When asked to write a book review, it is often the case that one has not read the book. The reviewer must find time not just to write the review, but to read the book carefully. Thus, it was a pleasure to be asked to review Rights in the Digital Era as I already own a well-thumbed copy and am familiar with its contents in my role as an instructor of the privacy and copyright courses in the Society of American Archivists' Digital Archives Specialist (DAS) certificate curriculum.
Rights in the Digital Era is the second volume in the SAA's Trends in Archives Practice series, which aims to provide practitioners with brief, authoritative, user-centered resources about topics relating to the practical management of archival holdings in the digital age. This volume consists of four modules that address the challenging issues of copyright and privacy from an archival perspective in both analog and digital environments. The volume is available in print and electronic format. As well, one can purchase EPUBs of individual modules.
The four modules are “Understanding Copyright Law” by Heather Briston, “Balancing Access and Privacy in Manuscript Collections” and “Balancing Access and Privacy in the Records of Organizations” by Menzi L. Behrnd-Klodt, and “Managing Rights and Permissions” by Aprille C. McKay. All three authors are experienced archivists who also have law degrees. Peter Hirtle's introduction, “Learning to Live with Risk—and Loving It,” notes that these areas of law are not always clear, and dealing with them may be a matter of managing risk, an idea Briston and Behrnd-Klodt echo in their respective modules.
Heather Briston's copyright law module provides an overview of the basics of U.S. copyright law (i.e., protected subject matter, duration, ownership, and copyright owners' rights) before suggesting strategies to address specific aspects of managing copyright in an archival repository: risk management, library and archives exceptions, fair use, and orphan works. Copyright is notoriously difficult to explain concisely; however, Briston has done a masterful job of providing a succinct overview of copyright without getting sidetracked by its complexities.
In “Balancing Access and Privacy in Manuscript Collections,” Menzi Behrnd-Klodt explains the legal and constitutional origins of the concept of privacy as a personal right and explores the meaning of access in the context of archival professional values and codes of practice. Balancing these competing interests is nothing new for archivists, but the digital environment skews the traditional balance, particularly with regard to manuscript collections. Behrnd-Klodt offers a range of practical approaches that she evaluates as to feasibility, depending on the nature of the records in question, and allays common fears by establishing that the risk of a successful lawsuit against an archives for a breach of privacy is extremely low. “Balancing Access and Privacy in the Records of Organizations” discusses the statutes that apply to records produced by certain types of organizations—for example, public records created by the federal and state governments, student records, and medical records. Behrnd-Klodt then describes the privacy requirements that apply to records of law firms and what to do if the archives receives a subpoena or other order to disclose documents.
Aprille McKay addresses a range of issues associated with managing rights and permissions arising out of copyright, although she mentions publicity and privacy rights briefly. Unlike the other modules, which are anchored in law, “Managing Rights and Permissions” is largely grounded in archival practice and the ways in which archivists respond to laws. Its scope is wide ranging, covering such topics as acquiring copyright through transfer or licensing; documenting rights ownership; obtaining permissions from rights holders; takedown policies; establishing and communicating policies and procedures to users; documenting rights information in archival description; and embedding rights metadata in digital files. McKay covers a lot of ground in a concise fashion; however, readers may want more detail about certain issues mentioned (e.g., metadata schemas), and the module would have benefited from an expanded reading list, especially for those seeking further information about those topics addressed only briefly.
Unfortunately, some of McKay's examples of repository terms-of-use statements illustrate policies that require researchers to obtain the permission of the repository, even if the repository is not the copyright owner. While legitimate reasons unrelated to copyright exist for archives to want to control publishing (e.g., revenue generation, standardized credit line, the ability to track use, etc.), it is misleading to link these purposes to copyright and “permission” that the repository has no authority to grant. It would have been helpful to include examples of an alternate approach in which a repository neither grants nor denies permission to use materials in which it does not own the copyright but places all responsibility for copyright compliance on the user. (See, for example, the policies at Columbia University, Cornell University, and the Beinecke Rare Book and Manuscript Library at Yale University.1)
Each module has a table of contents and a number of appendixes that provide supplementary information, including further readings (augmented by footnotes to the module text that often contain valuable nuggets of information), case studies, a glossary, and sample forms and policy statements. Although the tables of contents are quite detailed, I have sometimes wished that the volume had an index to quickly locate a detail encountered in an earlier reading.
While a small point, numbering the modules starting at “4” is distracting (modules 1–3 are in the first volume of the Trends in Archives Practice series, Archival Arrangement and Description). If you know the structure of the entire series, the numbering of modules in the second volume from 4 to 7 makes sense, but it is not obvious when dealing with the second volume on its own. One might also question the order of these modules (“Managing Rights and Permissions” deals largely with copyright; thus the copyright module more logically belongs with it after the two privacy modules).
Although somewhat beyond the scope of a review of this particular volume, it is important that the modules remain current. Is there a plan to ensure that they will be updated to reflect significant amendments to the relevant statutes or new trends in practice such as recent policy changes at certain major repositories (e.g., the Harry Ransom Center and the Getty Research Institute) to provide free access to public domain works?2
Together these four modules form a logical grouping. The links between copyright and privacy are noted, and, where appropriate, the modules refer readers to relevant information in other modules in the volume. An overarching theme—the need to balance competing interests—strengthens the clustering of these modules. Hirtle's emphasis on risk in the introduction may be unsettling to those who expect unequivocal solutions for dealing with areas that have been, and continue to be, significantly affected by still evolving digital technologies. However, managing risk is simply another way of looking at what archivists do all the time: exercise their professional judgment to balance preservation and use or access and privacy protection. Viewed from that perspective, Rights in the Digital Era reinforces one of archivists' greatest professional strengths and provides a valuable resource that should enable archivists to deal with these areas confidently if they follow the approach that underlies all four modules: understand the law, write clear policies and procedures, and create any necessary documentation (e.g., an assessment of the risk involved, or efforts made to locate a rights holder) to support the repository's chosen course of action. However, understanding the law is not enough. As Hirtle and Behrnd-Klodt both point out, the solutions must also be grounded in our professional values and codes of practice.
I can see this volume being useful in a number of areas. I have already noted its value as a supplement to the DAS certificate copyright and privacy courses. It will also serve the wider audience of professional archivists whether they are staff archivists, team leaders, or repository directors. Finally, the volume serves as a primer for professional advocacy for laws that better support archival work. Rights in the Digital Era achieves the goals of the Trends series in that the modules are concise, authoritative, and practical. The authors and editors are to be commended for presenting a lot of information in a concise and readable fashion.
Columbia University Libraries, “Publication and Digital Reproduction Policy and Procedures,” http://library.columbia.edu/services/preservation/publications_policy.html; Cornell University Library, “Guidelines for Using Public Domain Text, Images, Audio, and Video Reproduced from Cornell University Library Collections,” http://cdl.library.cornell.edu/guidelines.html; Beinecke Rare Book and Manuscript Library, “Permissions and Copyright,” http://beinecke.library.yale.edu/research/permissions-copyright.