The British Library (BL) is working on a project to digitise Spare Rib, the landmark UK feminist magazine of the seventies and eighties. The Library wants to make the digitised issues available on the web. For this it will need the permission of the several thousand contributors who provided the magazine with its material. Some of the contributors have already received a letter about the project, and there was an item in the Guardian last Saturday.
I contributed to Spare Rib myself, back in the day, and so did a number of people I know, so when a friend forwarded me the letter with attached information sheet that is being sent out to contributors I read it with very great interest. And increasing alarm. And my alarm grew the more thoroughly I investigated the way in which the scheme is being conducted.
The BL is asking all contributors to agree that their contributions should be published under a Creative Commons Attribution-Non Commercial 3.0. licence. This means that not only the BL but all future users too would be granted a perpetual licence not only to reproduce the material but to adapt it: to ‘remix, transform, and build upon’ it, as the summary on the Creative Commons website helpfully explains. The main restriction is that there should be no commercial use of the material. But this is hardly a sufficient safeguard against abuse.
If this project goes ahead, anyone with misogynist, anti-feminist and/or anti-lesbian attitudes will be able to take any and all of the letters, articles, poems, photographs, cartoons and other illustrations that feminists contributed to Spare Rib and twist and misuse them in ways that suit their own agenda. The original authors would not be able to do much, if anything, about it.
I do not find it at all pleasant to contemplate what the remix culture of the Internet could do with the poems, photographs and articles in Spare Rib. We have already seen misogynist trolls in action far too many times.
But in any case there are obvious problems with permitting this historic material to be refashioned and freely circulated in altered versions.
Meanwhile, the British Library information sheet is guilty of seriously misrepresenting the terms of the licence to which it is asking contributors to agree. It says: ‘Researchers and users of the proposed digital resource will be able to reference Spare Rib material in their work so long as it … does not in any way manipulate the material.’ Anyone who checks the actual terms of the licence will see that this statement is absolutely wrong, as I have shown above. But it is very likely that some, perhaps many contributors will hardly imagine that the BL could be wrong on such an important point, and will not find the time to check up.
The more so because, for some reason, the BL is engaging in high-pressure tactics. In their letter they press contributors to “access the online copyright clearance form within seven days” of receiving it. This accords authors, photographers and illustrators virtually no time for reflection or consultation with a lawyer, agent or professional society. It is very hard to see why they are asking this. It certainly isn’t fair on the contributors.
In any case, it is hard to understand the reason why the BL is requiring contributors to place their work under any sort of Creative Commons (CC) licence. They claim that this is ‘crucial’, but that is nonsense. All they need for their project is for contributors to agree that their work should be digitised and made available to the public on the Web. The BL surely has a lawyer or two on hand who could draft an appropriate agreement.
The ‘contract’ to which the BL wants contributors to agree is extraordinarily one-sided. The contributor grants the BL a licence ‘ in accordance with the terms of the Creative Commons Attribution Non- Commercial 3.0 Licence, and any successor version as published by Creative Commons’. The licence is irrevocable and cannot be reverted; meanwhile, the BL is not bound to anything. At all. So whether or not the Spare Rib digitisation project goes ahead the BL will have the permanent right in future to make very broad use of what in the case of some items may be valuable material.
Moreover, nowhere in the contract or in other documents relating to this project is it clearly spelled out that under the terms of the CC licence, granting it to the BL gives them the right, and imposes the obligation, to grant the same licence to users of any resources that they create using the material: and so on, ad infinitum. Or to put it another way, the licence will cascade to other users. To fully appreciate this point you would have to have some knowledge of the CC system or else click through the licence summary to the full CC licence and read down through it as far as section 8, ‘Miscellaneous’:
a. Each time You Distribute or Publicly Perform the Work or a Collection, the Licensor offers to the recipient a license to the Work on the same terms and conditions as the license granted to You under this License.
b. Each time You Distribute or Publicly Perform an Adaptation, Licensor offers to the recipient a license to the original Work on the same terms and conditions as the license granted to You under this License.
As for the idea of granting a perpetual licence on terms as yet unknown (‘any successor version as published by Creative Commons’): I can’t understand why anyone would think that that was a sensible idea.
The contract incorporates an assertion of the author’s moral right to be identified, as required by the Copyright, Designs and Patents Act. There is no assertion of her moral right to object to derogatory treatment of the work. That right does not exist in UK law for works published in newspapers or magazines (as distinct from books, for instance). Nor does it exist where a work published in a newspaper or magazine is subsquently reissued without modification: which would seem to cover the case of a direct digital copy. But if that copy were to be further modified, under a CC licence, then the moral right to object to derogatory treatment might in theory protect against abusive modifications; except that moral rights have first to be asserted. And the right to object to derogatory treatment is omitted from the assertion on the contract: so, they won’t have been asserted. This probably sounds arcane to many people, but a commenter on the Guardian website (where I left some comments on Saturday and Sunday) suggested that the right to object to derogatory treatment would be enough to protect contributors from having their work modified in ways that would distort it. It is true that the CC licence (in its full form) says that ‘ You must not distort, mutilate, modify or take other derogatory action in relation to the Work which would be prejudicial to the Original Author’s honor or reputation’. But there is a weaselly bit right above it that says ‘Except as … may be otherwise permitted by applicable law’. Now as I have just said, the right to object to derogatory treatment is only protected under UK law if that right has been asserted. It has not been asserted. So – I am not a lawyer, and I am open to correction, but as I take it, that would be applicable law: so there is nothing in the CC licence either that would protect against derogatory treatment.
But in any case moral rights are very weak rights, notoriously hard to enforce. Much better not to enter into very broad perpetual licensing arrangements with users about whom nothing whatsoever is known; better to keep as much control as possible of how your work is exploited.
The managers of this project recognise that some contributors will have reservations about it on privacy grounds. Some of the items published in Spare Rib, perhaps especially some of the letters, were very personal. The information sheet promises them that search engines will not be allowed to index the archive and ‘expose individual contributions outside of the archive interface’. But the BL staff have overlooked a major point. The use of a CC licence for this project will make it perfectly legal for other people to copy individual contributions, perhaps even abstract the entire contents of the database, and post the material on the public web in places where search engines will be able to access it.
In yet another piece of misdirection, the BL are withholding from contributors and the public the information that the complete run of Spare Rib was put on microform and microfilm long ago as part of a collection called ‘The Underground and Alternative Press in Britain’. They talk emotively about ‘paper holdings’ being ‘subject to deterioration’ and say that the project is necessary to ‘preserve’ Spare Rib ‘for future generations’. The web headline of the Guardian piece suggests histrionically that Spare Rib needs to be ‘saved’, and the article refers to it as existing ‘in paper form’. But there is no risk of losing Spare Rib. The microform/microfilm collection is available in a number of libraries in the UK and USA, including the BL. Microform is a stable form of storage.
Finally, I find it troubling that an atmosphere of fervour is being whipped up around this project with no acknowledgement that contributors are being leaned on to make their work publicly available for no remuneration. In its day Spare Rib received contributions from important poets, journalists, photographers, short story writers and novelists. It was a shoestring venture, I believe, but not an amateur one. I believe that if there is sufficient demand for the material to be made available to the public again then it is sufficiently valuable for payment to be made. I think the British Library may be trying to set a precedent with this project – a bad one.
Some contributors may be happy to forgo payment; it’s a matter for individual decision. But no one should be made to feel pressured into licensing their work in perpetuity for no return.