Investigations of a Dog

Last week I posted about Your Archives, a wiki-based website set up by the UK National Archives to allow members of the public to share their knowledge of archival holdings in the UK. While I’m very excited about the possibilities of this site, I also expressed some major reservations about the terms of use, which place serious restrictions on the re-use of content published on the site. But I didn’t just solipsistically moan about it on my blog. I also contacted the NA and called on them to use a GNU Free Documentation License, as used by Wikipedia. I’m pleased to say that they responded quickly with a more detailed explanation of their position. This is what they said:

Thank you for your email and also for the interesting critique of Your Archives which you published on your blog. It was helpful to read your views and we will certainly be bearing them in mind as we develop Your Archives.

In response to your specific complaint about our terms and conditions, these have been drafted to allow The National Archives sufficient flexibility to use the content of Your Archives to improve knowledge about archival records for everybody. The GNU Free Documentation Licence would, in our view, hinder us from utilising contributions to benefit our other databases and publications which are published under Crown Copyright. The requirement of the GNU Free Documentation Licence for the licence to be reproduced in all copies of the data and not to have further conditions appended would make such reuse unworkable for us.

As far as content that you submit is concerned, the terms and conditions of use for Your Archives place few restrictions on you. You grant us a non-exclusive licence, which means you remain free to use your text in any way you choose. The limitations apply solely to the actual entry contained in Your Archives which is published by The National Archives.

I am sorry we cannot respond to your complaint in the way that you would wish. We will however revisit the issue as use of Your Archives grows and we evaluate its content.

Yes, you read that right. They can’t use a GDL because it would restrict their ability to re-use the content! That might not be as absurd as it sounds. Well, it is absurd, but we all have to accept absurdity, even, and perhaps especially, servants of the Crown. Having worked for a government department myself, I know all too well how bizarre legal requirements can get in the way of doing your job (but I probably can’t say much more than that). I think the real problem here could be the way that Crown Copyright works. Remember that copyright is a noun not a verb, and that according to the law it exists automatically. The NA don’t choose to put their publications under Crown Copyright, they automatically are under Crown Copyright by virtue of being created by civil servants in the course of their work. So even if the NA really wanted to put things out under GDL, they might not have the legal power to do so. I’ll be asking them whether this is actually the case, but it now looks as if the way they’ve done it is the best compromise they could get, even though it’s not ideal.

It’s true that the non-exclusive licence allows contributors complete freedom to publish their work elsewhere. If I write a page for Your Archives, I could also publish it on this blog, or somewhere else, and make it available under GDL or Creative Commons or even waive all rights and put it completely in the public domain. The problem is that this wouldn’t make full use of the collaborative power of a wiki. If I contribute to YA I would hope that other users will improve my contributions, but no-matter how much they improve my work, what I make freely available elsewhere will still be the original unimproved version.

On the other hand, it could be that some people who have valuable knowledge would be put off from contributing if they had to give it away under GDL, and might prefer a non-exclusive licence which allows them to retain more rights. For example, the average Great War Forum member doesn’t tend to think in a Web 2.0 kind of way. But then they might be put off by the very idea of a wiki. Including as many people as possible has probably involved some difficult decisions for the NA. I’m now thinking that I should give them more support, but I still think the terms of use need a few changes. These are small changes rather than changing to a completely different licence, and are to correct what I believe are oversights rather than sinister policy decisions, but they’re still important.

First, they need to acknowledge the rights of fair use which exist under UK copyright law. Publishing short excerpts for the purposes of criticism is perfectly legal, but paragraph 4 of the terms of use claims that users may not copy any part of the site and publish it online (although copying into works which are not online is permitted).

Second, they need to acknowledge that the terms of use should only apply to original content created by users in which a new copyright exists. The stated purpose of YA includes allowing users to submit transcripts of documents available through Documents Online. These documents will either be under Crown Copyright, or will be in the public domain (Crown Copyright having expired 125 years after creation). In the latter case it is illegal to place any restrictions on re-use of the text of the documents because… they’re in the public domain (although different considerations apply to images of the documents). Documents which are less than 125 years old are still under Crown Copyright, but in most cases the Crown has waived copyright on public records held in record offices. This does not mean that these documents are in the public domain, but the conditions attached to the waiver (see here for details) are much less restrictive than the YA terms of use, and therefore the two are incompatible.

Anyway, I’m replying to the e-mail from the NA to clarify these points, and we’ll see what happens.