By our unofficial reckoning, most authors of cuneiform editions that contained their own hand or electronic copies, or photographic plates of cuneiform inscriptions, support the effort made by our staff and collaborators to digitize and post to our pages all such inscription representations. Some few have sent us queries as to why we have not requested their specific permission to do so, and one colleague has, through the officials of the collection of tablets he has published, demanded that digitized facsimiles of his hand copies be removed from public access through our website. Knowing that the raw capture, processing, archiving and web posting of cuneiform drawings would represent a substantial investment of our resources, we have attempted to be clear in all communications that we pursue this effort based not just on the academic justification that a centralized and permanent database for primary source documentation--the core goal of CDLI—serves a broad community of researchers, general users, and, ideally, cuneiform collections curators and antiquities policing agencies, but based also on the legal application of “fair use,” without which many Humanities web sites would be unthinkable.
U.S. Code, Title 17 chapter 1 § 107, deals with “Limitations on exclusive rights: Fair use” and states:
Notwithstanding the provisions of sections 106 and 106A [see the pertinent pages in <http://www.copyright.gov/title17/92chap1.pdf>, ref. RKE], the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
The interpretation of fair use is unfortunately not uniform throughout the world, but we believe the academic benefits of its implementation as outlined by US Code Title 17 ch. 1, § 107, should be clear to any scholar. The Max Planck Society, CDLI's principal European partner, has been a leading proponent of an understanding of fair use, and more broadly of a general policy of open access that favors the unencumbered dissemination of scientific information and cultural heritage. We urge our colleagues to consult Max Planck's “Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities” (<http://oa.mpg.de/berlin-prozess/berliner-erklarung/>) to inform themselves of their rights as authors, as archivists and as cultural heritage officials in an emerging environment of federated content production and dissemination. The declaration has thus far been signed by 248 major scientific and cultural organizations throughout the world and in particular Europe, including all major research foundations and science organizations in Germany (among many others the Wissenschaftsrat, the Hochschulrektorenkonferenz, the Deutsche Forschungsgesellschaft, and the Berlin-Brandenburgische Akademie der Wissenschaften), the Centre National de la Recherche Scientifique (CNRS) in France, the Conférence suisses des Hautes Ecoles spécialisées (CSHES) and the Rat der Schweizerischen wissenschaftlichen Akademien in Switzerland, and 134 European Universities. For a complete list of current signatories see <http://oa.mpg.de/berlin-prozess/signatoren>.
Both of the CDLI-sponsored journals CDLJ and CDLB (<http://www.cdli.ucla.edu/pub.html>) encourage and utilize the power of hyperlinked primary source access, and have been listed in the Directory of Open Access Journals (<http://www.doaj.org/> see <http://www.doaj.org/openurl?genre=journal&issn=15408779> and <http://www.doaj.org/openurl?genre=journal&issn=15408760>). We further welcome the fact that all articles in these journals are immediately harvested and made searchable through Google. We are convinced that this Web exposure promotes the impact of cuneiform studies in the academic world, but it also helps to fulfill the responsibility to communicate our understanding of the ancient Near East to a growing community of online informal learners—and, we might mention, to expert users world-wide whose libraries might not possess the means to purchase often expensive paper publications. Our source web pages will claim no copyright to any text, but we attempt to follow guidelines of image distribution that best serve the needs of academic specialists, cultural heritage administrators and the general public. Thus insofar as images in CDLI pages are concerned, we affirm that they are strictly for non-commercial use, and that we link to each text page a copyright notice specifying the restrictions of, in particular, their commercial use (see <http://www.cdli.ucla.edu/info/copyright.html>); that, while in the agglomerate the digital capture of line art copies of cuneiform inscriptions can constitute a substantial portion of a given publication, the publication itself is not recoverable from the images kept at such a low resolution that they are not viable files for commercial abuse (full line art files are almost exclusively 150ppi, but in rare instances 300ppi where a lower resolution degrades the academic use of very fine line art depictions); and that the effect of our fair use of cuneiform inscriptions does not and can not adversely effect the market value of the published work. To the contrary, the web presence generated by the online distribution of, as a rule, very isolated publications is widely believed to increase rather than limit the market value of text editions.
In the meantime, we are planning to improve the transparency of the authorship of all contributions to the documentation of primary cuneiform sources in CDLI pages. As a rule, all lead images of line art copies (Pnnnnnn_l.jpg) are those of the author(s) listed in the primary publication line of each text page. In the future, images and transliterations prepared for online access will be tagged to more clearly indicate their specific source, and the history of their eventual revisions. These steps will heighten the web presence of, and access to, collections, publications, and professional participation in cuneiform scholarship.
While we make every effort to avoid possible conflicts of interest with authors preparing editions of unpublished cuneiform collections—although we feel that in such cases, too, the online distribution of raw data can act to enhance the academic value of final publications—we believe that a fair use distribution of published materials is in the general interest of research, and we are grateful for the support of the field in our effort to achieve as broad a coverage of primary source documentation as is possible with our limited resources. We again request your support in adding to our files any documentation you might have or generate concerning your own, or publications of others not currently in our data base, or in submitting to us corrections of material found in our files. Any further queries about the use of text and images in CDLI pages may be directed to email@example.com.
[originally posted by the authors to the Agade list on 27 February 2008 (here with URL updates)]