Conservancies, which hold real property in trust for public purposes or administer easements restricting future uses of private property, are a successful means of securing public benefits within the system of private property ownership. They have been widely encouraged by governments, through tax regulations. Most of us are generally familiar with the idea that property owners may deed rights or donate easements limiting future development or exploitation to a non-profit organization, while continuing to live on their land or in their historic property. With the increased attention that businesses and individuals are paying to the value of knowledge assets, it should be no surprise the conservancy metaphor is now being extended to intellectual property (IP).
Intellectual Property Conservancies (IPCs) are a new idea, being conceived as a means to provide public benefits by making digital content donated, or licensed to them, freely available and by ensuring its long-term preservation. The Knowledge Conservancy (<http://www.knowledgeconservancy.org>) is a non-profit IPC incorporated in August 2000; here, the author, who was involved in its planning, explores the issues any such organization will face.1
Challenges of Building a Free-to-Read Digital Conservancy
IPCs are digital libraries and therefore have all the problems associated with digital libraries. In addition, IPCs face a large number of challenges that most digital libraries do not confront. These include:
A. Obtaining content
Content owners may, or may not, be ideologically committed to free-to-read. Those who are persuaded in principle that free-to-read is a good idea probably need only to be given a way to do it.2 The challenge with these owners will be to make the opportunity known and make contribution methods convenient to use. An IPC will also need to attract those who would not be inclined to give away access rights without persuasive arguments of the benefits to them. Several strategies can be employed to convince them.
Tax benefits are central to land conservancies and historic trusts, but it is not clear whether meaningful tax benefits will, in fact, be available for Intellectual Property Conservancies. If the original creator of the intellectual property (an author, artist or inventor) donates it, current tax laws restrict them to writing off the value of the raw materials that were consumed in its creation. Artists and authors have long tried to have this law amended and there is legislation in Congress this session.3
If the donor is an owner (such as a publisher, music label or employer) who has paid to acquire an intellectual property right, outright donation of the intellectual property should be eligible for a tax credit. Concepts such as 'easements', however, though well established in tax law for real property, are novel ideas in intellectual property law and will, at the very least, need to be tested with tax authorities. They may well need to be legislated.
Providing public access to free-to-read content is a way to promote value-added content. In the physical bookstore, we often browse a book, or listen to a few tracks of a CD, before making a purchase. Free-to-read online content may serve this same purpose. One challenge to an IPC will be to develop a model for free-to-read functionality that is accepted by publishers as not unduly competitive with their value-added products, and by online readers as useful in its own right. The IPC concept will be viable if at least some publishers are willing to provide a level of free-to-read access as a means of promoting their value-added products. The IPC will need to protect the publishers' interests in order to obtain an early donation of limited rights and, as the threat to a publishers' commercial interests subsides, the promise to make more valuable access available over time.
Individual IP owners will readily appreciate the benefits of making a gift of rights to an organization that ensures their work a sort of immortality. But an IPC can also attract publishers with the benefits of perpetual access. Publishers who provide free-to-read content on their web sites (and this is increasingly going to be necessary for competitive reasons) are faced with a new liability -- either they have to keep their digital content online and free (which costs them money if it doesn't continue to sell) or they need to take it down (which could cause a degree of public anger). It makes sense to give the limited rights-to-read (and the obligations to maintain it permanently) to an IPC early in the life of the intellectual property, thereby avoiding the liability and reaping the reward of public service.4
Since the mission of the IPC is to make content to which it has rights easily available online, and its promise to the owners of that IP is to make the free-to-read content easy to find, an IPC needs to invest in rich descriptive metadata to make its content readily discoverable on the web. If, by donating content to an IPC, IP owners cannot only make the availability of their intellectual property better known, but also acquire metadata about their own properties in standard formats, they would have substantial incentives to donate content to an IPC.
B. Obtaining financial contributions
IPCs, like other non-profits seeking donations from the general public, will need to provide concrete benefits to supporters in order to maintain a sufficient stream of financial contributions. A "membership" organization gives public supporters a sense of belonging and of receiving concrete, perhaps even personal, benefits. A newsletter and the web site that communicate news of the success of the IPC and review recent additions to the properties it holds, would be attractive to many such general members.
An IPC may also need to solicit cash donations from intellectual property owners to help pay the costs of digitizing, transforming, or cataloging gifts of intellectual property that are not suitable for digital delivery or preservation in their current form. Individual IP donors, in particular, may need to help bear these costs since metadata creation for their donations will be a one-off cost and the transaction costs are likely to be higher. But even donors of large quantities of IP may need to be asked to contribute financially for an IPC to absorb a sizable gift (ten thousand articles from a magazine publisher for instance) in a reasonable time.
