Copyright and Creative Property in the Digital Age

Prior to the emergence of digital distribution, historians and archivists rarely encountered difficulty with copyright law. Most materials used in academic teaching and publishing were either explicitly in the public domain, or fell into the vast legal grey area of “fair use.” Even if a historian did accidentally profit from copyrighted material, there was a good chance that the holder of the copyright might not notice, or otherwise might not bother enforcing a claim.  Thus, copyright law allowed intellectual property owners to profit from their works for a fixed period of time, but also set aside both explicit and implicit spaces for creative and educational use.

However, the nature of digital media subverted the entire structure that copyright law was built on. It is quite difficult and time-consuming, for instance, to manually scan, print, and distribute new copies of a textbook using consumer flatbed scanner and printer. However, a PDF copy of that textbook can be copied endlessly at no cost, and distributed anywhere in the world almost instantaneously. Bootleg versions of copyrighted material have always existed, but never in such a way as to undermine the entire profit-making apparatus of copyright; a handful of unlicensed Mickey Mouse t-shirts being sold at a mall in Taiwan may not cut into Disney’s bottom line, but the ability to watch “Frozen” for free certainly does. To combat this, copyright owners have argued that every unauthorized use or transfer of a digital object counts as an illegal “copy.” This sparked an arms race between content distributors and pirates, with the former placing increasing technical and legal restrictions on copyrighted material. In the process, however, the space for creative or educational use has shrunk considerably.

What does this mean for historians? In the first place, it means that many useful ambiguities have disappeared. Vertically integrated media monopolies can place restrictions on use without asking a court whether that use is “fair” or not. Increasingly, this means that digital content is read-only, stream-only, or only available through proprietary devices or services. If a professor wants to show a Netflix/Amazon original film to their students, they will have to keep paying rental or subscription fees rather than keeping a DVD copy on hand. Some companies make a point to offer free or reduced-price services for academic use, but they are by no means required to. While these practices may be bad for individual educators, this kind of centralization is far worse for the historical record as a whole. Suppose Netflix’s board of directors run the company into the ground, and their physical and intellectual assets are sold off piecemeal. What happens if their data centers and their intellectual property go separate ways? Sure, someone might buy the rights to Stranger Things and make sure that the master copy doesn’t get wiped, but what about the rest? What if that media is DRM-locked to only play on a certain streaming device, and that device only works when connected to Netflix’s now-defunct servers? Assuming the data is not completely lost, future archivists may still be forced to learn how to crack encryptions and construct complex emulators.

Many gaps in the historical record have been filled by objects from individual collections; this is especially important with regard to mass-produced consumer goods and media, where “master copies” are not always preserved. This also prevents companies from editing or otherwise altering the historical record. George Lucas famously “improved” the master prints for the original Star Wars trilogy later in life, but unaltered 35mm copies still existed in archives and private collections. Knowing whether Han shot first may seem trivial, but the power to remotely manipulate recorded media is not. It’s certainly possible to imagine a future in which such power is used to distort or censor the past for political purposes.


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