Open Access: Footnote.com and the National Archives

I think students, researchers, and historians especially should become more aware of a disturbing trend in the world of digitized archival materials: contractual licenses replacing copyrights.

I have already been concerned with this in the non-digital world. Many archives I have visited now ask visitors to sign a “license agreement” which, if you read it closely, restricts the freedom of the visiting researcher. Thus, when I go to the Ôya Sôichi bunko in Tokyo and look at old Japanese magazines that are no longer protected by copyright, I might think I have the freedom to reproduce, publish, etc. materials I have photocopied there. No copyright – then no problem, right?

Well, no. Along with the entry fee to the archive, you sign an agreement in which you agree to give up your freedoms to the use of even out-of-copyrighted material. You are now required to get the archive’s permission before you use any of the material.

This is spreading to the online world like wildfire. Examples abound. One recent case, however, has gotten some deserved attention: the deal between the United States National Archives and Footnote.com. Read this article at Dan Cohen’s blog for the details. Footnote.com, which digitizes the materials of the National Archives, which, it should be noted, are NOT protected by copyright, has the following to say in their terms and conditions agreement:

professional researchers, professional historians and others conducting scholarly research may use the Website, provided that they do so within the scope of their professional work, that they obtain written permission from us before using an image obtained from the Website for publication, and that they credit the source. You further agree that (i) you will not copy or distribute any part of the Website or the Service in any medium without Footnote.com’s prior written authorization

You see, the images they have, of non-copyrighted materials, cannot be copyrighted by Footnote.com, because their scans of these documents do not meet the minimum “creative” or “original” work required to establish a copyright. However, by agreeing to this license, you are not bound by copyright, you are bound by contract. Dan Cohen points to a great section of the Digital History guide which suggests that these licenses might still not prevent you from using non-copyrighted materials…but who wants to risk the lawsuit?

Fortunately, the National Archives made a non-exclusive agreement with Footnote.com, just as libraries have made non-exclusive agreements with Google. Despite this, I am concerned that these massive projects, many of them commercial and not freely accessible like Footnote.com will dissuade academic partners, libraries, archives, and governments from being willing to put serious money into creating large, free, and open collections without these restrictions.