLA as this new virtual space of scholarly discussion and exchange continues to grow.
The Board also entertained discussion about the status of the Ph.D. in art practice and its relationship to the terminal Master of Fine Arts. CAA’s Professional Practices Committee is currently engaged in researching and developing a statement regarding these degrees and the expertise they represent.
Finally, the Board selected its new President-Elect, DeWitt Godfrey, Associate Professor at Colgate University. A talented sculptor and CAA Board Member since 2009, Professor Godfrey will assume office in May 2014, and current President, Anne Collins Goodyear, will serve as past-President until May 2015.
The Board looks forward to meeting with CAA’s membership at the Annual Business meeting on Friday, February 14th at 5:30 pm.
Reflections on the Annual Conference, the Year Past, and the Year to Come
posted by Anne Collins Goodyear — March 05, 2013
Anne Collins Goodyear is president of the CAA Board of Directors.
CAA’s Annual Conference was typically lively and rewarding. With nearly six thousand participants, representing all fifty states—and the District of Columbia—and fifty-three countries, CAA hosted well over two hundred sessions addressing a broad range of topics, including contemporary art practice, criticism, pedagogy, issues in museums, and the history of art. As participation in the conference by colleagues from around the world continues to grow, we were pleased to welcome twenty recipients of CAA International Travel Grants, generously supported by the Getty Foundation, and further discussed by Ann Albritton, Chair of CAA’s International Committee, in an article that will soon be published on the CAA website.
The conference took advantage of new technologies, providing, for the first time, wireless internet access free of charge to conference goers throughout the conference rooms, and making possible the broad spread use of Skype to involve panelists and respondents unable to be in New York. CAA also hosted its first ever THATCamp (The Humanities And Technology) on February 11 and 12, fully subscribed with seventy-five scholars, just before the official start of the conference. A follow up session held during the conference continued a stimulating discussion about the promise and current role of new technologies for art historians.
New technologies are shaping CAA’s publications, two of which celebrate major milestones this year. The Annual Conference enabled us to mark the centennial of The Art Bulletin and the fifteenth anniversary of caa.reviews—both of which were toasted with cake and champagne following our Annual Members’ Business Meeting. In connection with this, each publication, thanks to a $20,000 grant from the Alliance for Networking Visual Culture, has undertaken open-access online projects using the Scalar platform. Thelma Thomas, chair of the Art Bulletin Editorial Board, graciously demonstrated her online compilation “Publishing The Art Bulletin: Past, Present, and Future,” (http://scalar.usc.edu/anvc/the-art-bulletin/index) at the meeting. A forthcoming Scalar project by the caa.reviews editor-in chief, Sheryl Reiss, will address the exhibition Bernini: Sculpting in Clay at the Kimbell Art Museum.
As the terrain of scholarly publishing continues to evolve, the high cost of scholarly publications, due in large part to the necessity of obtaining copyright and other clearance permissions for reproductions, concerns all of us. CAA is thus deeply appreciative of a one-year Meiss/Mellon Author Grant for $69,698 to offer subventions to emerging scholars who are publishing monographs in art history and visual studies and to advertise the award. Applications for the first round of the Meiss/Mellon Author’s Book Award are now being accepted. The deadline for spring submissions is March 15, 2013. Fall applications are due October 1, 2013. For more information see: http://www.collegeart.org/meissmellon/.
The larger question of when copyrighted material may be used without licensing in accordance with the principles of fair use is at the heart of a major initiative by CAA to establish Fair Use Best Practice Guidelines, undertaken with the assistance of generous support from the Kress and Mellon Foundations. The project is addressed in greater depth in Jeffrey Cunard’s article, published today. See: https://www.collegeart.org/news/2013/03/05/caas-task-force-on-fair-use-meets-during-annual-conference/.
As the Strategic Plan for 2010–2015 draws to its conclusion (available at http://www.collegeart.org/about/plan), the Board of Directors has now embarked, having convened a task force for the purpose, on the development of a 2015–2020 Strategic Plan. We are eager for your input into the plan and to hear from you about what you feel is working well within the organization and where our services could be strengthened. A related survey will be distributed later this year, and key issues will be discussed with the CAA membership next February at the 2014 Annual Members’ Business Meeting.
As always, CAA welcomes input from its membership on any topic of interest to the field. Please feel free to consult directly with the staff and board and/or to take advantage of CAA’s Facebook page to share your views. See: https://www.facebook.com/collegeartassociation.