For a number of years I have been heading a major research project on Spotify (funded by the Swedish Research Council). It takes a software studies and digital humanities approach towards streaming media, and engages in reverse engineering Spotify’s algorithms, aggregation procedures, metadata, and valuation strategies. During the summer of 2017 I received an email from a Spotify legal counsel who was ”concerned about information it received regarding methods used by the responsible group of researchers in this project. This information suggests that the research group systematically violated Spotify’s Terms of Use by attempting to artificially increase plays, among others, and to manipulate Spotify’s services with the help of scripts or other automated processes.” I responded politely—but got no answer. A few weeks later, I received a letter from the senior legal advisor at my university. Spotify had apparently contacted the Research Council with the claim that our research was questionable in a way that would demand “resolute action”, and the possible termination of financial and institutional support. At the time of writing it is unclear if Spotify will file a lawsuit—or start a litigation process.

DH-research is embedded in ’the digital’—and so are its methods, from scraping web content to the use of bots as research informants. Within scholarly communities centered on the study of the web or social media there is a rising awareness of the ways in which digital methods might be non-compliant with commercial Terms of Service (ToS)—a discussion which has not yet filtered out and been taken serious within the digital humanities. However, DH-researchers will in years to come increasingly have to ask themselves if their scholarly methods need to abide by ToS—or not. As social computing researcher Amy Bruckman has stated, it might have profound scholarly consequences: ”Some researchers choose not to do a particular piece of work because they believe they can’t violate ToS, and then another researcher goes and does that same study and gets it published with no objections from reviewers.”

My paper will recount my legal dealings with Spotify—including a discussion of the digital methods used in our project—but also more generally reflect around the ethical implications of collecting data in novel ways. ToS are contracts—not the law, still there is a dire need for ethical justifications and scholarly discussions why the importance of academic research justifies breaking ToS.

Historically, the tradition archives have had their course of development rather apart, both in form and in substance, from the formation process of other types of cultural heritage collections held by “traditional” archives, museums and libraries. However, for positive influence of current trends in development of technical and institutional capacities to be fully exercised on the managerial approaches, there must be increased legal certainty regarding status and functioning of the tradition archives. There are several trajectories through which tradition archives can be and are influenced by the surrounding legal and administrative framework both at national and regional level. A thorough knowledge of the impact from the existing regulatory base can contribute to informed decision making in consistence with the role that these archives play in safeguarding the intangible cultural heritage. In the paper a case study of the current Latvian situation would be presented within a broader regional perspective of the three Baltic states. The legal framework of interest is defined by the institutional status of tradition archives, the legal status of the collections, as well as legal provisions and restrictions regarding functioning (work) that involves gathering, processing and further use of the archive material.

The paper is based on the data gathered within the EUSBSR Seed Money Facility project “DigArch_ICH. Connecting Digital Archives of Intangible Heritage” (No. S86, 2016/2017) executed in partnership of the Institute of Literature, Folklore and Art of the University of Latvia, the Estonian Folklore Archives, the Estonian Literary Museum, the Norwegian Museum of Cultural History and the Institute for Language and Folklore in Sweden. One of the several thematic lines of the project dealt with legal and ethical issues, asking national experiences about legal concerns and restrictions for the work of tradition archives, legal status of collections of tradition archives, practice on signing written agreements between researcher and informant, as well as existing codes of ethics that would be applied to the work of tradition archives. Responses were received from altogether 21 institutions from 11 countries of the Baltic Sea region and neighbouring countries.

Fields of the legislation involved.

There are several fields of national legislation that influence the work of tradition archives, such as the regulations on intangible heritage, documentary heritage, work of memory institutions (archives, museums, libraries), intellectual property and copyright, as well as protection of personal data. Depending on the national legislative choices and contexts, these fields may be regulated by separate laws, or overarching laws (for instance, in the field of cultural heritage, covering both intangible as well as documentary heritage protection), or some of these fields may remain uncovered by the national legislation.

