Basic Principles for Managing Intellectual Property in the Digital Environment: An Archival Perspective

August, 1997

PREFACE

The following document was prepared by the Society of American Archivists (SAA) as an archival commentary on the statement issued by the National Humanities Alliance (NHA) entitled "Basic Principles for Managing Intellectual Property In the Digital Environment." SAA enthusiastically endorsed the principles in August, 1997, finding them to be consistent with and supportive of archival concerns. It was also felt that the case for the NHA Principles could be made even more forcefully if attention were drawn to the fundamental archival principles associated with many of the NHA principles. This document, therefore, is an archival perspective on the NHA principles, intended to highlight those issues that strike closest to the core of archival practice.

CONTEXT

Introduction

The Society of American Archivists is the oldest and largest association of professional archivists in North America and is the authoritative voice in the United States on issues that affect the identification, preservation, and use of historical records. SAA is particularly concerned that the archival dimensions of technological, commercial, and governmental policy issues be articulated and raised in the public consciousness. SAA is actively working to ensure that new technologies both expand the public's ability to gain access to archival resources and support scholarship and the free exchange of information in our society.

Accountability and Education

For centuries the mission of archives and archivists has been to secure and help people use authentic records, thereby ensuring the accountability of government to its citizens and preserving for posterity our cultural heritage. By providing access to the wealth of documentary material about our nation, its people, and its institutions, archivists and archives actively participate in the education of the American people. Only occasionally is this educational role practiced in a formal classroom. New technology and the Internet provide archivists with both the opportunity and the means to reach and educate an ever-larger public with information about and from archives. It is important that exemptions permitted under copyright law to support educational use of material recognize the tremendous amount of education that takes place outside of the classroom.

The Documentary Record

Archivists are more than just custodians of knowledge. The decisions archivists make about what evidence is saved, what is discarded, and what is converted to a different form shape the nature of our society's memory. But the nature of the historical record is not shaped only by the actions of archivists; it is also shaped by the public's ability to access the documentary heritage. Archival records to which access is limited because of unwieldy administrative or legal impediments are of little help when seeking to understand our culture.

In addition, documents found in archives are often of uncertain authorship, date, and provenance. It is frankly impossible to determine who owns the intellectual property in most of the billions of documents found in archives. Guidelines or legislation that demand that permission be secured in advance before such documents are made available in digital form would starve our documentary heritage of the everyday voices of the average citizen.

PRINCIPLES

Note: The following principles have been crafted by the National Humanities Alliance. The text after each principle has been developed by the Society of American Archivists to highlight the primary archival concerns in each principle.

1. Copyright law provisions for digital works should maintain a balance between the interests of creators and copyright owners and the public that is equivalent to that embodied in current statute. The existing legal balance is consonant with the educational ethic of responsible use of intellectual properties, promotes the free exchange of ideas, and protects the economic interests of copyright holders.

Although archivists agree that copyright law should protect the interests of both copyright owners and the public, we recognize that there are other interests beyond the realm of copyright law that must also be safeguarded. Archivists deal with records that frequently contain sensitive information and believe that the privacy of individuals whose names and other confidential information may be included in records must also be protected. Protecting privacy rights is particularly important in an age when records may be copied and transmitted widely using electronic means. Archivists reaffirm their Code of Ethics statement that "archivists respect the privacy of individuals who created, or are the subjects of, documentary materials of long term value." While copyright law should not be used to protect privacy, the privacy rights of those who are the subject of records must at some point be taken into account.

2. Copyright law should foster the maintenance of a viable economic framework of relations between owners and users of copyrighted works.

Archivists select, preserve, and make available unique documentary material upon which published and copyright-protected works are based. These secondary sources, based upon primary archival documents, allow publishers, authors, and other copyright holders to "promote Science and Useful Arts" (as copyright's purpose is defined in the U. S. Constitution) and to gain economic benefit from these intellectual products. Archivists recognize and support the rights of copyright owners to derive economic benefits from their intellectual property. Archivists also recognize the need for researchers to be able to gain access to documentary materials of long-term value, regardless of format, in order to create works which extend knowledge. Archivists therefore are opposed to efforts by copyright holders to use copyright as a means to restrict or deny access to information in primary sources made available in digital format. Such efforts defeat the purpose of copyright as defined in the United States Constitution.

3. Copyright laws should encourage enhanced ease of compliance rather than increasingly punitive enforcement measures.

The archival profession is in complete agreement with this principle.

4. Copyright law should promote the maintenance of a robust public domain for intellectual properties as a necessary condition for maintaining our intellectual and cultural heritage.

While the archival profession would agree bly with all of the comments of the NHA on this principle, three are of particular concern. First, the NHA suggests that "copyright terms should expire on dates that are certain and easy to determine." This is of fundamental importance to archivists. Many of the documents in archival collections were created by every-day citizens whose hopes, fears, dreams, and stories as revealed in the documents are an important part of America's history. It is often impossible to tell, however, when the common citizen authored the document or when he or she died. A copyright expiration date that is difficult to determine erects a barrier to use of these stories.

