This blog is part four of a series comprising a set of primers that address ten complex legal and ethical issues encountered when providing access to born-digital archival records. The guidance is grounded in two foundational beliefs: 1. There is a potential to harm individuals, communities, and institutions if access is not thoughtfully and strategically viewed through an ethical and legal lens; and 2. It is not ethical to restrict access unnecessarily. For more information see: https://osf.io/ketr7/.

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Overview

Copyright in the United States is defined as, “A form of protection provided by the laws of the United States for “original works of authorship”… “Copyright” literally means the right to copy but has come to mean that body of exclusive rights granted by law to copyright owners for protection of their work” (U.S. Copyright Office).

Archives are filled with copyrighted materials, and Archivists have been providing access to them for years. So what is different about born-digital archives, and what do we need to consider when providing access to them? 

The method of access that is unique to digital content. Namely that it must be rendered using a machine, and this machine rendering requires multiple copies to be made. Section 108 of the US Copyright Statute authorizes libraries and archives to make copies for preservation and access purposes, but there are limitations to this provision that have serious legal consequences for born-digital access.

The access affordances that are unique to digital content. It can be reproduced and distributed online more easily than physical material, and therefore has the potential to reach a wide public audience. If made openly available online without clearly articulated access, use, and takedown policies, this level of visibility increases the likelihood that a copyright holder will challenge the repository (Hirtle 2015, 2).

The scope of copyrighted material that is unique to born-digital collections. Like most archival collections, modern born-digital collections often largely comprise unpublished material. Additionally, they are usually sizable, and are likely to contain works by more creators than physical collections, which is particularly true for collections containing email. Donors can only transfer copyright or license use of the email messages they authored, not the messages they received. Thus, it is reasonable to expect an email archive to contain copyrighted materials from hundreds or thousands of authors (Briston 2015, 26). This presents a logistical challenge for institutions seeking to provide online public access to this material.

Most likely to come up in

• Collections consisting largely of material that was created for commercial intent, such as photography collections, literary papers, and papers of artists, musicians, etc.
• Collections containing email
• Corporate archives

Actions for the institution to take

Avoid acquiring collections from donors who impose reproduction and/or use restrictions.

Negotiate open licenses with donors if the donor owns copyright. As the majority of born-digital records were created after 1989, most born-digital collections comprise comparatively “young” materials that are about 30 years old or less (as of the publication of this document). Thus, copyright for these collections may generally begin to expire around 2070 (for earlier digital records), but can extend to 2140 or later (for more recently created records).^[1] Traditional donation agreements prompt donors to retain copyright by default. To promote broad use of collections, talk with donors about the implications of retaining copyright, such as increased barriers to access due to Section 108 of the US Copyright Statute (see below), as well as general barriers to diverse use of the material. Pursue one of several avenues:

Ask the donor to transfer or license copyright to the institution upon donation, after a specified period of time after donation (i.e. 20 years), or upon the donor’s death. This could be accomplished either with an exclusive or non-exclusive license. A non-exclusive license gives the institution the rights they need for their educational and/or research mission, and the donor is happy to still have “control of the rights.” This is an especially useful strategy when the donor still wants to benefit commercially from their materials.

Alternatively, ask the donor to license their works under a Creative Commons license, such as a CC BY attribution license (users must credit the creator) or a CC0 dedication (gives copyright to the public domain). (Callahan 2019). Document the terms of license in the deed of gift.

• Or consider a compromise between the two options above: ask the donor to transfer copyright to the institution, and the institution pledges to release it under a CC-BY attribution license.^[2]

Develop and/or update the following policies that impact access to and use of copyrighted born-digital records. Ask for these to be vetted by legal counsel.

• Reproduction and use policy. This clarifies that it is the user’s responsibility to evaluate fair use and/or obtain permission to use reproductions if their intended use is beyond the scope of fair use.
• Online access disclaimer on digital collections site. A boilerplate note stating that the institution makes the content available for educational and/or research purposes, and clarifies the user’s responsibilities if they intend to use the content (perhaps linking back to your reproduction and use policy).^[3]
• Deed of gift or an addendum to the deed that specifically addresses born-digital. This should clarify transfer or non-transfer of copyright, include permission to provide online access to born-digital content by default, document any donor-applied access restrictions, and specify that the institution has permission to circumvent encryption and password protections for the purposes of preservation and access. The deed of gift must be completed prior to accessioning.^[4]

Support staff responsible for acquisition, processing, and preservation in developing an understanding of Digital Rights Management (DRM), as software subject to technological protection measures may show up in archival collections, and sometimes is preserved to provide access to born-digital material.^[5]

Actions for the archivist to take

Document copyright ownership during the acquisition or accessioning phase. While it is not the Archivist’s responsibility to research and identify the copyright holder on behalf of the user and/or determine if their use violates copyright law, documenting the copyright owner supports use of collection material by both the user and the institution.

