Owning the Past? The Digital Historian’s Guide to Copyright and Intellectual Property


In this chapter you will learn about:

  • How copyright law is an ever-evolving set of principles, balancing the rights of producers and consumers, that must be actively engaged by historians
  • The history of copyright law, and where it has left us today
  • How the application of copyright can differ on the web from the print world
  • Your legal rights—and ethical obligations—as both a producer and consumer of intellectual property
  • Which written materials, images, audio, and video you can use on your website, and when

nce there was a real estate guide called “How to Buy and Sell a House.” The author divided the book in two. From one end, he told you about purchasing a house. But if you flipped it over and began from the other side, the writer gave advice to sellers. The buying half warned you against the tricky devices that rapacious sellers might try. Simultaneously, he cautioned those reading the selling chapters about the underhanded behavior of shady buyers.

We could write a guide to copyright that similarly viewed the world as a Hobbesian marketplace of each person out for himself or herself. Those who create historical materials on the web are, indeed, likely to find themselves on both sides of the legal and ethical fence—creating intellectual property that they want to “protect” and “using” the intellectual property of others. Of course, some readers of this book will find themselves more often in one role than the other—museum curators, for example, probably worry more about protecting intellectual property than teachers mounting course websites.1 But few people do digital history without both making a creative contribution of their own and benefiting from the creativity of others.

We prefer to view the web as a “commons,” or a shared storehouse of human creations, rather than a “marketplace,” and we align ourselves with the broad movement of lawyers and scholars, like Stanford University law professor Lawrence Lessig, who have promoted the notion of a “Creative Commons.”2 In this, we advocate a balance between the rights and needs of the “owners” and “users” of intellectual property, but a balance that favors the enlargement of the “public domain”—taken here to mean not just the formal realm of works with no legal copyright protection, but also more broadly the arena defined by fair use and the sharing and dissemination of ideas and creativity. To see intellectual work entirely as “property” undercuts the norms of sharing and collaboration that are integral to a field like history.

Such noble sentiments inevitably collide with the realities of the world. You may follow an ethic of community and sharing, but that doesn’t help you if you come upon others guided by the impulses of Hobbes’s state of nature. To prepare for that collision, you need to understand the regime of laws and courts, where such disputes sometimes get resolved. For historians, this encounter with the law often proves unsettling. They confront confusing rules and regulations that they seemingly must follow at the risk of lawsuits and fines. Historians, who know that pronouncements by fellow scholars are mere interpretations, sometimes mistakenly (and unwisely) treat copyright assertions by lawyers and other gatekeepers (e.g., the copyright officers of their universities or their journal and book publishers) as unvarnished truth. But copyright law, like history, is subject to conflicting interpretations as well as sharp contention between advocates of the rights of the owners of intellectual property and those seeking to enlarge the public domain.

To take a seemingly neutral position of deferential compliance with all copyright “rules” accepts one side in that argument and diminishes the intellectual commons. We believe that a more aggressive assertion of the rights and claims of that commons, when followed sensibly, does not entail excessive risk. In taking this stance, we depart from the conventional wisdom of dozens of copyright guides, whose favorite phrases are “do not,” “ask permission,” and “err on the side of caution.”3 Of course, we hasten to add (cautiously) that we are not lawyers, and we are not offering legal advice. Historians who go online will need to assess their own tolerance for risk and how they want to balance these competing claims. We encourage all historians, however, to explore how their actions, both online and off, might increase the common storehouse of documents and knowledge out of which much of our individual and collective work arises.

1 Some of the tensions between museums, which are worried about protecting revenue from reproduction and rights fees, and other cultural workers are evident in David Green, The NINCH Copyright and Fair Use Town Meetings 2000 Report (Washington, D.C.: NINCH, 2001), 11–12. We are greatly indebted to Rebecca Tushnet and Peter Jaszi for their patient and invaluable help on the complex legal issues raised by this chapter, although neither is responsible for our interpretations.

2 For Lessig, see Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (New York: Penguin Press, 2004). Lessig’s important book appeared after our book was written, but it provides a lucid discussion of many of the issues covered in this chapter.

3 See, for example, Brad Templeton, Ten Big Myths About Copyright Explained, ↪link 7.3a; Linda Starr, “Part 2: Is Fair Use a License to Steal?” Education World, ↪link 7.3b.