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----------------------------Original message---------------------------- I thought this article from the Chronicle of Higher Education might be of interest to many ARLIS/NA members. Kathryn Wayne Fine Arts Librarian UC Berkeley > > >><Picture: The Chronicle of Higher Education: Articles> >> >>OPINION >> >>------------------------------------------------------------------------ >>May 29, 1998 >> >> >> >><Picture> >> >> >>Scholars Face Hefty Fees and Elaborate Contracts When They Use Digital Images >> >>By PATRICIA FAILING >> >> >> >>For many users of electronic technology in the United States, "Bill Gates" >>is synonymous with "monopolist" these days. In 1989 -- long before his >>recent battles with the Justice Department began -- Gates set up a small >>company, now called Corbis Corporation, to build an archive of digital >>images. In the mid-1990s, Corbis began making well-publicized deals with >>major art museums to create images of the art in their collections. >>Eyebrows went up. >> >>Museum News, a magazine published by the American Association of Museums, >>sounded a general alarm in its May 1996 issue with a cover story featuring >>the name of Gates's company superimposed on a picture of a gorilla. At >>universities, slide librarians began hearing rumors that Gates was locking >>up the rights to reproduce artworks so that he could enforce pay-per-view >>licenses at some point in the future. >> >>For most art historians and other scholars who use images of art in their >>teaching and research -- cultural-studies scholars and philosophers of art, >>for example -- the prospect of new access fees for images is not a major >>worry. They assume that the "fair use" provisions of U.S. copyright law -- >>which allow people to reproduce copyrighted materials at no charge for >>purposes of teaching, criticism, and news reporting -- will continue to >>shelter their displays of slides and photographs, even when the images are >>presented in digital form. In their minds, the educational function of the >>images, not their source and format, is the key factor in determining fair >>use. >> >>Both the librarians who fear a Corbis stranglehold on images and the >>scholars who assume that "fair use" will protect them are mistaken. Bill >>Gates is not seeking a monopoly on digital images, but his contracts with >>some museums have encouraged other museums to charge educators, as well as >>commercial publishers, escalating fees for the rights to use images of art >>in their collections. It is not unusual today for a major museum to ask a >>scholar to pay $100 to $200 for the right to use a single, high-quality >>image in a scholarly publication. And current efforts in Congress to >>restrict fair use further demonstrate that Corbis is only one player in a >>larger legal and cultural debate about digital images. The resolution of >>that debate could force fundamental changes in the teaching of art history >>and the use of images in other disciplines -- perhaps sharply restricting >>the number of images that could be used, or forcing institutions to pay >>hefty sums to use the same number of images they do now. >> >>The deals that Corbis made with museums such as the Hermitage, in St. >>Petersburg, Russia; the National Gallery, in London; and the Detroit >>Institute of Arts between 1991 and 1995 raised the art world's awareness of >>the ways in which images can be turned into commodities. Corbis is >>essentially a stock photo agency for electronic publishing. The >>partnerships that it has formed with museums allow Corbis to create and >>distribute digital photographs of art in the museums' collections to >>publishers and other communications professionals, such as designers of >>television and magazine advertisements. >> >>When a customer uses a museum image from the Corbis archive, Corbis >>collects a royalty fee that it splits with the museum. Customers can >>reproduce most images for $100 to $500, roughly the cost of using a >>photograph from a traditional photo agency. Images are licensed for >>specific purposes, and museums can veto any publication that they feel is >>inappropriate. The arrangements between Corbis and its museum partners are >>non-exclusive, meaning that a museum may license rights to others to use >>different forms of the same photograph. >> >>Corbis is not primarily a fine-arts business. Art images ultimately will >>represent only 5 to 10 per cent of the company's digital archive, which >>already has more than one million images in categories including art, >>science, sports, and biography, in addition to images now being converted >>to digital form from the Bettmann Archive, the famous collection of 16 >>million news photographs that Gates purchased in 1995. >> >>Most of the writers for newspapers and trade publications who accused Gates >>of crafting a monopoly on art images were uninformed. Several museums, such >>as New York City's Metropolitan Museum of Art, declined a partnership with >>Corbis and have decided to market their own digital images. Other >>corporations, such as Time Warner, are also building digital archives that >>will include fine-art images from other museums. >> >>But by being the first major purveyor of digital images, Corbis is helping >>to revolutionize the way cultural institutions think about themselves and >>their resources. The real product that Corbis sells is intellectual >>property -- the right to use certain images in a certain form for a certain >>purpose. Copyright law recognizes works of art as intellectual property; to >>reward artists with a monopoly over revenues generated from copies of their >>work, the law allows them to sell their work and retain the copyright. >> >>Under current U.S. law, 50 years after an artist's death an artwork comes >>into the public domain and anyone can make copies legally. In principle, >>all works of art created early in the 20th century or before that time, by >>artists who are now deceased, can be photographed free. However, those >>photographs can generate new income for contemporary photographers, who can >>copyright their photographs even if the subject is a work of art in the >>public domain. >> >>Museums control reproduction and publication of their public-domain art by >>allowing only those photographers under contract with the museum to make >>high-quality, publishable photographs. The museum controls the copyrights >>to these photos and can charge a variety of fees for their use. The advent >>of digital technology and the agreements that some institutions made with >>companies such as Corbis reminded museums that money can be made on each >>level of photographic reproduction -- for example, that rights for analogue >>and digital versions of the same photograph can be licensed separately, >>providing extra revenue. >> >>Scholars and non-profit publications, which once obtained photographs from >>museums for nominal fees, now are faced not only with escalating charges >>but also with increasingly elaborate