Moderator:   Merrilee Proffitt

Panelists:      Heather Briston, Sharon E. Farb, Peter Hirtle, Bill Maher, and Mary Minow

Questions: 

o       Can an argument be made that the digitization of an entire manuscript collection is a transformative work, and how effective is the argument?

o       Do large-scale digitization of manuscript collections and the online presentation of the digital facsimiles constitute publication?

o       Assuming that copyright permissions cannot be secured for every item, what are the legal ramifications of being considered a publication?

o       Has publication on microfilm of many SHC collections changed copyright status of those collections, extending the protection until 2047 or longer, or altered the available remedies for infringement?

o       Does the digitization and free online access to a document embedded in a manuscript collection affect the market value for the copyright holder of that document?

o       In terms of constructing a fair use argument for digitizing an entire collection, how much consideration must we give to the market value of intellectual property when a document was created by a notable living person or by an author with a literary estate?

o       What are the crucial elements of a risk assessment that should be conducted prior to the large-scale digitization and freely available online presentation of manuscript collections containing orphan works?

o       How risky is it to digitize and to present freely online a manuscript collection containing published and still copyright protected materials—e.g., newspaper clippings, pamphlets, brochures, etc.?

o       What constitutes due diligence for identifying copyright holders in a manuscript collection prior to digitization and online presentation?

o       How does the size of the collection and the number of both orphan works and potentially copyright protected items affect the obligations of due diligence?

o       If we change our business model and charge access fees, do our legal risks and obligations change?

o       Are we placing ourselves or our donors at risk for defamation claims if we make contemporary manuscript collections available in the online environment?