Week 4: Copyrights, what are they good for?
6February 3, 2015 by jjackson39
In examining both Cohen and Rosenzweig’s chapter on ‘Owning the Past’ as well as the online postings by Cornell, OCLC and TRLN regarding the myriad of copyright issues academia faces in the digital realm, we see that a close examination of the rules governing copyright can often obscure the legalities further, as opposed to illuminating them. Regardless it’s our duty as historians to show due diligence when presenting sources in a digital format so that we present the best and clearest information possible to interested parties, while respecting rights holders and protecting organizations we work for from potential liabilities.
Though it may seem counter-intuitive for Cohen to state that historians should not be overly concerned in regards to utilizing works still potentially in copyright the careful analysis of Supreme Court rulings, particularly those of the past 50 years seems to assuage some concerns academics may have about potential penalties. The clearest argument that is made in Chapter 7 is the fact that these arguments as far as the courts are concerned are not even close to being settled and not only that but various judges have different interpretations as do the lawyers who argue the cases. This does not obviously give us in academia carte blanche to proceed as we see fit, it does however remind us that much like the histories we study the answers are never as cut and dry as we may wish that they were.
Both the TRLN piece on their interpretation of copyright policy and the Cohen reading make a similar plea, though to different groups involved in this battle. Cohen notes that while we as historians may at times have valid arguments to make regarding infringement of our own work, we nonetheless should be cautious about pursuing such action as it doesn’t promote learning or scholarship. TRLN similarly states that while some copyright holders may still exist for portions of collections that they jointly hold, the efforts of the archives consortium are purely academic, thus attempting to prevent lawsuits from potential rights holders.
It would be remiss to not mention another issue that faces anyone who has written or is planning to write and publish in hard copy, works that deal with the ever-changing digital realm. Digital History is now a nine-year old book that, while still very informative lacks the inclusion of countless challenges, shifts in policy, and court rulings on what are acceptable forms of ‘fair use’ along with modifications to laws such as the DMCA. In the case of these shorter online guides, they can be updated and modified quite easily as warranted, while even if a new edition of Cohen and Rosenzweig’s book comes out next year, future changes will again render parts of the book less than useful. This just further highlights the almost sisyphean task that we as historians face in respecting existing laws while best trying to present information to the public at-large who simply need the right information to help them make educated decisions regarding preservation policy.
Category Reading Response | Tags: John-Joseph Jackson, TRLN, Week 4
Your comments suggest that copyright in the realm of historical production creates a catch 22. I would also agree with you. For historians the dissemination of historical knowledge and thought is the pinnacle of their efforts. However, protecting the results of long hours of research and writing is also of primary concern. I think you are right in saying that there are no real cut and dry answers as you demonstrate how copyright law is often interpreted differently. I also agree that this does not give a free pass to use others work as we see fit. Where the line should be drawn between advancing historical scholarship and protecting the rights of others work seems to come down to the issue of use. Perhaps the answer may be that if the use of scholarship produced by others is meant for educational purposes only than historians may be more willing to relinquish their rights for the dissemination of knowledge. However, if historians work is being used for monetary gain than let copyright laws work for the purposes in which they were intended.
More than legal problems can follow a historian who violates copyright, plagiarizes or otherwise fails to work ethically. Rosenzweig mentions the case of Michael A. Bellesiles as an argument that digitized sources can provide a vehicle to more rigorously vet scholarship, but this New York Times article (http://www.nytimes.com/2010/08/04/books/04bellisles.html?_r=0) also provides a cautionary tale about the hit a historian’s reputation can take when tempted to “write outside the lines.”
I totally agree that historians face a mountainous challenge in respecting the existing copyright laws while trying to present their work to the public that, for the most part, might not have access to it. With that said, I also think the challenge is not insurmountable. Access to information for educational purposes, in my opinion, should be free. I agree with Nick in that a historian’s work should not be a free for all but, under the stipulation that its use is education related, possibly regulated and disseminated more freely than it is today. You are right to question the relevancy of the book as it is nine years old. Many changes to the digital spectrum have occurred since its publishing and the passing of Roy Rosenzwieg. I wonder what his perspective would be like today? It would be useful to print or upload a new edition of the book but, as you say, the ever changing digital world in which we live might render it obsolete in a couple years.
John- Joseph I think you hit the nail on the head when you state that in practice there are no good cut and dried rules for the presentation of digital sources. This creates many issues for historians when creating digital scholarship in regards to respecting copyright holders. I agree with Nick and Austin that digital objects used for educational purposes should be free. The question I have is how do we make rights holders, who have a monetary stake, see that this does not damage their ability to make money from the source, but in fact can enhance it?
In thinking about this issue, I am also struck by the lack of clear guidelines and how that is due to the nature of the court system in and of itself. Copyright law is always a work in progress, because it is the individual court cases and how they are adjudicated that define copyright law. And which cases get brought before the courts and actually tried is always predicated on who has the desire no men’s to bring or defend suit. For observers, it’s a waiting game to see what aspects of copyright are challenged and how they are clarified and codified into upheld law. Will we all need to consult with a copyright lawyer in the future to help untangle the web of laws or learn the latest rulings and how they might apply to us just to create a personal webpage on a historic topic? We can’t be fearful of publishing historic scholarships and content, but this is a very murky body of water to my mind.
John-Joseph, thank you for noting the difference between print sources and online copyright guides when it comes to update-ability and current accuracy. Ironically, this also highlights a problem a future historian may face if we reach a time when all guides are online and kept up-to-date: it will be more challenging to trace the evolution in applications of copyright to digital history. At the same time, the legal system which timestamps every case is unlikely to change its archival policy anytime soon, so it will still be possible to trace the evolution of legal precedent. It might just be more difficult to trace the application of that precedent.