Undertake a fair use assessment before making born-digital records available online. Does copyright law impact your ability to reproduce and provide access to it under fair use? Maintain documentation of this assessment.

Maintain consistent documentation of the research, reasoning, and justification behind decisions to make born-digital content available in the specific way it is made available, such as via a publicly accessible online platform. Documentation demonstrates diligence of the investigation and helps to support the fair use determination if it is called into question.

Consider your resources and plan strategically. If making born-digital records available online, it is necessary to carefully consider the immense amount of labor typically required to research copyright status and owner, obtain authorization to publish (if necessary), and create item-level metadata as it pertains to copyright.

Technical Infrastructure

See Recommendations For All Collections section in this document.

Legal considerations

There are three sections of US copyright law that specifically impact born-digital access: Section 108, Section 107 (Fair Use), and the Digital Millennium Copyright Act (DMCA).

Section 108: Section 108 of title 17 of the US Copyright Statute went into effect on January 1, 1978. It supplements the exemptions in Section 107, by providing limited exceptions for libraries and archives to reproduce and distribute copyrighted material for the purposes of preservation, replacement, and to fulfill patron requests, without seeking permission from the copyright holder. The purposes and limitations that are most relevant to born-digital access are:

Patron requests: only certain types of works can be reproduced in response to patron requests under Section 108. Most audiovisual works including musical and motion picture works, and pictorial and graphic works are not covered. Theremore, most textual works are allowed to be reproduced for patrons if the other requirements in the section are met (Hirtle, Hudson, Kenyon 2009, 117). For instance, a library may reproduce a section of unpublished emails in a collection for a patron if the following conditions are met: the emails are not available elsewhere “at a reasonable price,” once reproduced they become the “property” of the patron (i.e. they are delivered to them), a copyright notice is included in the reproduction order form, and the patron acknowledges that the reproduction is for private study, scholarship or research purposes.

• Preservation and replacement: Section 108 also provides exemptions for up to three copies (including digital copies) of a copyrighted work to be made for preservation purposes, and for a replacement copy (including a digital copy) if the work is manifested in an obsolete format. However, digital copies made for preservation and replacement cannot be subsequently distributed in digital format, nor can the digital copy be used “outside the premises” of the institution. Thus, these copies cannot be made available to patrons remotely under provisions of Section 108. (However, this purpose may be exempted under Fair Use. See below.)

Section 108 was not created with digital content in mind, and it leaves a lot to be desired in how copyrighted works are preserved, accessed, and used. By necessity, archivists must make multiple copies of born-digital records, often more than three, in order to acquire, process, preserve, and make them accessible. Furthermore, the exceptions in Section 108 do not cover remote public access to unpublished material in an online environment, such as on a publically accessible digital collections site or virtual reading room.^[6] (However, if the institution takes measures to limit remote access to communities that are not considered the public at large (i.e. members of a university community), the exceptions provided in Section 108 may provide safe harbor for online access to such material.) The Library of Congress convened a Section 108 Study Group in 2005 to update the provision for the digital age. The group issued their report in 2008 but their proposed changes were not adopted. In 2017, the US Copyright Office issued a discussion document that restated the need to update Section 108 to more accurately reflect changes in technology and better support libraries, archives and museums.^[7]

Section 107: Archivists rely on fair use to support the provision of remote access. Fair use permits the unlicensed use of copyright-protected works in certain circumstances, such as criticism, comment, news reporting, teaching, scholarship, and research. It requires consideration of four factors in evaluating a given use case: 1. the purpose and character of the use; 2. the nature of the copyrighted work; 3. the amount and substantiality of the portion used; and 4. the effect of the use on the potential market for or value of the copyrighted work (U.S. Copyright Office). In many circumstances, organizations can legally and ethically provide access to copyrighted materials, including born-digital content, under the allowances of fair use. It is important to note that while born-digital collections may contain a larger quantity of copyrighted works than paper collections, the allowances of fair use still apply regardless of format.