According to the results of the survey, the legal status of the tradition archives can be rather diverse. They can be part of larger institutions such as universities, museums, or libraries. In the Latvian situation, there are specific laws for every type of the above-mentioned institutions that can entail large variety of rule sets. The status of the collections can differ also depending on whether they are recognised as part of the protected national treasures (such as the national collections of museums, archives etc.). The ownership status can be rather divers, taking into consideration the collections belonging to the state or privately owned. Moreover, ownership rights of the same collection can be split between various types of owners of similar or varied legal status. The paper proposes to identify and analyse in the Latvian situation the consequences for the collections of the tradition archives depending on the institutional status of their holder, their ownership status and influence exercised by legislation in the fields of copyright and intellectual property law as well as data protection. The Latvian case would be put into perspective of the experience by the Estonian and the Lithuanian situation.

International influence on the national legislation.

The national legislation is influenced by the international normative instruments of different level, ranging from the global perspective (the UNESCO) to the regional level, in this case – the European scope. At the global level there are several instruments ranging from legally binding instruments to the “soft law”, such as the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage or the 2015 UNESCO Recommendation Concerning the Preservation of, and Access to, Documentary Heritage Including in Digital Form. Concerning the work of tradition archives, this 2003 Convention namely relates to the documentation of intangible cultural heritage as well as establishment of national inventories of such heritage, and in this regard tradition archives may have or establish their role in the national policy implementation processes. The European regional legislation and policy documents are of relevance, adopted either by the European Council, or by the European Union. They concern the field of cultural heritage (having a general direction towards an integrated approach towards various cultural heritage fields), as well as private data protection and copyright and intellectual property rights. The role of the legally binding legal instruments of the European Union, such as directives and regulations, would be examined through perspective of the national legislation related to the tradition archives

Aspects of deontology.

As varied deontological aspects affect functioning of the tradition archives, these issues will be examined in the paper. There are national codes of ethics that may apply to the work of tradition archives, either from the perspective of research or in relation to archival work. Within the field of intangible cultural heritage, the issues of ethics have been also debated internationally over the recent years, with recognised topicality as for different stakeholders involved. Thus, UNESCO Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage adopted in 2015 the Ethical Principles for Safeguarding Intangible Cultural Heritage. This document has a role of providing recommendations to various persons and institutions that are part of safeguarding activities, and this concerns also the work of tradition archives. There are also international deontology documents that concern the work of archives, museums and libraries. These documents would be referred to in a complementary manner, taking into consideration the specificity of tradition archives. Namely, the 1996 International Council of Archives (ICA) Code of Ethics. Although this code of ethics does not highlight archives that deal with folklore and traditional culture materials, it nevertheless sets general principles for the archival work, as well as cooperation of archives, and puts an emphasis also to the preservation of the documentary heritage. Another important deontological reference for tradition archives concerns the work of museum, which is particularly significant for archives that function as units in larger institutions – museums. Internationally well-known and often mentioned reference is the 2004 (1986) International Council of Museums (ICOM) Code of Ethics for Museums. A reference may be given also to the 2012 International Federation of Library Associations (IFLA) Code of Ethics for Librarians and other Information Workers.

1 Background

In this paper we will examine the current state and future development of research ethics among Digital Humanities. We have analysed

a) ethics-focused inquiries with researchers in a multidisciplinary consortium project (CM)

b) Digital Humanities -oriented journals and

c) the objectives of the DigiHum Programme at the Academy of Finland, ethical guidelines of AoIR (Association of Internet Researchers. AoIR has published an extensive set of ethical guidelines for online research in 2002 and 2012) and academical ethical boards and committees, in particular the one at the University of Turku. We are planning on analysing the requests for comments which have not been approved in the ethical board at the Univ. of Turku. For that, we need a research permission from administration of University of Turku – which is in process.

Östman and Vaahensalo work in the consortium project Citizen Mindscapes (CM), which is part of the Academy of Finland’s Digital Humanities Programme. University Lecturer Turtiainen is using a percentage of her work time for the project.

In the Digital Humanities program memorandum, ethical examination of the research field is mentioned as one of the main objectives of the program (p. 2). The CM project has a work package for researching research ethics, which Östman is leading. We aim at examining the current understanding of ethics in multiple disciplines, in order to find some tools for more extensive ethical considerations especially in multidisciplinary environments. This kind of a toolbox would bring more transparency into multidisciplinary research.

Turtiainen and Östman have started developing the ethical toolbox for online research already in their earlier publications (see f. ex. Turtiainen & Östman 2013; Östman & Turtiainen 2016; Östman, Turtiainen & Vaahensalo 2017). The current phase is taking the research of the research ethics into more analytical level.