Secondly, the NHA notes that "copyright law should facilitate preservation and migration to new media as technologies change." Archivists agree that the current law must be changed to allow for a reasonable number of preservation copies to be made. We hope that a dialogue may also begin on how and when these preservation copies may be used. Few institutions today can commit to the expensive process of maintaining digital files if those files can only be used at some far-off date in the future. Even access to digitized material from a few local workstations probably would not justify the expense of digitization. In the digital environment, preservation without use is economically unfeasible.

Finally, archivists bly support the commitment to the public domain articulated in the NHA commentary. One common question is whether a digital scan of a public domain document is itself copyrightable. Archivists advise that the practice followed when microfilming public domain documents be followed when making digital surrogates, namely that only value-added information be copyrighted, and not the microfilm or digital copies themselves.

5. Facts should be treated as belonging to the public domain as they are under current law.

The archival profession is in complete agreement with this principle.

6. Copyright law should assure that respect for personal privacy is incorporated into access and rights management systems.

In order to provide adequate physical security and to prevent unauthorized access to records with legitimate restrictions, archivists may request identification from researchers and maintain a record of this information (though this information is usually regarded as confidential). Furthermore, in order to facilitate the interests of research, the "Code of Ethics for Archivists" encourages archivists "to inform users of parallel research by others using the same materials, and, in the individuals concerned agree, supply each name to the other party."

For these reasons, and without detracting from the need to protect the privacy rights of researchers, archivists believe that the collection of legitimate user information, and the sharing of this information when it is mutually agreed by all parties, should continue in the digital environment.

7. Copyright law should uphold the principle that liability for infringing activity rests with the infringing party rather than with third parties. Institutions should accept responsibility for acts undertaken at their behest by individuals but should not be held liable for the acts of individuals—whether or not associated with the institution—acting independently. This principle is an essential underpinning for academic freedom.

According to the SAA Code of Ethics for Archivists (1992), "Archivists encourage use of [their holdings] to the greatest extent compatible with institutional policies..., legal considerations [and] individual rights...." "Legal considerations" and "individual rights" include copyright law and the restrictions it may impose upon the use of material held by repositories. Archivists recognize and accept the responsibility for establishing use policies which comply with copyright law. Furthermore, archivists recognize and accept the responsibility for educating researchers about the appropriate use of copyrighted material held by their repositories.

8. Educational institutions should foster a climate of institutional respect for intellectual property rights by providing appropriate information to all members of the community and assuring that appropriate resources are available for clearing rights attached to materials to be used by the institution, e.g., in support of distance learning

Archivists advocate the use of original historical documents as teaching material and strive to provide as much information as possible to users regarding copyright ownership. However, given the vast amount of documentary material in archival repositories for which no documentation regarding copyright ownership exists, it is both impractical and unreasonable to assume that in most cases archivists will be able to assure researchers of the identity of the current copyright owner. Moreover, because digital technology makes it possible for educators to use original documents in distance learning, educators must be able to continue to use these primary resources in digital format, even if it is not always possible to be certain of the copyright owner or current copyright status of the documents. Ultimately, the protection of the rights of copyright owners rests with the owners themselves, not with archival repositories. Likewise, researchers acting on their own initiative, not archival repositories, are liable for any violation of the use of copyrighted material held by repositories.

9. New rights and protections should be created cautiously and only so far as experience proves necessary to meet the Constitutional provision for a limited monopoly to promote the "Progress of Science and useful Arts."

The archival profession is in complete agreement with this principle.

10. Copyright enforcement provisions should not hinder research simply because the products of a line of inquiry might be used in support of infringing activity.

Attempts to criminalize the creation, possession, or acquisition of technologies or devices that might be used to circumvent technological measures designed to restrict access are of great concern to the archival profession. Archivists cannot look at uses only in the near future, but must also consider access over hundreds of years. A copyrighted work might be received by a governmental agency and as a public record must eventually be made available to the general public interested in how their government is functioning. The technological means to permit public access might be accessible in the short-term, but there is no assurance that the material will still be accessible when transferred to an archival agency at a future date. Furthermore, eventually all copyrighted material enters the public domain, but again the technology that will allow archives to unlock the now-public content may not be readily available. Few archives have the resources or the in-house expertise to develop hardware and software keys that could unlock the safeguards on the once-copyrighted material. They will have to rely instead on the existence of a robust commercial market for such products to ensure that there are a variety of de-encryption products available at a reasonable cost. Without readily-available tools to unlock encrypted information, the realm of public domain material must inevitably shrink.

For further information contact:

Society of American Archivists
17 North State Street, Suite 1425
Chicago, IL 60602-3315
312/606-0722
fax 312/606-0728
toll-free 866/SAA-7858
saahq [at] archivists [dot] org