Investigations of a Dog

I’ve had a reply to my last e-mail to the UK National Archives about the Your Archives terms of use. Your Archives is a wiki based website where users can share their knowledge of NA holdings and other British Archives. I’m very excited about the site, but I had some reservations about the terms of use (see here and here for more details of my objections and the NA’s first reply). The schwerpunkt is: I’ve received a satisfactory reply from the NA and no longer have any reservations, so I’ll be registering and starting to contribute as soon as I have time. But if you have too much time on your hands, here’s the more detailed version:

I said:

Thanks for your reply. I now have a much better understanding of the NA’s reasons for not using GDL. Just to clarify, is it the case that the NA does not have the legal powers to alienate Crown Copyright by publishing material under GDL?

While I accept that GDL is not possible, and that the current non-exclusive licence is the best solution under the circumstances, I believe that the terms of use require some small but significant changes. As they stand, they could be interpreted as being illegal.

First, they need to acknowledge rights of fair use under UK copyright law. Paragraph 4 appears to ban all publication of any part of Your Archives on any other website, but this is not compatible with the right to publish short excerpts for purposes of criticism.

Second, they need to acknowledge that restrictions on re-use apply only to original content created by users, not to transcripts of public records. I believe that most documents in Documents Online will either be in the public domain (Crown Copyright having expired 125 years after creation) or covered by waiver of Crown Copyright. In either case, extra restrictions on re-use of the text of these documents are incompatible.

They said:

Thank you for your email of 30 May in which you ask for further clarification about the terms and conditions of Your Archives.

The National Archives does not have the legal power to ‘alienate’ Crown Copyright, but my colleague Carol Tullo, a Director of The National Archives and the Controller of HMSO, has the personal power to do so. This power is exercised rarely and only to meet a clear and specific need. She sees no need here. GDL does not meet our requirements and moreover the use of it would create problems for us.

We agree that it is good practice to make clear that any restrictions imposed by the terms and conditions do not exclude the legitimate operation of limitations and exceptions, including fair dealing (not fair use, which is a US term and does not apply here), non-commercial purposes, or as permitted by current limitations and exceptions in copyright law. We will revise the text to make this clear.

You are correct that the restrictions are intended to apply to content created by authors, not to extracts and transcripts from the records. Some of these will be Crown copyright to which the waiver applies (N.B. not the 125 year term, since older records, no matter what their age, are also protected until 2039). Others might be non-Crown copyright in which case the copyright holder retains their rights.

You can see that this is becoming a battle of the pedants, and when it comes to pedantry, the civil service always wins. Anyway, I’m happy enough with this outcome. I’ve accepted far more restrictive terms to get my work published in a peer reviewed journal. That “older” documents are under Crown Copyright until 2039 was an unpleasant surprise (has anyone heard about that before? And what does “older” mean? I can’t really be bothered to ask them) but in practice it doesn’t make much difference. There isn’t anything I’d want to do with them which isn’t already allowed by the waiver, and it’s a separate issue from the YA terms of use anyway.

I think it’s now time to get behind Your Archives and help to make it a success. Under the circumstances, proving that a wiki based site can produce valuable knowledge if used correctly is more important than making that knowledge more freely available. The non-exclusive licence and restrictions on re-use might even make contributing more attractive to some people. Getting people with the specialised knowledge of British archives on side is more important than getting Web 2.0 enthusiasts on side. I happen to be a bit of both, but I’m probably unusual in that respect.

Any major original contributions that I write will also be posted here or somewhere else first. Ironically I need to stake my claim to ownership of material in order to make it more freely available! I might also put “swear words” in the versions that I publish outside YA, just because I fucking can (yes, YA terms of use also ban “swear words” - this just makes me want to find and transcribe an original document which uses the word “cunt”; there must be one somewhere, mustn’t there?).