Digital History: A Guide to Gathering, Preserving, and Presenting the Past on the Web

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

Protecting Your Intellectual Property

or an entirely different set of reasons, we don’t think historians should spend much time agonizing about how to protect their own intellectual property rights. Recent laws and court decisions have significantly increased the protection for creators of intellectual property. You do not have to do anything to make yourself eligible for the protection of the copyright law. Contrary to popular belief, you no longer (since 1989) need to place a copyright notice on your work.²⁰

If so, why does anyone bother? Well, for one thing, placing a copyright notification on your website isn’t much bother. You simply write “ © Charles Beard 2003” on the bottom of your home page. (If you can’t get your software to create the symbol, you could write “Copyright” or “Copr.” but not “(c)”.) And for this minimal effort, you remind readers that you care about the rights to your intellectual property.²¹ We recommend including a copyright notice but not one of those overly broad warnings that proclaims, “no part of this work may be used or reproduced in any manner whatsoever without express permission.” Such notices go well beyond the copyright law, offer no additional protection, and implicitly challenge the doctrine of “fair use” that digital historians should cherish. Good copyright citizens—cooperative residents of the digital commons—don’t try to grab rights they don’t have. (Some, as we will discuss, even avoid claiming all of the rights to which they are entitled.) Bill Gates’s online digital image repository, Corbis, includes copyright notices on thousands of public domain images. “These claims,” says attorney Stephen Fishman, “are probably spurious where the digital copy is an exact or ‘slavish’ copy of the original photo.” Some websites even slap copyright notices on famous public domain texts. At the bottom of a copy of Abraham Lincoln’s Gettysburg Address, the Atlantic Monthly website adds the following: “Copyright © 1999 by The Atlantic Monthly Company. All rights reserved.”²²

Even the most carefully placed or most threateningly worded copyright notice does not protect you if the work does not meet the requirement enunciated in the Feist case that copyrightable works reflect a minimal degree of creativity and originality. You can spend thousands of hours scanning and digitizing public domain documents—say, the entire New York Times from 1865 or all of Charles Dickens’s novels—but, according to most lawyers, you can’t copyright the results. Even if you modernize the typeface, correct the spelling errors, and reformat the spacing in a nineteenth-century novel, you have not met the law’s standard of minimal creativity. The same—Corbis’s copyright notices to the contrary—applies to scanned images of public domain photos. And it equally applies to the massive online historical databases—including the fifty million records in the Church of Latter-day Saints online compilation of the 1880 U.S. Census. Some of the most time-consuming work that digital historians are currently undertaking is not covered under copyright law. But we hope that other good citizens of the digital commons will respect and credit your labor even while they take advantage of the court’s decision allowing them to make active and free use of it.²³

If your work is, in fact, eligible for copyright, registering it (as well as placing a notice) makes it easier for people to find you (not usually an issue for online works) and gives you additional protection. You can’t, in fact, sue anyone in federal court for violating your copyright unless you first register. You can, however, simply wait and register only if it becomes necessary. But if you wait, you can’t recover as much in a suit. Only if you register your work within ninety days of publication are you entitled to “statutory damages” and attorney fees rather than just actual damages. Statutory damages send a sharp message against infringement and can greatly exceed the financial harm suffered. Ocean Atlantic Textile Screen Printing found that out when it produced 2,500 t-shirts adorned with a copyrighted photograph by Ruth Orkin. They made only $1,900 from the shirts, but Orkin’s daughter won $20,000 in statutory damages and $3,000 in attorney fees. Even more dramatic is the case of UMG Recordings v. MP3.com, in which the major recording companies won $25,000 per CD uploaded on the MP3.com system in statutory damages. Potential damages could run as high as $250 million.²⁴

Of course, few historians have much prospect of collecting millions in statutory damages for violations of the copyright of their website. You should weigh the potential gains of a lawsuit against the time and expense in registering your website with the copyright office. Indeed, you may be surprised to learn that it is even possible to register a website. The cost is modest ($30), but the actual copyright deposit is complicated because the office acknowledges that, as yet, “the deposit regulations of the Copyright Office do not specifically address works transmitted online.” In the meantime, they will accept computer disks or printouts—neither of which is easy to produce for a major website.²⁵ We recommend that until the Copyright Office simplifies the registration procedure (and perhaps not even then), you shouldn’t waste your time registering your site.

In any case, most historians worry more about someone stealing their work for credit rather than for money. Historians considering putting their work online commonly express the anxiety that “someone will steal it.” They fret more about the sin of plagiarism than the crime of copyright infringement. And plagiarism and copyright infringement are very different matters; Stephen Ambrose, who copied only short passages of text, could probably plead “fair use,” even if we would not think of his use as “fair” in the moral sense we associate with eschewing plagiarism. To be sure, someone is more likely to steal your work if it is on the web than if it is in your desk drawer. But placing your work on the web actually gives you a better way of establishing that you are the original author than would be true of a paper that was delivered only orally at a conference. Moreover, historians are often most concerned about someone stealing their ideas, and the copyright law does nothing to protect ideas, only their formal and fixed expression. The most important goal for historians should be the circulation of ideas and expressions, and the web offers a wonderful new tool for such dissemination. We should focus more on getting others to pay attention to what we have to say rather than on ensuring that the proper individual gets the proper credit.

