December 27, 2010
At a retreat just before Christmas at which a group of us reviewed the fall semester, we heard a report that quite a number of our students had received notices from music and movie companies alleging that that these students were violating copyright law by illegally copying songs and films or by aiding others to make illegal copies. Such notices from “content companies” have become a commonplace at every college and university in the United States. Big media companies have one view of copyright law, and it may be legally authoritative, but young people have quite a different view of copyright.
Now Earlham and a group of other colleges are caught up in a related but different copyright issue that chimes in odd and intriguing ways with this longstanding bread-and-butter copyright issue involving content companies and our students.
In this particular case, the copyright holders are the colleges themselves. The materials in question are materials the colleges hold in their archives, materials donated by individuals and groups eager to see that their historical materials are well cared for over the long term, and eager to have those materials (or at least most of them) made easily accessible to those who want to use them.
The colleges are trying to enter into a contract with a company that will digitize these materials and make them available via the internet to paying customers of the company. The colleges will still be able to do anything with the physical records themselves they could do before the agreement — largely make them available for free to those who come to the archive in person. The colleges will also each get digital copies of their own records to do with as they please with one exception. For a space for some years, the colleges will not be able to enter into a commercial agreement with another company to make these records available via the internet.
So — if you’re following this — the colleges in this case have become the “content companies” who are trying to provide access while protecting rights to their material, not the users who are trying to gain access, free or paid. One of the colleges has hired an attorney to review and approve the draft contract on its behalf, and through this attorney has raised a series of objections that have led to continuing revisions of the contract: enough rounds of this to jeopardize the agreement among the colleges and the company that will digitize and provide paid internet access.
The college and its attorney argue that they need to make absolutely sure that the rights of the copyright holder are as well protected as possible, so well protected that there is no possibility at all of the digitizing company abusing the rights of the colleges that hold the materials in their archives.
What could be wrong with that? Up to a point, I suppose, nothing, but this case shows how much the academy is being mutilated by the prevailing view of copyright. In that prevailing view, the struggle is between the rights holders (e.g. Disney, Paramount) and potential users who will try to evade paying for use of the content. The one college and its pricey intellectual property attorney are viewing our case through this lens.
But it is the wrong lens for viewing most issues in the world of colleges and universities. What colleges and universities should want, most of the time, is to expand access to the materials they hold: archival materials, research studies and the like. The colleges and universities might like a little income to offset the cost of proving that access, but there is very little possibility (or risk) that anyone will or could make a great deal of money off the access provided. The central issue is access, not income; it is expanding use, not protecting rights. The objections being raised by the college and its lawyer, wholly focused on protecting rights, may wind up impeding access by frustrating an agreement among the colleges and the digitizing company. (Essentially, all the colleges have to agree to participate to hold the interest of company that will digitize and provide access.)
In the old-fashioned print world, copyright law as it had evolved over centuries, provided some special provisions for scholars and educators. Many (though not all) of these special provisions came to be grouped under the heading of “fair use.” “Fair use” ideas have been put into eclipse as print materials purveyed as physical copies have been replaced by digital materials purveyed through the endless, instant copying made possible by the internet. The “protecting rights to protect income” understanding is everywhere triumphant and the “how can we provide affordable access” understanding has been stuffed into a trunk.
I suspect the one college and its attorney do not even realize that they could look at this case through another lens, so much in thrall are they to the dominant copyright “rights protecting” paradigm. They have forgotten that access is as much (or even more) their responsibility as protecting rights. They have even forgotten that they do not “own” the physical materials in question, but rather hold them in trust as a gift from the individuals and organizations that donated the materials to the archives. Those who gave the materials are unquestionably interested in providing wider access.
Let’s hope the deal survives and wider access is provided to these materials — materials that have modest monetary value, but hold considerable interest for some. And let’s hope that the academy can find its way to an understanding of copyright that is separate and distinct from the narrow “protecting rights” regime of the major media companies and the attorneys who serve them.