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Archives or Assets?
by PETER B. HIRTLE, Cornell University
58th president of the Society of American Archivists
N.B.: President Peter B. Hirtle presented an abbreviated
version of this address at the opening plenary session of the 67th annual
meeting of the Society of American Archivists in Los Angeles on Aug. 21,
2003. A PDF
version is also available on the Cornell University Library Web
site.
In April of this year, the Washington Post reported that the papers
of Bob Woodward and Carl Bernstein, the Post reporters who uncovered
most of the Watergate scandal, had been sold to the Harry Ransom Humanities
Research Center at the University of Texas for $5 million. The article in the Post noted
that other collections had been sold for similar large amounts, including Susan
Sontag's papers for $1.1 million, Francis Crick's papers for $1.3 million,
the Zapruder film of the Kennedy assassination for $16 million, and some of
Winston Churchill's papers for $18.4 million.[1] The
paper could have cited additional purchases, such as the $18 million that the
U.S. government paid for Richard Nixon's papers in 2000,[2] or
the current offering by Sotheby's of some of Martin Luther King's papers that
had been offered to the Library of Congress for $20 million and have been appraised
for $30 million.[3]
That archival records can have monetary value is not a surprise to any practicing
archivist. We are custodians of records that are of incalculable value in the
study of our history, culture, and values„and that can also be sold on eBay
or in an auction house for substantial sums. I have heard it estimated that
at my own institution, Cornell University, the library is the single largest
asset that the university owns. Since Cornell has among its seventy million
manuscripts items such as a copy of the Gettysburg Address in Lincoln's hand
and some of James Joyce's manuscripts for Ulysses, it would be easy
to imagine that most of the value in the library resides in the archival and
manuscript collections.
In short, archives and manuscript repositories control and manage assets
worth hundreds of billions, if not trillions, of dollars. And yet, archives
are traditionally underfunded. Many archives have become "land poor": we have
millions in capital assets, but lack money to hire staff, maintain the facility,
or pay the utility bills.
Given the need for funds and the understandable (and applaudable) reluctance
to sell assets, it is not surprising that many archives are seeking to derive
revenues from their control over archival materials. The sale of reproductions
of archival materials and the licensing of material for commercial use are
becoming ever more important as possible sources of income for archives.
Archives, in seeking to draw revenue from the content that they own, are
following in the footsteps of museums, which have long used licensing programs
to augment their income. For some museums, licensing of the art in their collections
has become a vital source of revenue that supports educational and curatorial
programs, and managing intellectual property a major administrative task.[4]
Efforts to digitize archival holdings have also contributed to an increased
awareness of their possible economic value. The belief that some day digital
content will generate substantial sums of money is growing. Lesley Ellen Harris,
for example, a lawyer who writes about intellectual property issues for museums
and libraries, has identified digital property as the "currency of the 21st
century."[5] Most archivists
are aware of commercial digital photo collections such as those at Corbis,
Getty Images, and the New York Daily News and wonder if they could generate
similar revenues from their holdings. Clearly, the recognition that archival
holdings are economic assets is increasing. We are aware that even the most
insignificant scrap of paper in our archives is likely to bring something on
eBay if we were to sell it, and many of us are hoping that through digitization
we might be able to convert our fixed capital assets into liquid cash.
I believe that the economic exploitation of archival holdings can be implemented
in a manner that supports the general archival mission of making the resources
of the past accessible to the future. This desirable outcome is not preordained,
however. A real risk exists that the desire to raise revenues through the commercial
exploitation of archival holdings could conflict with our core principles and
values.
This morning, therefore, I would like to discuss with you the nature of our
ownership of archival holdings and the implications it may have for the exploitation
of works. We often hear archivists talk about protecting "our stuff," but what
is the real nature of archival ownership of documentary materials?
As many of you know, I am very interested in issues of intellectual property.
Some of the concepts of intellectual property law, and especially the notion
of the public domain, can inform our understanding of what it means to own
archival records. I want to convince you that ownership of public domain materials
is not like the ownership of a car or a house. We do not really own some aspects
of the material in our archives—the public does„and we are doing a public
disservice if we attempt to exert a monopoly-like control over that material.
Thus, the complaints that one frequently sees on the Archives & Archivists
listserv about the use of "our stuff" or the frequent requests for advice on
watermarking or encryption technologies to control the use of digital images
are misplaced.
