Copyright and Archives 1

Running Head: COPYRIGHT ISSUES IN ARCHIVES

Copyright Issues in Archives and Museums

Monique Lloyd

Emporia State University

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Introduction

Copyright laws are constantly changing and subject to interpretation based on

various situations and scenarios. This is certainly true for archivists, special collection

librarians, and museum curators who may be responsible for a wide range of materials

including personal papers, artifacts, photographs, oral and visual recordings, and

historical legal documents, among other types of items, in both physical and digital

formats.

Their responsibilities include determining and documenting what rights their

institutions obtain when they accession new materials into their collections as well as

being concerned with protecting ownership rights while at the same time ensuring and

preserving fair use and use of works which are in the public domain.

This paper will examine some of these issues and will also look at the special

circumstance of Native American materials held by non-tribal repositories.

Archives

In his address at the 67th Annual Meeting of the Society of American Archivists in

Los Angeles in 2003, President Peter Hirtle discussed how copyright law makes a

distinction between physically owning an item and owning the copyright to that item

(Hirtle, 2003).
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He describes four possible scenarios. The first possibility is that archives do not own

the physical item or the copyright to it. This situation could occur if the item was merely

placed on deposit with the archives. He describes the three remaining scenarios which

occur when an archive has physical title to an object as follows:

…the archives can own the intellectual property in the piece, third parties can own

the intellectual property, or the work is in the public domain. (Hirtle, 2003)

Hirtle also discusses the rights of the owner. Among these is the right of

reproduction, including the right to reproduce for sale, an important consideration for

archives and repositories who may be struggling financially. In addition, archives and

libraries also have the right to make copies of unpublished works in order to preserve

them for research use in another archives or library.

His most important point in this address was that the strength of archives and their

ability to profit monetarily is through value-added services. In other words, the real value

in archives is not the physical items themselves, but instead the value archivists provide

users through their skills and knowledge. It is this information archives have about their

records and other holdings; the abilities, knowledge, and skills of the archivists and not

the physical assets themselves, which are truly valuable.

Maher states that

The effective administration of archives and services to donors and users requires

an understanding of the basics, including scope of copyright coverage…. (Maher,

2001, p. 63)
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including understanding fair use, how ownership is transferred and what is transferred in

that process, the meaning of exclusive rights, and especially the differences in copyright

provisions for published and unpublished works (Maher, 2001). His primary concern is

the balancing of providing access with respecting the rights of the original creators.

Some types of formats bring their own unique challenges to the archival world

and copyright laws. This includes moving image and oral recordings, especially with

the additional factor of the availability of these digitally where they can easily be

downloaded from as well as uploaded to web sites. In an article entitled Archives and

Access in the 21st Century, Prelinger discusses ownership rights as well as access

concerns to these collections. While enthusiastic about the popularity of moving images

and oral recordings, he states that there are some archivists who insist on placing hurdles

and barriers to access, some using “copyright infringement” in an overzealous manner,

causing unnecessary anxiety and over-cautiousness and thus doing a serious disservice to

their users. (Prelinger, 2007). He also makes the point that scholars are now looking at

moving image and oral recordings materials freely and easily available from the Internet

including YouTube, the BBC Creative Archive, the Library of Congress American

Memory Project, and the Internet Archive, among others, and that archivists must

advocate for user access and

…..above all, ([t]he twentieth century archive) needs to recognize that it is a

cultural producer playing a primary role in the dissemination and exchange of

images and sounds, not simply a wholesale repository relying on presenters,

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producers, and scholars to expose its treasures. Absent an aggressive and

enthusiastic populism, the archives risk irrelevancy and increased marginalization.

(Prelinger, 2007, p. 118).

Digital records and websites have had an enormous impact on how archives

control their holdings as well as on their appraisal, acquisition, and preservation.

Archivists are concerned both with the copyright repercussions of placing digital copies

of existing records, especially photographs, on websites, and with the large increase

in born-digital records constantly being produced and archived. (Bailey, 1990).

Museums

In Permissions, A Survival Guide: Blunt Talk about Art as Intellectual Property,

Bielstein asserts that the hard fact is that:

….copyright law exists to serve the world of hard currency and commerce. A

judge will typically evaluate an infringement case by subjecting it to a certain

test: does a situation exist that denies the owner of a protected work an

opportunity to profit financially from the copying of it? (Bielstein, pg. 33)

Yet there is still a pull towards the rights and needs of users to access and this leads to

constant challenges of copyright laws and an increasing groundswell to reexamine the

limits of copyright.

