Copyright Dramas: Theatre Archives Online

21 copyright Dramas: theatre archives and collections Online david m. meurer the mandate of libraries, archives, and museums (lams) is to preserve and provide access to cultural resources to research communities and the public. in digital communications environments, copyright law is among the greatest challenges facing lams in the fulilment of this mandate. at stake in whether or not a cultural institution can make cultural resources accessible in online, non-commercial, educational contexts is its relevance for a public increasingly accustomed to seeking and inding information online. as communication and research practices evolve, lams must adapt in order to meet changing expectations. licensing initiatives have become the most common and most frequently recommended path to respond to these changes and communicate and promote culture. however, uncertainties for cultural institutions abound. clearing copyrighted works requires substantial resources and reliance on precarious funding sources. making works available under fair dealing provisions, conversely, is subject to a determination of the nature and purpose of the dealing. but in the absence of case law pertaining to digital archives and collections and the applicability of fair dealing exceptions to them, the copyright status of publicly accessible digital reproductions remains uncertain to cultural institutions. in this chapter, digital collections and archives of theatre materials provide the context for a case study that illustrates how the negotiation of intellectual property (iP) laws, cultural policies, and information and computing technologies shapes the availability of cultural resources online. legal scholars have drawn attention to the implications of copyright law for the digitization initiatives of cultural institutions both generally (Pessach 2007) and focusing on speciic nations (hudson and Kenyon 2007). the speciic copyright challenges of digitizing archival materials Coombe_UTPID4183_Text.indd 273 13-11-21 2:19 PM 274 David m. meurer as well as the particular characteristics of archival materials in the performing arts have also been explored (see Dryden 2006 and marini 2007, respectively). in what follows, i will focus on the collaborative, dynamic, and varied labour conditions under which performing arts are produced and supported, and argue that these conditions pose special challenges for initiatives to license cultural resources for online publication. my research is supported by interviews conducted with representatives of four digital theatre archives and collections based in Ontario, and it relects actual processes, procedures, decisions, and ramiications rather than theoretical concerns. i thus focus less on policies and law, and more on how they are perceived and negotiated by decision makers. Of the projects considered, two are university based, and were undertaken by senior scholars with academic research grants. a third project is the initiative of a large cultural institution with a multitude of archival holdings and special collections. the fourth is a smaller theatre organization with signiicant physical holdings but few digitization projects. interviews were open-ended, and the participants discussed the holdings, digitization projects, and online initiatives of their institutions, as well as challenges relating to copyright. although each project varied signiicantly with respect to ownership of source materials, funding sources, level of expertise, and institutional context, all interview subjects articulated a sense that copyright law is ill-suited to accommodate the particularities of digitally archiving performing arts materials. there is an acute need for a clearer path forward. as commentators have rightly pointed out, copyright law is fundamentally oriented towards the production, reproduction, and distribution of cultural goods in market contexts, and insuficiently addresses the role of non-proit cultural institutions that enable access to knowledge (Pessach 2007: 282). in the present media climate, discussions of copyright and digital communications often position copyright as an adversarial conlict that pits creators and owners against users. Under these discursive conditions, cultural institutions are exiled from the public imagination. lams provide bricks-and-mortar access to cultural resources for education, research and scholarship, cultural documentation and promotion, and preservation of the historical record, among other purposes. yet, their ability to extend functions across digital communications networks is fundamentally limited by copyright law. Unless exemptions can be applied, “digital cultural preservation always involves reproduction of cultural works … that is exclusively reserved to copyright Coombe_UTPID4183_Text.indd 274 13-11-21 2:19 PM copyright Dramas 275 owners of the reproduced works” (Pessach 2007: 255). copyright law does not adequately address the particular constraints of reproducing the full range of cultural materials preserved and managed by cultural institutions. archival funds and special collections often include materials created to support performing arts productions, such as posters, theatre programs, and playbills. as archivist Jean Dryden (2006) explains, “although not created for commercial exploitation, archival material is subject to the same copyright rules as margaret atwood’s novels, yousef Karsh’s photographs, or Denys arcand’s ilms. this causes considerable dificulty for archival institutions and those who use archival records as the raw material for their own creations” (167). such dificulties