Letters to the Editor

Copyright Revisited

Eric M. Freedman, September 1990

As one who is professionally involved in both history and law, I would like to add a few supplementary words to Professor M. Les Benedict's comprehensive and accurate review of the dangers of current copyright law (April 1990, Perspectives).

Reviewing the decisions of the United States Court of Appeals for the Second Circuit regarding the copyright protection of unpublished material, he suggests that "most historians ought not to abandon traditional modes of scholarly writing, and we must urge publishers not to overreact." I wholeheartedly agree that it would be an enormous tragedy for scholarship if these pernicious doctrines chilled researchers from pursuing certain lines of inquiry, or—even worse—caused them to pull punches in their presentations.

But not every historian is willing to risk becoming a legal guinea pig, and not every historian has a publisher yet.

Help is at hand, and my purpose in writing is to call attention to it. As Professor Benedict notes, the Second Circuit's rulings have aroused widespread and intense criticism within the legal profession. This means that there is a pool of sympathetic lawyers available to provide pre-publication guidance and post-publication legal defense—all on a pro bono basis.

Nor is obtaining referrals to such lawyers particularly difficult. Historians affiliated with larger institutions should consult the First Amendment or intellectual property specialists on their law faculties. Other sources would include the chair of the civil rights, communications law, or the intellectual property committee of one's local or state bar association, and the national, state, or regional office of the American Civil Liberties Union. In addition, the Reporters Committee for Freedom of the Press, located in Washington, DC (1735 Eye St., NW, Suite 504, Washington, D.C. 20006; 202/466-6313) handles inquiries of this type on a regular basis.

Although perceptions may be to the contrary, the pro bono record of the legal profession in the First Amendment area is generally a good one, and—in light of the fact that almost all specialists in the area consider the current situation to be simply intolerable—there is every reason to believe that historians who make reasonable efforts to seek out legal help will find it.

In the interests of the country as a whole, they should do so. Historians cannot function professionally if they are cut off from reliance on documents. Lawyers cannot change law, or help people avoid its undesirable consequences, if they are not consulted. And the public cannot progress towards greater enlightenment if it is denied the benefits of historical scholarship and efforts towards legal reform.

Eric M. Freedman
Professor of History and Law School of Law
Hofstra University