2 Current research

When we are discussing such a field of research as Digital Humanities, it is quite clear than online specific research ethics (Östman & Turtiainen 2016; Östman, Turtiainen & Vaahensalo 2017) plays on especially significant role in it. Research projects often concentrate on one source or topic with a multidisciplinary take: the understandings of research ethics may fundamentally vary even inside the same research community. Different ethical focal points and varying understandings could be a multidisciplinary resource, but it is essential to recognize and pay attention to the varying disciplinary backgrounds as well as the online specific research contexts. Only by taking these matters into consideration, we are able to create some functional ethical guidelines for multidisciplinary online-oriented research.

The Inquiries in CM24

On the basis of the two rounds of ethical inquiry within the CM24 project, the researchers seemed to consider most focal such ethical matters as anonymization, dependence on corporations, co-operation with other researchers and preserving the data. By the answers ethical views seemed to

a) individually constructed: the topic of research, methods, data plus the personal view to what might be significant

b) based on one’s education and discipline tradition

c) raised from the topics and themes the researcher had come in touch with during the CM24 project (and in similar multidisciplinary situations earlier)

One thing seemingly happening with current trend of big data usage, is that even individually produced online material is seen as mass; faceless, impersonalized data, available to anyone and everyone. This is an ethical discussion which was already on in the early 2000’s (see f. ex. Östman 2007, 2008; Turtiainen & Östman 2009) when researchers turned their interest in online material for the first time. It was not then, and it is not now, ethically durable research, to consider the private life- and everyday -based contents of individual people as ’take and run’ -data. However, this seems to be happening again, especially in disciplines where ethics has mostly focused on copyrights and maybe corporal and co-operational relationships. (In the CM24 for example information science seems to be one of the disciplines where intimate data is used as faceless mass.) Then again, a historian among the project argues in their answer, that already choosing an online discussion as an object to research is an ethical choice, ”shaping what we can and should count in into the actual research”.

Neither one of above-mentioned ethical views is faulty. However, it might be difficult for these two researchers to find a common understanding about ethics, in for example writing a paper together. A multifaceted, generalized collection of guidelines for multidisciplinary research would probably be of help.

Digital Humanities Journals and Publications

To explore ethics in digital humanities, we needed a diverse selection of publications to represent research in Digital Humanities. Nine different digital humanities journals were chosen for analysis, based on the listing made by Berkeley University. The focus in these journals varies from pedagogy to literary studies. However, they all are digital humanities oriented. The longest-running journal on the list has been published since 1986 and the most recent journals have been released for the first time in 2016. The journals therefore cover the relatively long-term history of digital humanities and a wide range of multi- and interdisciplinary topics.

In the journals and in the articles published in them, research ethics is clearly in the side, even though it is not entirely ignored. In the publications, research ethics is largely taken into account in the form of source criticism. Big data, digital technology and copyright issues related to research materials and multidisciplinary cooperation are the most common examples of research ethical considerations. Databases, text digitization and web archives are also discussed in the publications. These examples show that research ethics also affect digital humanities, but in practice, research ethics are relatively scarce in publications.

Publications of the CM project were also examined, including some of our own articles. Except for one research ethics oriented article (Östman & Turtiainen 2016) most of the publications have a historical point of view (Suominen 2016; Suominen & Sivula 2016; Saarikoski 2017; Vaahensalo 2017). For this reason, research ethics is reflected mainly in the form of source criticism and transparency. Ethics in these articles is not discussed in more length than in most of the examined digital humanities publications.

Also in this area, a multifaceted, generalized collection of guidelines for multidisciplinary research would probably be of benefit: it would be essentially significant to increase the transparency in research reporting, especially in Digital Humanities, which is complicated and multifaceted of disciplinary nature. Therefore more thorough reporting of ethical matters would increase the transparency of the nature of Digital Humanities in itself.

The Ethics Committee

The Ethics committee of the University of Turku follows the development in the field of research ethics both internationally and nationally. The mission of the committee is to maintain a discussion on research ethics, enhance the realisation of ethical research education and give advice on issues related to research ethics. At the moment its main purpose is to assess and give comments on the research ethics of non-medical research that involves human beings as research subjects and can cause either direct or indirect harm to the participants.