substantively undermine the canadian government’s canadian culture Online strategy “to ensure a dynamic and diverse canadian cultural presence in both english and French on the internet” (canadian culture Online strategic statement). they also exacerbate what has been described as a “canadian internet deicit” (DaytonJohnson 2002) – a lack of high-quality canadian content online. interest in theatre materials is broad, and theatre-focused digitization projects have the potential to bring cultural resources closer to students at the secondary, postsecondary, and graduate level. Digital archives present an opportunity to enrich and invigorate the cultural industries by making the living history of the performing arts in canada accessible to researchers, scholars and critics, members of the public, and – perhaps most importantly – the performing arts professionals capable of building on the ideas and innovations of earlier practitioners. Clearing and Licensing Challenges of Theatre Materials lams dealing with theatre materials encounter a range of sociological, economic, and organizational factors that complicate efforts to license cultural resources for non-commercial, online uses. materials collected by archives can include set and costume designs, promptbooks, stage plans and models, promotional and documentary photographs, programs, posters, playbills, and other materials (see marini 2007). these resources are typically secondary marketing materials designed to promote and support a theatre and its productions. if an archive wishes to digitize, reproduce, and publish a theatre’s programs and materials online, it is reasonable to assume that securing permission from the theatre company is suficient. indeed, under section 13(3) of the canadian Coombe_UTPID4183_Text.indd 275 13-11-21 2:19 PM 276 David m. meurer copyright act, an employee or person under contract is not, “in the absence of any agreement to the contrary,” the irst owner of copyrighted works produced for an employer. however, as murray and trosow (2007) note, this is not an easy statement to interpret – a court of law might consider whether contrary arrangements or contracts had been agreed upon, whether standard industry practices are relevant, and in the case of freelancers, whether other areas of the law, including taxation, might complicate or clarify ownership matters (75–6). the production of a collective work, such as a theatre program, may bring many of these considerations into play, as a theatre may hire or interact with a diverse range of creators and authors from a variety of cultural ields. any number of photographers, designers, illustrators, and writers might contribute copyrightable works to a program or poster. advertisements may introduce additional layers of permissions to clear. industry practices vary in each of these ields, so blanket determinations are unlikely to cover a theatre group’s ownership of subsidiary works contained in a performing arts program. and for all but the largest theatre companies, graphic design and photography are unlikely to have been created by full-time employees. theatre programs are sometimes produced by the performance venue rather than by the theatre company itself, which further complicates the copyright status of the materials. Work in the performing arts is also frequently itinerant: roles and contributors may change from one season, production, or performance to the next. as a consequence, locating all applicable rights holders may not guarantee an opportunity to simultaneously secure permissions for numerous works spanning a lengthy period of time. if digitization project leaders are determined or bound to adhere to a full clearance process and to retrace the often incompletely documented agreements and contracts under which volunteer, contract, and freelance work was performed, they commit to an extremely timeconsuming process with few guarantees of a return on the time and resources invested. among the most interesting documents for theatre researchers are the programs, promotional photographs, and posters illuminating the social contexts of theatrical performance. actors and theatre professionals wishing to clarify or conirm their own involvement in productions also heavily use these records. Programs provide a trove of information about the artistic, social, and economic relations that develop around the staging of a theatrical production. the conditions under which such resources are created, however, involve a complex intermingling of Coombe_UTPID4183_Text.indd 276 13-11-21 2:19 PM copyright Dramas 277 interests that is not always fully documented by theatre administrators. in such documents, rights in different kinds of works are layered with different copyright implications, and may contain complex combinations of different materials, each of which may have its own subset of rights holders. Uniied strategies for producing such collective works also do not exist. a good example is an issue of Playbill News Magazine, the house program of the st. lawrence centre for the arts, which contains a theatre program for the toronto arts Productions theatre company’s 1975 production of robertson Davies’ Question Time. the toronto arts Productions theatre company was later renamed centrestage, and then merged with toronto Free theatre to become the canadian stage company in 1988. the program in question contains reproductions of several creative works, some of which are credited, while others are not. a photograph of two actors meeting Prime minister trudeau in Ottawa is not credited, and neither is a portrait of robertson Davies accompanying his bio, nor a production photo of an