Copyright in archives

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The principle of copyright was incorporated into the original Constitution of the United States, with Article I, Section 8 providing to Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  This clause seems to have been intended as a somewhat benign protection of intellectual property, but the laws that have been created over the years to implement this principle are gathering increasing relevance (as well as erecting new impediments) to the work being done in libraries and archives.  Some interesting recent decisions include:

  • Kirtsaeng v. Wiley (2013).  The basic question raised in this case is whether the doctrine of first sale applies to foreign works.  If not, archives and museums would need to have permission from the copyright holder to display or lend items.  In this decision, the U.S. Supreme Court sided with the Thai student Kirtsaeng who had resold imported copies of books published by John Wiley & Sons, Inc.  In the words of Peter Hirtle, the decision can be summed up as “you bought it, you own it.”
  • Georgia State University (2012).  Oxford, Cambridge and Sage publishers brought a suit against the university for infringement of copyright through its e-reserve system.  The judge generally sided with Georgia State’s interpretation of fair use guidelines, though she did rule that only 10% or one chapter of a book can be provided under fair use.  (NB: This case is under appeal.)
  • Authors Guild v. HathiTrust (2012).  This case was brought against five universities who had digitized book material, with two practical uses in mind (alongside a dark archive): to provide scholars a corpus of works for text mining and to reformat books for the visually impaired.  The judge made summary judgment for the defendants on the reformatting and text mining issues and questioned the standing of the Authors Guild to bring suit about works for which they do not hold copyright (i.e., those books which HathiTrust had assumed to be “orphan works” but which, in fact, have existing copyright holders).   (NB: This case is under appeal.)

Simplistically stated, archives and special collections libraries acquire unique items, so they are less likely than a traditional library to have vast quantities of published materials in their stacks.  However, two trends are necessitating the attention of archives to copyright issues: mass digitization efforts and the acquisition of born-digital materials.

  • A good example of the intersection of copyright and digitization comes from the Thomas E. Watson Papers Digitization Project at the Southern Historical Collection of the University of North Carolina at Chapel Hill.  Staff conducted intensive research into the status of correspondents in the collection in order to determine copyright status.  The inordinate amount of time involved in this research process along with the inconclusive findings on nearly half of the correspondents caused the staff to conclude that this procedure was not scalable to large collections.  Instead, they have moved toward a take-down policy, publicizing their willingness to remove digitized documents from the Internet if a claimant provides notice that they hold copyright to said documents.
  • The boilerplate end-user license agreements (EULA) for software generally prohibit the transfer of software to a third party.  It remains to be seen whether companies will pursue legal action against repositories that have accepted software from donors.  This situation could become more problematic for institutions that determine to follow a path of emulation as their access mechanism, thereby most likely necessitating the reuse of code from proprietary software.  Lawsuits against cultural institutions are still relatively rare, but that may not continue to be the true (see HathiTrust case above).
  • With both digitized and born-digital materials, some repositories are moving toward making these records available off-site.  In doing so, researchers gain much greater ease of access, but at the same time, reference archivists no longer have the intervention of a face-to-face interview during which they can identify research priorities and explain use restrictions.
  • The Standards Committee of the Society of American Archivists endorsed the Well-intentioned practice for putting digitized collections of unpublished materials online (OCLC, 2010).  In addition to recommending the use of published take-down policies, it also suggests working with donors before an acquisition to resolve any copyright questions.
  • The meeting of the World Intellectual Property Organization this summer adopted the “Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.”  The treaty requires contracting parties to allow accessible copies to be created, distributed domestically, exported, and imported.

For more information about copyright issues, the following web sites may be useful:

In memoriam

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It was 10:22am on that Sunday morning fifty years ago when four little girls who were preparing to participate in the worship service at Sixteenth Street Baptist Church in Birmingham were murdered by a bomb planted by the Ku Klux Klan.

