Submission Date
Question
We are uncertain how to proceed with further digitization of our college’s student newspapers. Currently, the newspapers published between 1948 and 2016 are digitized. They were made available online through a page hosted on the college’s website as well as the NYS Historic Newspapers database.
Since the mid-2010s, articles from the newspaper have been published simultaneously online and in the print edition distributed across campus.
The college’s administration received a complaint from a company called Copytrack regarding two images used in past issues of the paper. The college’s response was to scrub the images from the online archive of past issues and restrict access to the archives, effectively removing the entire digitized collection of its archives from the newspaper’s website.
However, since the issues in question were from 2017 and 2018, the digitized collection still remains intact on NYS Historic Newspapers, where the library has it hosted. We’re uncertain what weight this complaint from Copytrack holds and hope to digitize the remainder of the publication soon, within the bounds of copyright restrictions.
After this copyright complaint, is it advisable to leave the collection in NYS Historic Newspapers and continue adding to it, or should we plan to take it down and only digitize future copies for in-house preservation purposes?
Answer
Before we dive into this question, there are few fundamentals to review.
FIRST: Any institution publishing content like a student newspaper should have a “DMCA Agent” where notice of alleged infringement can be sent.[1] This allows a publisher of online content to enjoy “safe harbor” (meaning safety from certain claims of infringement).
If you would like to see if your institution has this, you can check it out at: https://www.copyright.gov/dmca-directory/
SECOND: Okay, that’s great, but of course, the publisher of a college/university student newspaper is usually the school, which is also the owner of the website. Can a publisher have “safe harbor” from itself? Not really, but the third party contracted to host the content can.
THIRD: While the “legacy media” landscape—including the horizon where student newspapers sit—is rapidly evolving, all student publications should still be teaching student journalists and editors how to used appropriately licensed images, or to document when an image is used under a claim of “Fair Use.”
The record of the license or the Fair Use analysis should be retained for at least seven years after publication.
Of course, none of that is helpful to the present situation, but it is important background context!
And with that, let’s answer the question: is it advisable to leave the collection in NYS Historic Newspapers and continue adding to it, or should we plan to take it down and only digitize future copies for in-house preservation purposes?
To answer this, the library (which is part of the college, too) can work with the advisor and student leaders of the paper to ensure the proper documentation regarding licensing and Fair Use is being generated and retained.
The goal of the collaboration should be to educate the student journalists about proper permissions and Fair Use as well as to ensure that the library can continue to properly archive the paper as it has done for almost a century.
This achieves two things: first, the students will learn about this evolving and ever-critical consideration in journalism and creative work. Second, it will position the college and any third-party provider to easily resolve (as in, tell to go away) copyright claimants in the future.
When the college knows that the licensing and Fair Use documentation is being routinely put in place, it can proceed with both the internal archiving and the external archiving.
This sounds a bit arduous, but it boils down to:
- Set up a meeting with the student newspaper.
- Discuss the importance of the archives.
- Discuss how important licensing and fair use is for archiving and day-to-day operations of the paper.
- Make sure the newspaper has and is following policies for Fair Use and licensing.
- If you feel like going the extra mile, ask for how much insurance coverage there is for copyright infringement! The insurance policy’s requirements will support adherence to Fair Use and licensing policies.
If things can’t happen that way (because major meetings and policy development don’t always magically happen in a given semester), the fallback is the library’s selective redaction of the content online, with a note on how the content can be obtained in hard copy. “Due to a DMCA claim, this image is not available via our online archive. To obtain access to the originally published content, which has been retained by the publisher in hard copy to ensure archival integrity, contact EMAIL, and it will be evaluated under 17 U.S.C. 108.”
Thank you for a great question!
[1]^ For more from Ask the Lawyer about DMCA registration in different contexts, see Patron Streaming Content and Library as a Contributory Infringer and Copyright protocols for restaurant menus.