This week’s assignment for the course had us look more closely at the issue of copyright as it pertains to digital history. The issue of “property” as raised in the chapter of Lessig’s book Free Culture offers an interesting historical perspective of how the concept of property has evolved in the United States and how “cultural property” has now taken on similar meaning to “personal property” – two concepts that were initially dealt with by the framers of the US Constitution in very different ways.
Cohen and Rosenzweig apply Lessig’s teachings to the realm of digital history and point out several interesting and important test cases that have shaped the way that digital historians can use historical material under the concept of “fair use” and yet also alert the reader that this is a very “grey” area of law that is in constant flux.
Thus, the question remains – how is a historian supposed to operate within the new context of digital scholarship, yet still respect the lawful rights of copyright holders. This question needs to be an important element in the initial stages of planning a digital history project. If, for example, you are thinking of creating a database of primary sources, then you need to make sure that all of your sources are either in the public domain or within the realm of fair use. For anything that falls outside of these two categories you will need to seek out the copyright holders and negotiate the terms. Good planning in your grant writing will help cover for at least some rights purchases and should be included in any preliminary budget that you create. Of course, not all digital history projects are necessarily driven by primary sources. Your site might be an educational or interpretive site, meaning that most, or even all, of the content is original work. In this respect, you now hold the copyright to the teaching materials.
The less practical and more theoretical issue raised by this week’s readings is the idea that the extension of copyright rights to life plus seventy years has a negative impact on the creativity of society and the growth of scholarship in general. This raises an interesting (if daunting) perspective that we only can be creative and build on the work of others if they are freely accessible. I’m not sure I completely agree – as historians we are used to having to scour through archives and libraries to find the sources that we need. What it appears is that advocates of open access want less to gain access to new areas of knowlege, but rather to take advantage of the digital age to access this knowledge more quickly and in a digital format. We can all see the advantages of accessing information digitally, but does the lack of such access really restrict our creative abilities? This line of argument might have more weight when dealing with images, sounds, and film, where current copyright laws restrict even the concept of quoting such information in non-textual formats. Here, I would agree with the authors that the current copyright asserts too much control over the use of these formats.
Overall, the issue of copyright is a very complicated one. As Cohen and Rosenzweig rightly note, however, digital historians should be aware of these issues, but not focus on it too much that it stunts one’s own creativity to explore the possibilities of digital history.
Hi Jon,
I think that saying copyright is a complicated issue is an understatement! I knew that copyright law was complex, but the readings you’ve assigned for this week really showed me just how impossible it is for anyone, short of an intellectual property lawyer, to gain any sort of mastery over the issues surrounding copyright. We can’t let this reality intimidate us though. As you said, that’s where fear can stunt one’s own creativity. I think the key here is to stay aware of copyright issues, but realize that we may at some point in our careers wind up on the wrong side of the law, so to speak. As Cohen and Rosensweig argue most persuasively, it’s a lot easier to fix a copyright issue in the digital medium than it is in the print medium. I think I’m going to make that my digital history mantra.
On a related but unconnected subject, your post brought up a more practical question: You say that “your site might be an educational or interpretive site, meaning that more of even all of the content is original work. In this respect, you now hold the copyright to the teaching materials.” I’m not sure I understand your statement here. I’ve written a bunch of the content for an educational history website being developed at a local community college. The gist that I got from the small print of my contract was that the material I developed for the site would belong to the college. Most websites are collaborative endeavors, probably not unlike the project that I’m working on, so who does the copyright belong to? I just assumed that it was a work for hire sort of thing.
Hi Kate, thanks for the comment! I guess I was thinking of a situation where you were the one creating the content for your own site, not working on someone else – i.e. you were engaging others in a work for hire or you (plural) worked collectively on teaching materials for your site if it was a collaborative project. In this case, then, you would determine the copyright. However, I do think that the practices of CHNM is commendable – the contributors hold the copyright on their submissions and CHNM retains all other rights (like on the design of the site and anything created by its employees. To be honest, I don’t know how they handle intellectual contributions by employees – my guess is that this is treated by the “teacher clause” discussed in the readings, where the author ultimately retains the rights of the intellectual property they create. I’m sure that some of the rights issues are also out of their hands since those issuing the grants for some of their work might have stipulations of their own in the language of the grant.
Hi Jon,
I do agree with you that in many cases, it seems that “open access” advocates (myself included) are simply seeking the same information in a quicker, more efficient manner. I do think, however, that there could be greater possibilities for online forums that are hindered in the present by the ways in which these sources are “gated”. For example, the Public Historian journal could be made freely available to all who are interested, and then the journal could host an online message board (perhaps something similar to Common-place) where journal articles could be read, debated, and discussed online.
These kinds of documents — I’m talking mainly about secondary sources here — are presented online much as they are in print. If this is the case, then there certainly seems to be no “creative” barrier that results from copyright enforcement online. But if these journals were available to academics to read and discuss online, that might open up new, instant dialogue and feedback on our work, which could have tremendous creative and cooperative possibilities.
Since I misplaced (misremembered, forgot) my own Public Historian online login information, I agree with Laura– it would be helpful if more of this sort of information didn’t come with legal or financial hoops to jump through. In many cases, we’ve traded effort for commerce, not accessibility.
Not that that is necessarily a bad thing, but it does bring up the question of the commodification of knowledge– if I wish to analyze a piece of media, for no other reason than I think it would be useful (ie. without any desire for financial return), but am required to pay for the privledge, then (as a “rational economic actor”, as the economists say), why would I bother? Which is, I guess, the underlying point of the Lessig reading…
I just have a few question: if historians working with digital material are making their own work available online, does that leave room for plagerism? For example, could one plagerize a blog? Is the copyright then a sign of attribution; like a marker telling others that this source is a legitimate one?