Peter B. Hirtle delivered his presidential address at the 2003 annual meeting of the Society of American Archivists held in Los Angeles, California.  Hirtle worked at the National Archives and Records Administration, first for the Technology Research Staff and then as coordinator of electronic public access for the agency.   He has also served as curator of modern manuscripts at the National Library of Medicine.  He then worked at Cornell University, as Director of the Cornell Institute for Digital Collections and as Intellectual Property Officer.   He has especially made a name for himself as an authority on copyright.  An expanded version of his address was published in the Fall/Winter 2003 issue of the American Archivist.

Hirtle’s address considered the question of whether the holdings of an archives are an asset that can be leveraged for financial gain.  He pointed to the model of museums that sell reproductions and license materials.  In inventorying the assets of archives, Hirtle pointed to the digital assets that are the fruits of digitization projects.  He cited Lesley Ellen Harris for her notion that digital property is “‘the currency of the 21st century’” (236).  But the primary question is whether archives can benefit from the assets in their holdings without compromising their core values and mission.

Hirtle identified four ownership scenarios at archival repositories:

  1. no ownership (i.e., materials are on deposit)
  2. ownership + intellectual property rights
  3. ownership with intellectual property owned by a third party
  4. ownership of materials in the public domain

Obviously, the second of these scenarios affords archives the most options for generating revenue from their collections:

“Among the rights given to the copyright owner are the exclusive right to reproduce a work; to distribute copies of that work to others, either by sale or by lending; to prepare derivative works based on the original copyrighted works; and, in more limited cases, the right to display or perform a work” (238).

But many items in archival collections fall into the fourth category, which also has interesting ramifications for archives.  Hirtle pointed to an article by Kathleen Butler that asserted the owners of objects in the public domain still have “quasi-copyright control” by being able to determine how these objects are accessed, reproduced, and licensed (240).  But Hirtle questioned the propriety of this notion and provided four reasons why attempts to control access to public domain materials are doomed to failure:

  1. Legal Arguments
    • They are part of our “common cultural heritage, and as such cannot belong to any individual or organization” (242).
    • The argument can be made that the copyright of public domain works resides with the public, therefore, the public should be given access and be able to make reproductions of all such works.
    • The efforts by repositories to “use contract law to re-establish the exclusive rights of the copyright owner via state contract law once federal copyright protection has expired” is untested in the courts (242-43).
    • Photographic reproductions do not “warrant copyright protection” (243).
  2. Archival Principles.  Once again, there’s a nod to John Fleckner’s presidential address in discussing archival principles.  Hirtle contended that repositories cannot very well argue that their stewardship of objects deserves a longer monopoly over control than does the act of creation.
  3. Ethical Issues.  Hirtle asserted that archives are on questionable ethical ground in trying to monetize materials that have been donated to a repository.
  4. Practical Issues.  Hirtle suggested that is practically impossible to enforce any sort of monopoly on reproductions of objects in the public domain.

Hirtle offered two suggestions for how archives can derive economic benefit from their holdings:

  1. Charge liberally for copies of public domain material — as much as the market will bear while staying within the bounds of institutional missions and donor agreements.
  2. “Offer information and services that the user cannot find anywhere else” (246).  To support this argument, Hirtle invoked everything from Enron to porn websites to the New York Times Web portal.  While they seem like an odd conglomeration, Hirtle pointed to a business model study that determined in order for cultural heritage institutions to be successful delivering on-line digital content, they will need to think commercially and focus on user needs, which each of these examples has done.  In doing so, archives can develop their real assets — “not the holdings, but the skills, talents, knowledge, and abilities of its trained archival staff.  It is these archival assets that archival repositories must promote” (247).