Copyright Law and Archival Research

Scholars of modern literature who are interested in pursuing archival research may be interested to discover that there are obstacles which they must overcome. Most archival projects divide into two phases or desiderata: access and publication. Scholars first seek access to the contents of libraries and then, typically, plan to publish the results of their research. Both of these activities involve a certain amount of copying; and copying, for Modernist scholars, almost always raises the spectre of copyright prohibitions. Inasmuch as a copyright is the exclusive right of somebody else to reproduce, adapt, distribute, publicly perform, and publicly display a given work, ¹ it can raise barriers to scholarship.

Copyright is not the only obstacle encountered by the archive-going scholar. Contract law also plays a role, particularly in the matter of access, but also in that of copying. Donors and sellers of manuscripts often place restrictions upon a library's use of the materials which it acquires. These transferors, whether the copyright owners or not, can ensure by contract that certain documents will remain sealed for a specified number of years, that documents will be shown only under certain conditions or to pre-approved persons, or that no photocopying (or other copying) will be made of documents. ²

Such a contract, binding upon the library, can sometimes regulate copying more thoroughly even than a copyright. Copyright law, after all, is a blessedly porous mechanism that permits some copying under the fair use doctrine ³ and under certain library exemptions, ⁴ and that specifically excludes facts and ideas from protection. ⁵ Contracts are bargains struck between parties in arm's-length negotiations, and they can be as stringent or flexible as the parties wish. ⁶ We have all encountered an archivist who mysteriously forbids the copying or quoting of material in circumstances that we feel certain would be exempted by copyright law. It is ironic to think that an unpublished work might enter the public domain after the expiration of its federal copyright term but remain sealed in an archive, and so inaccessible to the public, under state contract law.

Suppose that Professor A has overcome the first obstacle--archival access--and now wishes to publish the results of her research. She wants to quote modestly but representatively from published works and also from certain unpublished manuscripts and letters that she has encountered during her research. Professor A must first determine whether these works are protected by copyright and if so, whether she may reproduce any of the works' content in her published critical commentary. She will thus need information about two inversely related matters: the recent extension of copyrights in the United States and the United Kingdom and the doctrine of fair use.

In 1998, the United States Congress passed, and the President signed, the Sonny Bono Copyright Term Extension Act, ⁷ which increased all future and existing American copyright terms by twenty years. Works first published in 1923 and afterwards were thereby prevented from entering the public domain until well into the next century. Similarly, in 1996, the United Kingdom implemented a European Union directive retroactively increasing copyright terms by twenty years. ⁸ British and American copyright terms are therefore in rough harmony, despite some remaining disparities.

In the United States, works published between 1923 and 1978 now enjoy copyright protection for ninety-five years from the date of first publication (unless they entered the public domain earlier through the copyright owners' failure to renew copyright or through some other technicality). ⁹ Works created on or after 1 January 1978 are copyrighted for the author's life plus seventy years, with protection beginning from the moment of creation, or "fixation," of the work. ¹⁰ In Britain, copyrights endure for the same term, and certain user-friendly exemptions exist there for parties that relied on the public-domain status of works whose copyrights were extended or revived by the 1996 implementation. ¹¹

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