Many projects in the digital humanities involve making copyrighted materials accessible online. Yet, with so much content being housed in archives all over the world, digitizing and building online collections has many challenges and can be time consuming. In one study, Jean Dryden, Professor of Continuing Studies at the University of Toronto, investigated the online holdings of 96 repositories, 66 survey responses and 18 interviews to understand the process of how archives select what to host online. The study also analyzed the degree to which the archives gain permission from copyright owners to add their materials online (Dryden, 2014, p. 67). During the interviews, many archivists articulated frustrations with current copyright laws, stating that copyright protection was too long and clearing content should be easier. According to the study findings, archives typically play it safe when making decisions about what materials to put online, such as only adding works in which there are no copyright complications present (i.e. items in the public domain). However, Dryden identified a trend of many archives taking a riskier approach to make items available online. Dryden (2014) states that eight of the archivists interviewed “follow a risk-assessment approach that looks at broad factors such as date span of the materials, how well-known rights holders are, commercial value of the materials, likelihood of a challenge, and so on rather than an item-by-item copyright review” (p. 81). Dryden argues that this trend must continue in archives, because discovering the copyright status of every item is impossible and eventually the number of public domain works will "run out" (p. 82).Thus, in an age where there is an expectation for items to be digitally available, archives need to use risk assessment tools, such as best practice documents to make their collections accessible online.
Additional studies have examined the extent to which archives attempt to obtain copyright permissions, and the success rate of those efforts. A 2010 study by Dharma Akmon, director of the National Archive of Data on Arts & Culture at the University of Michigan, examined the motivation of copyright owners to place their research papers online in the Jon Cohen AIDS Research Collection. According to her findings, the main challenge was that many copyright holders did not respond to archival request. Akmon states that over thirty percent of archival requests to obtain permission from copyright holders to place material online were met with a non-response (p. 62). However, the study also observed that when copyright holders do respond, they are often willing to give permission. Individual rights holders granting permission to make their materials accessible is supported by Dryden’s study, which found that 67% of right holders were “pleased that the document is being used” (Dryden, 2014, p. 79). However, commercial copyright holders, are less likely to grant permission (Akmon, 2010, p. 62). Akron states that, “repositories might only be able to display a small portion of collections with many corporate third-party rights holders. In addition, corporate and government copyright holders are the least likely to respond to permission request" (p. 62).
In another study, archivists at the Southern Historical Collection and the Carolina Digital Library at the University of North Carolina documented their investigation of the copyright status of the Thomas E. Watson manuscript collection. Although the archive gained permission from the Watson family to place the collection online, it also contained some third-party materials. Thus, under the “strict interpretation of copyright law,” the archivists needed to identify all copyright owners within the collection to establish the copyright status of each item (Dickson, 2010, p. 627). The team spent over 450 hours conducting a copyright investigation and spent approximately $8000 U.S. dollars to attempt to track down the copyright status of all objects in the Watson collection. After establishing the copyright status on as many items as possible, the archivists conducted a fair use analysis. Although the archive decided that there was some risk to place the Watson papers online, after consulting with legal counsel the archive decided that the level of risk was “an acceptable one”, especially considering the archive’s liberal take-down policy, in which “challenged items can be removed quickly" (Dickson, 2010, p. 636).
Preservation and access in archives and libraries
The struggle between the willingness of copyright holders to control ownership and the ability of creators to access and preserve owned works will continue to shape modern copyright laws.Technology' in the digital age has provided new tools for archives to preserve materials and place collections online but also a fear from copyright holders that their copyrights may be infringed upon. According to Peter Hirtle (2015),
The digital age presents new opportunities but also seemingly new threats. Digital reproduction and distribution can provide unparalleled access to our rich archival holdings. Yet at the same time, the visibility that digital access provides may increase the risk that a copyright owner could complain about archival practices (p. 2).
In the United States the 1976 Copyright Act added Section 108 that incorporates an exception for nonprofit libraries to make copies for certain purposes such as preservation and nonprofit research. Section 108 was expanded under the Copyright Term Extension Act in 1998 to include subsection (h) that allows libraries and archives “to reproduce, distribute, display, or perform” copies of works that are in the last 20 years of copyright protection for purposes of "preservation, scholarship, and research (17 U.S.C. §108 (h)(1)). In Europe, several directives allow for libraries and archives to make copies of copyrighted materials for education and preservation purposes. For example, the Information Society directive in 2001 allows member states who implement the directive to allow copying “made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage" (Ligue des Bibliothèques Européennes de Recherche (LIBER), 2016, p. 3). Another directive that affects libraries’ actions and policies in Europe is the Database directive, which provides protection to databases (LIBER, 2016, p. 3). Although some directives may have a positive effect on library and archives, European nations are not required to implement the directives and there are still changes that need to be made to European Union copyright laws to benefit libraries and archives.
Preservation is typically the first priority among archivists, and can be enacted without making the materials accessible to the public. Yet by further removing copyright restrictions on an international level, archives would be able to invest time and resources in their collections and display items as a means of promoting materials that are culturally significant. However, until there are significant changes to international copyright laws, archivists and other digital humanities practitioners must continue to make tough decisions concerning fair use, seeking permission, and licensing copyrighted content.