LEGAL ISSUES IN TEXTUAL SCHOLARSHIP 

Abstracts

Dirk Van Hulle (University of Oxford, OCTET)

From the Golden Age of the Literary Manuscript to the Ice Age of Copyright 

The twentieth century can be regarded as a golden age of the literary manuscript. Not only did many writers preserve their manuscripts, this act of preservation often also reflected a changing attitude towards their writing – from a product-oriented focus to an approach that included the process as an integral part of the oeuvre, the oeuvre-in-motion as it were. Paul Valéry is a good example of this trend. So is Samuel Beckett. To enable readers to study this shift, however, it is necessary to make genetic scholarly editions that provide access to the manuscripts. The problem is that this highly interesting phenomenon in literary history occurs mainly in the twentieth century and that consequently many of the relevant manuscripts are still under copyright. In a scholarly context that puts Open Access at the top of the agenda (also in funding schemes) the issue of copyright creates a blind spot in that researchers and scholarly editors feel hampered by the copyright hurdle and tend to shift their focus to authors that are out of copyright – a trend that is also noticeable in Digital Humanities. The effect of copyright is therefore that it freezes research into a particular period and thus risks turning the golden age of the manuscript into an ice age. This paper discusses some experiences with editing manuscripts and writers’ libraries in a context of copyright restrictions.  

Paweł Kamocki (Leibniz Institute for the German Language – IDS / CLARIN ERIC)

The Times and How They Are a-Changin'. Textual Scholarship and Copyright Law Today and in the AI-Generated Future

This presentation will introduce some key concepts in copyright law and discuss their impact on Textual Scholarship. It will discuss if and to what extent the exclusive rights of authors, publishers, but also those of other researchers (editors of critical editions or 'owners' of scans) can be an obstacle to textual scholarship research, and whether the existing statutory research exception in EU copyright law fulfil their purpose. It will also present suggestions on how researchers and other right holders can place their collections, articles and other data in the digital commons.

From here, the presentation will look to the future, to examine the impact generative AI may have on textual studies, and how AI-generated texts may disturb not only international copyright law, but also the publishing sector and academia.

Elsa Pereira (University of Lisbon, CLUL)

Authors’ Heirs Obstructing Textual Scholarship in Portugal

Like other European countries adhering to the Civil Law system, Portugal sees copyright as a dualistic right (Akester, 2013: 28) that protects not only the economic value of intellectual property but also the sensitive moral interests of authors. This protection translates into several provisions granted to rightsholders against the academic interest of textual scholarship: the right to authorise or otherwise prevent the publication and use of protected works; the right to oppose modifications to an authorial text and forbid the use of previous versions after a ne varietur edition is published; and the right to the unpublished. 

After the author’s death, “it has not been uncommon for heirs and estates to use their ownership of copyrights to suppress or control scholarship” (Spoo, 2009: 1822), blocking access to manuscripts deposited in public libraries and managing publication authorisations with questionable ethical criteria. To illustrate the depth of the problem, I will refer to several cases involving individual heirs and the Portuguese Society of Authors – a limited liability cooperative currently managing the rights of more than 20,000 affiliated authors. I will argue that, despite some exceptions for teaching and scientific research secured in the Law, the “monopoly control” currently “in the hands of heirs and transferees” allows “mere rightholders to become privileged and sometimes arbitrary custodians” of cultural products (Spoo, 2009: 1827). Such dominant protection granted to later copyright owners is interfering with the course of textual scholarship, causing a bias to literary criticism, while undermining “the production of new knowledge in the humanities and the textual scholarship research ecosystem, rendering scientific publication practically unfeasible” (Pereira, 2023: 127) for anyone investigating textual variance in 20th- and 21st-century poets.

Bibliography:

Akester, Patricia. 2013. Direito de Autor em Portugal, nos PALOP, na União Europeia e nos Tratados Internacionais. Lisboa: Almedina.

Pereira, Elsa. 2023. “Authors’ rights vs. textual scholarship: a Portuguese overview”. Journal of Intellectual Property, Information Technology and E-Commerce Law 14-4: 510-524. URN: urn:nbn:de:0009-29-57882.  https://www.jipitec.eu/jipitec/article/view/19

Spoo, Robert E. 2009. “Ezra Pound’s Copyright Statute: Perpetual Rights and the Problem of Heirs”. UCLA Law Review 56. https://ssrn.com/abstract=1286233

Maia Ninidze (Ivane Javakhishvili Tbilisi State University)

Digitisation of the Archives Belonging to the Heirs of the Classic Georgian Authors

Most of the archival materials of classic Georgian authors are nationalised and preserved in the state repositories, but a part of the personal archives is still kept with the families. Some heirs have a special affection towards the archives of their ancestors and cannot imagine moving them to any other place. In other cases, heirs would like to sell the heritage, but the state institutions cannot pay a reasonable price, and there is a threat that every piece of the documents will be sold separately. One of the aims of the Association for Textual and Editorial Studies and Digital Humanities is to digitise such archives. State institutions have the same approach towards all the archives and similar suggestions to their owners, while the Association found more flexible ways and more acceptable conditions for them. Their contracts with the owners of the archives envisage the following. They place a high-resolution scanner in their house and hire an acceptable person for the heirs who will come to the place and scan the documents without moving them from the flat (Khitarishvili & Mania, 2018). The Association is responsible for using the material only for scientific purposes. They have no right to sell or publish it.

Such conditions turned out to be acceptable for the heirs. Since its foundation in 2019, the Association has already digitised the written heritage of two classic Georgian authors – the whole archive of Guram Rcheulishvili (1934-1960) (Jangidze, 2018) and 1687 units of Galaktion Tabidze’s archive (1892- 1959) kept in his niece’s flat. Thanks to this, much information unknown to the readers is now available. In both cases, digitisation of the archives motivated the heirs to deliver part of the material to the state repositories.