In his article, Warwick points to the increasing use of licensing schemes that

are much stricter than copyright laws by those who believe that copyright laws do not

offer them sufficient protection or the ability to profit (Warwick, 2002). And while

some believe that copyright can continue to exist in a global, digital world, that the reality
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is that “information wants to be free” and will indeed be free at some point in the future,

others believe that even fair use rights will be eliminated reducing even more individuals

access to intellectual works.

Museums are in a special position as they not only use works created by others,

they also create original works as well as own collections in trust for the public.

Developing policies, examining and evaluating rights in the digital and electronic

media as well as exploring outreach activities are important for both archives and

museums. Steiner in A Museum Guide to Copyright and Trademark (Steiner, 1991)

book written using focus groups from a variety of museums in collaboration with a legal

advisory team, advocates the education of museum administrators about protecting

ownership rights while still protecting and preserving fair use and the use of works which

are in the public domain by understanding copyright laws, developing policies for both

staff and volunteers, and monitoring copyright issues. The author recommends

developing written policies in house. He also advises examining written policies of

other museums and building upon what has been successful.

Protocols for Native American Archival Materials

The care and use of American Indian archival materials held by non-tribal

organizations is an issue that involves differences between Western copyright laws and

indigenous values and perspectives regarding ownership rights.

The Protocols for Native American Archival Materials was developed in 2006 by

nineteen archivists, librarians, museums, curators, historians, and anthropologists, both

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Native American and non-Native American representing fifteen Native American, First

Nation, and Aboriginal communities. The purpose was to develop best practices for care

and use of American Indian archival materials held by non-tribal organizations.

One concern discussed in the protocols is the idea of copyright and ownership.

Some languages have no word for “self” as everything is community owned and

determined. Knowledge is collectively owned and access to some knowledge is

restricted.

In a section discussing accessibility, access, ownership, and control of Native

American archival material, the Protocols state that there can be both philosophical and

practical concerns particularly when there is inadequate information about community

sovereignty, and associated legal rights, community ownership of original source

information, initial community restrictions on information sharing and distribution, and

other related issues.

Brown, in his book Who Owns Native Culture? discusses a fundamental principle

of copyright law that has worked against the protection of indigenous peoples. That

principle is that a work can only be protected when it has been translated to a “tangible

medium”. It must be fixed in some way as text or image, in clay, wood, or some other

fixable medium. The problem for indigenous peoples comes from the reality that in these

cultures information was conveyed orally or through physical action and thus is not

“fixed” in the sense that is required by copyright law. This has led to the exploitation of

indigenous artists by those seeking profits.

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Many indigenous populations view property rights in different ways than their Western

counterparts. Sheree Bonaparte (Mohawk/Akwesasne), in the section of the protocols

discussing Native American intellectual property issues states “We belong to the

‘property”; it doesn’t belong to us” (Protocols, p. 14) and James D. Nason (Comanche)

goes further stating

What is required at this moment is a fundamental acceptance that intellectual

property and most especially esoteric knowledge are vital components of the

living cultural heritage of Native American communities….. a way must be found

to acknowledge and implement appropriate Native American control over such

knowledge (Protocols, p. 14)

Problems result because Western copyright laws are based on principles opposite

to indigenous approaches to knowledge. The Protocols summarize it this way:

Existing copyright legislation does not address issues of significance to Native

American communities such as: community ownership of works and management

of rights; community interests in public disclosure of religious or sensitive

information; protection of older or ancient works (e.g. rock art); the antiquity and

accumulative nature of traditional knowledge; and the protection of oral

traditions, songs, and other culturally sensitive intangible property. In some

cases, Native American knowledge has been copyrighted by outsiders without

appropriate permissions or approval.

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The Protocols propose three guidelines. One is that it is necessary that “right to

possession” is held by the originating communities. A second suggestion is that it is

important to recognize that the entire discussion of “property” can be a difficult one in

communities which do not conform with the Western idea that an item can be owned

only by one person or entity. The third is to consider the idea of moral rights (droit

moral) to protect the cultural and intellectual property of Naïve Americans.

Conclusion

Archives and museums face continuing challenges reconciling the goal of access

to materials along with protecting the rights of the original creators as well as respecting

the beliefs and values of indigenous peoples.

The recently released Section 108 Study Group Report, sponsored by the

Copyright Office and the National Digital Information Infrastructure and Preservation

Program of the Library of Congress, is the latest step that may in the future lead to

some much needed changes.