To respect the public's interest in archival materials, we will need to carefully
craft our licensing schemes. If archivists are careful not to compromise our
own fundamental values while seeking to generate revenue, and if we respect
the public's interest in public domain material, I think that we will be able
to avoid much of the criticism that many museums have received over their jealous
attempts to monopolize and control their collections.
Intellectual Property Law and Ownership
Let's think, then, about what intellectual property law can tell us about
the nature of our ownership of archival records. First, copyright law draws
a firm distinction between the physical ownership of an item and the copyright
in that item. Just because you have a letter, or a photograph, or film, does
not mean that you own the copyright in that work. My experience has been that
most archivists know and understand this, though I am told that some first-year
law students have trouble with this concept.
There are at a minimum four possible scenarios regarding the ownership of
the physical and intellectual property found in archives. First, it could be
that the archives owns neither the physical item nor the intellectual property
of the item, as when an item is placed on deposit. In such cases, what an archives
can do with an object is dependent upon the terms of the deposit agreement
and is likely to be severely limited.
What if an archives actually owns a physical item, either via transfer from
a parent institution, or through donation, purchase, or some other mechanism?
Who can own the intellectual property? There are three possible scenarios when
an archives has physical title to an object: the archives can also own the
intellectual property in the piece, third parties can own the intellectual
property, or the work is in the public domain. Depending upon which theorist
you read, copyright in a work in the public domain belongs either to the public
or to no one.[6]
Why does it matter who owns the copyright in a work? Federal copyright confers
on the copyright law some important rights. Among the rights given to the copyright
owner are the exclusive rights to reproduce a work; to distribute copies
of that work to others, either by sale or by lending; to prepare derivative
works based on the original copyrighted works; and, in more limited cases,
to display or perform a work.
Obviously, copyright law has tremendous implications on the operations of
archives. We "display" photographs from our collections to users; we make copies
of records for patrons; we offer to distribute copies by mail upon request;
and we sometimes transcribe, edit, or publish works in our archives. When it
comes to the digital realm, we do all this in a way that is easy for others
to detect and observe.
Archivists who wish to generate revenue from their holdings will need to
take copyright law into account. If an archives owns both the physical item
and the intellectual property in the item, then it is free to exploit the material
in any fashion consistent with its mission. An archives that owns both the
physical manifestation and the intellectual property rights is no different
than a publishing house, or a software company, or a movie studio, or any other
business that licenses and sells the intellectual property it owns as part
of its business.
What if a third party owns the copyright in works that are physically owned
by an archives? Whether an archives can easily generate revenues from such
materials is much less clear. Since reproduction and distribution are the exclusive
rights of the copyright owner, you most likely will need the permission of
the copyright owner to make and sell reproductions. It may also be possible
to make reproductions by using one of the exceptions to the exclusive rights
of the copyright owner found in the law, especially if the copyright owner
is unknown or cannot be found. In almost all cases, however, any reproductions
or distributions must be made without any direct or indirect commercial advantage.
Rather than generating revenue for your repository, copying for the purpose
of making revenue could in theory make your reproduction of the copyrighted
work illegal and thus make your institution liable for substantial civil and
criminal penalties.
The Public's Interest in Copyrighted Collections
There is one important exception to general exclusive rights of copyright
owners. It is, I believe, the most unqualified exception in copyright law.
Normally, the limitations on the rights of copyright owners, such as the "fair
use," have limitations on the amount of a copyrighted work that may be copied
or the amount of time one may retain the copy. Other limitations on the exclusive
rights of copyright owners are restricted by format; different rules apply
for text, audiovisual materials, and works of art. One exception, however,
places no limits on the amount that can be copied, nor the time the copy can
be kept, nor the format of material to be copied. And it is available only
to repositories with unpublished materials. That exception allows archives
and libraries to copy entire unpublished works for the purpose of preservation
or for deposit for research use in another library or archives.
Why did Congress accede to the request for this exception submitted to them
by Julian Boyd on behalf of SAA?[7] No
indication in the historical notes accompanies the bill explaining why, in
the case of unpublished materials, Congress was so willing to ignore the interests
of the copyright owner. The parallel section for published materials contains
no such provision.