Bibliography:

Jangidze, Maia. 2018. "Personal Archives and Life and Work Chronologies of Writers". Litinfo (Georgian Electronic Journal of Literature)  12. https://www.litinfo.ge/vol-12/jangidze.pdf

Khitarishvili, Ketevan & Mania, Esma. 2018. "New Form of Private Arches Publication – Digital Archive". Litinfo (Georgian Electronic Journal of Literature 12. https://www.litinfo.ge/vol-12/khitarishv.pdf

Veijo Pulkkinen (University of Helsinki)

A Double-Edged Sword: Digital Forensics and Research Permissions in the Study of Born-Digital Manuscripts

For several decades the ever-increasing use of computers by writers seemed to threaten the future of genetic criticism, as there seemed to be no traces left of the digital writing process that could be examined. A solution to the problem was found in digital forensics, which Matthew Kirschenbaum applied to textual scholarship in his highly influential book Mechanisms: New Media and the Forensic Imagination (2008), and which has since been adapted to genetic criticism as well (e.g., Crasson, Lebrave & Pedrazzi, 2019; Ries, 2017).

While digital forensics technically enables the genetic research of the digital writing process, it can prove to be a problem when applying for permission to study born-digital manuscripts. For example, the recovery of deleted files and file fragments raises difficult legal and ethical questions, that can stop the research in its tracks. As archives play an important role as gatekeepers, where they strive to balance the privacy of the donor and the accessibility of the archive material, it is in the interest of each party that the archiving practices are based on a proper understanding of the nature of born-digital material. However, this is not always the case.

In my presentation, I will examine these topics from the perspective of the problems I have encountered in my ongoing research, while also shedding light on the state of archiving practices of born-digital material in Finland.

Bibliography:

Crasson, Aurèle; Lebrave, Jean-Louis & Pedrazzi, Jérémy. 2019. "Le 'siliscrit' de Jacques Derrida. Exploration d'une archive nativement numérique". Genesis 49. DOI: https://doi.org/10.4000/genesis.4316

Kirschenbaum, Matthew. 2008. Mechanisms: New Media and the Forensic Imagination. Cambridge, Mass.: MIT Press.

Ries, Thorsten. 2017. "The rationale of the born-digital dossier génétique: Digital forensics and the writing process: With examples from the Thomas Kling Archive". Digital Scholarship in the Humanities 33 (2). DOI: https://doi.org/10.1093/llc/fqx049

Wout Dillen (University of Borås)

As Open as Possible, as Closed as Necessary. Navigating Legal Issues in a Course on Digitising (and Publishing) Cultural Heritage Materials

For almost 20 years now, the University of Borås, Sweden, has been teaching a course on Digitising Cultural Heritage Materials. At the end of this course, students are expected to perform a small-scale digitisation project, and — where possible — publish their materials online. Since two years, we encourage students to use GitHub Pages as their publication environment.

For this assignment, students are required to plan their project carefully, and make a series of decisions and judgement calls along the way. As such, they encounter many of the same obstacles as digital scholarly editors — including some legal issues that may restrict the publication of their materials. 

In this talk, I will introduce the Open Access templates and other training materials I developed to teach students how to publish their projects on GitHub, and share some of our experiences trying to help students navigate legal issues concerning the publication of their source materials.

Wim Van Mierlo (Loughborough University)

William Wordsworth, the Death of the Author, and the 1842 English Copyright Act

Since the Statute of Anne from 1709/10, Copyright legislation in the United Kingdom has been influenced by constructions of authorship. Authors themselves from Alexander Pope to Charles Dickens actively campaigned for changes that better would protect their intellectual and financial interests. This paper explores how William Wordsworth in 1837 used the Romantic concept of ‘creative genius’ to lobby government to extend the copyright term beyond the life of the author. As no other Wordsworth was aware that an author’s reputation was an asset that could only reach its full value until after his death. He was conscious of the fact that success was not to be during his lifetime. Indeed, he worked to a vision of the eternal poet when his greatest poem, The Prelude, an autobiographical poem about the growth of the poet’s mind completed around 1835, was not to be published during his lifetime. The 1842 Copyright Act recognised the value of reputation and extended the existing copyright term to seven years after the author’s death or forty-two years from first publication, whichever was longer.

Fatiha Idmhand (University of Poitiers / ITEM – CNRS/ENS)

Manuscripts of Contemporary Authors and Copyright: Exploring the Possibilities?

The manuscripts and archives of contemporary writers (20th and 21st centuries) present numerous legal challenges to researchers. Whether it's digital editions, digitisation projects or genetic studies, grappling with the boundaries imposed by intellectual property rights, copyright, and privacy laws can make the publication of the research results, of the data and images complex (Pierazzo, 2015), and sometimes even impossible (Calvo Tello, Rißler-Pipka, 2023). We suppose that this is one of the reasons, at least in part, why digital humanities have produced relatively few works on contemporary creations and why genetic studies on these works are often hindered by copyright issues. How to navigate these difficulties and work with contemporary creations within the bounds of the law? This is the question we aim to address and discuss during this presentation.

Bibliography:

Calvo Tello, José & Rißler-Pipka, Nanette. 2023. “¿Qué hacer con textos que no se pueden publicar? Datos derivados, criterios FAIR y TEI”. Journal of the Text Encoding Initiative, 16. DOI: https://doi.org/10.4000/jtei.4720

Pierazzo, Elena. 2015. Digital Scholarly Editing: Theories, Models and Methods. Farnham, Surrey: Ashgate.