I’ve always been interested in studying theories behind digital access to information as they relate to primary source materials. The pressure to digitize materials is often measured against the amount of sensitive or private material within the collection, or even the misgivings of a lone archivist. One of the biggest challenges to providing digital access to archives collections is copyright.
For my practicum, I’ve chosen to study copyright as it relates to the records of performing arts organizations. I was confident that I knew enough about copyright to tackle these issues, but quickly learned that copyright and intellectual property are:
- arcane arts, practiced only by lawyers and wizards
- infuriatingly complex in the context of the performing arts
After accepting how ignorant I am on the subject, I found many wonderful resources that have been guiding me through the first few weeks. The first resource is the Copyright and Fair Use Statement from the Dance Heritage Coalition’s website, which masterfully contextualizes these concepts to apply to archivists working with dance companies, and dancers working with archives. I also found Hirtle, Hudson, and Kenyon’s book Copyright and Cultural Institutions: Guidelines for U.S. Libraries, Archives, and Museums incredibly helpful. The authors’ focus on digitization addresses the tension that has led to a major dichotomy of archival policy, in my opinion. Digitizing primary source material allows for access, but at the risk of copyright infringement. The fear of litigation suppresses digitization efforts, which has an adverse effect on the public’s ability to access important cultural records.
To address copyright issues in performing arts collections, I am surveying the materials of the Penumbra Theatre Company Archives, one of the most frequently used collections within the Archie Givens, Sr. Collection of African American Literature at the University of Minnesota Libraries, and the target of many funding initiatives, including a recent IMLS grant.
In 2006, the University of Minnesota Libraries received the Penumbra Theatre Company Archives, donated by Lou Bellamy, Founder and Co-Artistic Director of Penumbra Theatre. Penumbra is an active performing arts organization, documenting the African American experience through theater.
The terms of the donation (outlined in the deed of gift) state that Lou Bellamy and the Penumbra Theater Company shall retain copyright and all other intellectual property rights for the materials they owned prior to the transfer, but the University is granted a “non-exclusive, perpetual, and irrevocable license to allow photocopying, reproduction, or exhibition by the University” of any copyrighted works within the collection for non-commercial purposes.
The University of Minnesota Libraries hopes to digitize all of the materials in the Penumbra Theatre Company Archives in the future. Though Lou Bellamy and Penumbra Theatre retain copyright to most of the printed material, the University was granted an irrevocable license to allow for “photocopying, reproduction, and exhibition” of copyrighted works for non-commercial purposes through the deed of gift. For materials created by third parties, the University would have to rely on fair use to digitize materials. There are also materials created by third parties within the collection. Since these are not licensed for non-commercial use, the University would have to employ the four-factor fair use test to digitize these materials. Both the University and researchers run the risk of copyright infringement if their uses of third party materials cannot be construed as fair use.
Through my survey, I’ve found materials that could be digitized with little to no risk, and materials that pose a more significant risk, due to third parties’ involvement. I am looking forward to understanding the depth of the risk by interviewing key stakeholders from Penumbra about these materials, and to assess what kinds of issues should be addressed before the University undertakes a mass digitization project of this scale.
More to come soon!