Workbook on Digital Private Papers > Legal issues > The impact of legal issues on the timing and conditions of access experienced by researchers

The impact of legal issues on the timing and conditions of access experienced by researchers

Digital archives have the potential to be easily and rapidly disseminated, discovered and read by large numbers of people over a short period of time. This means that libellous statements, which would remain hidden in unpublished sources such as manuscripts, could find a much wider audience and the repository could expose itself to the range of legal risks discussed in this chapter. While archivists might wish to exploit the functionality of born-digital material to provide enhanced access to users, perhaps through (secure) online access or facilitating use of the archive on a reader's laptop (where they have their preferred tools), the reality is that read and write access must be stringently controlled. Given the complex data protection, privacy, defamation and intellectual property rights issues involved it is unlikely that entire digital archives can be made available over the Internet until such a time as the publication of their contents will no longer breach these protections, either because they have expired or because those entitled to the relevant protections have given the library permission to publish. It may also be the case that some parts of the archive become available sooner than others. This is because the length of a legal protection period is calculated from the date of creation, publication or death, hence access will be calculated on a file by file basis. Access will also depend upon the ease of obtaining relevant permissions as it may be less problematic to seek permission from some interested parties than others.

Approaches to access

There are several approaches to providing access to digital archives.

Lengthy blanket closure periods

Providing access to material enjoying legal protections can be complex. For materials which are not covered by freedom of information legislation, it would be easier, safer and cheaper to issue lengthy blanket closure periods until intellectual property right, data protection and defamation considerations have expired.

Archival review - incremental access as concerns expire

Given that the preservation of personal archives is ultimately with a view to providing access for researchers, a preferable approach would be to review materials and allocate appropriate closure periods at a more granular level. This would enable archivists to provide access only to material where rights are clear and uses have been authorised, and where content has been vetted for any potential personal or defamatory content. This approach is expensive and can lead (initially, at least) to highly restrictive access; it also removes part of the archive from circulation, which has an impact on the context and interpretation of the materials.

Risk management - archival review plus 'take down' policy

Perhaps a better option is one of risk management, combining the archival review with a 'take down' approach. By adopting a clear 'take down' policy and procedure which ensures that objectionable material can be promptly removed from public access, libraries could more confidently provide access to materials of orphan copyright as well as to material which has no obvious defamatory or private content.

Take down policy only

The non-profit Internet Archive in San Francisco, which harvests and archives websites without first obtaining permission from the creator, is an advocate of this approach. Its take down policy is primarily aimed at those who do not want their websites harvested but it also has a procedure for managing removal requests, including those which allege defamatory content. This approach is unsuitable for personal archives.