upcoming performance of Trelawny of the “Wells.” a studio photograph of the beaux arts trio is signed only “boris,” and the program further contains costume sketches by marie Day, an illustration by “swain sr.,” and photographs by eberhard Otto reproduced from artscanada magazine. the program text includes an introduction by robertson Davies as well as an uncredited adaptation of an article on shamanism by Peter t. Furst, published originally in artscanada magazine. many of these works were not created by employees of either the st. lawrence centre or the toronto arts Productions theatre company, and the agreements permitting their reproduction may differ considerably. some works may have been created by volunteers, or contract workers. even if the theatre company, in its reorganized state, is comfortable asserting ownership over the program based on agreements governing its original creation, the company may be unwilling or unable to give a third-party permission to reproduce the document online as part of a larger digital archive of theatre materials. teasing apart the details for all of these individual works might require archival research into the administrative iles of both the venue and the theatre company, materials that are archived separately in the example provided above. in the absence of a full declaration of ownership, permission would need to be secured from each designer, photographer, illustrator, and writer whose work appears in the program – or from their estates. in an ideal situation, theatre archive projects wishing to license and digitize Coombe_UTPID4183_Text.indd 277 13-11-21 2:19 PM 278 David m. meurer collective works for online collections could turn to a reasonable and manageable set of guidelines. however, no such guidelines exist in either canada or the United states (see besek 2003 for commentary on the Us situation). if theatre groups and other corporate rights holders were prepared to assert ownership over these cultural resources and license them for non-proit, educational use in online archives, the processes would be simpliied, and the possibilities for promoting canadian culture greatly enhanced. however, fear of legal consequences prevails among stakeholders, as is manifest not only in the protocols followed by institutional initiatives in their digitization and online presentation efforts, but also in the unwillingness of theatre groups to assert ownership over promotional materials produced in the past. moreover, large cultural institutions – with their seemingly vast budgets and substantial liability insurance coverage – may be attractive targets for legal claims and, therefore, feel compelled to avoid exposure where possible. theatre groups are fundamentally hesitant to wade into legal matters or to tangle with actors’ unions, and neither have the resources to pay for counsel nor a desire to alienate past, present, or future members of the theatre community who might object, whether rightfully or not, to the reproduction and publication of materials. When licensing efforts move ahead, the challenges are great. Photographs inserted into programs may feature actors, directors, artistic directors, and other personnel employed by the theatre, and even when these individuals hold no copyrights they may possess other legal rights (murray and trosow 2007: 185). as a result, the licensing protocols followed by digital archives and collections often seek permission from all recognizable subjects, a strategy that introduces additional problems. One interviewee, for instance, tells of an actor appearing in a cast photograph who refused permission to use the photo for a book on the grounds that it was unlattering. another interviewee reported a case in which an actor was reluctant to permit the use of a photo from an old theatre production because it was considered politically incorrect by contemporary standards (even though it was of scholarly interest for precisely that reason, and to no discredit of the actor). expectations of remuneration following permission requests are a further dificulty. Our media climate polarizes discussions of copyright by positioning creators against consumers, so that a request for permission may be considered tantamount to a declaration of economic value, in response to which the assertion of economic interests is only Coombe_UTPID4183_Text.indd 278 13-11-21 2:19 PM copyright Dramas 279 reasonable. One project reported that while production staff continuously emphasized to rights holders the costs of digitizing and making cultural resources available online for educational uses, and stressed the beneits that a digital archive would provide, rights holders nonetheless often expected licensing fees to be paid. the older the resources for which licences are sought, the greater the challenges: theatre community members move domestically or overseas, their whereabouts may be unknown, or they may have passed away, in which case next of kin or the creator’s estate must be identiied. efforts to identify, locate, and contact all rights holders and to secure permissions from each in order to reproduce a single program created many years prior can drain resources dramatically, and rarely yield certainty about the results achieved. but without permission from all rights holders, the work is not considered cleared, and legal counsel, institutional administrators, project partners, and grant-lending agencies may not endorse use of those materials. Once established, contact with rights holders may initiate negotiations with parties who are unfamiliar with the circumstances in which the works were created, or who may have been unaware of their