The answer seems to be that Congress recognized that the public's interest
in having ready access to unpublished archival materials outweighed the rights
of the copyright owner. The public's ability to be able to read unique unpublished
material is so important that the interests of the copyright owner must give
way.
The Public's Interest in the Public Domain
Public interest is clearest in the case of items in the public domain. Many
of the materials in our archives are in the public domain. On the first of
this year, every unpublished work by an author who died before 1933 and every
unpublished work by an anonymous author or a corporate author that was created
before 1883 entered the public domain, joining all the works of the federal
government, which are automatically part of the public domain.[8] Works in the public domain have no copyright,
and the exclusive rights of the copyright owner, including the rights to make
reproductions and distribute and display works, belong to everyone.
Some, including Congresswoman Mary Bono, have called for the abolition of
the public domain. They do not understand why copyrights do not continue into
perpetuity. The existence of the public domain is fundamental to the American
system of copyright. Copyright is in effect a balance. The public grants to
the creator of a work a limited monopoly to exploit that work as a reward for
the act of creation. Without some type of monopoly grant, all works that are
created would be in the public domain. The fear is that if this were to happen,
authors would stop producing. In return for the limited grant of monopoly,
the public receives new works of authorship, including books, movies, music,
and art, that they may read, study, and learn from. When the monopoly term
expires, the public is then free to use and reuse the once-copyrighted work.
Disney's movie Pinocchio, for example, was released less than one year
after American copyrights in Carlo Collodi's book expired, and many of Disney's
other most famous movies, including Snow White and the Seven Dwarfs, Cinderella, The
Hunchback of Notre Dame, and Alice in Wonderland, are based on works
in the public domain. A former copyright owner can no longer control when or
how a work is reproduced, nor object to any use the public may wish to make
of the work.
The addition of a large percentage of the nation's archival holdings to the
public domain is of unquestionable benefit to both the users of such material
and the archival repositories that hold it. Such repositories can now contemplate
ways of fully exploiting their holdings without having to worry about whether
they are infringing on the rights of the copyright owner.
The Emergence of Quasi-Copyright Control over the Public Domain
Many repositories would like to maintain a kind of quasi-copyright-like control
over the further use of materials in their holdings, comparable to the monopoly
granted to the copyright owner. One strategy that many museums and some archives
use to exert such quasi-copyright control is based on their ownership of the
physical manifestation of a once-copyrighted work. Kathleen Butler discusses
this in an article that I would admire even if it was not entitled "Keeping
the World Safe from Naked-Chicks-in-Art Refrigerator Magnets: The Plot to Control
Art Images in the Public Domain through Copyrights in Photographic and Digital
Reproductions." She writes, "Object owners, by controlling physical access
to the objects, have the opportunity and power to govern how reproductions
of those object are made, used, and licensed."[9] For example, in museums, photography may be
forbidden entirely, or the use of tripods might be banned so that no publication-quality
photographs can be taken.
According to art historian Robert Baron, frequently the principles that guide
how museums allow reproductions of public domain materials to be used do not
arise from the educational and public mission of the institution, but instead
are products of the museum's desire to make income from for-profit publishers
or to protect its reputation by hoarding its collection. "In these cases," Baron
concludes, "the museums are prisons and the pictures are prisoners serving
to bolster the self image of the museum."[10]
In addition to using their control over the conditions
of access to unique physical items to control subsequent use of those items,
some museums (and some archives) try to enforce a monopoly on reproductions
of the unique public domain items in their collections. Reproductions are made
available to researchers only if they sign agreements that limit what can be
done with those reproductions. In an online environment, users are often required
to "click through" an agreement that regulates the use of images and documents
that would otherwise be in the public domain. In one typical, though particularly
thorough, online licensing agreement users must agree to thirty-eight conditions
before they can view the site. They must agree not to use the material found
on the site for personal or financial gain without permission, even if the
work is in the public domain. The material may not be distributed or duplicated,
rights normally reserved to the copyright owner, without the permission of
the institution that holds the original material. Copies of the digital documents
on the site are available for purchase, but again permission is needed for
commercial use, publication, manipulation, display, or distribution.[11] In
the words of Robert Baron, the documents have become "prisoners."
I would argue the existence of at least four categories of reasons„legal,
principled, ethical, and practical„why efforts to use our physical control
of public domain documents to impose a quasi-copyright control over them are
doomed to failure.
