Image Use Protocol Task Force Status Report-March 2008
By Reiko Yoshimura [and Robin LeBlanc]
April 3, 2008
The Image Use Protocol Task Force, or IUP Task Force was formed following the January 2007 NCC meeting. The mission is to contribute to smoothing the process for North American scholars seeking permissions for the use of Japanese images in exhibitions, classrooms, and scholarly publications.
The task force is co-chaired by Robin LeBlanc, Associate Professor of Politics at Washington and Lee University and myself, Head Librarian, Freer Gallery of Art, Smithsonian Institution. Robin extends her apologies for being unable to attend the meeting due to her family commitments.
The task force has 14 members representing publishers, museums, libraries and various academic disciplines; members come from both Japan and North America.
The first meeting was held at Harvard University last August and came up with the following four goals and objectives.
The more detailed IUP Goals and Objectives in both Japanese and English are posted on the IUP website).
II. Survey result.
An e-mail survey was sent out this past winter to various Japan-related list-servers in North America, Europe and Australia and we received 120 responses by the end of January 2008. After collecting the survey responses, Eiko Sakaguchi of University of Maryland and I conducted a preliminary analysis. Today, I would like to give a brief presentation on the highlights of our findings.
The survey consisted of 12 questions of either multiple choice or narratives on how people are obtaining image use permission from Japan, the problems they encountered, and how they use the obtained images.
Over 85% of the respondents were Japan- or Asia-related scholars, teachers or graduate students from academic institutions, followed by a small number of librarians, independent scholars and museum professionals.
Also, 90 respondents said their professional activities mainly take place in North America.
101 people answered their native language is NOT Japanese, and out of the 101, 90 answered their native language is English.
What is your academic discipline?
This graph shows the distribution of academic disciplines among the respondents. Originally, we received over 40 different answers, so we consolidated them to 10 areas. For instance, law and political science were consolidated to social science. As you can see in this chart, 72% of the total respondents' subject areas belong to the first three categories. They are (1st) linguistics & literature, (2nd) history, and (3rd) visual art and architecture. Also, the finding here is that Japanese images are heavily used in the fields of humanities and social science but not much in pure science.
Describe your image use
The next graph indicates how often the respondents use images from Japan. The majority, 97 respondents answered they are either regular or occasional users. 9 people said, "they need to use them", and 4 indicated, "they would like to, or are planning to use in the future." 5 answered, "they may use images if access issues and permissions were clearer."
How do you use images?
As you see, the images are heavily used in major scholarly and research activities, as primary and secondary sources, and also in classroom teaching or online courses. Other usages mentioned were exhibitions, posters, and personal web pages.
What kind of images do you use?
Out of 903 responses received, the graph on the left is sorted by format of the image content. According to this, art objects scored the highest number of 152 followed by news events with 138. The right graph represents the use of online digital images and moving images. Here, out of 903 answers, 216 or roughly 24% said they use online visual or moving images. These numbers may be growing because online teaching is becoming increasingly common. This also alerts the task force that we need to look into the unique issues involving use of images in these formats.
What was your procedure to contact image lenders?
The highlights of their successful procedure are:
What kind of problems did you encounter?
The respondents reported about many problems. Among them, the following problems were the common concerns:
Although these results were from the preliminary analysis they turned out to be very helpful for the task force to proceed our goals. It is obvious that the issue on the copyright or image use permission is very complicated. Every case depends on what kind of images you would like to use and how, and who you are dealing with, etc. However, we also observe some common aspects in the problems which the respondents reported in the survey - they are: lack of understanding legal issues, lack of understanding cultural or social differences between North America and Japan, and communicating problems. The IUP task force hopes to address these issues so that North American image users can expect a more streamlined procedure. The task force plans to conduct more-in-depth analysis of this survey and make the full information available in near future.
III. Our Next Step
Our next project is to organize a meeting with stakeholders in Japan. The NCC has secured funding from the Toshiba International Foundation, Japan Foundation and Harvard University's Reischauer Institute of Japanese Studies to have a day-long meeting on June 23 in Tokyo. This meeting will bring a number of our task force members, North American researchers, and a representative from an American academic publisher together with representatives of Japanese publishers, museums, temples, and other organizations in order to increase our mutual understanding of copyright guidelines and permissions granting processes. We will also solicit advice from Japan-side organizations and individuals in developing guidelines for improving the permissions process.
