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:
- the purpose and character of the use, including whether such use
is of a commercial nature or is for non-profit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to
the copyrighted work as a whole;
- 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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