Legal Arguments against Control of Public Domain Material
There are a number of legal reasons why the license agreements that govern
access to public domain objects and the use of reproductions of those objects
may be suspect. First, there is a growing legal recognition that items can
be part of our common cultural heritage, and as such cannot belong to any individual
or organization. A part of them belongs to everyone. As Joseph Sax notes in
his very thoughtful volume, Playing Darts with a Rembrandt: Public and Private
Rights in Cultural Treasures, "some objects are constituent of a
community, and that ordinary private dominion over them insufficiently accounts
for the community's rightful stake in them."[12] Sax,
for example, argues that because great works of art belong in part to the public,
private collectors should be required to periodically loan these works to public
institutions so that the public may have free access to them.[13]
We are all familiar with zoning laws that impose upon the unfettered interests
of private property owners. Historic preservation laws may limit how a building
can be altered, and in places like California, some property owners must allow
the public access to the beach, even if it means crossing private property.
In effect, the public has a share in the ownership of the historic house or
the beachfront property. The same may be true of the documents in our archives.
They belong to the institution, but they also belong to the community, and
the community may have the right of public access to those works.
Second, if the public owns the copyright in public domain works (as opposed
to no one owning those copyrights), then the public may have a legal right
to gain access to and copy public domain items. In the interesting case of Reid
v. CCNV, the court ordered that the Community for Creative Non-Violence
(CCNV) must grant John Reid access to a sculpture so that he could make a copy
of it. Reid had made the sculpture for CCNV, but retained copyright in the
work. The court said that it did the copyright owner no good to own the copyright
if he or she could not have access to a unique original item to be able to
make a reproduction of it.[14] It could be argued that a logical extension of this ruling
would be that the public should be free to make reproductions of public domain
works in institutions regardless of any access restrictions since, in effect,
the copyright in the work belongs to the public.
Third, some legal scholars have suggested that efforts to replicate copyright
protections in contract law are suspect. The section in the copyright law on "preemption"[15] states
that with regard to any of the "rights that are equivalent to any of the exclusive
rights within the general scope of copyright," federal copyright law takes
precedence over any state laws. The issue, as yet untested in the courts, is
whether repositories can use contract law to re-establish the exclusive rights
of the copyright owner via state contract law once federal copyright protection
has expired.[16]
Lastly, many repositories place copyright notices on their reproductions
of public domain works. In Bridgeman v. Corel, however, the court held
that exact photographic copies of public domain works are not themselves copyrighted
because they are not original.[17] Making an exact photographic copy may require
great skill and effort, but that alone is not enough to warrant copyright protection.
Placing a specious copyright notice on these reproductions may actually place
a host institution at risk. Including a copyright notice that one knows is
false on a work is a criminal offense punishable by a $2500 fine.[18] To date no archives has been charged with this offense, but
in general it is sound institutional practice to obey the law.
Archival Principles and the Control of Public Domain Material
Laws about access to cultural heritage objects, the public's apparent right
to reproduce items whose copyright it owns, preemption, and strictures against
fraudulent copyright notice are all legal reasons why attempts to control access
to public domain works in our possession may be invalid. These reasons share
at root a sound principle based on the purpose of copyright ownership. The
public, remember, grants to authors a time-limited monopoly to exploit their
creations, after which the work is supposed to belong to the public. Museums
(and archives) that seek perpetual control over the use of a work are in effect
saying that act of stewardship of a work is more important than the act of
creation. Society need only grant creators a temporally limited monopoly, but
the interests of the repository need to be protected forever. Do we really
believe that ownership is more worthy of reward than creation?
Let's not forget as well the lofty purposes for which archives exist. Our
task is to take care of the objects placed in our care to the best of our abilities.
We have the responsibility to pass them along in good condition to our successors.
We also have the responsibility to distribute knowledge about our holdings
to the public. We make the historical record available to society to maintain,
as John Fleckner taught us, a just society, to protect the rights of citizens,
to serve as a check on tyrannical government, and to ensure to us„individually
and collectively„the ownership of our history.[19] What will happen to these ideals if archives become only assets
ripe for personal or institutional exploitation?
I have been told that a proposal was floated recently at one of the very
best research universities that access to materials in the archives and manuscript
departments should be restricted to faculty and students of the institution.
