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Copyright, Archival Institutions and the Digital Environment

The Society of American Archivists position on proposals to amend the 1976 Copyright Act
Approved by the Society of American Archivists Council June 9, 1997

 

The Society of American Archivists (SAA) is opposed to the proposed revisions to the copyright law that have emerged from the report of the Working Group on Intellectual Property Rights, chaired by Bruce Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks. We believe that such changes would negatively affect the ability of the archives to serve the information needs of the American public through use of digital technology and the National Information Infrastructure (NII).

We believe that current copyright law will adequately protect the interests of copyright holders in the digital environment. We feel that Congress should not act prematurely to alter the law in ways which will give the public fewer rights of access to digital information than they currently possess with information in print and other media.

Background on Proposed Legislative Changes

President Clinton created the Information Infrastructure Task Force (IITF) in 1993 to articulate the Administration's vision for the National Information Infrastructure. The Information Policy Committee of that Task Force founded a Working Group on implications of the NII. The Working Group, chaired by Lehman, produced a draft Green Paper in July 1994 and a final White Paper in September 1995. The White Paper, Intellectual Property and the National Information Infrastructure, was the basis for proposed legislation to amend the Copyright Act of 1976 to protect against the perceived potential for infringements of copyright within the dynamic digital environment.

Congress did not act upon this proposed legislation (S. 1284 and H. 2441), entitled the "NII Copyright Protection Act," in 1996 because of the concerns and opposition expressed by a wide range of constituencies. Those expressing opposition included the Association of Research Libraries; the Digital Future Coalition1 (a consortium of high-technology industry groups, library and educational associations; consumer and privacy advocates). The Ad Hoc Copyright Coalition, representing Internet services providers, telecommunication companies, and the business community, also expressed opposition.

The Role of Archives in the Digital Environment

American archivists are an important segment of the international information community.

The archival mission is to collect, preserve, and make available to the public our nation's memory. Archives document society for the preservation of our cultural heritage and ensure the accountability of government to its citizens.

By providing access to the wealth of documentary material about our nation, its people, and its governmental institutions, archivists actively participate in the education of the American people.

New technology and the Internet provide archivists with both opportunity and means to reach a larger public than ever possible with information about and from archives.

Archivists have always been careful to instruct users about the copyright law and the need to secure permission to quote from copyrighted material. Our professional concerns about efforts to regulate the NII arise from:

  • Our desire to expand the public's ability to gain access to archival resources; and
  • Our mission to support scholarship and the free exchange of information in our society.

The archival profession only has begun to explore the ways in which the NII can support our efforts to increase public access to archives. Therefore, we are reluctant to see legislation passed that will limit public access to information before it is established that such limits are justified.

The Position of the Society of American Archivists on Copyright in the Digital Environment

The NII was created through the efforts of government and universities in the United States largely "to promote the progress of science and the useful arts," as copyright was defined in the Constitution. In order to promote the exchange of ideas and furtherance of knowledge in our society, the NII should remain a freely accessible way in which to communicate information.

The Internet is a technological advance, like the development of photocopiers and fax machines, for the faster and easier transmission of information. However, unlike photocopying and faxing, which are conducting privately, information transfer on the Internet occurs in a public forum. Infringements of copyright on the Internet are therefore transparent and the technology provides opportunities to track infringements — technologies which do not exist for unauthorized photocopies or faxes.

It appears that current copyright legislation is sufficient to protect the rights and interests of authors and creators. The medium or method for committing an infringement is not insignificant, it is the unauthorized use of copyrighted material that is at issue. We urge legislators to allow a reasonable period for the application of current copyright law to the NII in order to determine whether any amendment is necessary.

Copyright Issues from an Archival Perspective

Fair Use

The 1976 revision of the copyright law codified fair use and extended the doctrine to include unpublished materials for the first time. Under the law, all unpublished materials are protected under copyright until January 1, 2003 or fifty years after the death of the creator—whichever comes later. Section 108 of the 1976 Copyright Act sets the four factors for the courts to consider when determining whether reproduction or quotation from a copyrighted work constitutes "fair use."

These factors are:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The courts have been stricter in the application of these tests to unpublished and published material. We fear that the proposed changes in legislation may further reduce or even eliminate the doctrine of fair use.