existence. strict observance of licensing protocols also impacts communication between rights holders and the producers of digital archives, because the effort to secure permissions through the use of legal forms and contracts invariably formalizes dialogue: several interview subjects reported that rights holders were often happy to provide informal permission for the use of their works, but were less forthcoming if that process required formal written contracts. rights holders may ind contracts laden with unfamiliar terminology, or illed with references to communications technologies they do not use and whose implications they do not fully comprehend. asking rights holders to sign contracts can further erode trust between the parties. in some instances, agents or legal representatives intervened, and unrealistic requests for remuneration resulted: on occasion, not-for-proit cultural institutions were asked for hundreds or even thousands of dollars for single non-exclusive licences granting permission to use materials in non-commercial contexts. if such requests are multiplied by the number of works in an archive, it becomes clear that few, if any, canadian cultural digital archive projects can afford to bear these licensing costs over and above the already substantial costs of organizing, clearing, digitizing, and disseminating a database of theatre materials. as one interviewee admitted, “the clearance process brought us to our knees.” Coombe_UTPID4183_Text.indd 279 13-11-21 2:19 PM 280 David m. meurer Orphan Works and the Consequences of Clearance Culture the likelihood of successfully clearing collective works such as programs diminishes greatly if all materials must be licensed before use. Organizations may expend vast amounts of resources only to be stalled when efforts to trace the chain of title in works lead to dead ends caused by destruction or loss of records; undocumented verbal, informal, or implicit agreements, or failure to locate a known rights holder. such cases yield “orphan works,” and copyright law ostensibly accounts for such situations by enabling application for permissions to the copyright board, which is authorized to stand in for unlocatable copyright owners. however, the procedure is “onerous, unpredictable, and particularly unsuited to internet materials” (murray and trosow 2007: 226–7; bucholz, this volume). clearing such works through the copyright board can only be done on an individual basis, which further encumbers projects with the responsibility of administering numerous individual requests and payments. having expended many hours in failed attempts to track down rights holders for a single theatre program in a comprehensive collection, institutions may have neither the appetite nor the resources for additional administrative processes. the resource-intensive licensing procedures of the copyright board may be manageable for projects requiring a limited number of licences, but hardly for expansive cultural database projects valued precisely for their breadth and comprehensiveness. lack of clarity over clearance requirements has numerous implications for digital arts archives and collections. institutions operating archival or special collections may “cherry pick” easy-to-clear materials. an australian study inds that for lams, copyright is “signiicantly inluencing the selection of materials to digitize and their availability to the public” (hudson and Kenyon 2007: 204). Frequently, studies recommend that libraries and cultural institutions should consider copyright before all other factors, as “the place to begin” (lopatin 2006: 276, 279). according to such recommendations, institutions should produce digital reproductions only after all permissions have been secured, and consider redeining projects if permissions cannot be easily obtained (see hazen, horrell, and merrill-Oldham 1998). such a conservative approach may help institutions to steer clear of legal thickets, but in the performing arts, where chain of title is dificult and at times impossible to unravel, it can mean the wholesale attenuation of a project’s scope. Coombe_UTPID4183_Text.indd 280 13-11-21 2:19 PM copyright Dramas 281 it means shaping a project not to the needs and wants of performers, researchers, or the public, but to the risk management decisions of administrators and legal counsel. although all projects discussed by my interviewees followed slightly different approaches, all considered copyright to be a vast “grey area” incapable of providing legal assurances for anything but a full permissions-based clearance process. in the pursuit of certainty at the outset of a project, one interviewee reported consulting a number of lawyers and receiving different advice from each, including, in one case, a suggestion that the project was to have clearance efforts vetted on an itemby-item basis by legal counsel. needless to say, the digital archiving project could not afford this proposition. in some cases, certainty was a hard requirement enforced by institutional bodies or funding agencies, which ultimately reduced the scope of the digitization initiative. although works created by an individual can be easy to clear, collective works such as theatre programs were described as the informational “lynch pins” connecting performers, performances, cultural contexts, communities, and organizations. at the same time, these documents were also described as simply “not worth the effort.” there is thus a very real danger that archives abandon contemporary subject matter altogether, in favour of public domain projects with no complex licensing implications (hudson and Kenyon 2007: 204). Worse, institutions