Copyright, Privacy and Ethics
Not all materials nominated for digitization can or should be made openly accessible to everyone online. Before embarking on any digitization project, it is vital to clarify not only how digitally capturing and creating online access to your materials will advance knowledge but also why your access plan acknowledges and respects both legal and ethical concerns about the materials, their content, and the communities or individuals they may represent. Copyright, patent, trademark, trade secret, and privacy laws are incredibly complex in the international context, and most collections stewards will need to seek outside help in assessing the legal implications of digitizing their collections. Due to this complexity, many collections stewards prioritize digitization of public domain materials, but this seriously limits what is possible; besides, the length of copyright terms and changes in copyright law can cause confusion about whether certain types of works are or are not in the public domain. In the US, fair use exceptions can create opportunities to move forward with digitization of in-copyright works, but it is important to recognize that exceptions aren’t recognized or understood the same way in other countries.
Even when legal, sharing collections online can also pose complex ethical challenges and require consultation with community representatives in order to determine appropriate policies for access.
Questions to Consider
- Is the content you wish to digitize in the public domain?
- Who owns the materials you wish to digitize? Should you attempt to ask their permission?
- Are there deeds of gift or other agreements to consult?
- What people might be affected by posting copies of your materials online?
- Is there personally identifying information (PII) contained in the materials that is sensitive or protected by law? Will any information need to be redacted prior to sharing?
- What rights, policies, agreements or ethical concerns apply (or should apply) to potential re-uses of the digital files you would create?
- How will you abide by and communicate restrictions or concerns to people who want to access the digital files?