The emergence of new digital technologies has changed the ways in which copyrighted works are distributed and accessed. Cultural institutions—libraries, archives, museums, and others—are actively “developing publically accessible Web sites in which users can visit online exhibitions, search collection databases, access images of collection items and—in some cases—create their own digital content,” fundamentally changing the ways people create, receive, and share information (Hirtle et al, 2009, p. 1). Additionally, digitization activities often fit squarely within the mission of cultural institutions. The World Digital Library (WDL), for instance, seeks to “make available on the Internet, free of charge, and in multilingual format, significant primary material from countries and cultures around the world” (WDL, n.d., Mission).
The increased use of digital technologies does, however, raise concerns related to copyright compliance and potential infringement. Prior to digitization and to distribution of digitized material, cultural institutions must determine “whether an item is protected by copyright, whether that copyright is current and who owns the copyright, [and] what—if any—permission is required in order to digitize the item” (Hirtle et al, p. 1). Copyright law is inherently complex. The inclusion, moreover, of multiple global regions and countries, such as those contributed to the WDL, certainly makes digital distribution of copyrighted information even more challenging. This section outlines the copyright policy of the WDL in relation to its partners and seeks to determine restrictions to access and re-use.
The legal notice provided by the WDL is as follows:
Content found on the WDL Web site is contributed by WDL partners. Copyright questions about partner content should be directed to that partner. When publishing or otherwise distributing materials found in a WDL partner’s collections, the researcher has the obligation to determine and satisfy domestic and international copyright law or other use restrictions. (WDL, n.d., Legal Notices).
According to this statement, individual partner institutions (international and domestic libraries, archives, museums, etc.) govern the further distribution of digitized information found on the WDL website. Perhaps most importantly, the statement imparts a large amount of responsibility on the researcher to determine whether further distribution, reproduction, or publication is in compliance with domestic and international copyright law. Re-use, even for educational purposes, is seemingly prohibited. Researchers and members of the general public are directed to the World Intellectual Property Organization (WIPO) to learn more about the copyright laws of individual member states. It should be mentioned that the WIPO, founded in 1967, “is the United Nations agency dedicated to the use of intellectual property (patents, copyright, trademarks, designs, etc.) as a means of stimulating innovation and creativity” (WIPO, n.d., About WIPO). The WIPO promotes the use of the international IP system, and thus partners of the WDL are often members of the WIPO.
The WIPO provides a directory of member states with country-specific intellectual property statistics, national IP laws and regulations, and contact information. For example, Mali, a participating partner in the WDL and one country highlighted in this case study’s section on PSI in the developing world, joined the WIPO in 1982. Users will find national IP laws and regulations specific to Mali as well as treaty agreements in which the country has entered with other countries and organizations, including the Berne Convention for the Protection of Literary and Artistic Works, an international agreement governing copyrighted material (see Figure 3 for details).
The copyright of digital works featured on the WDL web site, therefore, remains in the hands of the contributing institutions and countries. But digitization often proves costly, particularly for those in the developing world. In an attempt to mediate this situation, the WDL—in tandem with partners in Brazil, Egypt, Iraq, and Russia—has established digital conversion centers, complete with equipment and dedicated staff members, to facilitate the digitization of collections and the production of high-quality images. Users can assume that physical copies of works remain with and/or are returned to host institutions. Digitization, nonetheless, has the potential to infringe on the rights of copyright owners. The WDL, while emphasizing a collaborative network of open communication and access to content, seemingly ensures that all copyrighted information presented on the site is protected under international and domestic governance.
Under certain circumstances, some exemptions may apply. Provisions outlined in Section 108 of the US Copyright Act, for instance, “allow libraries and archives to reproduce collection items in certain specific circumstances without payment to or without the permission of the copyright owner” (Hirtle et al, p. 107). Furthermore, these provisions “also prescribe when these reproductions can be accessed by, or supplied to, members of the public, and remove any liability libraries and archives might have for certain acts by users” (Hirtle et al, p. 107). Libraries and archives must meet specific requirements in order to take advantage of the exemptions outlined in Section 108: 1) the institution must be open to the public; or 2) be equally accessible to nonaffiliated researchers in a specialized field of study and 3) have a physical presence. While this last sentiment is not readily expressed in the wording of Section 108, it illustrates traditional understandings of the terms “archive” and “library” (Hirtle et al, 109-110). The WDL seemingly does not fit the criteria for exemption status, as it functions primarily as a virtual library. Partnering institutions, though, may be able to meet eligibility requirements.