The law about protecting personal info of private citizens appears to be a significant aspect of research ethics. Turtiainen (member of the committee) states that, at the current point, one of the main concerns seems to be poor data protection. The registers constructed of the informant base are often neglected among the humanities, whereas such disciplines as psychology and wellfare research approximately consider them on the regular basis. Then again, the other disciplines do not necessarily consider other aspects of vulnerability so deeply as the (especially culture/tradition-oriented) humanists seem to do.

Our aim is to analyse requests for comments which have not been approved and have therefore been asked to modify before recommendation or re-evaluation. Our interest focuses in arguments that have caused the rejection. Before that phase of our study we need a research permission of our own from the administration of University of Turku – which is in process. It would be an interesting viewpoint to compare the rejected requests for comments from the ethics committee to the results of ethical inquiries within the CM24 project and the outline of research ethics in digital humanities journals and publications.

3 Where do you go now…

According to our current study, it seems that the position of research ethics in Digital Humanities and, more widely, in multidisciplinary research, is somewhat two-fold:

a) for example in the Digital Humanities Program of the Academy of Finland, the significance of ethics is strongly emphasized and the research projects among the program are being encouraged to increase their ethical discussions and the transparency of those. The discourse about and the interest in developing online-oriented research ethics seems to be growing and suggesting that ’something should be done’; the ethical matters should be present in the research projects in a more extensive way.

b) however, it seems that in practice the position of research ethics has not changed much within the last 10 years or so, despite the fact that the digital research environments of the humanities have become more and more multidisciplinary, which leads to multiple understandings about ethics even within individual research projects. Yet, the ethics in research reports is not discussed in more length / depth than earlier. Even in Digital Humanities -oriented journals, ethics is mostly present in a paragraph or two, repeating a few similar concerns in a way which at times seems almost ’automatic’; that is, as if the ethical discussion would have been added ’on the surface’ hastily, because it is required from the outside.

This is an interesting situation. There is a possibility that researchers are not taking seriously the significance of ethical focal points in their research. This is, however, an argument that we would not wish to make. We consider it more likely that in the ever-changing digital research environment, the researches lack multidisciplinary tools for analyzing and discussing ethical matters in the depth that is needed. By examining the current situation extensively, our study is aiming at finding the focal ethical matters in multidisciplinary research environments, and at constructing at least a basic toolbox for Digital Humanities research ethical discussions.

Sources and Literature

Inquiries made by Östman, Turtiainen and Vaahensalo with the researchers the Citizen Mindscapes 24 project. Two rounds in 2016–2017.

Digital Humanities (DigiHum). Academy Programme 2016–2019. Programme memorandum. Helsinki: Academy of Finland.

Digital Humanities journals listed by Digital Humanities at Berkeley. http://digitalhumanities.berkeley.edu/resources/digital-humanities-journals

Markham, Annette & Buchanan, Elizabeth 2012: Ethical Decision-Making and Internet Research: Recommendations from the AoIR Ethics Working Committee (Version 2.0). https://aoir.org/reports/ethics2.pdf.

Saarikoski, Petri: “Ojennat kätesi verkkoon ja joku tarttuu siihen”. Kokemuksia ja muistoja kotimaisen BBS-harrastuksen valtakaudelta. Tekniikan Waiheita 2/2017.

Suominen, Jaakko (2016): ”Helposti ja halvalla? Nettikyselyt kyselyaineiston kokoamisessa.” In: Korkiakangas, Pirjo, Olsson, Pia, Ruotsala, Helena, Åström, Anna-Maria (eds.): Kirjoittamalla kerrotut – kansatieteelliset kyselyt tiedon lähteinä. Ethnos-toimite 19. Ethnos ry., Helsinki, 103–152. [Easy and Cheap? Online surveys in cultural studies.]

Suominen, Jaakko & Sivula, Anna (2016): “Digisyntyisten ilmiöiden historiantutkimus.” In Elo, Kimmo (ed.): Digitaalinen humanismi ja historiatieteet. Historia Mirabilis 12. Turun Historiallinen Yhdistys, Turku, 96–130. [Historical Research of Born Digital Phenomena.]

Turtiainen, Riikka & Östman, Sari 2013: Verkkotutkimuksen eettiset haasteet: Armi ja anoreksia. In: Laaksonen, Salla-Maaria et. al. (eds.): Otteita verkosta. Verkon ja sosiaalisen median tutkimusmenetelmät. Tampere: Vastapaino. pp. 49–67.

