Copyright for dummies (like me)

As far as I can tell, many archivists take a cross-your-fingers-and-pray-like-hell approach to copyright. We err on the side of openness, make a lot of reproductions, and generally feel embarrassed that we haven’t slapped *more* images onto the internet (ergo this blog). If there’s ever a struggle between access and copyright concerns, access usually wins in my book.

We’re vaguely aware that we probably don’t hold copyright to most of the correspondence in our collections and as far as we’re concerned, “fair use” means “do something interesting with this and maybe it would be best if you don’t tell us what it is.” Many archivists talked a bit about copyright concerns in library school, but I don’t remember reading any actual copyright law or case studies from archives or libraries. We do our best to act in good faith, and mostly assume that we’re too far under the radar to offend anyone if we’re perhaps not as careful as we could be. As I discuss later, these sorts of issues are trickiest when holdings are collected from outside sources rather than transfered from the parent institution (as ours mostly are)

At the Penn Museum Archives, we hold copyright to most of our still and all of our moving images; a good chunk of our work is granting reproduction rights. Our clients run the gamut from large publishers of textbooks to children making videos on youtube. Our fee structure recognizes the differences in distribution and resources among our clients, and we do our best to make sure that the rights process doesn’t overly interfere with research or creative work. However, especially now that our film collection is on the Internet Archive, I get the occasional email that says something like “ON WHAT BASIS DO YOU BASE YOUR COPYRIGHT CLAIM?!?!ONE11ONE!!.”

Well, good question. As far as archival wrestling matches with copyright go, we have an advantage as an institutional repository. The vast majority of our collections are from the museum as an institution (director’s office records, curatorial records, etc.), or from Penn-sponsored archaeological and anthropological expeditions. According to this handy guide from Cornell, corporate works (like ours) created in 1889 and later are still under copyright. This includes the vast majority of our manusript and photographic collections, and all of our sound and moving image collections.

If you’re a potential researcher, please don’t think that this means that we want to keep you from our collections. In fact, the opposite is true. Our collections are badly under-utilized (and under-described, but we’re working on it). There are dozens, nay hundreds, of really good articles and dissertations waiting to be written from the material in our collections and nothing would make us happier than to have you come in and make something of them. We’re happy to give you digital facsimiles of items in our collections, and any fee that we may charge is only to help recover some of the shockingly high cost of scanning.

Plus, the reason that most archivists don’t lose sleep over this sort of thing is because we’re just a conduit — we’re not the ones actively reproducing material, researchers are. As our boilerplate language says, users are fully responsible for compliance with relevant copyright laws.

And here, below, are some resources for traveling the labrynth that is United States Copyright law.

  • The American Library Association Office for Information Technology Policy produced this handy thing to help understand reproduction rights.
  • The Society of American Archivists issued a statement in 1997 detailing basic principles for managing intellectual property in a digital envornment.
  • Again, this guide from the Cornell Copyright Information Center is an excellent resource for understand which items are in the public domain.
Man with a tapir. This has nothing to do with copyright, but it doesn't get much better than this. Penn Museum Image #LS-30841

Man with a tapir. This has nothing to do with copyright, but it doesn't get much better than this. Penn Museum Image #LS-30841

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  • jordon

    Good post. I also suggest a book written by Trudy Huskamp Peterson, “Archives and Manuscripts: Law.” It’s my bible.

    One of the most frustrating aspects of copyright law is that it virtually prohibits digitization of modern records. As you point out, any letters that are not written by the person who transferred his or her rights to the repository are under copyright for, oh, let’s say, a million years and counting. And digitization for web access is considered a form of publication, which is unauthorized for works not in the public domain. When I have donors say, “Hey, here’s a bunch of money, go digitize all this guy’s papers,” I have to remind them, gritting my teeth, that I’d love to but I can’t unless I contacted every person (or, even harder, the executor of their estate) who’s represented in that collection and ask for perimssion.

    I’ll have a fun copyright post up on our blog next week. Have a good weekend!

  • http://umich.edu/~cmaureen Maureen Callahan

    Thanks, Jordon! Do you ever find yourself throwing caution to the wind and digitizing anyway? Actually, I suppose that that *is* the danger of being a law archivist — with anyone else, you could plead ignorance and assume that they wouldn’t take the initiative to bring legal action against you.

    Looking forward to your post on copyright!

  • jordon

    Unfortunately, I could never do that for reasons that have nothing to do with the law. I’ll fill you in sometime in the real world.

    Although, I have digitized for preservation, which is allowed under copyright law (3 copies are permitted, a throwback to the negative-master-reference copy trio for reformatting on microfilm). For example, we just finished a digitization project for some oral histories. We haven’t secured the necessary permissions from everyone just yet, so I am adding the MP3s to our public page as they roll in. Furthermore, I put out a call on the page for anyone who can help me track the right people down.

    Wouldn’t it be fun if we all could do something as sweet as this?

    http://www.aaa.si.edu/collectionsonline/