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

Copyright and the Online Historian: Is the Web Different?

Digital historians want to know whether it makes any difference that they are working online. Do they have more or fewer rights or liabilities? The simple answer is that the law is the law; there is not a different copyright law in cyberspace. Yet, in practice, the answer is not so simple. In large and small ways, the web has reconfigured the legal landscape for historians.

We can see this by returning to some of the intrinsic features of digital history we discussed in the Introduction. The vast capacity of digital media potentially increases the scale of the legal issues exponentially. A typical historian publishing a book might deal with a handful of picture permissions and perhaps one or two requests to quote from protected material. By contrast, the CD-ROM Who Built America? From the Great War of 1914 to the Dawn of the Atomic Age in 1946 that the Center for History and New Media developed in collaboration with the American Social History Project required investigating or negotiating the rights to more than nine hundred pictures, texts, sounds, and motion pictures.17 The cost of simply negotiating and tracking those rights—especially paying for the time of the person doing the work—may have exceeded the $36,000 we paid in actual permissions. But capacity affects rights issues in a second way; one of the tests for “fair use” involves the “extent” of protected work that is used. Given the ease with which “more” can be incorporated into a digital work, the digital historian risks crossing one of the fair use boundaries. If the Rev. Charles Upham had published a digital life of Washington, he likely would have used more than 3.8 percent of the documents in Sparks’s work.

Another advantage of digital media—the flexibility that allows you to combine sound, moving pictures, and images with text—poses a major new challenge to digital historians. The rights for images, sound, and moving images are often more complex and more expensive than for text. For example, “quoting” a photo is much harder than quoting a paragraph from Hemingway; you pretty much need the whole thing to make any sense of most images. Multimedia historians will probably spend a great deal more time fretting about legal issues than their text-based counterparts. The manipulability of digital data creates another, less common legal issue. You can edit digital images, sounds, and moving pictures much more easily than their analog counterparts. But what if their creators or owners don’t want them to be altered? Such concerns are further multiplied by the web’s most obvious advantage—its global accessibility. Photocopying Allen Ginsberg’s 1956 poem “Howl” and giving it to your students may violate the rights of the Allen Ginsberg Trust. But an attorney from the trust is unlikely to be sitting in your classroom. Post the poem on your course website and that attorney can find the violation in two seconds.18

If you mistakenly use “Howl” without permission in a print classroom anthology, the publisher is likely to have the happy responsibility of dealing with the lawyers (although you would have probably signed a contract in which you guaranteed that you did not infringe anyone’s rights). The openness of the web—the ability of authors to publish themselves easily—means that you hold an even greater share of the legal responsibility. But self-publishing brings some advantages. Authors sometimes mistakenly assume that publishers share their same interests. But publishers don’t want to get sued. And, as the owners of substantial intellectual property themselves, they generally identify with the holders of copyright rather than its users. When you publish yourself on the web, you have a publisher who identifies with you and understands your interests.

You also have a publisher who can respond quickly to any legal problems. Here it turns out that one of the key weaknesses of the web—its lack of durability or fixity—makes life easier for digital historians. Publishers avoid risk on copyright, in part because the remedies to copyright violations can be ruinous. Our colleague Lawrence Levine published a book with Oxford University Press, which neglected to get permission for the cover photo by Robert Frank. When the press belatedly contacted Frank’s agent, he adamantly refused to grant permission and Oxford had to destroy the books and reprint them with a new cover photo.19 If the photograph had simply graced your website’s home page, it could have been removed in five minutes and with minimal expense. To be sure, this does not relieve you of all legal liability. But it might make a copyright owner willing to drop the matter rather than spend a lot of money on a lawsuit. The ease with which you can remedy inadvertent or questionable copyright violations on the web is the most important reason why historians should not worry excessively about many of the issues we discuss here.

17 Who Built America? From the Great War of 1914 to the Dawn of the Atomic Age in 1946, a multimedia CD-ROM (New York: Worth Publishers, 2000), produced by ASHP in collaboration with CHNM.

18 Linda Starr, “Part 5: District Liability and Teaching Responsibility,” Education World, ↪link 7.18. Whether this copying actually violates fair use would, however, depend on various factors, including whether it was done once and at the last minute rather than repeatedly and with enough advance planning so that permission could have been obtained.

19 Lawrence Levine, email to Roy Rosenzweig, 3 January 2004. For another recent case, where a publisher had to withdraw a published book from circulation because of alleged copyright infringement, see Richard Byrne, “Silent Treatment: A Copyright Battle Kills an Anthology of Essays About the Composer Rebecca Clarke,” Chronicle of Higher Education (16 July 2004), ↪link 7.19.