Digital Rights in the United States Haven Hawley, PhD Program Director Immigration History Research Center June 19, 2008

Thought Questions What is the role of cultural institutions in shaping the meaning of archives in a digital age? Can we compare the experience of immigrants defining their identity as diaspora communities to the migration of heritage materials into digital forms?

A Few Myths About Digital Technology The world wide web will replace print and make all information available The world has never seen anything that compares to the internet Any data that can be encoded are neutral Information on the Web is free, inherently democratic, and in the public domain X X X X

Historical Precedents for the Internet From Gutenberg to 19 th -century America: Development of printing and copyright Railroad systems: Efficiency, collapsing distance/time Electrical communication: Telegraph, telephone and radio

Technology is Neither Good Nor Bad; Nor Is It Neutral (Melvin Kranzbergs 1 st Law of Technology) New Technology Cost & Resources Fit With Existing Systems Interest Groups Law & Government Public Attitudes Technical Expertise Technology Is Socially Constructed

Context is Crucial for Data Use Data Information to be transferred Origination Creation or recording of information Collection Ways that cultural practices & values shape acquisition Access Conditions that affect user practices Use Interpretation of information by researchers

Context is Data Institutional Mission & Ability to Service Holdings Donor Agreements & Rarity of Materials Meaning of Information in New Forms & to New Audiences Professional Culture/Filters of Those Collecting Information

Challenge: Responsibly Sharing Data While Ensuring the Public Good

What is copyright? A balance between stimulating individual intellectual activity and the public good of access to information

What Can Be Copyrighted? Forms of expression, not ideas Literary, musical (and their words), dramatic (and their music), pantomimes, choreographic, pictorial, graphic, sculptural, motion pictures (and other audiovisual works), sound recordings, and architectural works. Fixity required; registration not required

Federalism Complicates US Law United States: Title 17 of the US Code State: Open records laws State: Common law (judge made law) United States law governs copyright Federal law is slowly being reconciled with copyright in other nations

Selected U.S. Copyright Laws Copyright Act of 1790 (14-year term and renewal) Copyright Act of 1909 (doubled term and renewal) Copyright Act of 1976 (term of 75 years or author life plus 50 years; ended renewal option and registration) Sonny Bono Copyright Term Extension Act of 1998 (term of 95 or 120 years or author life plus 70 years) Digital Millenium Copyright Act of 1998 (criminalized certain technology anti-circumvention actions) International Berne Convention Implementation Act of 1988 (conformed US copyright registration to other countries) Uruguay Round Agreements Act of 1994 (restoration of copyright for limited foreign works)

Exclusive Rights To reproduce, perform, display a work To produce additional works derived from the original To distribute copies of a work Exceptions But copyright is not unlimited control Exceptions include fair use, library and archives activity, government publications, and certain smaller areas Practice risk assessment: determination of exceptions often is not conclusive

Is It In The Public Domain? See Charts By Peter Hirtle & Bromberg & Sunstein LLP Government Or Other Exception? Is It Fair Use? See Four Factors Libraries and Archives?

Concise Definitions of Terms (See Title 17 U.S. Code for full definitions) Fixed – Made into a material, receivable form Created – When work was fixed (variant forms are separate works) Copies – All reproductions (even first fixed form is a copy) Publication – Author authorized distribution to public by sale, transfer of ownership, rental, loan or lease, or offer of distribution supporting public types of exposure. (A display or performance may not be considered publication.)

Is It in the Public Domain? Bromberg & Sunstein LLP, Flowchart for Determining When U.S. Copyrights in Fixed Works Expire, © 2002, portfolio-development/flowchart.htm portfolio-development/flowchart.htm Peter B. Hirtle, Copyright Term and the Public Domain in the United States, updated , Academic Commons, copyrightterm.pdf copyrightterm.pdf

Government or Other Exceptions U.S. Government publications United Nations publications In-house use of projects less problematic X Absence of © notice not always conclusive X Uruguay Agreement restored certain works X Cartoons may be covered by trademarks, too

Libraries & Archives Published Unpublished

Four Factors of Fair Use Purpose and character of the use: New work, transformative (not derivative) Nature of the copyrighted work Factual/reference (not creative/interpretive) How much and how substantial is selection Relatively little (not entirety or a core portion) Effect of use on potential market or value No harm (not in competition)

Digital Rights Management Digital Rights Management may limit or preclude legal uses – or even knowledge - -- of material by embedding restrictions within data or requiring purchase Private property versus public good State law (contract) versus federal law (copyright) Criminalization (Digital Millenium Act) versus civil law (copyright)

IHRC Digital Projects Digital Access: Finding Aids in VITRAGE (Virtual Information and Tools for Research of Archives on the Immigrant Experience), /vitrage/index.html /vitrage/index.html Image Collection: Images in COLLAGE (Collections Online: Visual Materials of American Immigration and Ethnic History), /collage.html /collage.html Research Assemblage: Spotlight on Selected Sources, /projects/index.htm /projects/index.htm Research Database: Ukrainian-American Demography and Mortality Project (in progress, above)

New Lives: Coming to America The Breman Jewish Heritage Museum Atlanta, GA, US

Key Sources Stephan Bechtold, Digital Rights Management in the United States and Europe, American Journal of Comparative Law, 52: 2004, pp Bromberg & Sunstein LLP, Flowchart for Determining When U.S. Copyrights in Fixed Works Expire, © 2002, (Last accessed ) Peter B. Hirtle, Copyright Term and the Public Domain in the United States, updated , (Last accessed ; Academic Commons.) Mary Minow, Library Digitization Projects and Copyright, , (Last accessed ; Academic Commons.) U.S. Copyright Office, Circular 92: Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code, U.S. Copyright Office, Circular 22: How to Investigate the Copyright Status of a Work, (Last accessed ) Also of interest: Dennis S. Kariala, Chart Showing Changes Made and the Degree of Harmonization Achieved and Disharmonization Exacerbated by the Sonny Bono Copyright Term Extension Act (CTEA), , HarmonizationChartDSK.html. (Last accessed ) HarmonizationChartDSK.html

Immigration History Research Center