If you remain paranoid about wide and anonymous access to your work on the open web, you can restrict access through passwords or by Internet Protocol (IP) addresses (the unique numbers by which Internet connected machines are identified, the security approach used by many commercial and some nonprofit websites). A related form of noncopyright restriction is a license, which asks users to agree (in effect, contractually) to some conditions on their use of a website. These licenses have proliferated in recent years—in part as a response to the lack of copyright protection for electronic databases and more generally because, as librarian Mary Case points out, publishers believe they will be more successful in suing for breach of contract than copyright infringement. Such licenses can even try to restrict your use of public domain material. For example, HarpWeek presents public domain material from Harper’s Weekly, but the license imposed on subscribers still limits access to and use of the site’s content. Some attorneys question, however, whether licenses restricting access to public domain materials are legally enforceable.²⁶ Some historians—including the authors of this book—question whether such restrictions are in keeping with the original, open spirit of the web.

Our discussion here about your rights and responsibilities conceals a crucial ambiguity for many readers of this book. After all, digital history tends to be much more collaborative than traditional historical scholarship. You need to figure out upfront how to recognize adequately everyone’s contributions—including those of students and volunteers—or risk facing later wrangles that can be much more unpleasant than disputes over copyright. In addition, many historians work for an institution rather than themselves. Museum curators, librarians, and archivists who create websites know that under the “work for hire” doctrine, their employers own the copyright to their creations.

But what about college instructors? For much of the twentieth century, academics have operated under the “teacher exception,” which says that instructors and not their employers own the intellectual fruits of their labor. But many lawyers see the 1976 Copyright Law as marking the demise of the teacher exception. At the moment, however, most university policies accept the spirit, if not the letter, of the teacher exception, at least for traditional academic writing. But those who are concerned about this issue need to follow historian-turned-lawyer Elizabeth Townsend’s advice to “Read All employer IP intellectual property policies carefully.” This is doubly true for those producing course materials and websites, which Townsend describes as “an area in flux.” Universities are more likely to claim ownership of websites, especially course websites, created with significant university resources such as the help of research assistants and instructional resources offices.²⁷

Others, however, argue that scholars shouldn’t bother worrying about property rights in their work. Corynne McSherry, another academic-turned-lawyer, wonders whether academic work should be owned at all and argues that scholars should instead maintain their realm as a world of gift exchange, in which ideas circulate freely, rather than a world of commodities that are bought and sold. She argues that the very effort to maintain the teacher exception may be self-subverting. When teachers aggressively insist on intellectual property rights to course materials, they foster the idea that courses are just another commodity and instructors are just another kind of worker, which undercuts the basis of the “teacher exception” in the “idea that professors are special—that they’re not like other kinds of knowledge workers.”²⁸

For those like McSherry, who view academic work as a matter of sharing, copyright law is more of a hindrance to the free circulation of historical ideas, interpretations, and sources. Those in this camp also see the insistence on property rights as conflicting with the ethos of sharing and cooperation that has been an attractive feature of the web and is embodied in the open source and free software movements, which generally oppose the private ownership of software. Much of this software (like the operating system Linux and the software Apache, MySQL, and PHP, which run much of the Internet) has been released under the “General Public License” (GPL) or a license compatible with the GPL, which was developed by free software activist Richard Stallman to ensure that software licensed under it—and any derivatives—remain permanently in the public domain.²⁹

Some have tried to take the ideas behind the GPL and open source and apply them to other forms of expression—for example, to the words of historians rather than the code of programmers. One effort, called Creative Commons, is “trying to transfer some of the lessons from … open source and free software to the content world,” in the words of executive director Glenn Otis Brown. “Copyright is about balance,” he observes. “We hope Creative Commons . . . helps put copyright balance back in vogue.”³⁰

So far, Creative Commons has primarily encouraged copyright balance by offering free legal advice to those who want to promote an ethic of sharing and mutuality. With the help of some high-priced legal talent, they have developed a series of licenses packaged under the rubric “Some Rights Reserved.” For example, their “noncommercial license” permits free use and distribution of work only for noncommercial purposes. Other historians, who put a priority on getting their perspectives widely disseminated, might select the “attribution” license, which allows any site to display their work if it gives them credit. If you are even more firmly committed to the free circulation of historical work, you might simply deposit your work into the public domain with no strings attached. Short of this more drastic step, you might find the “Founders’ Copyright” option appealing—especially because it has the particularly historical twist of mimicking the arrangements established in the 1790 copyright law and guaranteeing the entry of your work into the public domain after fourteen years (or twenty-eight years if you choose to renew the copyright once).³¹ Copyright radicalism in the early twenty-first century has come to mean embracing an eighteenth-century law.