This week’s assignment for the course had us look more closely at the issue of copyright as it pertains to digital history. The issue of “property” as raised in the chapter of Lessig’s book Free Culture offers an interesting historical perspective of how the concept of property has evolved in the United States and how “cultural property” has now taken on similar meaning to “personal property” – two concepts that were initially dealt with by the framers of the US Constitution in very different ways.
Cohen and Rosenzweig apply Lessig’s teachings to the realm of digital history and point out several interesting and important test cases that have shaped the way that digital historians can use historical material under the concept of “fair use” and yet also alert the reader that this is a very “grey” area of law that is in constant flux.
Thus, the question remains – how is a historian supposed to operate within the new context of digital scholarship, yet still respect the lawful rights of copyright holders. This question needs to be an important element in the initial stages of planning a digital history project. If, for example, you are thinking of creating a database of primary sources, then you need to make sure that all of your sources are either in the public domain or within the realm of fair use. For anything that falls outside of these two categories you will need to seek out the copyright holders and negotiate the terms. Good planning in your grant writing will help cover for at least some rights purchases and should be included in any preliminary budget that you create. Of course, not all digital history projects are necessarily driven by primary sources. Your site might be an educational or interpretive site, meaning that most, or even all, of the content is original work. In this respect, you now hold the copyright to the teaching materials.
The less practical and more theoretical issue raised by this week’s readings is the idea that the extension of copyright rights to life plus seventy years has a negative impact on the creativity of society and the growth of scholarship in general. This raises an interesting (if daunting) perspective that we only can be creative and build on the work of others if they are freely accessible. I’m not sure I completely agree – as historians we are used to having to scour through archives and libraries to find the sources that we need. What it appears is that advocates of open access want less to gain access to new areas of knowlege, but rather to take advantage of the digital age to access this knowledge more quickly and in a digital format. We can all see the advantages of accessing information digitally, but does the lack of such access really restrict our creative abilities? This line of argument might have more weight when dealing with images, sounds, and film, where current copyright laws restrict even the concept of quoting such information in non-textual formats. Here, I would agree with the authors that the current copyright asserts too much control over the use of these formats.
Overall, the issue of copyright is a very complicated one. As Cohen and Rosenzweig rightly note, however, digital historians should be aware of these issues, but not focus on it too much that it stunts one’s own creativity to explore the possibilities of digital history.