While common practice fifty years ago, this sort of thinking has until now
been mostly rejected. Administrators at this university viewed the archives
as a valuable university asset that should be exploited to the benefit of the
university and not as a public good whose stewardship the university had assumed.
The proposed commodification of the archives reversed almost fifty years of
progress in archival principles.
Ethical and Practical Issues when Controlling Use
In addition to the legal and principled reasons to avoid claiming too much
control over public domain works is the ethical obligation we may have to donors.
When I was a manuscript curator, I spent much of my time trying to convince
people to donate personal archives, along with the copyright in those archives,
to the repository where I worked. The reasons I used were that such a donation
would support scholarship and research, and would be in the public interest.
Never did I discuss the potential ongoing monetary value of the donation, nor
indicate that we sought the papers to be able to generate revenue for ourselves
from them. Such concerns might not matter with material that has been purchased,
and the archives may have more freedom to exploit such material. But with material
that has been donated, the conditions and terms of donation should inform any
decision about marketing reproductions of materials from the donation.
Lastly, on a practical level, efforts to monopolize public domain reproductions
are likely to fail. Even if, for example, a license that forbids further reproduction
of a reproduction made from a public domain work were binding, the contract
is only between the institution and the original user who requested a reproduction.
If a copy of the reproduction should fall into the hands of a third party,
they may be able to reproduce it with impunity; all the repository can do is
bring action against the individual who made the unauthorized reproduction
(assuming he or she can be found). Some institutions have sought to use watermarking,
encryption, and other technological measures to limit use of digitized resources.
These solutions are imperfect, expensive, and may still require legal action
on behalf of the repository. And they can be easily subverted if the repository
sells hard copy reproductions of works that can be easily digitized on an inexpensive
scanner.
The conclusion we must draw is inescapable. Efforts to try to monopolize
our holdings and generate revenue by exploiting our physical ownership of public
domain works should not succeed. Such efforts make a mockery of the copyright
balance between the interests of the copyright creator and the public. They
ignore the public's ownership interest in our holdings, may be legally unenforceable,
and, depending upon the implementation, may actually be criminal.
Yet it is undeniable that, to be good stewards of the public's documents,
archives need more revenue. How can we keep from being "land poor"? How can
archives generate the revenues they need if they cannot exert a quasi-copyright
monopoly right over their holdings?
Responsible Revenue Generation
I have two suggestions to offer as to how archives can responsibly generate
revenue from their holdings. First, when making copies of public domain material,
I would encourage all repositories to charge whatever the market will bear
and their mission (and implicit agreements with donors) will tolerate. You
should not impose restrictions on further use of those reproductions, and so
someone might elect to compete with you by offering copies of your reproductions
for less than you charge. But again, I would remind you that "our stuff" is
also "their stuff" when it is in the public domain, and that the only real
right you have is the right to sell reproductions of your documents. For that
first reproduction you should feel comfortable charging what you want.
Bernard Reilly of the Center for Research Libraries in Chicago has provoked
my second suggestion.[20] Reilly
has proposed that libraries and museums should be more like Enron. I would
suggest that archives, too, should be more like Enron, but for slightly different
reasons than he has suggested. And no, I am not talking about shady accounting,
stock manipulations, or the illegal destruction of records as the path archives
should follow to deal with their budget woes.
Think about Enron for a moment. What business was Enron in? It was one of
the world's largest energy and commodities companies„but it did not own any
oil wells, or power plants, or other sources of energy. Initially begun as
a pipeline company, Enron grew tremendously after it stopped trading in actual
material assets and instead began to trade in the rights to resources and later
in the value of future and as yet undiscovered resources. By the time Enron
collapsed, it was less an energy company than an investment association trading
in energy futures, bandwidth, and even the weather. Other people owned the
assets; Enron grew rich marketing and using its information about those physical
assets.
I hope the parallel with archives is obvious. We do not entirely own the
physical public domain items that are found in our repositories; while they
are private property, they are at the same time public goods in which the public
has a stake. How can we make money from objects that we do not entirely own
and cannot monopolize? The answer lies in marketing, like Enron, not the physical
assets we have in our collection, but the information that we have about our
records. The reason people should order reproductions of public domain works
from an archives's Web site is not because we have used license agreements
to try to restrict future use of these works, and thus maintain monopolistic
control over the content, but because we can offer information and services
that the user cannot find anywhere else. It might be complete and accurate
metadata, or the provision of context, a guarantee of authenticity, an assurance
that the resource will be available at a future date, or a system that makes
it easy to locate, order, and receive works that are of interest.