Some of the recommendations listed in the Executive Summary that impact

libraries and museums include:

• Museums should be covered by Section 108 as they have many of the same

functions as libraries and archives and often partner with them in activities

      relating to our Nation's historical, scientific and cultural heritage. 

• Section 108 should be amended to allow a library or archives to authorize

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outside contractors to perform at least some activities permitted under section

108 on its behalf, provided certain conditions are met

• Add fragile copies , defined as “those copies which exists in a medium that is

delicate or easily destroyed or broken, and cannot be handled without risk of

harm” to the list of conditions which allow reproduction replacement. The

reason for this is that many items in archives are one of a kind and thus it is

necessary to find some way to preserve them and make them available to

researchers.

• Add an exception to permit preservation of “publicly disseminated works”

It is important to note that these recommendations are only advisory. The U.S.

Copyright Office will need to evaluate the recommendations and then propose legislative

changes and it will be up to Congress to decide whether or not to enact those changes.

Copyright laws will continue to evolve as we deal with these challenges in our

diverse world and continue to find, redefine, and share best practices with each other on

that journey.
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References

Bailey, C. (1989). Archival theory and electronic records. Archivaria, 29, 180-196.

Brown, M.F. (2003). Cultures and copyright. In M.F. Brown, Who owns Native

culture? (pp. 43-48). Harvard University Press, Cambridge, MA

Bielstein, S.M (2006). Permissions, a survival guide: Blunt talk about art as

intellectual property. University of Chicago Press: Chicago, IL

Hirtle, P. (2003). Archives or assets. Retrieved from http://archivists.org/governance/

presidential/hirtle.asp on April 7, 2008

Maher, W. J. (2001). Between authors and users: Archives in the copyright vise.

Archival Issues, 26 (1), 63-75.

Prelinger, R. (2007). Archives and access in the 21st century. Cinema Journal, 46, (3),

114-118.

Protocols for Native American archival materials. Retrieved April 8, 2008 from

http://www.firstarchivistscircle.org/files/index.html

Steiner, C. (Ed.) (1991). A museum guide to copyright and trademark. American

Association of Museums, Washington, D.C>

Warwick, S. (2002). Copyright for libraries, museums, and archives. In T.A. Lipinski

(Ed.), Libraries, museums, and archives: Legal issues and ethical challenges in

the new information era (pp. 235-236). The Scarecrow Press, Lanham, MD

Winn, K. (1984) American archivists’ experience with copyright. Archivaria 19, 99-

104.
 Copyright and Archives 12

U.S. Copyright Office, National Digital Information Infrastructure, and Preservation

Program of the Library of Congress. The Section 108 Study Group Report.

Libraries, Archives, and Museums—Copyright Recommendations from 108

Study Group. Retrieved April 12, 2008 from

http://fairuse.stanford.edu/blog/2008/03/libraries-archives-and-museums.html
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Annotated Bibliography

Bielstein, S.M (2006). Permissions, a survival guide: Blunt talk about art as intellectual

property. University of Chicago Press, Chicago, IL

Written by Susan M. Bielstein, the executive director for art, architecture, classical

studies, and film at the University of Chicago Press, this well-written and entertaining

book examines the topics of copyright and ownership with a focus on the museum world.

Her use of examples and stories are both useful and timely. Included are samples of

copyright permission letters, sample use permission letters, and a sample permission, log

and summary. A source page listing image banks and artists rights organizations is

included as well as an extensive list of materials for further reading. She also includes a

summary list of fees paid for the use of images in the book.

Brown, M.F. (2003). Who owns Native Culture? Harvard University Press, Cambridge,

MA

Michael F. Brown, a Professor of Anthropology and Latin American Studies at Williams

College is the author of this book which discusses how indigenous peoples from around

the world are working to protect their cultural knowledge, much of which is oral and thus

not copyrightable, from those who are attempting to exploit their indigenous knowledge.

He examines a number of case studies regarding intellectual property laws and examines
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some of the challenges inherit in protecting cultural heritages. There is also a website

that can be found at http://www.williams.edu/go/native which supplements the book

and serves as “a clearing house for information about the on-going global struggle

for control of knowledge and cultural productions originating in the world’s indigenous

societies”.

Hirtle, P. (2003). Archives or assets? Retrieved from April 7, 2008 from

http://archivists.org/governance/presidential/hirtle.asp

In his address at the 67th Annual Meeting of the Society of American Archivists in

Los Angeles in 2003, President Peter Hirtle discussed how copyright law makes a

distinction between physically owning an item and owning the copyright to that item.