Archives provide the public with access to unique documents and manuscript collections. Unlike published material, archival material is not available in multiple copies. Researchers, who range from school children to scholars to the 20 million Americans who are actively researching their family history, have had to invest time and travel in order to use these collections. The Internet will allow archives to make information about their holdings, and even actual documents and manuscripts, electronically available for research at home or school.

For example, the National Archives and Records Administration has made On-Line Exhibitions available on its web site. One of the current offerings is the digital version of "Tokens and Treasures: Gifts to Twelve Presidents." This exhibit displays a collection of gifts which the American people sent to the President of the United States. One of the selected gifts came from Anthony S. Rome, Jr., from Baytown, Texas to President Jimmy Carter. The gift is placed in context through quotes from a June 12, 1980 letter from Mr. Rome to the President. Despite the fact that the document rests within a governmental collection, Mr. Rome could reasonably assert that he owns intellectual property rights in the letter and that, in the absence of fair use, his copyright had been violated. Researchers publishing articles in electronic journals with citations to archival documents and manuscripts could be held to have infringed copyright.

We urge Congress to protect the right to fair use for unpublished materials under copyright law. We suggest that Section 107 of the law be amended to include "by transmission" as one of the legitimate methods in which to quote from copyrighted material under fair use in order to protect the educational use of such materials by schools, libraries, and archives.

Distance Learning

Archival educators and archivists are eager to take advantage of the opportunities for distance learning that are possible via the digital transmission of information. The NII can enable people in rural communities, as well as those who have physical disabilities, to have easy access to information and learning opportunities that otherwise would be financially or physically out of reach.

While technology has changed the means of delivering information to students, the principle remains the same. Educators must be able to provide students with access to learning materials. It must be made clear in proposed legislation that transmitting educational material over electronic networks is directly analogous to previously sanctioned means of transmission, such as television or closed circuit broadcasting.

As archivists, we are deeply interested in the education of our citizens and in the education of future archivists. Using original historical documents as teaching material is a practice that archivists advocate. We want to ensure that those involved with distance learning are able to continue to use these resources. We believe that secure networks, password protection, and other electronic security devices can protect the rights of copyright holders without restricting access to educational material by distance learners.

First Sale Doctrine

Section 109 of the 1976 Copyright Act states that the owner of a lawfully acquired copy of a work is entitled to transfer or sell that work without having to obtain permission of the copyright owner (with a few narrow exceptions), as long as the owner does not retain the original material. This covers the lending of published material by public libraries and the rental of videotapes by commercial video stores.

It has been proposed to limit the interpretation of this doctrine to the physical transfer of objects such as books or magazines. If this is accepted, then electronic transfers, even if the original was not retained by the first owner, would be illegal.

While it seems unlikely that this situation might occur with archival materials, we believe that it is appropriate that the First Sale doctrine should apply to all formats equally, with the same restrictions and penalties for digital transfer as for physical transfer. Archives are beginning to provide access to information through the Internet to their users. We fear that restriction on the First Sale doctrine would give copyright owners unprecedented control over all of the secondary markets for copyrighted information in the electronic format. This would stifle the electronic exchange of information and would give the creators of works an unlimited extension of control over their dissemination that was never intended by copyright law.

RAM and Ephemeral Reproductions

Browsing the Internet has become a central part of electronic information exchange. Archivists often assist their patrons in locating documentary information and manuscript collections via the Internet. Moving from one web site to another, the computer user downloads images and text temporarily before the next site is visited. Some proponents believe these temporary RAM copies, deleted when the user exits the software program or turns off the computer, are to be considered as true copies of the material.

If RAM copies are defined as legal copies, the user could be required to license the information— pay a fee—before viewing it. This would be equivalent to having to pay a copyright owner a fee to look through a book at a bookstore before buying it, or to pay to browse a magazine at a news stand. Such fees would make it unviable for archives and libraries to use the Internet to disseminate information to the public. The same information that was free for viewing on-site would have to be purchased if viewed electronically.

We advocate that Section 106 of the Copyright Act be amended to clarify that RAM, and other ephemeral reproductions are not copies subject to the restrictions on distribution. The definition of publication set out in Section 101 of the Copyright Act should not be amended, as has been proposed, to include the words "by transmission" without further clarification of the status of RAM temporary reproductions.


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