And I thought “Can We Scan This?” was a hard question…

We have some really amazing and interesting things in our Archives and Special Collections; when we have some funds available, there’re always things we want to digitize for preservation purposes, and for public sharing. Unfortunately, copyright is often a huge barrier to scanning things and making them available to the world: we can do it if they’re in the public domain – but are they? We can do it if we have permission from the rights holder – but who holds the rights? There’s an incredible amount of research involved in digitization projects – who did this come from, was it ever published, where was it published first, was a copyright registered, was it renewed, when did the author die, who were their heirs, where do the heirs live…

But lately I’ve been grappling with a whole -new- set of questions for some digitization projects, thanks to some funding that can only be used to make materials available with an open license. Rather than trying to figure out who, if anyone, could or would object to our scanning project, we have to track down the documentation necessary to establish that we own the copyrights in the materials. In several cases, we can document pieces of the necessary legal chains: individuals signed releases to Entity A, and Entity A gave us the materials – great first step! But Entity A no longer exists, and we have no documentation that Entity A ever gave the copyrights to us – augh! In other cases we have documentation that the rights to some of the materials were transferred to us, but there are chunks of the materials where the rights probably belong to someone other than the group that gave us the rights. So, clearly, we don’t own the rights to those chunks – and sometimes, those chunks are anything but clear to pull out of the overall collection.

The oddest thing is how -far- this work is from the risk management mindset that colors so much of copyright use analysis. Rather than uncertain documentation putting us in a riskier situation (are there heirs we didn’t know about???), uncertain documentation produces a certain conclusion: If we don’t own it, we can’t license it.  And in this case, since the money can only be used for licensable materials, if we can’t license it, we can’t digitize it. 🙁  Not the most fun set of investigations.

(On the up-side, my various archives and digitization colleagues are all awesome, and great to work with!)

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