Then, on the basis of this advice from the meeting and information we have been collecting over the past year, we will develop a set of guidelines as I mentioned earlier. This will include preparing guidelines for locating and requesting images; to produce a list of contacts and links to related sites and organizations related to image use. Our hope is that individuals, who use the guidelines, will find it easier to approach Japanese rights holders; and also that Japanese rights holders will find permissions requests easier and less time consuming to process.
Attendees Task force members: Theodore C. Bestor, Professor and Chair of Anthropology, Harvard University; Ian Condry, Associate Professor of Cultural Studies, MIT; Pat Crosby, Executive Editor, University of Hawai'i Press; Izumi Koide, Director, Resource Center for the History of Entrepreneurship, Shibusawa Ei'ichi Memorial Foundation; Haruko Nakamura, Librarian of the Japanese Collection, Yale University; Eiko Sakaguchi, Curator of the Gordon W. Prange and East Asian Collections, University of Maryland; Akio Yasue, Deputy Director (retired) and Senior Advisor (current), National Diet Library of Japan. Invited speakers: Mikael Adolphson, Associate Professor of East Asian Languages and Culture, Harvard University; Anne Nishimura Morse, Curator of the Japanese Collection, Museum of Fine Arts, Boston; Samuel Morse, Professor of Art History, Amherst College. Observers: Kazuko Sakaguchi, Documents Center, Harvard University; Mariko Honshuku, Law Library, Harvard University. Ex-Officio: Tokiko Yamamoto Bazzell, NCC Chair, Japan Specialist Librarian, University of Hawaii Manoa; Victoria Lyon Bestor, NCC Executive Director, Associate, Reischauer Institute Harvard University; Brigid Laffey, NCC Webmaster; Sharon Yamamoto, NCC Project Assistant, Doctoral Student in Japanese Art History, UC Berkeley. Task force members not able to attend: Robin Le Blanc, Associate Professor of Politics, Washington and Lee University (Task Force Co-Chair); Toshiko Takenaka, Professor of Law, University of Washington Law School; Gennifer Weisenfeld, Associate Professor of Art History, Duke University; Bruce Willoughby, Executive Editor Publications Program, Center for Japanese Studies, University of Michigan; Reiko Yoshimura, Director of the Library, Freer and Sackler Galleries, The Smithsonian Institution (Task Force Co-Chair)
In the absence of IUP Task Force co-chairs Robin Le Blanc and Reiko Yoshimura two members agreed to serve as chairs pro tem during the meeting. Ted Bestor chaired the morning sessions which focused on faculty issues in gaining access to images and Eiko Sakaguchi chaired the afternoon session which reviewed co-chair Robin Le Blanc's memos to the committee, examined the documentation she and others had provided, and formulated a timeline and priorities for the task force over the next year.
Session One in the morning focused on problems of access and permission encountered by those in fields such as anthropology and cultural studies who are dealing with images of contemporary Japan including photographs taken by the researchers themselves, images from mass media, and moving images. Ted Bestor and Ian Condry led the roundtable discussion.
Ted Bestor opened the session by talking about general issues that led to the creation of the task force and raising some important points to be discussed at the meeting. He outlined four dimensions of image use and reproduction that are relevant to scholars' needs: 1) Images used in publications, 2) Images used in teaching, 3) Images used in research, and 4) Access to images in archives and other institutions.
In his personal experience with unconventional images (for example, photographs of public places), he found that publishers may differ in their expectations/requirements. There is need for a clear set of guidelines on the level of clearance a researcher should request from the subjects of photographs taken for research purposes. Some publishers say that a photographer "owns" the images they take and can freely use them. Others may request written permissions from identifiable subjects in a photograph before publishing.
