How Pop Up Archive Is Navigating the Murky Waters of Digital Audio Rights

Our goal at Pop Up Archive is to make audio searchable and build an archive of sound from journalists, oral historians, and media organizations from around the world.

Support for Creative Commons licensing is on our 2014 roadmap. But one thing we’ve learned: The vagaries of rights and licensing for digital audio are too complicated for Creative Commons to solve entirely.

The six licenses CC licenses are a seminal step toward facilitating safe sharing and reuse of digital media on the web. (Read about the CC licenses.) Creative Commons is great when you know your rights to a work. But what happens when you don’t know your rights? We’ve seen these questions from:

• Retired journalists
  “What happens if I digitize and publicly upload audio I recorded as work-for-hire and of which I have the only surviving copy?”
• Oral history archives
  “What if we don’t know enough about the provenance of an audio file to determine the rights holder or their wishes?”
• Open media advocates like @kreynen
  (see Pop Up Archive’s Tumblr for the full Nov. 2013 Twitter exchange — wow, discussing licensing is tough when limited to 140 characters)

facilitating cc licensing

At Pop Up Archive, facilitating CC licensing is part of a larger goal to help establish best practices for safe sharing of digital audio. We work with a lot of public media producers, non-profits, and scholars — and some commercial media entities, too. Many of the rights holders to archival recordings can’t be found, or are multinational corporations that have absorbed many smaller stations over the years (see this NPR blog post from Feb 2013 for more on why U.S. copyright law effectively locks up many archival recordings). We’ve seen too many opportunities go to waste because creators and educators are afraid to navigate the murky digital copyright waters by themselves.

For starters, one complexity we encountered writing our Terms of Service: What happens if someone wants to upload another creator’s CC-licensed content to our site? In order to provide their services, many platforms that take user-generated content (i.e. YouTube) require a broader license than Creative Commons affords (thanks to Elliot Harmon and Eric Steuer for their help):

• CC licenses do not allow sublicensing.
• Many platforms require that the user affirm that the content is her own.
• The license that uploaders grant to the platform is, in many cases, broader than the CC license (allowing commercial use by the platform, use without attribution, etc.) But this issue is sort of rendered irrelevant by the first two points. Sublicensing would not be allowed even if the terms were the same as or narrower than the CC license.

So, the terms required by most platforms for digital media (i.e. YouTube) make it technically illegal to upload others’ CC-licensed works to those platforms. For example, when you upload a video to YouTube, you give YouTube a nonexclusive, worldwide, royalty-free, no-fee license to encode, reproduce, modify, transmit, distribute and create derivative works. That license gives YouTube the right to transcode your video so that it plays back across multiple browsers and captions it for you automatically — but there could be other ways of accomplishing this.

Where to begin? We want to forge a path for platforms to deliver their services but also allow third-party, CC-licensed content without requiring a sublicense. Pop Up Archive can’t transcode or transcribe audio files unless we have rights to do so, but we’re working with Creative Commons to make our terms less restrictive.

Platforms like ours that manipulate user-generated content as part of their services can and should keep working to improve end-user license agreements (EULAs). But a lot of people don’t ever read EULAs, and websites are usually slow to update them.

It would also help if there were a simple, powerful, common technology for attribution (for comparison: Github does a great job of showing the provenance of code stored in public repositories). If it were easier for hosted platforms to adopt a common attribution technology, we might live to see a day when those platforms can accept CC-licensed works while honoring the terms of the CC licenses.

We agree with Dan Cohen, director of the Digital Public Library of America, that while technical and legal solutions are part of the equation, we need to address rights issues from a social perspective, too. For a quick crash course, the Open GLAM (Galleries, Libraries, Archives, and Museums) principles are a helpful starting point, but they speak more to institutions than individuals.

We know this is tricky — that’s why we want to open a dialogue about it. So grab an oar, and let’s paddle these waters together.

Reply in the comments to this post, drop us a line (edison at popuparchive dot org), or if you’re up for a challenge, see how deftly you can tweet about copyright. We’re all ears @PopUpArchive.

Anne has worked with independent producers The Kitchen Sisters and national grant agencies to identify preservation and access opportunities for independent radio. She holds a Master’s degree from the University of California Berkeley in Information Management and Systems, where she focused in digital archives and the sociology of technology. She contributed to the creation of The Discipline of Organizing, a textbook in use at I Schools nationwide that unites perspectives about organizing from engineering, library science, and other fields. She is a 2012 SoundCloud Community Fellow and winner of the 2012 Knight News Challenge: Data. Before arriving in California, Anne lived in France, and managed a historic newspaper digitization project at Brown University.

This story originally appeared on the Pop Up Archive blog.