Issues in Digital History: Copyrights, Intellectual Property and “Open Access”

In this weeks  blog, we shall be discussing some issues that are quite important for digital (as well as non-digital) history. These issues are about copyright laws, intellectual property and the issue of the “open access”. To use the words of Roy Rosenzweig, “should historical scholarship be free”? My answer to that, is that it is up to the scholar doing the scholarship. If a person wants to make their scholarship freely available that is their prerogative. If they want some money out of it, well then “the laborer deserves his wages”. 

One topic that is very pertinent to digital history is the issue of copyright laws. Of course copyright laws serve an important purpose, protecting a person’s “intellectual property” against would be thieves. For example it would be quite unfair for an author to publish a book and only for someone else to buy the e-book, print it out, change the cover and sell it for five dollars less than the original book. But copyright law can be fairly complex as illustrated by this chapter in the book Digital History by Roy Rosenzweig and Dan Cohen. This complexity of copyright law can hamper many historians as they attempt to figure out which works are copyrighted and which are in the public domain. Indeed historians who may want to use various sources, such as documents, pictures, or video or audio clips, must seek out the copyright owners (not always an easy task) and get permissions (sometimes for a fee) to use those sources. This process of tracking down copyright owners can be quite expensive, even more expensive than the fees to use the copyrighted item. Of course the fact that some companies may falsely claim they own a copyright to a work that is in the public domain does not help. Unfortunately in some cases penalties for violating copyright can be quite expensive, as they could include not only restitution of market value but also punitive damages and attorney fees. Rosenzweig and Cohen mention (in section 4 “Protecting Your Intellectual Property” of Chapter 7 “Owning the Past”), how a clothing producer distributed 2500 t-shirts that used an image copyrighted by Ruth Orkin, and ended up getting fined $20,000 for damages (though they made only $1900 from the shirts) and $3000 in attorney fees. A few sentences after that they mention a website (mp3.com) that was fined $25,000 per CD that they uploaded (for a total that could run as high as $250 million). Clearly such fines are disproportionate to the offense and the law should be modified to reduce these penalties, to a more fair level that would include restitution of damages to the copyright owner, attorney fees (if a copyright holder has their copyright violated, why should they have to pay for the court costs, the violator should bear that burden) and a smaller punitive fine to discourage violation of copyright. Of course copyright law does and should allow “fair use” of copyrighted nurse and should ensure that accidental copyright violators are not punished too harshly.

As for whether or not scholarly databases like JSTOR should be free that is debatable. Not much in life is free (air is, water can be depending on how you obtain it), heck even food, one of the most basic of necessities, costs money. The fact is that JSTOR and similar organizations need to somehow cover their costs (employees, technology, utilities, etc.) and maybe make a profit (JSTOR is a non profit, but they still need to ensure that their expenditures don’t habitually exceed their revenues). The way JSTOR funds itself is to charge users to access their material, with different kinds of users (universities, high schools, individuals and libraries) being able to pay different rates and to choose different options. Naturally the use of these subscription prices does limit access to the site, as some people (and institutions) may find these costs too much to bear (though JSTOR does not charge institutional users in Africa and high schools in the U.S. only have to pay $750 a year which is probably not much compared to the overall budget of a high school), the subscriptions are certainly better than JSTOR having to pay its employees in scrip (though if JSTOR had no subscription fee what would the employees use the scrip for?) There may however be other ways for JSTOR and similar databases to cover their costs or make money, such as advertising (which may annoy some users, but not all ads are annoying, indeed there are some commercials that can be quite funny) or perhaps merchandise sales (but how many people would really buy a JSTOR coffee mug or something like that, probably not enough to fund the site). Which route would be the best way for  a database to fund itself is not something I know. It probably varies from site to site. Ultimately how JSTOR and similar sites pay their bills is up to them to decide.

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