In an interesting recent article in the Communications of the Association
of Computing Machinery, Alan Karp, a research scientist at Hewlett-Packard,
suggests that the content industries should be more like the pornography
industry. Pornographic Web sites, which normally require a subscription to
access, are among the most visited Web sites in spite of the fact that the
individual images are easily copied and are often available for free somewhere
else. Pornographic Web sites, he suggests, have succeeded because they have
provided added value. They have slick interfaces, good performance because
of their substantial investment in infrastructure, and easily accessible
metadata tied to user needs. "Adding value," Karp notes, "gives customers
a reason to buy from you instead of directly from your suppliers."[21]
I have one example of the role of value-added services in marketing. The
Cornell University Library recently created a Web site to commemorate the seventh
million volume added to the collection.[22] The book was Alexander Gardner's Photographic Sketch Book
of the War, published in Washington, D.C., in 1865 and 1866. One of the
pages in the site is devoted to plate 23, "President Lincoln on the Battle-field
of Antietam."[23] It includes
information on the context for the photograph, identifies the photographer
and the photographic processes used, and offers other valuable information.
No information is given on how to order a copy of the photograph, but an astute
researcher who examines the rest of the site might be able to learn that a
printout of unspecified size could be had for as little as $20.
A copy of the same photograph appears in the New York Times online
store. Here the photograph is identified as "Lincoln and Troops at Antietem
(sic), 1862," and Alexander Gardner is credited as the photographer.[24] There is no context for the picture, no indication
that it comes from a printed volume, and no information on the original photographic
process. What it does have is an easy-to-use order form: prints run from $195
to $495 unframed, and $340 to $745 framed.
Why, you might ask, would anyone pay these prices when a fairly high quality
digital copy is available on the Cornell Web site, at the Library of Congress's
American Memory Web site, and at several other easily identified sites on the
World Wide Web? Print copies at much lower prices are available from all of
these sites as well.
The answer is that the New York Times provides a value-added service
that the historical repositories do not„easy searching, easy ordering, online
examples of the frames that can be ordered with the prints, and so on. The
service it provides, and not an artificial monopoly over the content that it
is providing, is the Times's business model. As a recent study of business
models for the development of digital cultural content noted, for cultural
heritage institutions to deliver online digital cultural content successfully
in the future, they will need to develop a more commercial approach to the
marketing of the products, especially in the area of understanding user needs
and demands.[25] An added benefit
is that all of the value-added services that an archives markets to its users do belong
to the archives and can be protected in a manner that public domain documents
cannot be.
Enron, pornographic web sites, and the New York Times are the models
that archival asset management systems of the future should emulate. The real
assets in an archives are not the holdings, but the skills, talents, knowledge,
and abilities of its trained archival staff. It is these archival assets that
archival repositories must promote.
This paper is dedicated to the memory of John C. Coolidge,
my classmate and friend of over thirty years. Four days before I presented
the paper in Los Angeles, I had the honor of speaking at his funeral. We
continued to share a love of history even as John became a lawyer and I became
an archivist. John also maintained throughout his too-brief life a commitment
to protecting the rights of the less fortunate. This essay would be the stronger
if it could have benefited from his perspective.
© 2003 Peter B. Hirtle.
This work is licensed under a
Creative Commons
License.
[1] Lee Hockstader, "Watergate
Papers Sold for $5 Million," Washington Post, 8 April 2003, C01.
[2] Christopher Marquis, "Government
Agrees to Pay Nixon Estate," New York Times, 13 June 2000, A18.
[3] Emily Eakin, "On View: How King
Shaped the Dream," New York Times, 25 August 2003, E01.
[4] Museums Copyright Group, "Copyright
in Photographs of Works of Art," 2002, http://www.mda.org.uk/mcopyg/bridge.htm.
On museum efforts to manage intellectual property, see Diane M. Zorich, Introduction
to Managing Digital Assets: Options for Cultural and Educational Organizations (Santa
Monica, Calif.: Getty Information Institute, 1999).
[5] Lesley Ellen Harris, Digital
Property: Currency of the 21st Century (Toronto: McGraw-Hill Ryerson,
1998).
