Statement
On Copyright Issues for Archives in Distance Education
February
5, 1999
The
Society of American Archivists (SAA) is the oldest and largest association
of professional archivists in North America. Representing more than 3,000
individuals and 400 institutions, the SAA is the authoritative voice in
the United States on issues that affect the identification, preservation,
and use of historical records.
The
Society is very interested in the potential for the use of archival materials
in distance education programs, as well as the potential for distance
education in the training of archivists. We thus welcome the opportunity
to contribute to the Copyright Office's investigation of the Promotion
of Distance Education Through Digital Technologies.
There
are four key points that we would like to make:
- Archival,
unpublished material can be an important component of distance education
programs.
- Licensing
this material for use in a distance education program is not a viable
option because in most cases it is impossible to identify the copyright
owner.
- Copyright
law for distance education, while respecting the interests of the owners
of copyrighted works, must not be drafted in a manner that makes it
difficult for users to exploit those works abandoned or ignored by their
copyright owners. Licensing should be the exception, and not the rule.
- The
current law must be updated to permit the use of current and emerging
technologies in the important task of educating citizens.
The Role
Of Archival Material In Distance Education
As
archivists, we are deeply interested in the education of our citizens.
Research and experience over the past half-century have conclusively demonstrated
that the use of archival material as teaching material contributes to
an effective curriculum. In higher education, the need for primary source
material has led to the creation and maintenance of varied and rich documentary
collections at most schools. While of fundamental importance for graduate
education, these collections are also extensively used by undergraduates.
At the K-12 level as well, the integration of primary source material
into the classroom is an effective component of the curriculum plan. Many
archives prepare teaching packets to assist K-12 teachers in using archival
materials, and the professional literature is filled with articles suggesting
how to teach with primary sources.
There
is no reason to assume that approaches and techniques that have proven
effective in face-to-face teaching will not also prove effective in distance
education. It is our assumption that the two ways that archival materials
are used in courses today will continue in distance education courses.
In some cases, individual pre-selected archival documents will be made
available to students for their study and analysis. In other cases, students
will be asked to conduct wide-ranging and open-ended research into groups
of records, either created in or converted to digital form. The delivery
methods outlined in Section 110 of the Copyright Act, while appropriate
twenty years ago, will not be able to deliver archival material to students
today.
The Copyright
Status Of Archival Material And Licensing
The
uncertain copyright ownership of many archival documents may hinder their
use in distance education programs. The bulk of the material in the nation's
archival repositories is unpublished. Almost all unpublished work is copyrighted
at least until 1 January 2003, and much of it will remain copyrighted
for a longer time. Yet for practical purposes, it is usually impossible
to identify the current owners of the copyrights in archival materials
(a necessary first step in securing their permission for the use of the
material in distance education programs).
There
are several reasons why the owners of copyright in an archival group of
documents cannot be readily identified. For one, manuscripts collections
and records groups tend to consist of material both sent and received
by an individual or government agency. This means that any one of those
bodies of archival material may have hundreds or thousands of separate
authors whose permission could be needed before making copies of the material
accessible over a digital network in a distance education program. Furthermore,
most of the documents found in archives, especially in government repositories,
were created by common citizens. In some cases, the author is anonymous.
Even for those works where the author is known, it is usually impossible
to determine if he or she is still living. If deceased, it can be impossible
to identify and trace the current owners of the copyright. And even when
the author and his or her heirs are known, it may not be known if the
work was created as a work for hire, and hence subject to ownership by
someone else.
For
most of the unpublished, copyrighted works in the nation's archives it
is impossible to identify the owners of copyright. It is therefore impossible
to secure permission to license or to use this unpublished, copyrighted
material in distance education courses. Some of this material will enter
the public domain in 2003, but because Congress recently lengthened the
term of copyright, most of the documents that help us understand the 20th
century will remain under copyright well into the 21st century.
At the same time, little of this material is subject to commercial exploitation.
There is no community harm caused by distance education efforts using
material already open to researchers in an archival repository. Imposing
an additional burden or fee for their use would hinder the development
of distance education programs. Thus, unless extreme care is taken, it
is possible that regulations intended to respect the rights of the owners
of commercially-exploitable published materials may prevent the ready
use of other kinds of material in distance education courses.
The Role
Of The Professional Society In Education
The
SAA does not only seek to encourage others to use archival materials in
distance education. The Society, as do almost all professional associations,
has an active education program. Recently we have sought to reach out
to members in isolated areas through the development of Society-sponsored
distance education courses. For these courses, it is necessary that readings
consisting of documentary copyrighted materials be made available to the
students. We would hope that they could be offered under the same conditions
as if the teaching were face-to-face.
Responses
To Selected Specific Questions
With
this background in mind, we can now address some of the specific questions
in the Federal Register notice of 23 December 1998 that are of most concern
to archivists:
- Nature
of Distance Education
(c)
Are course materials made available in electronic form? To whom are
they made available? What restrictions are imposed on their access,
use, modification or retention?
As
noted above, there has been great interest in creating online versions
of traditional primary source educational materials. The National Archives,
for example, has created an "Online Classroom" <http://www.nara.gov/
> that makes available digital versions of many paper documents as
part of a curriculum package. It is likely that some schools may wish
to incorporate electronic versions of unpublished paper documents into
their course offerings. The access to this material could be limited
to people in individual classes, or it could be made available worldwide
via the Internet.
Many
archival repositories have restrictions concerning the types of use
of copies made from the material they are responsible for . Some, for
example, demand that researchers using the copies cite the repository;
others require that permission to publish copies of the documents be
sought in writing; still others require that the copies be returned
to the repository; and others may have additional requirements. It is
anticipated that these restrictions on the use ofanalog copies can be
put will be carried over into the digital world.
- Role
of Licensing
(a) Where pre-existing content is used in distance education programs
using digital technologies, to what extent do the persons or entities
involved obtain permission for the use of that content? Is this accomplished
by direct contact with the copyright owner, or in some other way? To
what extent do the parties enter into negotiated licenses, or use form
contracts?
As
noted above, the difficulty in identifying the copyright owners of most
unpublished material means that it is almost impossible to obtain the
permission of the copyright owner to use material in distance education
courses. There is little technology can do to ameliorate this situation.
There have been private efforts to prepare registers of those copyright
owners (primarily literary figures) who wish to enforce their copyrights
in unpublished materials, but this only applies to a small number of well
known figures. The Congressionally-funded documentary editing projects
and many archival repositories have concluded that the reproduction for
educational purposes of unpublished archival material of limited commercial
value (and in the absence of any knowledge that the copyright owner wishes
to enforce his or her copyright) is of overall benefit to society and
should be permitted. It is our hope that this interpretation would be
endorsed as part of the Copyright Office's study on distance education.
Application
of Copyright Law to Distance Education
(a) Is
existing law adequate in addressing current and anticipated forms of
distance education using digital technology? If not, in what ways is
it inadequate? Are there reasons why digital transmissions should be
treated differently from education through broadcasting or closed circuit
technologies, or in a traditional classroom?
As
the above discussion has shown, existing law concerning the use of unpublished
archival materials in distance education is inadequate. First, it does
not adequately protect institutions that make a good-faith effort to locate
copyright owners before posting material for a course. Secondly, the transmission
methods identified in Section 110 no longer reflect the technology used
in distance education. Section 110 should be amended to allow for the
transmission of both dramatic and non-dramatic works over whatever the
current communications medium may be. Finally, all the rights granted
elsewhere in the Copyright Act to users of copyrighted works (including
the right of fair use) should be available to people using material in
distance education courses.
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