His main point in this address is that the attempts of repositories to monopolize the

holdings in their care and profit financially by exploiting works that are in

the public domain should not succeed, adding that “such efforts make a mockery of the

copyright balance between the interests of the copyright creator and the public”. He

suggests that the real value in archives is not the physical items themselves, but instead

the value added services archivists can provide users through their skills and knowledge.

Maher, W.J. (2001). Between authors and users: Archivists in the copyright vise.

Archival Issues, 26 (1), 63-75.

Written by University of Illinois at Urbana-Champaign University Archivist and

Professor of Library Administration as well as past president of the Society of American

 Copyright and Archives 15

Archivists, William Maher provides a succinct summary of copyright law focusing on

historical and economic factors which impact archives and archivists. He offers a

balanced view of providing access to users while at the same time respecting the rights of

the original authors and creators. He states that it is imperative for archivists to acquire a

basic understanding of copyright laws, especially as it implies to their institutions,

including that of fair use, how ownership is transferred and what is transferred in that

process, the meaning of exclusive rights, and especially the differences in copyright

provisions for published and unpublished works.

Mahler, W.J. (2006). Ten things every archivist needs to know about copyright.

Retrieved April 1, 2008 from

http://www.library.uiuc.edu/archives/workpap/TOPTEN2006.pdf

This list provides a basic, concise, and well-organized copyright information for

archivists which includes references to copyright laws as well as a bibliography, many

with links. The author is well aware of the limitations of such a list and includes a

disclaimer stating that he is offering only an overview of copyright laws and that one’s

institutional legal counsel should be consulted for particular questions.

Prelinger, R. (2007). Archives and access in the 21st century. Cinema Journal, 46, (3),

114-118

Prelinger discusses ownership rights as well as access concerns to moving image and oral

collections. While enthusiastic about the popularity of moving images and oral

recordings, he states that there are some archivists who insist on placing hurdles
 Copyright and Archives 16

and barriers to access, some using “copyright infringement” in an overzealous manner

causing unnecessary anxiety and over-cautiousness and thus doing a serious disservice to

their users.

Protocols for Native American archival materials. Retrieved April 8, 2008 from

http://www.firstarchivistscircle.org/files/index.html

The Protocols for Native American Archival Materials was developed in 2006 by

nineteen archivists, librarians, museums, curators, historians, and anthropologists, both

Native American and non-Native American representing fifteen Native American, First

Nation, and Aboriginal communities. The purpose was to develop best practices for care

and use of American Indian archival materials held by non-tribal organizations. It

discusses the importance of building relationships based on mutual respect, the

importance of recognizing that some materials are culturally sensitive, and that context

must be provided in order to enhance understanding. A glossary of terms is also

provided.

Steiner, C. (Ed.) (1991). A museum guide to copyright and trademark. American

Association of Museums, Washington, D.C.

This resource, funded by the Pew Charitable Trusts and produced in collaboration with

the J. Paul Getty Trust, was written with input from those experienced in the museum

field along with advice from a legal advisory team. It provides museum administrators

with information about copyright and trademark issues essential to their making decisions

about intellectual property issues. This includes the development of institutional policy
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and procedural statements. The guide contains practical information on copyright laws

around issues surrounding museums. The author does an excellent service in

providing best practices for the museum environment.

Warwick, S. (2002). Copyright for libraries, museums, and archives. In T.A. Lipinski

(Ed.), Libraries, museums, and archives: Legal issues and ethical challenges in

the new information era (pp. 235-236). The Scarecrow Press, Lanham, MD

This chapter provides basic information about copyright laws for archivists and museum

administrators including the purposes of copyright laws, an overview of fair use, the

rights of copyright owners as well as limitations, copyright, public performance and

displays, and reserves. It also includes extensive reference materials on topics such as

work-for-hire, an economic analysis of copyright law, an historical perspective of

copyright, databases, and software.

Winn, K. (1984) American archivists’ experience with copyright. Archivaria 19, 99-

104.

This author, a Canadian archivist, discusses American copyright law and the effect it may

have on Canadian archivists. Among the topics discussed are copyright law and

copyright transfers provisions. There is also an admonition to be careful to distinguish

between copyright and privacy as there has sometimes been some confusion resulting in

copyright being used as a way to justify protecting privacy. The author believes that

Canadian archivists should be able to avoid some of the uncertainty facing American
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archivists when new laws are passed as in Canada archival concerns are discussed while

the legislation is still being debated.