Archival Materials and Copyright Ownership. (Copyright Corner)
Gasaway, Laura, Information Outlook
Identifying, tracking, and managing archival items is a huge issue for library and archival collections. Although copyright is just one part of archives management, it is a critical one. Maintaining an inventory of the artifacts is something libraries historically do well, but identifying the rights the institution has in each item,, managing these rights, and explaining them to users present considerable challenges. One of the problems is the difference between ownership of the physical item and ownership of the copyright.
While the copyright in a work such as a letter, diary, or other one-of-a-kind item is in the literary work, the tangible object in which the literary work is embodied might be a typed letter, a computer disk, or a handwritten journal. Librarians and archivists have not always understood this distinction, and the result has been problems for the institution and confusion on the part of those charged with managing archival works.
The status of many of the items in an archival collection is uncertain because of poor record keeping, especially in the past. Consider a common example in which the owner of a letter from a literary figure donates that letter to a library. The deed of gift relates only to the transfer of the physical object - the letter - and normally does not deal with transfer of the copyright. Today, librarians are more likely to recognize that the library may own the only existing copy of a letter but may not own the copyright in the work In this case, the donor is more likely to have been the recipient, not the author, of the letter, and the recipient does not hold the copyright an cannot transfer it to the library. Recipients of letters have often assumed that because a letter was sent to them, they owned the copyright. A donor who is neither the recipient nor the author of the letter is less likely to assume that she owns the copyright, unless she is the heir or other beneficiary of the author.
A typical situation for a library was illustrated by the Salinger case, (1) in which a donor, the recipient of letters from reclusive author J. D Salinger, gave a library letters writ ten by Salinger. The case dealt with Salinger's attempt to prevent publication of these letters and was the first in a series of cases holding that the fair use doctrine had only limited application to unpublishec works. (2) The library owned the physical copies of the letters, which the recipient had given to the library Salinger, however, owned the copy. right and was able to restrain publication of the letters by a scholar who was writing an unauthorized biography. The court focused on the author's right of first publication to hold that publishing these unpublished letters was not fair use.
Many libraries and archives behave as if they do hold the copyright to the archival materials they own. They often require scholars who seek access to an item to sign a contract that gives the scholar the right to publish the item (such as a photograph). If the archival collection does not hold the copyright, it has neither the right to publish the work nor the right to grant a researcher permission to publish. Sometimes these works are even in the public domain, yet the library requires scholars to seek its permission to publish them. Certainly, a library or archives may control access to a work in its collection. In fact, the institution may totally prevent access to the work for a number of reasons, such as the fragility of the artifact or restrictions placed on access by the donor. …