There are also sometimes images for which it is impossible to ascertain the entity that holds the copyright or the copyright holder may no longer exist. There are also instances when no one within an institution is willing to sign for permission to use an image owned by that institution. He also found commercial image banks to be too expensive and he stressed the need for encouraging image banks to allow for academic writing and to clearly see the positive public relations value to academic writing, which may not have any "commercial" profit making potential (unlike an advertising agency, for example, that may be licensing an image for a major and highly profitable sales and marketing campaign).
Ian Condry spoke about issues he dealt with in getting permission for images that were also not conventional. He stressed the need for personal connections in getting access to and in permissions for image use. For his last book on hip-hop culture in contemporary Japan he ran into problems finding the copyright holder required by his American publisher. In some cases it was unclear who owned the right to the image. He also questioned the degree (number) of permissions necessary from a legal standpoint. For some images he needed approval of multiple parties all of whom claimed a legal right to the material.
He reiterated that there seemed to be great variation among what publishers required. In the case of his publisher (Duke University Press), he was able to use some copyrighted material under fair use. Song lyrics, for example, could be used (up to six lines) under the fair use statute. Generally he found that photographers could sign off on their own photographs; however sometimes in the case of a CD cover there may be several entities (the photographer, artist, head of the music company, and potentially others) that have, or believe they have, a rights interest in a given image.
He also discussed the growing popularity of Creative Commons Licenses which reserves some, but not all, rights. The author chooses the degree of control. With CCL, for example, someone can copy the entire work if it is not for profit and if proper attribution is made. Works protected by creative commons licenses have held up in court. Conversely, CCL can open up a gray area. It could be argued that entire books could be posted on the Internet, if the posting is not for personal gain. As more work is posted on the Internet, creative common licenses should be considered more.
In the discussion that followed, the task force members expressed concern about the miscommunication and lack of understanding on both the American and Japanese sides. In general, American scholars become frustrated with the difficulties of obtaining rights and they lack knowledge about how to obtain permission. It was perceived that Japanese publishers and copyright holders are wary of the American legal system and unwilling to become involved in it. It was suggested that US publishing companies should develop simple, non-threatening guidelines to the acquisition of rights. It was noted that for example, the Japan Style Sheet published by SWET (the society of writers, editors, and translators - in Japan) does not mention images at all. Does this suggest that there is no awareness in Japan of the need for guidelines to give permission to published images? An explanation of copyright is therefore needed to show to Japanese copyright holders so that they better understand the problems foreign writers are dealing with.
Session Two: directed the discussion toward issues of access and permission for historical images. Mikael Adolphson and Sam Morse led the roundtable discussion.
Mikael Adolphson opened by emphasizing the need for standard protocol as it becomes more common for historians to read images (material remains, etc.) as text. In his own experience, he used ten images in his first book. In his second book he used thirty-five images. Through his own experience he found that it was more difficult to get access to images and physical prints of images than it was to get the copyright permissions themselves. He found that getting permission for an image in hand was not very difficult. Often it was granted quickly and free of charge. However, if he did not have an image he had to go in person to make the request and to acquire the image. It proved almost impossible to get images through mail correspondence. He therefore went to great lengths to get images before approaching the copyright holder, even if it meant getting them from the Internet. In the case of getting permission from a temple, Chion'in, he tried to buy images. It cost ¥10,000 to get permission to use an image for research purposes initially, with the understanding that he would have to get permission for publication of the image. However later he discovered that after the initial fee had been paid publication rights were granted without further charge.
Sam Morse spoke next about issues related to using images in teaching. An art historian must have a large and constantly refreshed range of images to use in classroom teaching. For teaching faculty who rely heavily on instruction using visual images, it is impossible to physically approach each image holder one-by-one. It is important for teachers to know where copyright ownership lies and to what extent is it possible to use images from online? He suggested the importance of collaborating with sister institutions such as ArtStor and visual resources libraries to address these questions. He also reiterated the importance of personal connections in getting permissions.
The discussion that followed focused on the financial aspect of gaining permission from established institutions and the need for creating guidelines for image-owners in Japan that clarify the difference between academic and commercial publishing.
