Archives & Copyright: the US perspective

The Symposium was organised around four related panels, followed by an open discussion with the audience.

In the fourth and final panel the opportunity and scope for mass digitising archive material was considered from the perspective of US copyright law. Professor Peter Jaszi (American University) and Professor Matt Sag (Loyola University) spoke to the long-running litigation over Google Books, and to the decision of Authors Guild v. HathiTrust, a case that developed out of the Google dispute.

“Decisions about copyright clearance, when to do it, how to do it and how much to do it, are always considerations based in the end on a vision of risk, and of risk tolerance in a particular institution...” JASZI

A transcript of this presentation is available here.

In HathiTrust, in late 2012, District Judge Harold Baer Jr concluded that the mass digitisation of library books to enable access by persons who are blind or visually impaired, and to facilitate certain non-expressive uses of those materials (for example, for data or text mining purposes) did not amount to copyright infringement; rather, those activities constituted fair use under s.107 of the US Copyright Act 1976. Moreover, shortly after the Symposium, on 14 November 2013, Circuit Judge Denny Chin dismissed the lawsuit against Google, accepting their argument that scanning more than 20 million books and making ‘snippets’ of text available for online searching fell within the doctrine of fair use.

“Metadata or data about a work is not substantially similar to the work. Nor does it originate with the author of the work.” SAG

A transcript of this presentation is available here.

While both cases specifically relate to the digitisation of library material (published books), and both are likely to proceed to appeal, nevertheless, the potential implications of these decisions for the archive sector within the US are obvious. Because the fair use doctrine is open-ended, flexible, and situational, the justifications endorsed by the courts in these decisions are, as Jaszi puts it, “merely examples of the kinds of justifications that could be advanced successfully … for a variety of other mass digitisation projects”. Again, in Jaszi’s words: “[f]air use can and does reach activities like preservation and access, which are at the heart of the archival enterprise and in particular, at the heart of the move toward both digital preservation and the provision of remote access to archival collections, and it can do that without regard to the specific kind and character of the copyrighted material involved, or even the exact nature of the institution engaged in archival activities”.

“The idea of diligent search for orphan works for archives just isn’t going to work...” HIRTLE

“We have to think about ways of respecting copyright law and still doing our mission...” HIRTLE

A transcript of this presentation is available here.

The fourth panel concluded with Peter Hirtle, Senior Policy Advisor to the Cornell University Library, Research Fellow at the Berkman Center for Internet & Society at Harvard University, and the author of Copyright and Cultural Institutions (2009). In turn Hirtle considered and dismissed adhering to a policy of strict copyright compliance or hoping for archive-appropriate law reform as strategies that were unlikely to provide a meaningful solution to the challenge of digitising archive collections. Instead, he advocated greater reliance upon fair use in justifying archival digitisation initiatives (for US-based archivists), as well as a more general recalibration of the global archive community’s attitude to risk and the culture of copyright permissions.

In short, Hirtle’s take-home message was that, in managing the challenges of the transition to the digital, archives should let their mission “rise to the fore”. To be sure, copyright should be respected, but so too should archives respect their mission to enable access, to educate, to promote the use of historical materials, and to encourage new scholarship.

For a full transcript of this panel, and to leave feedback on the discussion within the panel, click here.