C. Obtaining usable digital assets
The most critical issue in the success of an IPC is probably the technical characteristics of the Intellectual Properties it acquires. If selective, the IPC could obtain content in a way that enables it to deliver the content in the future without substantial additional investment and to offer a range of value added views without requiring costly intervention. Without careful selection, an IPC could be saddled with overwhelming costs to initially capture the data in usable formats, transform what it receives, or to manage the digital data over time. Its presumed digital assets would instead become liabilities that could far exceed its likely resources. One of the most costly factors in acquiring content is negotiating the terms and conditions for its donation and subsequent use. But depending on what those terms and conditions are, the cost of administering access could also be very high. Contractual terms that define a limited number of concrete levels of rights (for example, rights to provide free public access one page at a time and print the page being viewed)5 must be easily translated into levels of functionality. With such fixed levels of rights, a donor could agree on a sequence of further future rights releases (for example, granting the right to print a chapter at a time, or search any word in context, or view an hierarchical table of contents).6 It is critical that the donation of different levels of functionality, and the progressive release of further permissions over time, not result in additional operational costs for an IPC. Metadata captured up front must interact with the format captured up front to dictate levels of functionality.7
Some formats of donated content will require substantial investment to make them usable online, or to be kept online in perpetuity. Hence, an IPC needs to consider the risks involved in selection, based on decisions about what formats to acquire. Text and image can be delivered with layered public-access-level functionality using existing web-based distribution servers. In planning The Knowledge Conservancy, we decided that while issues about how best to digitize sound and motion images could be resolved, it would be more difficult at the present time to define appropriate levels of 'low-fidelity' delivery acceptable to copyright holders, because their business models are currently in such substantial flux. Also, the public is presently quite confused about the copyright status of online sound, and adding another entity offering free sound at this time seems likely to increase the public confusion. Acquisition of patents, though these are just another form of intellectual property, raises quite different and complex issues for an IPC.8
An IPC must have defined rights adequate to make content available to users under some terms, but it need not own the IP to do so. If a donation with some access or development limits is accepted by the IPC, the donor is brought into a relationship with the Conservancy that might also be translated later into donations of further public rights. Conditional agreements and agreements to release content for free public viewing at a future date, are common in archives. In such a case, the property owner would provide the IPC with a copy, but the specific rights granted to the IPC would only come into effect at a designated time or under specific conditions.
One of the benefits of an IPC is that it promises to keep IP always available, while the current system of publishing makes much IP difficult to obtain. There are a variety of technical aspects to this claim, one of which is to ensure that some server with the content must always be available. First, the IPC needs to be able to determine whether the copy at the primary location is available, and if not, shift to a secondary location. The Universal Library at CMU developed a system that keeps track of the on-line books in its catalog and will display locally cached copies of the books if the link to the original work on a remote site disappears.9
D. Metadata issues
Metadata management will be critical to an IPC's success. Like any Digital Library it needs to invest in discovery (content description) metadata. An IPC must additionally invest substantially in rights management metadata and technical (migration specification) metadata. While the IPC can rely on natural partners in the library community to help provide descriptive metadata for simple resource discovery (such as Dublin Core metadata), it also needs to be able to incorporate metadata conforming to standards in the publishing community.10 An IPC will need to determine the requirements for rights metadata linked to delivery functionality, as discussed above. Finally, an IPC needs to manage a digital artifact over time. As such, it needs to determine what metadata will need to be acquired and kept for long-term preservation. The OAIS reference model seems a probable framework for preservation of archival originals.11 Recent proposals by the Open Archives Initiative may be adequate for distribution of metadata between an IPC and its mirror sites and between IP owners and the IPC.12
E. Providing access to potential readers worldwide
Where the content resides is more than simply an operational consideration for an IPC. IP owners prefer that the digital data be located on their own servers; the terms of the gift would ensure that, should the IP owner fail to keep it available, the IPC can shift access to its own servers. The benefits to the IPC (someone else pays for the server and it is acceptable to IP owners) suggest that an architecture enabling this kind of distributed access will be necessary.
F. Perpetual access
The fundamental objectives of an IPC are to offer free access to its catalog of intellectual property in perpetuity. For this, the IPC does not need to be the archival repository of the authentic, verifiable, record copy. Like a digital library, which holds a copy of a work and makes the accurate and full content available to users, the IPC doesn't claim to preserve contextual or structural authenticity.13 Both an IPC and a digital library focus on preservation of content as required for preservation of public access and the right-to-read.14 Therefore an IPC need not preserve the initial delivery format, nor any particular subsequent delivery format. Instead, the IPC can return to its escrowed copy to generate a delivery copy in a new format, or move from one delivery format to the next, depending on cost and technology availability. Of course, an IPC still must make strategic decisions about when and how to convert data from one delivery and or long-term storage format to another, to keep the content accessible over time. Media migration needs to be conducted on an on-going basis as new, more efficient, storage media are developed.
Resolving Internal Contradictions
There are considerable social, legal and organizational tensions in the organization of an IPC. During the past several months of planning for The Knowledge Conservancy, as we have been getting into those infamous details wherein the devils reside, we have uncovered many contradictions between the likely requirements for successful IPCs and the ideologies of those most committed in the abstract to their formation.