The example of Tokyo National Museum was raised. TNM now outsources its image rights to a third party, TNM Archives, which is a for-profit operation. The fee for images ranges from ¥10,000 - ¥20,000. Such organizations need to understand the value of making their images available to academic publishing that serves a very important educational and cultural mission. It is also essential for rights owners to understand that academic authors, who must personally pay the permissions costs for images in their publications, cannot afford the rates charged by many Japanese image providers.
It was noted that TNM Archives' contact information is posted on the TNM webpage. There is a gateway to the archives from the museum. Large institutions (like TNM) also have specific individuals who deal with permissions. The names of those contacts should be included in the materials produced by the task force to help scholars know whom to contact at given organizations. Additionally it would be wise to include a template for asking permissions and requesting information from image banks.
In planning for the guidelines the IUP will produce the example of those produced by the NCC's Digital Resource Committee were suggested as a model. The DRC's Basic Guidelines and Requirements for Vendors of Japanese Digital Resources were created collaboratively by the DRC with input from Japan studies librarians in North America with the goal of communicating to Japanese suppliers the special needs of their overseas customers with regard to Japanese digital resources. The DRC guidelines, produced in English and Japanese have proved valuable both for educating foreign librarians about how to go about arranging licensing agreements with vendors, and for vendors in understanding the realities and size of the foreign academic market for digital databases. A parallel set of guidelines for the IUP could be equally useful to the owners and users of visual images.
Session Three focused on issues of access and permission for images held at institutions. Izumi Koide, Anne Nishimura Morse, Haruko Nakamura, and Eiko Sakaguchi, all curators of collections at libraries or museums, led this roundtable discussion.
Izumi Koide spoke about the process of gaining permissions from the perspective of Japanese institutions. She stressed that it is important to locate the image first. With the image in hand, one can start to locate the owner of the image and to request permission. In her experience helping authors she found that there is no set language in asking permission to use images. She found it most effective to call institutions individually before requesting images to find out what specific wording was suggested and to use the exact terms suggested by that institution in the request letter.
Images she received were also provided in different media: as transparencies, film, image duplicates, and image duplicates with a required return. There was no fee for rights, but money was generally required to make duplicates. The process was very long and cumbersome and took approximately one year from the initial request to making (and returning) the image. Although authors or publishers may say they need images within a month, the reality is that it takes much longer.
Haruko Nakamura raised the issue of images for which the copyright holder cannot be found and encouraged the task force to include in its guidelines details of what constitutes a reasonable search. If a copyright holder cannot be found the author should be advised to use a disclaimer to the effect that the holder should contact the author if he/she feels she owns the right to the image used.
Eiko Sakaguchi also pointed out that individual images may be "held" by different (multiple) people. Often a museum or library is just the physical location where the object itself is. For example the University of Maryland's Gordon W. Prange Collection includes comics by well-known authors, who still hold the copyrights.
She also pointed out that even if an image is in the public domain, as a courtesy to the owner of the object, an author should still ask for permission. She provided the task force with a copy of the Prange Collection's form for requesting use of images from this collection. It was also reiterated that institutions have a legitimate interest in ensuring the quality of images that may be reproduced from their collections and may ask very specifically how the image will be made (reproduced), used and disseminated.
Using the example of the MFA, Anne Nishimura Morse explained why images may be expensive to buy. Museums often do not have images of their own objects, and it is expensive to make images. It costs $150-200 at the MFA for each image used for academic purposes. In 1985 the MFA owned only six black and white images of its Japanese collection. Now the collection is being entirely digitized.
Smaller museums may not necessarily have images to lend. Additionally publishers who photograph museum collections may hold the visual images and copyright permission, and scholars may be advised to approach publishers first rather than asking the museum that owns the object.
Several members agreed that the copyright holder might not be the person/institution that holds the image and asked how the task force can best make users aware of who "might" own a given image. It could be the photographer, the agency (where the image resides), an image broker or others. A good place for scholars to start in the US is the publisher of any publication in which an image has appeared. The publisher of such volumes should know who owns the copyright.
Further distinctions between scholarly and commercial images need to be made. Getting commercial entities to underwrite the creation of images for scholarly use may be possible. The creation of an FAQ sheet for users to explain the costs of making images was suggested.
