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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
info [at] archivists [dot] org
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