Digital Millennium Copyright Act (DMCA): The DMCA passed in 1998. It criminalizes circumvention of encryption mechanisms that control access to digital content (Briston 2015, 34). In the context of born-digital archives, this means an archivist cannot legally copy or provide access to an encrypted file unless permission or login info is provided by the copyright holder. This presents a problem for archivists seeking to preserve password-protected or encrypted content, which is particularly challenging to the preservation of software (see below).

Special considerations for software: Software preservation is a necessary aspect of digital preservation and access, yet because most software is copyrighted and much of it is commercially produced, almost every part of the software preservation process can potentially infringe copyright. Institutions generally rely on fair use to support preservation efforts as they largely do not negatively impact the market for the copyrighted software, and preservation is considered transformative in that it serves a different use than the original market purpose (Aufderheide, Butler, Cox, Jaszi 2019).

Additionally, software preservation often requires circumvention of “technological protection measures” (such as a password or product key), thereby violating DMCA. However, the Library of Congress has adopted  temporary exemptions for libraries and archives to make these circumventions under certain conditions. These exemptions are reviewed every three years in a rulemaking proceeding. The latest proceeding in 2021 upheld these exemptions until October 21, 2024 (U.S. Copyright Office).

Ethical considerations

“…many of the issues that archivists face in managing rights are not matters of law, but of professional ethics. The financial damage that can accrue from reproducing an unregistered work is likely to be almost nothing, but the possible damage to an institution’s reputation may be great if it acts without due regard for both those who created materials and for those who use them” (Hirtle 2015, 5).

Copyright concerns around access to born-digital archives are complex and uncertain. But this uncertainty should not rationalize conservative access restrictions. Following standards of practice arrived at by consensus in archival and library communities, such as ARL’s Code of Best Practices in Fair Use for Academic and Research Libraries, and taking a reasonable approach to access supports ethical access to copyrighted born-digital records.

Case study

Google v. Oracle (2020-2021). See Butler, Brandon. “Google v. Oracle: Takeaways for Software Preservation, Cultural Heritage, and Fair Use Generally.” Software Preservation Network, June 3, 2021. Available at https://www.softwarepreservationnetwork.org/google-v-oracle-takeaways-for-software-preservation-cultural-heritage-and-fair-use-generally-2021-reflection/

Works Cited

Aufderheide, Patricia, Bradon Butler, Krista Cox, Peter Jaszi. Code of best practices in fair use for software preservation. Washington, DC: Association of Research Libraries; 2019

Briston, Heather. “Understanding Copyright Law.” In Rights in the Digital Era, edited by Behrnd-Klodt, Menzi L., and Christopher J. Prom. Chicago: SAA, 2015.

Callahan, Maureen and Heather Briston. “Radical Access—Leveraging Creative Commons Licenses to Open up Archives.” Presentation in OCLC Works In Progress series. OCLC, 2019. Available at https://www.oclc.org/research/events/2019/121019-leveraging-creative-commons-licenses-open-archives.html

Hirtle, Peter B. “Introduction.” In Rights in the Digital Era, edited by Behrnd-Klodt, Menzi L., and Christopher J. Prom. Chicago: SAA, 2015.

Hirtle, Peter B., Emily Hudson, and Andrew T. Kenyon. Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums. Ithaca, NY: Cornell University Library, 2009. (Note: chapter 6 provides an excellent overview of Section 108.)

U.S. Copyright Office. “More Information on Fair Use.” Accessed May 4, 2022. Available at https://www.copyright.gov/fair-use/more-info.html

U.S. Copyright Office. “Section 1201 Exemptions to Prohibition Against Circumvention of Technological Measures Protecting Copyrighted Works.” Accessed May 4, 2022. Available at https://www.copyright.gov/1201/2021/?loclr=eanco

U.S. Copyright Office. “U.S. Copyright Office Definitions.” Accessed April 27, 2022. Available at https://www.copyright.gov/help/faq/definitions.html

Additional Resources

Copyright and Fair Use

Briston, Heather. “Contracts, Intellectual Property, and Privacy.” In The Digital Archives Handbook, edited by Aaron D. Purcell. Lanham: Rowman & Littlefield, 2019.

