Archives and Copyright

FOI Man reports on a symposium looking at how copyright impacts archivists wanting to digitise their holdings.

A symposium hosted by the Wellcome Trust yesterday looked at the difficulties faced by archivists who want to digitise their holdings. The problem is that under existing copyright law in the UK, even very old unpublished documents are subject to copyright until 2038. As one expert, Tim Padfield, pointed out, this means that many documents are protected by copyright even though copyright didn’t actually exist when they were created.

The further problem is that a single collection could contain correspondence from hundreds or even thousands of correspondents. And in theory, you have to obtain permission from each and every one – or their descendants – before you can legitimately copy the correspondence, and make it available to the public.

Wellcome and several collaborators have recently been through this process to create the Codebreakers online archive, making correspondence and other documents relating to the discovery of DNA available to anyone who is interested. Caroline Herbert described the process of identifying copyright owners using sources including Who’s Who and (as a librarian she admitted with some reluctance) Google. Encouragingly the vast, vast majority of those contacted gave their consent, and nobody asked for money. Most people were pleased that the documents were going to be made more widely available and just wanted to know when they would be able to see them.

With all the expense involved in making documents available to the public, and with so little opposition from those whose copyright was involved, the question is – why don’t archivists just take the risk? Increasingly they have to with “orphan works” – those documents where it does not prove possible to identify the copyright owner. At what point do they decide that enough is enough and just go ahead?

Speakers from the US were – perhaps unsurprisingly – more gung ho than their British counterparts. The US concept of “fair use” has been successfully appropriated by US libraries and archives to justify digitisation. In this context, their view is that to conduct the searches Wellcome have done is just plain unrealistic on an ongoing basis. Matthew Sag in particular, a professor of law at Loyola University Chicago School of Law, argued that there was little stopping UK archivists from taking a similar approach, despite the differences in law.

This was not a popular view in the room, however. As archivists working for government bodies pointed out, it was difficult for them to justify effectively breaking copyright law, however small the risk that it might lead to a complaint or litigation.

 

Speakers from the Intellectual Property Office enthused about forthcoming changes to UK copyright law. This includes new exemptions allowing archivists to, for example, copy material for preservation purposes, and new rules relating to orphan works. However, the general feeling from those present was that these changes would do little to help archivists in digitising collections. The new orphan works rules, which will still require a “diligent” search to be carried out to prove that no copyright owner can be identified, will possibly make the job of individual researchers easier, but it will not help archivists who want – or are being encouraged to – digitise whole collections.

The day wasn’t solely about examining how copyright is affecting archivists today – it was also about, as its subtitle suggested – developing an agenda for reform. In the final plenary session, archivists and academics explored what needed to happen next. A delegate from The National Archives pointed out that they now have a dual role as a government agency on the one hand, but also to provide leadership for the archives sector (since the government axed the old Museums, Libraries and Archives Council). They are currently consulting on how they are doing in the latter role, and it was suggested that if enough archivists told them that copyright was a real problem, then they would have a mandate to talk to government about the issue. Peter Jaszi, one of the US academics present, also suggested encouraging those who would benefit from digitisation to join a campaign for reform to avoid the impression that this was archivists alone making “special pleading”.

Copyright, like data protection in many ways, is an area of information law that arouses strong passions in those with an interest for whatever reason. I left the symposium feeling that copyright is getting in the way of archivists wanting to do great things to widen the relevance of their collections. That can’t be what copyright is designed to do, and it does seem that this is one example where unintended consequences of the law are undermining its good intentions.

 

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