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Making Archival Material Available on the Internet

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Making Archival Material Available on the Internet Copyright in the Real World: Making Archival Material Available on the Internet by Jean Elizabeth Dryden A thesis submitted in conformity with the requirements for the degree of Doctor of Philosophy Faculty of Information Studies University of Toronto © Copyright by Jean Elizabeth Dryden, 2008 Copyright in the Real World: Making Archival Material Available on the Internet Doctor of Philosophy 2008 Jean Elizabeth Dryden Faculty of Information Studies University of Toronto ABSTRACT The purpose of this study is to investigate the practices of Canadian repositories in making their archival holdings available on the Internet to see whether they are more or less restrictive than copyright law requires. The Internet provides an opportunity to make archival material more widely accessible; however, repositories’ copyright practices in making their holdings available online may affect the extent to which wider access to archival material is actually achieved. The study employed four different sources of evidence, i.e., the website content of 154 Canadian repositories whose websites feature archival material from the repository’s holdings; copyright policy and procedure documents of those repositories; 106 responses to a questionnaire sent to the staff of those repositories; and 22 interviews with repository staff members. In terms of selection for online access, the study found that the repositories studied prefer to select items that are perceived to incur little risk of copyright infringement (because the copyright has expired or because the repository owns the copyright), or items that require few or no resources to investigate copyright status or obtain copyright authorizations. Thus, with regard to selection, repositories were more restrictive than the law required, largely due to lack of resources. Although repositories have no legal or professional obligation to enforce others’ copyright interests, they nonetheless attempt to control further uses of their online holdings through the use of technical measures (e.g., low resolution images, watermarks, etc.) or non-technical measures (e.g., conditions placed on further uses), for reasons not necessarily related to copyright. Overall, the study found that repositories’ practices in making their holding available online were more restrictive than copyright law envisages. While this may be due to factors other than copyright, access to online documentary heritage may be limited as a result. ii iii ACKNOWLEDGEMENTS My thanks are due to all who assisted in various ways in bringing this dissertation to fruition. First among them are the members of my committee: my supervisor, Dr. Wendy Duff, Dr. Joan Cherry, and Dr. Margaret Ann Wilkinson of the Faculty of Law and the Faculty of Information and Media Studies at the University of Western Ontario. Wendy’s ability to see the forest while I was dealing with the twigs and branches of my data was invaluable; she was generous with her time, and I am grateful for financial support out of her research grant. Joan provided guidance regarding research methods, and her careful review of the later versions of the dissertation saved me from several lapses in logic or clarity. Margaret Ann provided expert guidance on the copyright aspects of the study, and I appreciate her willingness to travel to Toronto for meetings. I am indebted to them all for their advice and insights throughout the preparation of the dissertation. Thanks are also due to others who assisted in particular ways. Dr. Doug Thomson’s advice about the input of the questionnaire data to facilitate the subsequent data analysis was enhanced by his marvellous sense of humour. Paul Chappell, in addition to being unfailingly supportive throughout the ups and downs of the process, assisted with the tedious work of verifying the data entry of the questionnaire responses. My sister, Dr. Donna Dryden, meticulously and mercilessly edited the final draft, as only a sister can. And I am grateful to those archival colleagues across the country who responded to my questionnaire and consented to be interviewed, and to my fellow doctoral students for their support and friendship throughout the process. I would like to thank the Social Sciences and Humanities Research Council of Canada for the doctoral fellowship that enabled me to carry out this research, and the Association of Colleges and Research Libraries for the Doctoral Dissertation Fellowship that covered the costs of data collection. Finally, I would like to dedicate this to my parents, who taught me the value of education, and the ability to persevere in achieving my goals. iv TABLE OF CONTENTS ABSTRACT........................................................................................................................ ii ACKNOWLEDGEMENTS...............................................................................................iii LIST OF TABLES............................................................................................................ vii LIST OF FIGURES .........................................................................................................viii LIST OF APPENDICES.................................................................................................... ix Chapter 1 Introduction ........................................................................................................ 1 1.0 Introduction.................................................................................................................. 1 1.1 Problem Statement....................................................................................................... 1 1.2 Purpose of the Study.................................................................................................... 3 1.2.1 Research Question 1: The Copyright Factor..................................................... 4 1.2.2 Research Question 2: Archivists and Copyright............................................... 4 1.2.3 Research Question 3: Repositories’ Copyright Practices ................................. 5 1.2.4 Research Question 4: Linking Archivists and Repository Practices ................ 6 1.3 Significance of the Study............................................................................................. 6 1.4 Archival Context.......................................................................................................... 8 1.4.1 Archival Material.............................................................................................. 8 1.4.2 Archival Repositories...................................................................................... 10 1.5 Canadian Copyright Law ........................................................................................... 16 1.5.1 What is Protected ............................................................................................. 18 1.5.2 Ownership of Copyright .................................................................................. 21 1.5.3 Duration of Copyright...................................................................................... 24 1.5.4 Rights Pertaining to Making Archival Material Available on the Internet..... 28 1.5.4.1 Economic Rights....................................................................................... 30 1.5.4.2 Moral Rights ............................................................................................. 34 1.5.5 Infringement and Penalties ............................................................................. 35 1.5.6 Users’ Rights................................................................................................... 36 Chapter 2 Literature Review and Conceptual Framework .............................................. 46 2.0 Introduction................................................................................................................ 46 2.1 Literature Review....................................................................................................... 46 2.1.1 Professional Literature.................................................................................... 49 2.1.1.1 Administration of Copyright in Archives ................................................ 49 2.1.1.2 Users of Archives..................................................................................... 51 2.1.1.3 Digitization Projects................................................................................. 52 2.1.2 Research Studies ............................................................................................. 55 2.1.2.1 Digitization Studies.................................................................................. 55 2.1.2.2 Copyright Administration Studies ........................................................... 57 2.1.3 Evaluation of the Literature ............................................................................ 60 v 2.2 Conceptual Framework.............................................................................................. 64 Chapter 3 Methods........................................................................................................... 72 3.0 Introduction................................................................................................................ 72 3.1 Data Collection .......................................................................................................... 72 3.1.1 Website Content.............................................................................................
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