Code of Best Practices in Fair Use For Academic and Research Libraries. Association of Research Libraries, 2012. Available at https://publications.arl.org/code-fair-use/

“Copyright 101: Everything You Wanted to Know About Copyright But Were Afraid To Ask.” ALA Office for Information Technology Policy, Copyright Advisory Committee and Copyright Advisory Network Team, and Office of Government Relations Committee on Legislation, Intellectual Property Subcommittee. Available at http://www.ala.org/advocacy/sites/ala.org.advocacy/files/content/copyright/Section108.pdf

Hirtle, Peter B. “Copyright Term and the Public Domain in the United States.” Cornell University Library. Available at  https://copyright.cornell.edu/publicdomain

U.S. Copyright Office. “Revising Section 108: Copyright Exceptions for Libraries and Archives.” Accessed May 4, 2022. Available at https://www.copyright.gov/policy/section108/

The National Archives. “Copyright.” Accessed April 27, 2022. Available at https://www.nationalarchives.gov.uk/legal/copyright/

Digital Preservation and Access Workflows

Leventhal, Aliza, Laura Schroffel and Jody Thompson. “Deeds of Gift as a Tool to Facilitate born-digital Design File Processing and Preservation.” Society of American Archivists, April 2019. Available at https://www2.archivists.org/sites/all/files/Leventhal_Schroffel_Thompson_Deeds%20FINAL.pdf

“Responsible Access Workflows.” University of California Berkeley Library, 2021. Available at https://docs.google.com/presentation/d/1V66PGpIq9xqXxdvngpD3rkAMoIw2hIyVVDS4Iv4VFOM/edit#slide=id.g7ffa9d7047_0_2

“UCLA Library Special Collection Risk Assessment Guidelines.” University of California Los Angeles Library. Available at https://www.library.ucla.edu/sites/default/files/Guidelines_RiskAssessment.pdf

“Well-intentioned practice for putting digitized collections of unpublished materials online.” OCLC Research, revised May 29, 2010. Available at http://www.oclc.org/research/activities/rights/practice.pdf

Software and DMCA

Albert, Kendra, Daina Bouquin, Farber Alena, and Russell Hoover. “Copyright Guide for Scientific Software.” Software Preservation Network, 2019. Available at https://www.softwarepreservationnetwork.org/copyright-guide-for-scientific-software/

Albert, Kendra and Kee Young Lee. “A Preservationist’s Guide to the DMCA Exemption for Software Preservation.” Software Preservation Network, December 10, 2018. Available at https://www.softwarepreservationnetwork.org/a-preservationists-guide-to-the-dmca-exemption-for-software-preservation/

Enriquez, Ana. (2022, August 15). Section 108 and Software Collections: A Users Guide. Software Preservation Network. https://www.softwarepreservationnetwork.org/section-108-and-software-collections-a-users-guide/

Contributors

Primary Author of this section: Kate Dundon, Supervisory Archivist, University of California, Santa Cruz
Co-Authors: Jessika Drmacich, Jess Farrell, Christina Velazquez Fidler, Hannah Wang, Camille Tyndall Watson

Thank you to the many community contributors for feedback and edits to Legal and Ethical Considerations for Born-Digital Access, from which this post was derived.

DISCLAIMER: This text has been reviewed and feedback incorporated from library professionals with legal expertise, but it was not originally drafted by a lawyer and is not legal advice. Please use this as a starting point to understand the issues, but always consult your local legal counsel or other support system as you make access decisions around born-digital collections.

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^[1] Copyright for born-digital records in the United States will expire according to the following terms most of the time: Unpublished born-digital content: 70 years after the death of author, or 120 years from date of creation if unknown author or work of corporate authorship. Published born-digital content: 70 years after the death of author, or 95 years from publication if work of corporate authorship. Copyright terms may be different in other jurisdictions. Other possibilities exist such as Crown Copyright in the UK, Canada, Australia. For example, in the UK such materials are typically released under the Open Government License.

^[2] Licensing options were contributed by Kyle K. Courtney, Copyright Advisor and Program Manager at Harvard University.

^[3] See the UCLA digital collections copyright statement for a good example that can be modified for born-digital. Available at: https://digital.library.ucla.edu/copyright_and_collections. Also see pg. 64 in Rights in the Digital Era for another version.

^[4] For sample deeds of gift, see pg.116-117 in Rights in the Digital Era. Also see Appendix F: Policies, Templates, Documents, etc. in AIMS Born-Digital Collections: An Inter-Institutional Model for Stewardship. Available at: http://www2.lib.virginia.edu/aims/whitepaper/AIMS_final.pdf

^[5] Digital rights management (commonly known as DRM and sometimes called technological protection measures, or TPMs) control access to computer programs by requiring a user to do something before allowing the user to use the program. See Digital Millennium Copyright Act below.

^[6] See 17 U.S.C. § 108(b)(2): “any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives.”

^[7] Section 108 of Title 17: a discussion document of the register of copyrights. Available at: https://www.copyright.gov/policy/section108/discussion-document.pdf