What does a Copyright Librarian do, anyway? Special user agreements

A lot of people I meet are curious what my job is like. In fact, a lot of my colleagues who work in the same library as me don’t know what I do with my time. So I’m going to highlight some interesting things that come up in my work. Hopefully, this may become a series.

Image of a modern fountain pen with older-style metal nib pointing rightwards, resting on graph paper with a partial view of a signature in black ink
Signature BY Wiertz Sébastien

One thing I do is help to draft legal agreements related to content in the libraries. One of the very first legal agreements I drafted when I started working here was text for users to click-through when uploading content to a particular public online space within the University. My goals are usually threefold, when drafting this kind of thing:

  1. to make a document that gives the University the rights it needs to share the content now (and usually, the rights needed to preserve it for the future. Sometimes, the rights needed to authorize others to use it – more on that in some other post.)
  2. to make a document that DOESN’T TAKE ANYTHING AWAY from the people who share it with us unless absolutely necessary (which it almost never is.)
  3. to make a document that makes sense to normal (i.e., non-lawyer) humans.

Even with similar goals in mind, these kinds of agreements sometimes turn out differently. Here are two examples that are both trying to meet the needs of particular groups of people, under different use conditions.

Oral History Agreement(s)

One agreement I drafted was for use in oral histories collected by Libraries staff, in active interviewing situations. The development was informed by documents used at other institutions, and principles of informed consent (which is not usually a legal concept, but rather one of academic ethics). We’ve adapted it at times for use with different populations.

We knew from previous encounters with muddy oral history agreements that there is divided legal precedent on who owns a recording of a semi-scripted interview, copyright-wise. Without going into too much detail, copyright doesn’t exist under US federal law in “unfixed” works – that is, in off-the-cuff conversations. However, once such a conversation is recorded, it is “fixed”. It doesn’t quite make intuitive sense to say that just hitting the “record” button means you own the copyright in all of the expressive contributions of anyone in the recording, but some courts have thought that. Some have thought that each contributor to that sort of recording owns rights in their own independent contributions. So we wanted an agreement that ironed out that point.

We also wanted this agreement to work with oral history contributors who might have a complicated relationship to the idea of a singular “legal” name (e.g., contributors who might go by several different names, contributors whose names may have been affected by cultural differences during an emigration/immigration experience, etc.) After a bit of research and consultation with other lawyers, we ultimately concluded that this was mostly a non-issue. (For us, in this situation. TINLA, IANYL.) That pop-culture idea of signing documents with an “X”? Yeah, it sort of still works, legally.

So here’s some example language from that agreement:

When a recording is made that contains non-scripted conversation, anyone talking in that recording may own a copyright in their contribution to the conversation. Similarly, under laws in various jurisdictions, individuals appearing in a recording may have some rights to control how that recording is used.
This agreement is not intended to, and does not, take any rights away from interviewees. It does share some of those rights with the Libraries. The next paragraph spells out what rights are shared in more traditional legal language.
To the extent that I, [Interviewee] own any copyrights, publicity rights, or other related rights in the products of my participation in this project, I hereby grant to Regents of the University of Minnesota (“the University”) a nonexclusive, worldwide, perpetual, irrevocable, royalty-free, right to use, transmit, reproduce, distribute, perform, prepare derivative works from, distribute, and authorize the redistribution of the products of my participation in this project in any medium.

I really like the second paragraph there, and wish I could’ve made the third one more like it. The language in the third paragraph is legally robust, but intimidating for non-lawyers. We ultimately decided that since this agreement would only be used in situations where interviewers were face-to-face and able to explain it to contributors, the trade-off was probably worth it.

To be fair to the interviewee, and respectful of the value of their contributions, we included the following:

To the extent that the University owns any copyrights or other related rights in the products of Interviewee’s participation in this project, the University also hereby grants the same nonexclusive rights listed above to the Interviewee, so the Interviewee may make any desired use of those products.

With some user populations, or with interviews on particular topics, sharing oral histories can be very sensitive, or even risky. This agreement includes some options for contributors to limit use, including options for them to allow in-person access but not online sharing, to allow online sharing of transcripts but not audio/video, and to limit all use for a set time period. The in-person face-to-face interaction between interviewers and contributors allows for discussion of the benefits and drawbacks of all the various options.

Personal Stories Agreement

Another interesting agreement I drafted was for use in a project where trainers and researchers were working with specific groups of people to help them develop skills in creating their own video “stories”. The hope was to collect these stories to be able to share them online, again while respecting the value of the contributions of individuals. In this case, the agreement language was for an online click-through agreement that users might encounter while working with a trainer, but would more likely need to navigate on their own.

Since lots of the contributors to this project would have learned English as a second (or third, or fourth, or…) language, and some might have limited English proficiency, we wanted this to be as simple as possible, while still dealing with legal issues that don’t get all that “simple”. In this case, we might have sacrificed some of the legal robustness in favor of trying to make things understandable. I used the Readability statistics generated in Microsoft Word to try to limit complexity (though ultimately I had to use some words that tanked those statistics immediately.) In some cases, I also used the “ten hundred most used words” (a la XKCD’s Up Goer Five) to try to keep lists simpler. You can see how successful (or unsuccessful) I was with that in this section that’s intended to cover both the author’s own contribution, and any third-party materials they may have included:

I created this digital story. If I used anything (including words, video, pictures, music) that I did not create, I promise that I either got permission, or I think my use was legal as a “fair use” or because of a Creative Commons license. Anything in the digital story that I did not create myself is explained in the video’s credits.

Both Creative Commons and fair use are elements of the training that is part of this project, so at least theoretically the user agreement won’t be the first time these contributors encounter the terms or concepts. We also made use of Creative Commons licenses from contributors for this project, partly so contributors could keep copyright ownership while enabling sharing, and partly because they provide strong support for attribution to creators. Creative Commons was discussed in trainings, but we also wanted to reinforce that in the agreement, so we included this language:

My materials will also be shared publicly online under the terms of a Creative Commons attribution non-commercial license. This license lets others view, share, remix, and build upon my work non-commercially, as long as they credit me and share what they create under the same terms.

The whole agreement is less than half a page. Whatever benefits a longer, stronger agreement might bring the institution in terms of legal risk avoidance would just not be worth the negative impact on trust and empowerment of creators.

As an example of “my” work, it’s worth highlighting that for each of these agreements, there was a great deal of input from various colleagues around the libraries, and often additional legal review. That made these agreements much better for their own purposes, but it also means that each of them took at least a couple months of back-and-forth communication to reach full completion. In any given week, I might spend a couple hours (or less) on this kind of work, but for each document like that, it often totals quite a few hours in the end.

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