This event has been seared into the conscience of the nation from that moment forward.  The reactions and reflections have taken many forms:

  • Langston Hughes wrote a poem, “Birmingham Sunday.” (published in Arnold Rampersad, ed., The Collected Poems of Langston Hughes [New York: Alfred A. Knopf, 1994])
  • Dudley Randall, who was a librarian at the University of Detroit at the time and created Broadside Press, wrote a poem that was published in 1965, “The Ballad of Birmingham.”  It was set to music by the folk singer Jerry Moore.
  • In 1964, Richard Fariña wrote a song, “Birmingham Sunday.”
  • Soon after the bombing, a Welsh artist, John Petts, raised the money to design a new stained glass window to replace one of those destroyed in the bombing.  He depicts a black Jesus, with one arm pressing against injustice and inequality and the other arm open to reconciliation.
  • In 1997, Spike Lee produced a documentary, 4 Little Girls.
  • In 2007, Carole Boston Weatherford wrote a children’s book, Birmingham, 1963, that describes the feelings of a fictional character who witnessed the bombing.
  • In 2011, Carolyn McKinstry wrote a book, While the World Watched: A Birmingham Bombing Survivor Comes of Age During the Civil Rights Movement.
  • In 2013, Photographer Dawoud Bey produced an exhibit, The Birmingham Project.

There are numerous books that incorporate accounts and analyses of this church bombing.  (In this and all instances in this post, I confine myself to the sources about which I have personal knowledge.)

Four Spirits sculpture

Four Spirits sculpture

On Tuesday of this week, Congress awarded the four victims of this bombing the Congressional Gold Medal.  It will be housed in the Birmingham Civil Rights Institute.  On Thursday, a new sculpture, Four Spirits, was installed in Kelly Ingram Park, across the street from the church.  The coverage of the anniversary this week also included an interview Friday on WUNC’s program The State of Things.  Frank Stasio interviewed Billy Barnes, who attended the funeral, Glenn Eskew, and Carole Weatherford.  Writing for The Progressive, Fred McKissack, Jr., reflected on a 1963 editorial from the Milwaukee Sentinel, questioning whether fifty years later the nation has fully atoned for the crime committed.

A number of repositories have materials related to the Sixteenth Street Baptist Church bombing available online.

  • John F. Kennedy Presidential Library and Museum.  Their exhibit on the bombing is divided into five parts: Pressure, Explosion, Shock Waves, Aftermath, and Public Opinion.  The records incorporated into this exhibit include telegrams from civil rights leaders to President Kennedy; political cartoons; the official statement Kennedy made to the press four days after the bombing; and letters from citizens to President Kennedy representing a  broad spectrum of opinions on the civil rights movement.
  • Alabama Department of Archives and History.  Their photo gallery includes views of the destruction on the day of the bombing along with the mug shots of Robert Chambliss, who was arrested and convicted in 1977 for his role in the bombing.  Two other conspirators, Thomas E. Blanton, Jr., and Bobby Frank Cherry, were convicted in 2001 and 2002, respectively.  The fourth suspect, Herman Frank Cash, died in 1994 without ever facing charges.
  • The King Center.  They have the manuscript of the eulogy that Martin Luther King, Jr., delivered at the funeral for Addie Mae Collins, Carol Denise McNair, and Cynthia Diane Wesley that was held three days after the bombing at the Sixth Avenue Baptist Church in Birmingham.  (A separate service was held for the fourth victim, Carole Robertson.)
  • Birmingham Public Library.  They have created a digital collection of photographs, newspaper clippings, and documents related to the bombing.  It also includes coverage of the 1977 trial of Robert Chambliss, but the later trials are not included.

The archival world is connected to this story in more ways than these exhibits.  Archivist Randall Jimerson was a teenager living with his family in Birmingham in 1963.  His father was the director of the Alabama Council on Human Relations, and on the afternoon of the bombing, he and his wife drove to the church and salvaged two remnants of stained glass windows that had been blown out of the church.  One of these fragments was donated to the Birmingham Civil Rights Institute, and the remaining piece was donated by the family this week to the Smithsonian Institution to be a part of the new National Museum of African American History and Culture.

