copyright, fair use, and the digital repository (part 1)

This post originally appeared as a project update for the Institute on Digital Archaeology Method and Practice here. See the original posts for images and comments.

While I wait for the KORA WordPress plugin’s completion to dig into front end development (still reserving the PHP option mentally since the clock is ticking), I’ve been deep into research on copyright and intellectual property implications of this kind of project. I’ve been thinking about this all for a while. As I’ve begun ingesting digital objects, I’ve been confronted with that pesky “rights” field. After my dead-end research in February, I just included some default text that essentially says “contact Archivist for details,” knowing full well that it was a total cop-out.

So this week I renewed my quest. And I also kept bringing myself back to the fact that the product of my Institute project isn’t only the website that comes out at the end; it’s all of this documentation. Lack of clarity on rights issues for this type of data seems not to be uncommon. So hopefully other similar institutions will find these links helpful. Since copyright laws for state records vary among states, much of this will be Virginia-centric, but links to specific information for other states are easy to find.

A refresher on my scenarios

In this repository, I’ll be including several types of media (or objects): PDFs of gray literature, digital versions of photographs, datasets, and also scanned maps and drawings. All of this is held by our institution. But does that mean we have the right to make digital versions available for download? If we wanted to use Creative Commons licensing on this material, do we have that authority? My hunch (that’s beginning to bear out) is that, well, it depends. Here are the four categories of reports, as i see them, for illustrative purposes:

Reports written by my agency

This one is easy. Copyright is held by the Commonwealth of Virginia for material created by an agency or its employees.

Reports written for my agency (usually by an outside consultant) with agency funds

At first I figured that if the client is the agency, that it’s the agency who would hold the copyright. Right? Not so fast. It doesn’t appear that this kind of technical report falls under the Work Made for Hire provision of the 1976 Copyright Act (for a great explanation, see this post). The subsequent hook for rights considerations will be to figure out if these are considered government documents.

Reports written by others for compliance with environmental review regulations (federal and/or state) and submitted to my agency

The original author is usually a consultant. The “client” is either another private entity or a government agency. So, we’ll assume that the copyright is held by the consultant unless the report says otherwise, but these are definitely going to be considered government documents.

“Courtesy” reports

Since these were (and continue to be) donated to us outside of any specific requirement and we don’t track the donor, I’ll assume that the copyright remains with the author and that they aren’t “government documents,” although there’s a chance that just being a part of our Archives makes something a government document. Oh, brother.

Things I’ve learned from this research The Commonwealth of Virginia doesn’t even have a formal Copyright and Intellectual Property policy. A 2009 statute essentially mandated that one be created, but it doesn’t appear to exist. Our Archives should implement more controls on verifying copyright holder and usage rights for each document, explicitly allowing our agency to create and publish digital versions.

In the end, I hope to be able to classify all or most of this material according to and place standardized labels on each digital object with links to the URI for each. Ideally, we can work this into the beginning of the archives accession workflow in the future instead of trying to verify the information at the end of the line.

Several people have mentioned that there may simply not be clear legal precedent for some of this information. That’s cold comfort (and being part of a legal precedent isn’t particularly high on my bucket list), but I can see it as a possibility. I’m much less terrified of the scary legal implications of all this than I was back in February, and hopefully my bosses will feel the same way.

At this point, I’ve made some progress on the copyright front. Next up is fair use. I’ll follow up with another post as things coalesce.

Helpful links from my quest University of Texas Arlington: Copyright and Fair Use A great overview of copyright with lots of content.

Harvard State Copyright Resource Center: Virginia The mother lode of helpful state-specific information

Code of Virginia § 2.2-2822. Ownership and use of patents and copyrights developed by certain public employees; Creative Commons copyrights. tl;dr: “We need a policy on this.”

U.S. Copyright Office Fair Use Index I plan to spend some quality time with this over the next few days. Stay tuned for Part 2.

I’m also looking a variety of digital repositories’ FAQs for rights clues, like this

If you’re reading this and you see any errors or incorrect assumptions on my part, please please let me know in the comments. I also welcome links!

Acknowledgments: J. Albert Bowden II Kathy Jordan at the Library of Virginia

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