The Afternoon Session was chaired by Eiko Sakaguchi and focused on the charges of the task force and the next steps for setting protocol; working with Japanese institutions, and educating American scholars.
Victoria Bestor and Tokiko Bazzell reviewed the memos and materials prepared by task force co-chair Robin Le Blanc and reviewed the charges to the task force. The task force is charged with creating guidelines for legal use of images. To do so it needs to:
Akio Yasue spoke about the problems of image use encountered in Japan. Japanese scholars have similar problems to their American counterparts, however unlike in the US generally the Japanese publisher and/or editor deal with these issues not scholars themselves.
Before coming to the meeting he discussed image access with a colleague at the University of Tokyo Press, who explained that in Japan images in scholarly publications may be exempt from copyright under the quotation provision of Japanese Copyright Law (Article 32-(1)). All the Japanese Copyright Law commentary explain this quotation provision as shu-ju kankei which say that as long as shu-ju kankei exists between a new writing (shu) and an image (ju) used in support of a written text as the servant to the text it illustrates, it is regarded as a quotation and therefore it is permissible to use such image(s) in research works without consent of the copyright holder. In such a situation Japanese Copyright Law permits an author to freely use an image to illustrate text that supports the author's own arguments.
The question was raised as to whether there is a standard application of copyright permission in Japan. Rather than there being a publishers' standard per se, copyright law in Japan is set by Bunkachô (Ministry of Cultural Affairs). Clearly this is an area that needs greater understanding among scholars outside Japan.
The discussion toward fair use of images. While fair use provisions may be understood to apply to written text and the legal quoting of a limited portion thereof it is tricky with images because fair use deals with a percentage of a work, and the same concept does not apply since there is never a percentage of an image. Elaborating on the notion of fair use or the public domain in the case of images, one must always consider the issue of moral rights. Any change to an original image (such as from color to b/w) is a question of copyright.
On the question of images in the public domain, the University of Chicago Permissions guidelines used by the Association of American University Presses (copies of which were provided to the task force by co-chair Robin Le Blanc) was cited as having a clause that states that two-dimensional objects are in the public domain and therefore no permission to use an image of a two-dimensional object should be needed from a museum, temple or other institution which may own the original. A screen is a two dimensional object in the public domain. That principal also says that two-dimensional objects can be scanned. Similarly scans or photographs of photographs are in the public domain.
It was suggested that the task force look to Fair Use precedents for guidelines. Materials on the site of the Ithaca College Media Literacy Project may provide examples and other good examples should be sought.
Pat Crosby provided further comments from the perspective of American publishers. She raised the point that historians were more attuned to visuals than in the past. Because of scanning technology everyone wants to include images. Scanned images have a lower resolution. To ensure the quality of the resulting publications publishers have a need to require scholars to use images of a certain quality or level of resolution.
She noted that North American rights generally give permission for single use. If a book goes into reprint (a second printing), that is considered an additional "use." It is necessary, therefore, for authors to ask for as broad a possible range of rights (uses) initially to cover all eventualities.
Most information on what can be copyrighted is available, but there are many sources some of which may be confusing. Authors need to inform themselves, and the task force can play an important role in providing information in a clear and forthright manner. She reported the results of an informal poll she conducted with successful authors who said the most important thing one needs to get permissions is personal connections.
Considerable discussion was devoted to the differences in publishing climates in the US and Japan and the importance of distinguishing between academic and commercial publishers. Because in Japan the distinction between academic and commercial purpose is not so clear-cut it is very important to spell out the limited circulation and profitability of foreign academic publications. Also in Japan it is not always possible to identify the audience for a publication by looking at the publisher, since there is not a university press system in Japan as there is in the States. The task force should promote the public diplomacy/cultural exchange aspect of academic publishing. It would be helpful to try to define a different category for academic publishing with an accompanying fee-structure for academic publication rights.
Plan of Action for the IUP Task Force:
The task force was asked to set a timeline and task list for the upcoming year with the goal of being able to present results by next summer (2008).
