Reviewed articles:
(1) Dryden, Jean. “The Role of Copyright in Selection for Digitization.”
(2) Miller, Larisa. “All Text Considered: A Perspective on Mass Digitizing and Archival Processing.”
(3) Ogilvie, Brian. “Scientific Archives in the Age of Digitization.”
(4) Terras, Melissa M. “The Rise of Digitization: An Overview.”

At the recent serendipitous American Historical Association and Modern Language Association Annual Meeting/Conference/mashup that happened in Chicago in January of 2019, Session 40 happened to attract a lot of crossover members. The session, titled “The Future Is Now: Lessons Learned from Three Digital Dissertations in History” featured a mix of 7 historians, archivists, literature scholars, digital humanities and librarians discussing some of the promises and features of digital humanities, archives and research for PhD. projects.¹

If there was a theme that carried through each of these speakers and the panel as a whole it was the fearsome and oft-whispered term copyright. Indeed, this was a term that hung over and was carried through much of these conferences, as they took place amidst a major public domain copyright expiry.² Copyright is the spectre haunting the humanities—and it is the major limitation on what archives can achieve today and how much librarians and archivists are willing to go as a vast variety of authorities point out:

Such digitization programmes are rife with copyright problems, and their restrictive legal conditions can often cause complaint and consternation>³

From an openness perspective, the ideal solution to the copyright problem may be to post collections online by invoking fair use, building a case to support it, and supplementing it with a liberal take-down policy…Relative to copyright and privacy, other problems may seem minor.⁴

It goes without saying that archivists obey the law and respect the rights of copyright owners. However, archivists struggle to find the appropriate balance between their fundamental mission to make their holdings available for use and the constraints of relevant laws and contractual agreements. Dealing with copyright can be daunting. As Lorna Hughes said, “The management of intellectual property is potentially the greatest challenge to the development of digital collections.⁵

In the (perhaps imagined) face of stern and forbidding copyright lawyers archivists (and humanists and librarians) recoil in fear. And part of that is a very real fear—there aren’t many institutions that would relish or be willing to participate in a fight on behalf of an archive’s publication of copyrighted material. Indeed, this has informed my own decisions as an archivist—I am archiving the Print Media Response collection at the Kinsey Institute, a collection of thousands of print media responses to the Kinsey reports over the course of decades.

In some cases, we have the only surviving clip of an entire newspaper or academic journal because of their mention of Kinsey. I am archiving the paper collection and checking it against the digital version and catching any errors. Well, item 90 in Box 4 – Binder 12 – Male – Magazines + Journals A-H – Folder 3 of 4 is missing. Apparently, it was taken out for a display in the 60’s and never returned. But I was able to track it down—and luckily IU had a copy of it—I requested a scan of the work, which was three Big Blue Books stored at the Lilly, and the company had long since gone under. However, the ILL people rejected the scan due to copyright, and offered the first 10% as a placeholder. Even though the actual risk here of copyright infringement is so incredibly tiny, the Kinsey administration elected that I should just leave a note in place of the item in the physical collection, which I did, noting they could get the item from the Lilly. The feeling I had putting a scrap of paper away where something could exist was strange, almost sad and it makes me very sympathetic to Miller’s argument that we (as archivists) should

Providing searchable full text may be the transformative use that qualifies for fair use, as a recent court ruling suggests. Fair use is the rationale for online delivery of the output of the mass digitization project involving the Southern Historical Collection at UNC. In some cases it may be worthwhile to buttress this by going to our funders who insist on digitizing, explaining what we are doing, and requesting their financial support if the results trigger lawsuits.⁶

This is obviously something that will take time and work to organize, but I believe that it is an essential step and a legal battle that we have to organize a test case for and fight—up to the Supreme Court if needed. Whether this will be possible or an institution can be found that would be willing to do it, remains to be seen, but I think we should push for it.

Works cited:

Full citations for reviewed works:

(1): Dryden, Jean. “The Role of Copyright in Selection for Digitization.” The American Archivist, vol. 77, no. 1, Apr. 2014, pp. 64–95. Crossref, doi:10.17723/aarc.77.1.3161547p1678423w.

(2) Miller, Larisa. “All Text Considered: A Perspective on Mass Digitizing and Archival Processing.” The American Archivist, vol. 76, no. 2, Sept. 2013, pp. 521–41. Crossref, doi:10.17723/aarc.76.2.6q005254035w2076.

(3) Ogilvie, Brian. “Scientific Archives in the Age of Digitization.” Isis, vol. 107, no. 1, Mar. 2016, pp. 77–85. Crossref, doi:10.1086/686075.

(4) Terras, Melissa M. “The Rise of Digitization: An Overview.” Digitisation Perspectives, edited by Ruth Rikowski, Chandos Publishing, 2010.