Intellectual Property Conservancies are an attractive idea. They may be a very promising way to bridge some of the conflicts between those who see the future of economic growth in finding new ways to exploit intellectual property in a knowledge society, and those who feel that the knowledge society is creating new inequities that can only be reduced by loosening the grip of private ownership of intellectual property. Examining the requirements for such organizations in advance, and publicly debating the best ways for them to achieve their stated goals, are the first steps to forming robust Intellectual Property Conservancies.
For those who may wish more detail about Intellectual Property Conservancies, a more extensive version of this article may be found at <http://www.dlib.org/dlib/december00/bearman/12bearman-full.html>.
1. The concept of The Knowledge Conservancy was originated by John Ockerbloom while he was a director of the Universal Library Project at Carnegie Mellon University. John is presently at the University of Pennsylvania where he continues to maintain "The On-Line Books" page, (http://digital.library.upenn.edu/books/index.html ). The Knowledge Conservancy was developed further by Robert Thibadeau, another director of the Universal Library, who has focused on exploring frameworks for publishers (such as National Academy Press) to make content available for free online use. Dr. Thibadeau has spent the last six years developing ways in which free-to-read can be shown to enhance revenue, not detract from it.
2. Cliff Lynch noted, in reviewing these ideas in an earlier draft, that there is not now any real way for an intellectual property owner to 'put it in the public domain'. By donating it to an IPC, an IP owner could contractually do so, and users would not have to rely on an assertion on a web page to give them the right to make use of the content for free.
3. The "Artist-Museum Partnership Act", S. 2781, was introduced June 23, 2000, by Senators Patrick Leahy (D-VT), Robert Bennett (R-UT) and Joseph Lieberman (D-CT).
4. Note that while offering free-access in perpetuity is a means for an IPC to obtain content, it is also a major liability and risk for the IPC.
5. Analogous levels of functionality for sound recordings or motion images can also be developed. Stereophonic sound of a single track may be a minimum functionality while CD quality sound, with liner notes and visuals, searchable lyrics, etc., could represent the high-end functionality. While experience in negotiating with IP owners will be required to determine what is possible and desirable, it will always be necessary to monitor the ability of a digital delivery system to automatically provide a given level of contractually agreed access from a complete file held in escrow.
6. It is worth noting that if tax benefits are eventually provided for intellectual property donations, such a progressive release could potentially realize on-going business and tax benefits to the donor since it would increase the usage benefits to the readers, and decrease the residual value of the intellectual property held by the donor. Importantly, the actual levels of functionality might be dictated by defined tax benefits at a particular time.
7. Functionally, this control is the same as is required by rights management and permissions systems, in particular those applying to medical or archival environments where the identity of the users defines what content they are permitted to see.
8. The Constitution's Commons, an IPC proposed by Lawrence Lessig in the fall of 2000, does intend to collect patent rights. Details about how it might make them available or develop them further are not clear to me as of this writing.
9. This experimental system can be found at <http://xiotech.ulib.org/ulib>.
10. For example, see the recently released American Association of Publishers OpenEBook standards <http://www.publishers.org/home/ebookstudy.htm>>
11. The Consultative Committee for Space Data Systems (CCSDS) reference model can be found at <http://www.ccsds.org/RP9905/RP9905.html>.
12. The Open Archives Initiative <http://www.openarchives.org> open metadata harvesting protocols will be made public at a meeting scheduled for January 23, 2001.
13. The distinction between content, context and structure was introduced in a series of articles by the author which are collected in "Electronic Evidence: Strategies for Managing Records in Contemporary Organizations" (Pittsburgh, Archives & Museum Informatics, 1994) and in "Metadata Requirements for Evidence" (see <http://www.lis.pitt.edu/~nhprc/BACartic.html> co-authored with Ken Sochats). They are echoed in most current archival reports on recordkeeping requirements, for example National Archives of Australia "Corporate Memory in the Electronic Age - Statement of a Common Position on Electronic Recordkeeping" <http://www.naa.gov.au/recordkeeping/er/manage_er/append_1.html> or Anne J. Gilliland-Swetland and Philip B. Eppard, "Preserving the Authenticity of Contingent Digital Objects: The InterPARES Project," D-Lib Magazine, July/August 2000 <http://www.dlib.org/dlib/july00/eppard/07eppard.html>.
14. For more on authenticity and its challenges, see David Bearman and Jennifer Trant, "Authenticity of Digital Resources: Towards a Statement of Requirements in the Research Process," D-Lib Magazine, June 1998 <http://www.dlib.org/dlib/june98/06bearman.html>.
15. For example, in planning The Knowledge Conservancy we explored how TKC could offer "Large-Type" or "Spoken" editions of any intellectual properties donated to it outright, or provided under a free-to-read license or deed which permitted this.
16. Potential for confusion exists with for-profit entities that look to be doing some aspect of the same thing, such as Questia or Octavo; non-profit, academic, digital libraries like the Universal Library at Carnegie Mellon University, the "Online Books Page" at the University of Pennsylvania, the Electronic Texts Center at the University of Virginia, and advocacy organizations such as the Electronic Frontier Foundation, the Freedom to Read Foundation, the Long Now Foundation, or the National Security Archive.
Copyright© 2000 David Bearman