[6] A good introduction to some of
the legal debates about the nature of the public domain is by one of the first
theorists of the public domain See David Lange, "Reimagining the Public Domain," Law
and Contemporary Problems 66 (Winter/Spring, 2003): 463-483. Available
at www.law.duke.edu/shell/cite.pl?66+Law+&+Contemp.+Probs.+463+(WinterSpring+2003) (accessed
Sept. 2, 2003). See also in the same journal James Boyle, "The Second Enclosure
Movement and the Construction of the Public Domain," Law and Contemporary
Problems 66 (Winter/Spring, 2003): 33-74. Available at http://www.law.duke.edu/shell/cite.pl?66+Law+&+Contemp.+Probs.+33+(WinterSpring+2003) (accessed
Sept. 2, 2003).
[7] Linda Matthews, "Copyright and
the Duplication of Personal Papers in Archival Repositories," Library Trends 32
(Fall 1983): 234.
[8] See my chart on copyright duration
included in Peter B. Hirtle, "Recent Changes to the Copyright Law: Copyright
Term Extension," Archival Outlook (January/February 1999), special
insert. A preprint version of the article is available at http://cidc.library.cornell.edu/Pub_files/copyright_article1.pdf.
An updated version of the copyright chart is available at http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm
(accessed Sept. 2, 2003).
[9] Kathleen Butler, "Keeping the
World Safe from Naked-Chicks-in-Art Refrigerator Magnets: The Plot to Control
Art Images in the Public Domain through Copyrights in Photographic and Digital
Reproductions," Comm/Ent: Hastings Communications and Entertainment Law
Journal 21 (Fall 1998): 73-74.
[10] Robert Baron, "Making the Public
Domain Public," presented at the VRA/NINCH Copyright Town Meeting, San Francisco,
April 2000, http://www.studiolo.org/IP/VRA-TM-SF-PublicDomain.htm.
[11] http://www.mainememory.net/
[12] Joseph L. Sax, Playing Darts
with a Rembrandt: Public and Private Rights in Cultural Treasures (Ann
Arbor: University of Michigan Press, 1999): 197.
[13] Ibid, 66-67.
[14] Todd Allan Yasui, "Sculptor's
Monumental Battle," Washington Post, 21 October 1991: B7.
[15] 17 US Code. Sec. 301. (2002).
Available at http://www4.law.cornell.edu/uscode/17/ (accessed
Sept. 2, 2003).
[16] On preemption and its limitations,
see Mark A. Lemley, "Beyond Preemption: The Law and Policy of Intellectual
Property Licensing," California Law Review 87 (January 1999): 111. Available
at http://www.law.berkeley.edu/journals/clr/library/lemley02.html (accessed
Sept. 2, 2003).
[17] Bridgeman Art Library, Ltd.
v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999), available at http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm (accessed
Sept. 2, 2003).
[18] 17 US Code. Sec. 506(c). (2002).
Available at http://www4.law.cornell.edu/uscode/17/ (accessed
Sept. 2, 2003).
[19] John A. Fleckner, " 'Dear Mary
Jane': Some Reflections on Being an Archivist," American Archivist 54
(Winter, 1991): 8-13, and reprinted in American Archival Studies: Reading
in Theory and Practice, ed Randall C. Jimerson (Chicago: Society of American
Archivists, 2000): 21-28.
[20] Bernard Reilly, "What the Cultural
Sector Can Learn from Enron," First Monday 7 (February 2002).
Available at http://firstmonday.org/issues/issue7_2/reilly/index.html (accessed
Sept. 2, 2003).
[21] Alan H. Karp: "Making Money
Selling Content that Others Are Giving Away," Communications of the ACM 46
(2003): 21-22.
[22] http://rmc.library.cornell.edu/7milVol/ (accessed
Sept. 2, 2003).
[23] http://rmc.library.cornell.edu/7milVol/plate23.html (accessed
Sept. 2, 2003).
[24] http://www.nytimes.com/nytstore/photos/americanexp/general/NSAPCV1.html (accessed
Sept. 2, 2003).
[25] Gerry Wall, "Business Model
Issues in the Development of Digital Cultural Content," First Monday 8
(May 2003), http://firstmonday.org/issues/issues8_5/wall/index.html (accessed
Sept. 2, 2003).
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