But I also believe that commemorations such as those that have occurred in the past week provide an important opportunity for archivists to consider our role in creating and sustaining collective memory.  Writing in 2002, archivists Joan Schwartz and Terry Cook pointed out,

“Memory, like history, is rooted in archives.  Without archives, memory falters, knowledge of accomplishments fades, pride in a shared past dissipates.  Archives counter these losses.  Archives contain the evidence of what went before.  This is particularly germane in the modern world.  With the disappearance of traditional village life and the extended family, memory based on personal, shared story-telling is no longer possible; the archive remains as one foundation of historical understanding.  Archives validate our experiences, our perceptions, our narratives, our stories.  Archives are our memories” (“Archives, Records, and Power: The Making of Modern Memory,” Archival Science 2 [2002]: 18).

Yet there will always be the voices suggesting that we would be better off forgetting.  Geography professor Kenneth Foote asserted, “A society’s need to remember is balanced against its desire to forget, to leave the memory behind and put the event out of mind. . . .  If a tragedy seems to illustrate a lesson of human ethics or social conduct worth remembering, or if it demands that warnings be forwarded to future generations, tension may resolve in favor of a permanent monument or memorial” (“To Remember and Forget: Archives, Memory, and Culture,” American Archivist 53 [Summer 1990]: 385).  Perhaps one of the most poignant arguments in favor of remembering came from President Obama, upon the groundbreaking of the National Museum of African American History and Culture on 22 February 2012:

“the time will come when few people remember drinking from a colored water fountain, or boarding a segregated bus, or hearing in person Dr. King’s voice boom down from the Lincoln Memorial.  That’s why what we build here won’t just be an achievement for our time, it will be a monument for all time.  It will do more than simply keep those memories alive. . . .  It should stand as proof that the most important things in life rarely come quickly or easily.  It should remind us that although we have yet to reach the mountaintop, we cannot stop climbing. . . .  When our children look at Harriet Tubman’s shawl or Nat Turner’s bible or the plane flown by Tuskegee Airmen, I don’t want them to be seen as figures somehow larger than life.  I want them to see how ordinary Americans could do extraordinary things; how men and women just like them had the courage and determination to right a wrong, to make it right. . . .  And I want them to appreciate this museum not just as a record of tragedy, but as a celebration of life.  When future generations hear these songs of pain and progress and struggle and sacrifice, I hope they will not think of them as somehow separate from the larger American story.  I want them to see it as central – an important part of our shared story.  A call to see ourselves in one another.”

Digital ghosts

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I spent much of the last year researching born-digital materials, so I am predisposed to an interest in anything related to electronic records.  One of the biggest questions yet to be answered is what will happen to all of these records?  The Library of Congress is archiving Twitter, so that one has been decided.  Other social media providers such as Facebook are more complicated.  A story published in March tells of how Facebook cut off the access of a mother to her deceased son’s page — to which she had the password! — but the broader issue is what can and should happen to people’s digital possessions.  Although some state legislatures are trying to consider how to handle digital assets as a part of someone’s estate, a 1986 federal law (Stored Communications Act) along with the service agreements of online companies are making this very difficult to address.  Where I inherited books from my grandparents, bequeathing iTunes songs or Kindle books is a very different proposition.  And then what if someone has their “lifetime library” in the cloud?  There are a lot of practical and legal issues that need to be resolved.  A blog entitled “Digital Passing” provides information about estate planning for passwords and digital property, so if these issues interest you, you can follow up there.  There are also a number of manual archiving methods within social media platforms along with fee-based services that can work across various platforms — this article from Entrepreneur reviews several of these companies.  For an example of how a state archive is handling social media, see the North Carolina State Government Web Site Archives & Access Program.

Update: The BBC recently published an article on this topic entitled “Death in the digital age: Are you prepared?