may not bother with digitization projects at all. For one group, a large and experienced institution with a portfolio of numerous prior digitization projects, developing a digital collection of theatre materials covered by copyright protection proved to be a much greater challenge than they were able to anticipate, budget, or fund. the results were substantial in view of the challenges, but they were viewed both internally and externally as only moderately successful in relation to the original project scope. consequently, in the absence of legislative change or other solutions, the institution’s appetite for pursuing anything other than small or entirely public domain projects was virtually non-existent. in fact, while admitting that a “big pot of money” would have made things easier, the interviewee made it clear that no sum of money alone could solve all of the problems encountered. in another case, a group successfully completed a smaller digitization project involving a single collection of primary works donated by the creator and rights holder, but it also had no plans to develop further comprehensive online representations of its holdings. the interviewee Coombe_UTPID4183_Text.indd 281 13-11-21 2:19 PM 282 David m. meurer felt that canadian copyright law was still in its formative stages with respect to online digital archives, with no practicable regulations and guidelines yet worked out. two projects, however, enjoyed a measure of success – partly because of the funding agency’s lack of insistence on copyright clearance in digital communications contexts. the imperative to deliver the funded project (in order not to have funding withheld in the future) and the inluence of scholarly citation practices here seem to have outweighed the largely unknown risks of incorporating low-resolution reproductions into Web-based educational resources. team members of one project felt that following the legal advice they received would mean to have everything “vetted through a lawyer,” allowing them to get only “a tiny portion” of the project online. these projects by no means neglected to request permission where possible. rather, the project leaders developed their own best practices around permission and principles of respect for creators – a “politesse” or “decorum” – and did not consider the failure to reach a rights holder after a well-documented “reasonable effort” to be grounds for exclusion. the communication practices they followed focused on in-person conversations or personal phone calls, and agreements were supported by email conirmation rather than through the use of permission forms and opaque contractual language. the same project incorporated scholarly citation practices and a disclaimer indicating that every effort had been made to contact rights holders. another project similarly limited its use of images to small, low-resolution reproductions accompanied by attributions of the source. between them, the two projects reported only one request to take material down from the website, and this was because permission had been granted for a limited time period, the expiration of which had gone unnoticed. New Policies for Digital Archives? the expectations of archive users have changed dramatically over time. Undergraduate students increasingly rely on online resources to conduct research (van scoyoc and cason 2006), and the absence of Webaccessible resources in a particular cultural ield can impede scholarship at all levels of study. Unsurprisingly, the general mandate of providing the public with access to knowledge resources has not changed for cultural institutions with the rise of digital communications. however, the lack of nuanced legal policy speciic to lams severely restricts their Coombe_UTPID4183_Text.indd 282 13-11-21 2:19 PM copyright Dramas 283 ability to deliver on this mandate. extensions and reformulations are needed to grant lams in canada the ability to make materials available to the public in digital communications contexts, and not just bricks-and-mortar facilities. through legal or cultural policy changes, restrictions on non-commercial and educational use of materials by not-for-proit cultural institutions must be loosened. so far, canadian cultural policy has been insensitive to the copyright hurdles encountered in creating digital archives and collections, and copyright was deemed “irrelevant” by more than one interviewee. the importance of lams and online access to resources received no mention, for example, in a government-commissioned “comprehensive” report on emerging technology and canadian cultural policy (bélanger 2007), or in the inal report funded by the Department of canadian heritage culture and technology round table (Watson 2007). in the absence of policy revisions, legislative change, or clear guidelines for the applicability of copyright exemptions for non-commercial, educational digital archiving projects, access to treasure troves of cultural resources will remain limited to those in close geographical proximity to special collections and archives, and to an academic elite with access to travel funds. at present, a fundamental incompatibility exists between copyright laws and non-proit cultural digitization initiatives. rich collections of cultural resources that deine canada’s heritage and may be capable of invigorating it are kept ofline by outdated policies. such resources are undoubtedly of great interest to students, researchers, performers, and the public, but potential users are currently unable to access them using the digital communications methods they are most accustomed to. Coombe_UTPID4183_Text.indd 283 13-11-21 2:19 PM