An overall meeting summary will be circulated among task force members. In addition the task force will approve a brief statement its goals for circulation both in the US and Japan. The summary statement will outline the problems facing scholars outside Japan to help the Japan side better understand the problems of foreign scholars, and to seek the advice of Japanese colleagues to facilitate access to images for scholars outside Japan.
The statement should emphasize that the confusion and misunderstanding regarding obtaining permissions is largely due to insufficient understanding among American scholars, and the task force (representing the scholarly community) seeks the input and advice on developing a set of "best practices" for publishing Japanese images. The task force will encourage a collaborative and ongoing effort in this area.
The summary statement will be produced both in English and in a version translated into Japanese. NCC Japan Liaison Akio Yasue will coordinate communications with colleagues in Japan and will work with other task force members who may be in Japan.
In the final session the task force summed up the meeting discussions and planned the next steps of the task force. An important mission for the task force is to help young scholars be aware of what they will need by way of permission to use images at a future date. Researchers need to keep that question firmly in mind from the beginning of their research, to seek permission at the time of research and to get a copy of an image (even if it is not the final version that may ultimately be used in publication).
The content of the survey was discussed:
The survey will be the first step to further inform the task force in its creation of guidelines for image use to educate North American scholars using the NCC Website.
A timeline for the task force for the next few months was outlined as follows:
September 30 - approval of survey draft
October 15 - survey uploaded to NCC website and publicized on relevant Listservs
November 15 - end of online survey
Results analyzed by January meeting
Simultaneously, members of the task force will work on a rough draft of guidelines to be completed by the January meeting. For guidelines it was pointed out that the task force should elicit suggestions from image owners to determine what they want included in permission requests for image use.
It was decided that Ted Bestor will draft the survey, and Haruko Nakamura and Eiko Sakaguchi will analyze the results which will be ready to present to at the NCC's January 2008 Working Meeting. Sharon Yamamoto and Vickey Bestor will compile a meeting summary for circulation to the task force members and will draft the summary statement (also for review by the task force) for circulation in Japan. Izumi Koide will translate the letter into Japanese. Akio Yasue will take the lead in circulating the letter and discussing it with colleagues in Japan. He will also report on discussions in Japan at the January 2008 NCC Working Meeting. All members will take roles in helping to draft the guidelines.
Discussion then turned to permission request letters. A number of sample letters were received from scholars in the field including task force member Gennifer Weisenfeld and from Patricia Graham of the Japan Art History Forum (JAHF).
The importance of making clear an author has a copy of an image in hand was strongly reiterated as part of any letter.
The importance of having a signature line on the permission request letter was strongly emphasized because it makes it easier for the copyright holder to complete and return the form. The conditions for use of the image should also be clearly stated. These include the estimated price of the eventual publication, its trim size, and the estimated number of pages, the estimated publishing date should all be included in the letter.
It was also noted that rather than having separate permissions letters in both Japanese and English, request letters should contain both languages so that both the holder who signs the document and the publisher who receives it can see clearly what the letter agrees to. Publishers like letters in English since their legal department may not be familiar with Japanese.
Also authors should request rights for the broadest possible range of venues and contingencies. For example, requesting permission to reproduce an image in all editions and all languages. Some institutions may be reluctant to offer all rights in all languages. However requesting the broadest possible range or rights will alleviate the need for authors to go back and renegotiate rights for future editions.
Members agreed that the task force needs to develop a list of collaborating groups. For example, it might be feasible to contact Buddhist sects to encourage them to standardize image use practice among the temples in their sect.
Daigaku Shuppanbu Rengokai (The Association of Japanese University Presses), an organization of universities in Japan was suggested as an organization to work with and link to. The various Reproduction Rights Organizations (RRO), federations of image producers and rights holders must also be involved. The task force must work bilaterally with different organizations. The task force needs to draft a statement to circulate to organizations in Japan to encourage them to think about the role of academic publications in promoting bilateral relations and therefore to accommodate scholars in their efforts.
Tokiko Bazzell and Vickey Bestor will explore prospects for holding a meeting or conference in Tokyo during the summer of 2008.
NCC Chair Tokiko Bazzell closed the meeting asking all attendees to continue to assist the task force.