contracts limiting the range of >>permissible uses. For example, a museum may authorize the use of an image >>for a specific print publication but require a new license for the same >>image if that publication is later distributed in an electronic format. >>Similarly, slides may be purchased from vendors for classroom use with >>ordinary projectors, but new licenses are often required if the same slide >>is to be incorporated into an instructional multimedia program or used for >>distance learning. >> >>Librarians of art slides, who make most of their slides by copying from art >>books and catalogues, contend that they may do this because the images they >>collect are circulated primarily to classrooms or used by scholars in their >>research. But librarians now face uncertainties about this practice, too. >> >>In response to a boom in on-line activity, in 1993 President Clinton >>convened the Information Infrastructure Task Force to consider amending the >>1976 Copyright Act to cover new forms of "publication" of words, as well as >>pictures, on the Internet. An outgrowth of those discussions was a separate >>Conference on Fair Use, a series of meetings with publishers, librarians, >>scholars, and representatives of the U.S. Copyright Office and the U.S. >>Patent and Trademark Office. In 1994, the conference produced guidelines on >>fair use of digital information, including images. By 1997, the guidelines >>had been rejected by most educational groups, including the College Art >>Association, the American Library Association, and the Association of >>American Universities, which concluded that they were overly restrictive >>and too favorable to commercial interests. (The American Association of >>Museums was among the few organizations to endorse the conference's >>guidelines on fair use of digital images.) >> >>Not only has this stalemate left scholars, librarians, and university >>administrators unsure about what, exactly, constitutes fair use of digital >>information on campus networks and in on-line courses, but the conference >>also inadvertently drew attention to the practice among university slide >>librarians, as well as individual professors, of making slides from >>pictures in books and catalogues. Many publishers now say that common >>practice is illegal. Libraries also buy slides from commercial vendors, but >>commercial slides represent only a small percentage of images of the >>world's art. In-house production is also faster and cheaper even in >>instances when commercial slides are available. >> >>Art history could not be taught today without slides produced in house. >>Publishers and some government here representatives at the Conference on >>Fair Use, however, rejected the argument that slides made for libraries >>from photographing pictures in books and catalogues are "lawfully >>acquired." They accused slide libraries of "flying under the radar," >>abusing fair use by robbing publishers of legitimate income just as print >>libraries would if they were to photocopy an entire new book instead of >>buying the book for their collection. >> >>One conference participant, Virginia Hall, a Johns Hopkins University slide >>librarian, has observed, "The practice of 'copy photography' was largely >>ignored for decades, until the advent of digital technology." Until the >>legality of analogue slides made from such copying is resolved, she said, >>"We cannot begin to address the fair-use questions of digitizing those >>slides." >> >>Although income varies widely from year to year and institution to >>institution, major museums with efficient rights-and-reproductions >>departments collect tens of thousands of dollars annually from fees for >>art-reproduction rights. They already earn revenue from book publishers, >>who must pay to reproduce artworks owned by museums, and they hope that >>universities will become better customers. >> >>Organizations such as the Art Museum Image Consortium, a group of 23 U.S. >>art museums, are currently attempting to create models of >>digital-image-licensing agreements between universities and museums. Such >>agreements would encourage libraries to purchase their images directly from >>museums instead of acquiring them from other sources. Slide libraries >>participating in a pilot project will initially pay an access fee of $2,500 >>to $5,000 for rights to use a library of digital images from the museums' >>collections to support teaching and scholarly research. >> >>A bill (H.R. 2281) in the House of Representatives, supported by the >>Clinton Administration and currently under serious consideration, would >>effectively eliminate fair use with regard to digital information, by >>making it a federal crime to circumvent an electronic license or copyright >>notice. As it is, according to many publishers, slides shot from >>copyrighted photographs in books or catalogues and archived in slide >>libraries do not meet the definition of "legally acquired" images. >> >>Many slide librarians see fees looming in the future that could make art >>history a prohibitively expensive discipline in universities. Groups such >>as the American Library Association and the College Art Association are >>campaigning in favor of alternative legislation, including S. 1146, in the >>Senate, and H.R. 3048, which would specify that copyrighted work used in >>teaching and research is covered by fair use when transmitted in digital >>form. Educators should start worrying about new copyright legislation >>instead of an imaginary monopoly imposed by Bill Gates. >> >>Patricia Failing is an associate professor of art history and chair of the >>division of art history at the University of Washington. >> >> >>------------------------------------------------------------------------ >>Copyright (c) 1998 by The Chronicle of Higher Education >>http://chronicle.com >>Date: 05/29/98 >>Section: Opinion >>Page: B4 >> >> >><Picture> >>ALSO SEE: >> >>The full texts of bills Congress is considering to modify copyright laws: >>H.R. 2281 | H.R. 3048 | S. 1146 | S. 505 | H.R. 2589 | H.R. 2652 >> >>A special section with materials about Internet censorship >> >> >> >> >> >> >> >>------------------------------------------------------------------------ >>Search The Chronicle >> >>------------------------------------------------------------------------ >>The current Chronicle >> >>------------------------------------------------------------------------ >>Copyright & reprints >> >>------------------------------------------------------------------------ >>Feedback >> >>------------------------------------------------------------------------ >> >> >> >> >> >> >> >>------------------------------------------------------------------------ >>Front page | Guide to the site | Today's news | Information technology | >>Colloquy | Washington | New grant competitions | This Week's Chronicle | >>Chronicle archive | Information Bank | Jobs | Advertisers | About The >>Chronicle | Help >>------------------------------------------------------------------------ >> >> >> >>