Fair Use in the Archive: Copyright or Right of Privacy?

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When special collections libraries hold rare books and other published materials, they face the same challenges as other libraries when it comes to copyright and the allowances of Fair Use. But what about their archival collections — unpublished items like documents and photos?

In some cases, the repository’s contract with the donor dictates that copyright stays with the donor. That would make those items subject to the same policies as published items under copyright, including Fair Use. Luckily, in most cases, donors transfer copyright to the repository, which puts it in the unique position to potentially allow greater access than Fair Use, but certainly within it.

Ornate pre-printed title page from a 1912 diaryIn rare cases, though, a donor stipulates that no one be allowed to access the materials for any reason, usually for a set time. If the archive agrees to that stipulation, those items in essence remain private property. At this point, we leave the world of copyright and enter the realm of privacy law, where Fair Use does not apply.

Right of privacy may also come into play with donations that include personal information not about the donor but about someone else, for example, a relative’s financial or medical records. Then again, if that donated material constitutes intellectual property created by a third party, we’re back under copyright law – after all, the donor can’t transfer to the repository a copyright he or she doesn’t actually hold.

Clearly, Fair Use can be a complicated subject when it comes to unpublished materials. As expressed by the Society of American Archivists (SAA), one of the core values of the archives profession is to balance the pursuit of knowledge with legitimate protections on access. Where it’s not a matter of privacy, fair use is essential to an academic archive’s mission.

For a more in-depth discussion of the role of Fair Use in archival collections, see the SAA webpage Copyright and Unpublished Material.

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