– 2009: ”Tavistaidetta ja verkkoviihdettä – omaehtoisten verkkosisältöjen tutkimusetiikkaa.” Teoksessa Grahn, Maarit ja Häyrynen, Maunu (toim.) 2009: Kulttuurituotanto – Kehykset, käytäntö ja prosessit. Tietolipas 230. SKS, Helsinki. 2009. s. 336–358.

Vaahensalo, Elina: Kaikenkattavista portaaleista anarkistiseen sananvapauteen – Suomalaisten verkkokeskustelufoorumien vuosikymmenet. Tekniikan Waiheita 2/2017.

Östman, Sari 2007: ”Nettiksistä blogeihin: Päiväkirjat verkossa.” Tekniikan Waiheita 2/2007. Tekniikan historian seura ry. Helsinki. 37–57.

Östman, Sari 2008: ”Elämäjulkaiseminen – omaelämäkerrallisten traditioiden kuopus.” Elore, vol. 15-2/2008. Suomen Kansantietouden Tutkijain Seura. http://www.elore.fi./arkisto/2_08/ost2_08.pdf.

Östman, Sari & Turtiainen, Riikka 2016: From Research Ethics to Researching Ethics in an Online Specific Context. In Media and Communication, vol. 4. iss. 4. pp. 66¬–74. http://www.cogitatiopress.com/ojs/index.php/mediaandcommunication/article/view/571.

Östman, Sari, Riikka Turtiainen & Elina Vaahensalo 2017: From Online Research Ethics to Researching Online Ethics. Poster. Digital Humanities in the Nordic Countries 2017 Conference.

Copyright, caught in a digital maelstrom of perpetual reforms and shifting commercial practices, exacerbates tensions between cultural stakeholders. On the one hand, copyright seems to be drowned in Canada and the USA by the role reserved to copyright exceptions by parliaments and the courts. On the other, institutions, such as libraries, are keen to navigate digital environments by allocating their acquisitions budgets to digital works. How can markets, social systems and institutions emerge or interact if we are not able to resolve this tension?

Beyond the paradigm shifts brought by digital technologies or globalization, one must recognize the conceptual paradox surrounding digital copyrighted works. In economic terms, they behave naturally as public goods, while copyright attempts to restore their rivalrousness and excludability. Within this paradox lies tension, between the aggregate social wealth spread by a work and its commoditized value, between network effects and reserved rights.

In this paper, I will summarize the findings of my doctoral research project and apply them to the case of digital games in libraries.

The goal of my doctoral work was to ascertain the role of libraries in the markets and social systems of digital copyrightable works. Ancillary goals included exploring the “border” between licensing and exceptions in the context of heritage institutions as well as building a new method for capturing the complexity of markets and social systems that stem from digital protected works. To accomplish these goals, I analysed a dataset comprising of the terms and conditions of licenses held by academic libraries in Québec. I show that the terms of these licences overlap with copyright exceptions, highlighting how Libraries express their social mission in two normative contexts: positive law (copyright exceptions) and private ordering (licensing). This overlap is both necessary yet poorly understood - they are not two competing institutional arrangements but the same image reflected in two distinct normative settings. It also provides a road-map for right-holders of how to make digital content available through libraries.

The study also points to the rising importance of automation and computerization in the provisioning of licences in the digital world. Metadata describing the terms of a copyright licence are increasingly represented in computer models and leveraged to mobilize digital corpus for the benefit of a community. Whereas the print world was driven by assumptions and physical limits to using copyrighted works, the digital environment introduces new data points for interactions which were previously hidden from scrutiny. The future lies not in optimizing transaction costs but in crafting elegant institutional arrangements through licensing.

If libraries exist to capture some left-over value in the utility curve of our cultural, informational or knowledge markets, the current role they play in copyright need not change in the digital environment. What does change, however, is hermeneutics: how we attribute value to digital copyrighted works and how we study society’s use of them.

We conclude by transposing the results of this study to the case of digital games. Québec is currently a hotbed for both independent and AAA video game studios. Despite this, a market failure currently exists due to the absence of flexible licensing mechanisms to make indie games available through libraries. This part of the study was funded with the generous support from the Knight Foundation in the USA and conducted at the Technoculture Art & Games (TAG) research cluster of the Milieux Institute for arts, culture and technology at Concordia University in Montréal, Canada.